Langone Seeks Dismissal of Spitzer's NYSE Lawsuit

NEW YORK – Billionaire financier Kenneth Langone Monday asked a New York state judge to dismiss him from a lawsuit filed by New York Attorney General Eliot Spitzer over his alleged role setting the controversial compensation of former New York Stock Exchange Chairman Richard Grasso.

Langone, head of Invermed Associates and a co-founder of Home Depot Inc. (HD), in an affidavit Monday said discovery related to Spitzer's lawsuit so far has shown he "repeatedly" disclosed Grasso's bonus payments to the NYSE's compensation committee.

Spitzer named Langone in a lawsuit he brought against Grasso in May 2004.

In the suit, Spitzer alleges NYSE's board of directors was misled on various aspects of Grasso's compensation contract. Grasso was forced to resign from the NYSE in September 2003 and Spitzer sued him the following year, claiming the $193 million pay package was excessive under New York's not-for-profit law and that a large part of it should be returned to the NYSE.

Spitzer has accused Langone of misleading the NYSE during the first three years of head of the committee.

Langone, however, argues that summary judgment should be granted dismissing the complaint against him, saying he and others "repeatedly" disclosed Grasso's deferred compensation, or Capital Accumulation Plan (CAP) awards to the board.

He claims that Spitzer has "failed to produce any admissible evidence to support his claim."

"With document discovery virtually complete, with more than one million pages of documents having been produced, and after more than 60 days of deposition testimony given by some three dozen witnesses to date, the evidence is uncontroverted that Grasso's CAP awards were disclosed repeatedly to the Board and the Compensation Committee, by Langone and others," the motion reads.

Spitzer spokesman Marc Violette said: "More than a year ago, Mr. Langone filed a notice for summary judgment. We prevailed then and we fully expect to do so again. Our case is strong."

Langone's spokesman Jim McCarthy countered: "This is the first motion for summary judgment." McCarthy said that at the outset of the case a motion for dismissal was filed, based on arguments about the legal merit of the case. Monday's motion was "vastly different because it looks at the evidence discovered," he said.

Spitzer's Violette added that "it was just last week, and after a long delay, that lawyers for Mr. Langone finally agreed to a date for him to sit down under oath for a deposition in our lawsuit against him. The filing today of a motion to dismiss is a not so subtle maneuver to ensure that Mr. Langone does not sit down and answer questions under oath."

Langone's attorneys Gary Naftalis and William Taylor said in an e-mailed statement: "Not a single witness claims Mr. Langone misled the NYSE. These witnesses confirm the sworn testimony that Mr. Langone gave the SEC and the Attorney General during their investigations, as well as his two voluntary interviews with the NYSE's lawyers and his sworn affidavit accompanying this motion. Mr. Langone is eager for the court to review and rule expeditiously on this, his first and only motion for summary judgment filed in the case."

Violette said Langone is scheduled to be deposed "in March."