NEW YORK Feb 20 A New York state appeals court on Thursday revived the New York Attorney General's claims for $150 million in fees that Ernst & Young earned from Lehman Brothers Holdings in the years leading up to the bank's 2008 collapse.
The state wants to recoup the fees as part of a lawsuit against Ernst & Young over its auditing of Lehman Brothers. The 2010 lawsuit accuses the firm of assisting Lehman in accounting fraud.
Reversing a lower court ruling, the appeals court found that a lower court erred when it ruled New York could not seek the fees because they were not paid by consumers or the state.
In a unanimous opinion, the appeals court said that, when a claim is based on fraudulent activity, disgorgement of the fees is available as a remedy.
"Disgorgement aims to deter wrongdoing by preventing the wrongdoer from retaining ill-gotten gains from fraudulent conduct," the five-judge panel wrote.
Amy Call Well, a spokeswoman for Ernst & Young, declined to comment immediately after the ruling.
The reversal gives new life to the attorney general's lawsuit, which could otherwise be hampered if private cases are settled first.
The appeals panel considered that possibility in its decision. Allowing the attorney general the remedy is "crucial," the appeals panel wrote, particularly if related investor lawsuits are settled, precluding the state from seeking the same restitution and damages.
The attorney general has alleged that, for more than seven years leading up to Lehman's 2008 bankruptcy, Ernst & Young made use of transactions known as "Repo 105s," which removed tens of billions of dollars from the bank's balance sheets, misleading investors and others about the bank's financial condition.
Ernst & Young has said it acted properly and that Lehman's accounting complied with national standards.
Lehman filed for bankruptcy on Sept. 15, 2008, in the midst of the financial crisis.
The case is People of the state of New York v. Ernst & Young, New York state Supreme Court, New York County, No. 451586/2010.