Marc A. Topaz

Landmark Results

• Delphi Corporation: Shareholders recover in accounting case

  Represented an Austrian mutual fund manager, Raiffeisen Capital Management, as co-lead plaintiff in class action litigation alleging that auto-parts manufacturer Delphi Corporation (Delphi) had materially overstated its revenue, net income and financial results over a five-year period.

  Specifically, we charged that Delphi had improperly (i) treated financing transactions involving inventory as sales and disposition of inventory; (ii) treated financing transactions involving “indirect materials” as sales of these materials; and (iii) accounted for payments made to and credits received from General Motors as warranty settlements and obligations. When the fraudulent accounting practices became known, Delphi was forced to restate five years of earnings, and ultimately declared bankruptcy. We reached a $38 million settlement with Delphi’s outside auditor; in addition, the class has excellent prospects for recovery through bankruptcy litigation.

• Southern Peru Copper Corp.

  Case Caption: In re Southern Peru Copper Corporation Shareholder Derivative Litigation

  Case Number: C.A. No. 961-CS

  Court: Delaware Court of Chancery

  Judge: Honorable Leo E. Strine

  Plaintiffs: Michael Theriault, as trustee of and for the Theriault Trust

  Defendants: Americas Mining Corporation, German Larrea Mota-Velasco, Genaro Larrea Mota-Velasco, Oscar Gonzalez Rocha, Emilio Carillo Gamboa, Jaime Fernando Collazo Gonzalez, Xavier Garcia de Quevedo Topete, Armando Ortega Gomez, Juan Rebolledo Gout, Southern Peru Copper Corporation

  Overview: KTMC brought derivative claims on behalf of stockholders of Southern Peru, alleging that Southern Peru’s majority stockholder Grupo Mexico had caused Southern Peru to purchase mining assets from Grupo Mexico for an inflated price. Grupo Mexico sold these mining assets to Southern Peru in exchange for $3 billion in Southern Peru stock. We alleged that Grupo Mexico had caused Southern Peru to grossly overpay for the private company in deference to its majority shareholder’s interests. Discovery in the case spanned years and continents, with depositions in Peru and Mexico. The trial court agreed and ordered Grupo Mexico to pay more than $2 billion in damages and interest. Grupo was forced to pay this amount back to Southern Peru to remedy the overpayment. The Delaware Supreme Court affirmed on appeal. The judgment is believed to be the largest trial verdict in Delaware corporate law history.