Wednesday, April 6, 2011

Cleveland vs. Wall Street: Interview with Attorney Joshua Cohen

By Pete Roche

Attorneys working for the city of Cleveland filed a landmark civil suit against thirty-two banks in 2008 seeking millions of dollars in damages for the “public nuisance” caused by the foreclosure crisis.  Joshua Cohen (of Cohen, Rosenthal, & Kramer, LLP) served as lead counsel for the City (in real life and during Bron’s film) and is regarded as something of an expert in unwieldy litigation.  The San Antonio native spearheaded the case of disenchanted Browns season ticket holders who lost out when owner Art Modell moved the troubled team to Baltimore (Beder v. Cleveland Browns, 114 Ohio Misc. 2d 26, 758 N.E.2d 307).  Cohen is currently prosecuting a suit to recoup losses for Ohio victims foiled in multi-million-dollar Ponzi scheme. 

Cleveland's lawsuit became the basis for the new documentary CLEVELAND VS. WALL STREET. The film, directed by Jean-St├ęphane Bron, premiered at the Cannes Film Festival and screened to a full house at the Cleveland International Film Festival on April 2nd.  It will debut at both the Capitol and Cedar Lee Theatres on April 5th, then goes to wide release April 8th.  Cleveland Movie Blog spoke with attorney Joshua Cohen about the lawsuit, the movie—and his thoughts on the local repercussions of the ongoing economic crisis.
CLEVELAND MOVIE BLOG: So how did the City of Cleveland approach you about filing this claim?

COHEN: I became involved in the case in the summer of 2007.  I was approached by some housing activists who were convinced Wall Street was responsible for what was going on in the neighborhoods.  They asked me to come up with a theory to go after Wall Street.  And as I tried to put a case together, a theory, I came to the conclusion that the real damaged party—the one that would have the strongest case, in my view—would be the city.   Because there would be a problem in suing on behalf of homeowners, because there’s a real question as to who’s responsible for bad loans.  Where the borrowers responsible, or were they being taken advantage of?  Which—you can have your own biases—it’s an issue I preferred to not take on.  So I talked to the Law Director for the City of Cleveland, Robert Triozzi, who was thinking along the same lines I was, as it turns out, and we filed in January of 2008.

CMB: Right.  Triozzi was a Cleveland Municipal Court Judge for a number of years [and ran for mayor in 2005].  Slavic Village resident Barbara Anderson [from the Empowering and Strengthening Ohio’s People] serves as a juror in the movie.  Was she one of those housing advocates you mentioned?

COHEN: No, no.  I only met Ms. Anderson through the movie.  The guys I met were with Community Housing Solutions, and Paul Bellamy—who’s been with many organizations.  They just approached me.  I don’t remember who was affiliated with whom, but they approached me in the summer of 2007.

CMB: So what’s the status of the real case?  I understand defense counsel for the banks have filed motions to keep it on hold.

COHEN: Actually, there are two cases: One was originally filed in state court in January 2008, was removed to Federal court, and that case was dismissed.  We appealed to the Sixth Circuit.  They affirmed the dismissal.  We tried to get the Supreme Court to review it, and just last week the Supreme Court denied our petition for cert.  So we’re dead in that case.  But we have a second state case, in the Cuyahoga Court of Common Pleas in front of Judge Brian Corrigan, which alleges the same claims we had in the Federal case—plus some additional ones.   That case is still alive and well (CV08646970).  We have great hopes for that, but we’re meeting the same sort of opposition.  A real bitch of a defense on that.  So motions to dismiss are pending on that case, and we’re just waiting for a ruling on it.

CMB: The case before Judge Corrigan is the public nuisance tort, yes?

COHEN: Yes, the state case has a public nuisance claim in it, and we also have a state racketeering claim on it as well, based on the practices of these companies of filing foreclosure actions without actually owning the undersigned mortgages.  You know, this whole robo-signing thing that came out last fall and stuff.  The city had actually been alleging that since the summer 2008.  The federal case was only focused on public nuisance, so we have a little bit more involved in this new state case.  The thing is, in the movie, we really didn’t present a lot of direct evidence.  If the case really went forward we would be able to put out what the city actually suffered with respect to demolished home. Councilman Brancatelli [Ward 12] touched on it a little—but demolished homes, fire coverage, police coverage, maintenance—how the diversion of funds took place from neighborhood develop and these sorts of things.  Cleveland had been a national leader in neighborhood development at the beginning of the 2000s, but that just disappeared, largely because of funds were diverted from that sort of stuff to, you know, dealing with these abandoned properties. 

CMB: How did Jean-Stephane come to you about doing a film? 

COHEN: Jean-Stephane Bron came to us originally in connection with the real case.  He approached the city about filming the actual litigation.  We went through a fairly complicated procedure with him, because they were going to film behind the scenes and we were worried about attorney-client privilege and all that stuff.  So we finally reached an arrangement where we could do it, but it became apparent to Jean-Stephane in 2009 that the case was not going to go to trial for a while, if at all.  So he approached me in March of 2009 about this idea of having a mock trial.  And I’ve got to be honest—initially I wasn’t overly optimistic about how effective that would be.  But he put together these witnesses and hired defense counsel.  And we did this trial, which was obviously unreal in some respects.  It was staged; you did various takes and stuff like that.  But in other respects it was very real.  The competitive nature of it.  I found myself in the trial, wanting very much to get effective testimony and feeling the same competitive push that I would in a real case, and try to make my points with the same sense of advocacy that I would have in a real trial.

CMB: Yeah, I noticed sometimes they would pan to [defense counsel] Mr. Fisher, and he’d have this villainous grin on his face.

COHEN: Yeah.  Apparently the…I’m not known for having a very good poker face.  And sometimes the people in the gallery would watch for my reactions to what he was doing.  They could see I was intensely reactive to what he was doing.  And really involved in this.  And as I say in the movie, one of the things that really comes through is that this wasn’t an academic exercise for us.  We live with this every day.  Driving to work or whatever, we see this happening to our city.  And you can talk about whether or not Wall Street is responsible.  You can deal with that in the abstract—but the fact of the matter is, whether they are [responsible] or not, we have to deal with the consequences of what happened every day.  And that’s hard to do. 

CMB: Was there any fear of showing your hand, legally speaking, by participating in the movie?

COHEN: Not really.  The real case—I don’t think it will proceed necessarily the same, if we’re fortunate enough to get that to trial.  Some of the testimony will be the same.  But this was a very stylized sort of presentation.  Not the sort of presentation that would take place in a real case.  Certainly some of the testimony, some of the items would overlap.  But I wasn’t worried about giving anything away.  Any secrets. 

CMB: So the arguments stayed on the surface level; you didn’t get into technical details.

COHEN: We didn’t get into technical details, didn’t get into the city aspect.  We didn’t get to question anyone from Wall Street; Peter Wallison [former White House advisor and economic consultant] was the stand-in for that.  I think we got to the issues, just not as directly as we would have in a real trial.

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