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Jay Alix v. McKinsey Update

posted by Stephen Lubben

As my summer of poutine, donairs, and nippy waters winds down, a quick post to note that the long-expected motion to dismiss has been filed in the battle between the chapter 11 financial advisors. A McKinsey spokesperson also provided the following statement, which gives some insight into how they intend to respond to this case:

“Jay Alix has waged a years-long crusade against McKinsey & Company to stifle competition in the bankruptcy advisory market. His attempt to bootstrap a disclosure dispute into a RICO action is devoid of any legal basis and obviously intended to do nothing but inflict reputational damage. Courts have previously upheld the appropriateness of McKinsey’s disclosures. This lawsuit is just one more part of Mr. Alix’s anticompetitive campaign to push out of the market a competitor whose deep expertise and unmatched scale deliver superior bankruptcy outcomes.”


"[D]eep expertise and unmatched scale deliver superior . . . ." Really? McKinsey is the master of all--Mongol horses to NASA satellite--experts of all, needles to elephants. We know this divine hand played a bit with Eskom company, South Africa, a Gupta curse again. New York Times, very recently shared its impression. In this case, facts they don't deny [perhaps their denial is worthless at this stage of 12(b) motion], nor do they provide a parallel narrative to tumble the complaint under Twombly. With broad reading of RICO provisions, the Complaint has traction. An intelligent judge would deny their motion. Their claim of lack of proximate cause is baseless. It just cannot be that the injury was not foreseeable and not substantial. It was but a natural consequences of how McKinsey was disclosing or rather not disclosing. Clearly here, the predicate acts were sufficiently related to a form a pattern and harm Jay--the stage is set. True, McKinsey did not lobby against Jay for professional engagement. Does not matter that it is the Court that did not hire Jay, but how they were deprived was set in motion by McKinsey. Proximate cause was McKinsey. Which way this camel would sit is clear.

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