Ashursts wins Nomura after A&O is conflicted

Nomura's £1.2m damages case against CSFB causes spate of City firm conflicts

Ashurst Morris Crisp has benefited from a conflict situation between top City firms. The litigation team has landed a role as lead adviser to Nomura on its high-profile case against Credit Suisse First Boston (CSFB) for damages in the region of £1.2m over Railtrack convertible bonds.
A source within Nomura told The Lawyer: “We wouldn't usually use Ashursts for this type of work. Allen & Overy is our main adviser but it was conflicted out, as it also acts for CSFB.”
Nomura uses Allen & Overy for most of its credit derivatives work as well as Linklaters and Clifford Chance. It has also used CMS Cameron McKenna on corporate work and Berwin Leighton Paisner for transactional-based work.
CSFB has instructed Norton Rose to lead its defence. For investment work it has a panel of law firms which include Allen & Overy, Clifford Chance and Linklaters. Recently, CSFB has also instructed Slaughter and May on Capital & Regional's return of £50m to shareholders by way of a tender offer from CSFB. It has also used Herbert Smith in the past and even recommended the firm to Spherion Corporation on the float of its subsidiary, Michael Page, in 2001.
Slaughter and May was approached by Nomura to act on the case, but the firm declined. “It said that it couldn't act for us, but also that it wouldn't act against us,” the source told The Lawyer. A partner at one of Nomura's usual firms said: “We were unable to act for either side as they are both highly valued clients.”
The instruction is good news for Ashursts' litigation team as this is the first time it has acted on anything this significant or high profile for Nomura. The Nomura source told The Lawyer: “I can't recall a litigation case on this level where Nomura has instructed Ashursts. It usually uses it for corporate share purchase agreements.”
Most recently Nomura and 3i instructed Ashursts on a subscription for second round preference shares in Arakis, a biotech company.
The case involved highly complex credit derivatives matters and is likely to go all the way to the High Court. “Although it's a hugely strategic issue, it is likely that it will be a test case because of the issues involved. The Court of First Instance and the Court of Appeal will really be stepping stones to the House of Lords,” the source said.
Robin Potts QC of Erskine Chambers was retained by Nomura prior to Ashursts being instructed.