Securities Litigation

LEADERS

Overview

The Securities Litigation Practice Group offers integrated solutions to corporations in times of unexpected crisis.

The Securities Litigation group offers solutions to the overlapping array of challenges involved in cases ranging from headline-grabbing corporate takeover battles to major financial restatement cases, SEC insider-trading probes or government enforcement actions.  Our team of experienced litigation lawyers provides integrated solutions for crisis-related events including:

  • Whistleblower complaints
  • Internal investigations
  • Mergers and acquisitions and takeover litigation
  • Securities class actions
  • Derivative suits
  • U.S. Securities and Exchange Commission (SEC) enforcement actions and pre-enforcement proceedings
  • U.S. Department of Justice (DOJ) investigations and litigations
  • Foreign exposures and investigations

The American Lawyer named Gibson Dunn a Finalist in its 2018 Litigation Department of the Year competition.  This award followed our firm’s unprecedented three wins in this biennial competition – as the 2016, 2012 and 2010 Litigation Department of the Year – and 2014 Finalist honors.  Many of our securities litigators have been recognized by publications such as Chambers as among the best in the United States and in key jurisdictions such as New York and California.  U.S. News – Best Lawyers® “Best Law Firms” 2017 named Gibson Dunn Law Firm of the Year in Securities Litigation, and Law360 named the firm a 2017 Securities Practice Group of the Year.

Our partners include a number of former senior officials with the SEC, DOJ and the Financial Industry Regulatory Authority (FINRA).  Our California, New York and Washington, D.C., practices are consistently ranked second to none.  Working with our White Collar Defense and Investigations, Securities Enforcement and Crisis Management Practice Groups, we offer integrated solutions to the most complex and challenging situations facing corporate America whether at home or abroad.

EXPERIENCE & RECENT REPRESENTATIONS

In the wake of the financial crisis and the corporate scandals of the past several years, U.S. corporations have been engulfed by securities class action litigation.  These lawsuits pose a significant financial risk not only to the company, but also to its senior management and directors, who are frequently named as individual defendants.

Experience

Gibson Dunn has an outstanding record of obtaining favorable results for our clients in major securities class actions.

Recent representations include:

  • Obtained a complete dismissal of all securities fraud claims against Herbalife Ltd. and its CEO.  Tossing the third amended complaint without leave to amend, the Central District of California found that plaintiffs failed to plead material misstatements or scienter in support of the allegations that the company lied about its compliance with the anti-pyramid scheme laws.  The court ruled that any misstatements were not material, because Herbalife made extensive warnings to investors that its multi-level marketing business model could potentially be challenged as a pyramid scheme.  The court also firmly rejected plaintiffs’ arguments that the complaint sufficiently alleged that defendants did anything with an intent to defraud Herbalife shareholders.
  • Secured complete dismissal of all claims against Molycorp, Inc. and five of its current and former senior executives under the Securities Exchange Act of 1934 in the Southern District of New York.  Plaintiffs claimed that the defendants were liable to Molycorp’s shareholders for making false and misleading statements regarding: (1) the progress of “Project Phoenix,” an effort to modernize Molycorp’s rare earth mine in Mountain Pass, Calif. and expand its production capacity, (2) the amount of inventory, cost of sales, and income tax benefit reported in Molycorp’s first quarter 2013 financial results, which were subsequently restated, and (3) the marketability of Molycorp’s cerium-based water filtration product known as “SorbX.”  Based on the strength of Gibson Dunn’s motion papers, the court held that plaintiffs failed to raise a strong inference of scienter with respect to their allegations regarding Project Phoenix and the financial restatement, and that defendants’ statements regarding SorbX were forward-looking and protected under the Private Securities Litigation Reform Act’s “safe harbor.”
  • Secured dismissal and Second Circuit affirmance of a securities fraud class action against clients UBS AG and four of its senior executives.  The case arose from unauthorized trades by UBS London employee Kweku Adoboli that led to more than $2 billion in losses to UBS’s proprietary account.  UBS promptly disclosed the incident, leading to a stock price decline.  Plaintiffs sued under Securities Exchange Act Sections 10(b) and 20(a), alleging that statements by UBS and the individual defendants concerning the quality of the company’s risk management and controls were false or misleading.  In affirming the Southern District of New York dismissal the Circuit held that plaintiffs had failed to adequately plead scienter.
  • Secured complete dismissal on behalf of The Royal Bank of Scotland plc, RBS Securities Inc., RBS Financial Products Inc. and RBS Acceptance Inc. (the RBS defendants) of a securities class action in the Commercial Division of the New York State Supreme Court.  The case, brought against the RBS defendants and Financial Asset Securities Corp., alleged fraud and negligent misrepresentation in connection with the sale of over $337 million worth of residential mortgage-backed securities issued in 29 different offerings.  The court agreed with Gibson Dunn that the complaint failed to plead the plaintiffs’ justifiable reliance on the alleged misrepresentations.
  • Successfully represented a former executive of a major international insurer in a securities class action relating to the company’s exposure to the subprime mortgage market.  The Southern District of New York preliminarily approved a proposed class settlement pursuant to which Gibson Dunn’s client will bear no responsibility for a financial contribution to the settlement and will have all claims against him released.
  • Obtained complete dismissal for Microsoft and its senior management in a high-profile class action filed in the wake of a $900 million accounting charge in July 2013 relating to the company’s first-generation Surface RT tablet products. Reflecting the trend of securities class actions brought following the announcement of negative news by high-tech companies related to their paradigm-shifting products, plaintiffs filed suit after a decline in the price of Microsoft stock, leading to a multibillion-dollar drop in market capitalization for a short time.  While the plaintiffs claimed “fraud,” the Western District of Washington accepted all of our arguments for dismissal. Plaintiffs then declined the opportunity to amend their complaint, and the district court entered a final judgment ending the case.
  • In cross-border litigation for Vancouver-based Nevsun Resources, Ltd. and its senior executives we achieved court-approved settlements of parallel class actions in the Southern District of New York and Ontario, Canada. Nevsun is a mining company with major operations in Eritrea, Africa; its shares trade on both the New York and Toronto stock exchanges. The case arose out of Nevsun’s February 2012 announcement that its 2012 gold production would be over 30% lower than previously estimated when the mine first commenced commercial production in early 2011. This announcement led to a significant drop in Nevsun’s common stock. In the initial motion practice, we obtained dismissal of many of the alleged misstatements in the U.S. action, while the court reserved ruling on certain other potentially dispositive legal issues involving the interplay between U.S. and Canadian securities laws, including whether the U.S. action could certify a “global” class of investors that would have included shareholders who purchased their shares on the Toronto Stock Exchange. After extensive mediation, both the U.S. and Canadian cases were resolved for a fraction of the total damages exposure, with neither of the two settlements permitting a class to be certified that included citizens of the other country
  • Secured dismissal of securities fraud class action and entry of final judgment for KV Pharmaceutical Company and three senior executives in the Eastern District of Missouri, in a case arising from KV’s launch of a drug that reduced the risk of pre-term births.  After KV announced the FDA’s grant of statutory market exclusivity and that it would charge substantially more for the drug than compounding pharmacies, the FDA exercised its discretion not to enforce the market exclusivity and KV’s stock price declined.  Plaintiffs alleged that defendants failed to warn investors of the risk that the FDA could choose not to enforce market exclusivity.  The court dismissed with limited leave to amend the complaint and subsequently denied plaintiffs’ motion for reconsideration, reiterating that most of the allegedly false statements were forward-looking, accompanied by cautionary language and thus protected by a statutory safe harbor.  The court further reaffirmed that the remaining allegedly false statements and omissions did not meet pleading requirements.
  • Successfully opposed certification of a putative securities class action in the Northern District of Texas for the syndicate of underwriters for the initial public offering of Kosmos Energy.  The lawsuit, brought on behalf of stock purchasers in the IPO, asserted Section 11, 12(a) and 15 claims under the Securities Act of 1933 against Kosmos, its directors and senior officers, and 11 underwriters led by Citibank, Credit Suisse and Barclays.  Noting that the U.S. Supreme Court’s Comcast decision, a Gibson Dunn win, required that “plaintiffs seeking certification must produce quality evidence for each Rule 23 element—period,” the court concluded that plaintiff had failed to meet its evidentiary burden of demonstrating that common issues predominated.  Gibson Dunn worked closely with counsel for Kosmos in defending the case and opposing class certification.
  • Won dual victories on behalf of Leidos Holdings, Inc. (formerly SAIC, Inc.), in cases arising from SAIC’s $500 million settlement and deferred prosecution agreement with the U.S. Department of Justice related to SAIC’s involvement with CityTime, the New York City payroll system.  In the wake of that resolution shareholders filed derivative suits and securities class actions in federal and state courts around the United States.  We secured dismissal and subsequent Second Circuit affirmance of all derivative claims against the directors.  In the Southern District of New York we then obtained dismissal of all remaining claims in the securities class actions, pertaining to allegations that Leidos failed to make proper FAS 5 disclosures.  These dual rulings dismissed all remaining shareholder litigation against Leidos, and clarified the standards for pleading director liability under Delaware law, and for FAS 5 liability in 10(b) practice
  • Won dismissal and Fourth Circuit affirmance of all class action claims against Merrill Lynch Pierce Fenner & Smith Inc. and RBC Capital Markets, LLC under the Securities Act of 1933.  The case arose from price declines in the stock of Municipal Mortgage & Equity, LLC (“MuniMae”) when the company announced accounting errors and cuts in its dividend payments. The plaintiffs claimed that MuniMae was liable to its shareholders for making false and misleading statements, and that Merrill Lynch and RBC, underwriters for a secondary public offering of MuniMae stock in 2005, were liable under Sections 11 and 12(a)(2) for incorporating those statements into underwriting documents.  The appeals court held that the Section 11 claims were barred by the three-year statute of repose and that the plaintiffs lacked standing to sue under Section 12(a)(2).
  • Secured dismissal in the Southern District of New York in majority of claims filed against UBS AG and 15 other banks in three class actions and four individual actions that claimed unlawful manipulation and collusion in the process of setting the U.S. Dollar LIBOR reference rate.  The court dismissed all state and federal antitrust claims because plaintiffs lacked antitrust standing, dismissed all RICO claims because plaintiffs’ invocation of the statute was barred by the PSLRA and impermissibly extraterritorial, and dismissed a significant portion of the Commodity Exchange Act claims as barred by the statute of limitations.  The court further significantly narrowed the theories by which plaintiffs could recover for their timely Commodity Exchange Act claims.
  • Won Tenth Circuit affirmance of dismissal of all claims under Section 11 of the Securities Act of 1933 against clients Citigroup, Oppenheimer, RBC Capital Markets, Stifel, Nicolaus & Company, Wells Fargo (Wachovia) and BB&T in a subprime-related securities class action arising out of the 2008 collapse and subsequent bankruptcy of New Mexico-based Thornburg Mortgage, Inc., an originator and syndicator of MBS securities during the subprime boom.  The claims against Gibson Dunn clients centered on two public offerings of Thornburg securities in May and June 2007, in which our clients served as underwriters.  After the district court first dismissed the case, the plaintiffs filed an amended complaint following which the court again granted Gibson Dunn’s motion to dismiss.
  • Won Second Circuit affirmance of the dismissal of all claims against our clients, the former senior officers of Eastman Kodak Company, in a class action filed under the Securities Exchange Act of 1934 in the wake of Kodak’s January 2012 bankruptcy.  The lawsuit alleged misrepresentations and omissions during 2011 that supposedly concealed that Kodak was suffering a liquidity crisis due to its inability to successfully license or sell its IP assets, and that by the fall of 2011 it was on the brink of bankruptcy.  Gibson Dunn had obtained final dismissal from the Southern District of New York, which agreed with our argument that plaintiff’s claims amounted to “fraud by hindsight.” The Second Circuit affirmed just two weeks after oral argument, summarily rejecting all of plaintiff’s contentions.
  • Obtained Third Circuit affirmance of dismissal of a shareholder class action alleging that UBS and its affiliates violated the federal securities laws in connection with a $2.5 billion mortgage-backed securities offering in 2007.  This was the first appellate decision to uphold the dismissal of a mortgage-backed securities case on statute of limitations grounds.  The lawsuit charged UBS affiliates with failing to disclose material information about the underwriting practices used in originating the loans that comprised the offered securities.  Agreeing with the then-novel defense advanced by Gibson Dunn, the district court twice dismissed the lawsuit on statute of limitations grounds.  In affirming, the Third Circuit concluded, as UBS had argued, that prior mortgage-backed securities litigation put the lead plaintiff on notice of its claims, and that through a reasonable investigation, it could have discovered its claim prior to the relevant statute of limitations period.
  • Secured resolution of a major credit crisis securities class action against UBS Financial Services arising out of its role as underwriter of 84 public offerings of Lehman Brothers “Principal Protection” Structured Notes.  After the notes became largely worthless following Lehman’s bankruptcy in September 2008, the class action was filed claiming that offering materials misrepresented Lehman’s creditworthiness and failed to disclose its exposure to certain credit risks.  The suit, part of the larger consolidated class and ERISA litigation pending in the Southern District of New York, also contended that UBSFS failed to disclose the existence of secret “repo” transactions entered into by Lehman.  USBFS’ settlement agreement to pay $120 million will fully release it from all claims related to the issuance of over $1.2 billion of Structured Notes, roughly ten cents on the dollar.
  • Obtained Second Circuit affirmance of the denial of motions to intervene to assert class claims under the Securities Act of 1933 against clients Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., and Morgan Stanley & Co. LLC.  The lead plaintiffs in the underlying action had asserted putative class claims relating to 106 offerings of residential mortgage-backed securities.  After the district court dismissed claims relating to over 90 offerings in which the lead plaintiffs did not invest, six pension funds filed motions to intervene to assert class claims relating to eight of those offerings.  The district court denied as untimely the intervention motions to the extent they were filed more than three years after the offerings occurred.  The Circuit agreed, and rejected the attempt of absent class members to intervene as named plaintiffs to revive claims that had been dismissed from a class action complaint for lack of standing.
  • Secured denial of class certification from the Southern District of New York in a securities class action against China Automotive Systems, Inc., several of its officers and directors, and Gibson Dunn client Schwartz Levitsky Feldman LLP, China Auto’s former auditor.  Plaintiffs’ 10b-5 case alleges that misrepresentations in China Auto’s accounting for certain convertible notes, which had been restated in subsequent financial statements, caused a substantial decline in the company’s stock price.  After the court rejected defendants’ motions to dismiss, Schwartz Levitsky retained Gibson Dunn and defendants contested class certification.  The court cited adequacy and typicality grounds in denying certification, and agreed that plaintiffs had failed to prove market efficiency and were not entitled to a fraud-on-the-market theory of reliance.
  • Secured court-approved final settlement of securities fraud claims against the former directors and officers of client Ener1, Inc., a once-high flying manufacturer of lithium batteries intended to power the next generation of electric cars.  The company foundered when the electric car market deteriorated and its stock price collapsed upon announcement of an impairment charge on an investment in a foreign electric car manufacturer, a key customer.  The action claimed the directors and officers misled the market about Ener1’s prospects for future revenue growth and that the investment should have been written off nine months earlier.  Settlement came after Gibson Dunn’s motion to dismiss and was funded by Ener1’s D&O insurer, with our clients paying nothing.
  • Won dismissal of amended complaint in residential mortgage-backed securities (RMBS) lawsuit for clients RBS Securities Inc. and related entities and individuals (RBS defendants).  In 2006, plaintiff Stichting Pensioenfonds ABP, one of the world’s three largest pension funds, purchased RMBS that were securitized and underwritten by the RBS defendants.  After the collapse of the residential real estate market Stichting sued, alleging securitization of defective mortgage loans and asserting securities fraud claims under the Securities Exchange of 1934 as well as common law fraud and negligent misrepresentation claims.  Adopting Gibson Dunn’s arguments, the court dismissed all of Stichting’s claims for failure to plead a material misstatement, failure to plead a strong inference of scienter, and failure to plead the requisite “special relationship” for a negligent misrepresentation claim.

All too often, derivative actions are filed on the heels of securities fraud class actions.  These cases, which are purportedly brought on behalf of the company against its directors, pose a particular concern for board members.

Experience

Gibson Dunn has decades of experience representing companies and their directors and officers in defending, and taking control of, shareholder derivative actions.

Recent representations include: 

  • Representing one of the world’s leading retailers and its current and former directors and officers in civil litigation filed across the United States by the company’s shareholders relating to alleged corruption in Mexico.  Shareholder derivative lawsuits were filed in the Delaware Chancery Court and the Western District of Arkansas, two cases were filed in Arkansas state court, and a shareholder securities class action was filed in the Middle District of Tennessee (subsequently transferred to the Western District of Arkansas).   Accepting Gibson Dunn’s arguments, the Western District of Arkansas stayed the six consolidated actions before it in light of the substantially similar shareholder derivative actions pending in the Delaware Chancery Court.  This ruling followed a similar one from an Arkansas state court that granted Gibson Dunn’s motion to stay a similar shareholder derivative action in that court.  The Western District of Arkansas subsequently adopted Gibson Dunn’s arguments in connection with a shareholder derivative action brought in Arkansas state court but removed to federal court, denying plaintiff’s remand motion and granting our clients’ motion to stay pending the related Delaware litigation.  These combined rulings permit our clients to litigate the shareholder derivative claims exclusively in the Delaware courts.  Parallel government investigations are being pursued by the SEC and the Department of Justice.
  • Secured the voluntary dismissal in the Central District of California of a shareholder derivative suit against Conversant, Inc. (formerly known as ValueClick, Inc.), its directors and officers.  The suit was prompted by the company’s announcement of a major write-down of a note receivable taken in connection with the sale of its lead generation business unit as well as a significant drop in revenues and income from its media segment business.  The complaint largely copied similar allegations in a securities class action filed against the company that also was voluntarily dismissed.  Shortly after Gibson Dunn moved to dismiss the derivative action for failure to allege demand futility as required by Delaware law plaintiff’s counsel voluntarily dismissed.
  • Obtained dismissals in the Southern District of New York of two shareholder derivative actions and an ERISA action on behalf of JPMorgan’s independent directors, in connection with the company’s $6 billion “London Whale” trading losses.  Plaintiffs in the principal derivative action alleged that making a litigation demand on the JP Morgan Board would have been futile; in a “demand made” action, the plaintiff claimed that the JPMorgan Board had wrongly refused to bring an action against those responsible for the company’s CIO division losses.  The court rejected plaintiffs’ arguments, as it did also in the action alleging that the JPMorgan directors breached their fiduciary duties under ERISA by continuing to offer participants in the company’s 401(k) plan an opportunity to invest in JPMorgan stock, and by providing them with inaccurate investment information.  Gibson Dunn worked closely with counsel for JPMorgan in the defense of these lawsuits.
  • Secured an unprecedented arbitration victory for Corvex Management and Related Fund Management arising from their campaign to remove the Board of Trustees of CommonWealth REIT due to the Trustees’ gross mismanagement of the company.  After a two- week hearing on the merits, a panel of arbitrators sided with Gibson Dunn and invalidated a series of by-laws unilaterally enacted by CommonWealth’s Trustees to entrench themselves in office and prevent a shareholder vote on removal.  To remedy the Trustees’ actions, the arbitration panel adopted a streamlined procedure for CommonWealth shareholders to have a vote on the Trustees’ removal.  Corvex and Related then secured consents from holders of more than 80% of CommonWealth’s shares, forcing the removal of all seven members of CommonWealth’s board.
  • Won dual victories on behalf of Leidos Holdings, Inc. (formerly SAIC, Inc.), in cases arising from SAIC’s $500 million settlement and deferred prosecution agreement with the U.S. Department of Justice related to SAIC’s involvement with CityTime, the New York City payroll system.  In the wake of that resolution shareholders filed derivative suits and securities class actions in federal and state courts around the United States.  We secured dismissal and subsequent Second Circuit affirmance of all derivative claims against the directors.  In the Southern District of New York we then obtained dismissal of all remaining claims in the securities class actions, pertaining to allegations that Leidos failed to make proper FAS 5 disclosures.  These dual rulings dismissed all remaining shareholder litigation against Leidos, and clarified the standards for pleading director liability under Delaware law, and for FAS 5 liability in 10(b) practice.
  • Won dismissal from the Northern District of Texas of a creditor derivative lawsuit seeking over $725 million from Energy Future Competitive Holdings, Inc. (EFCH) and its directors.  The decision acknowledged a significant difference between Texas and Delaware law on an issue of recurring importance to corporations and their directors.  The plaintiffs were subsidiaries of Aurelius Capital Management, a hedge fund that had purchased bonds backed by an EFCH guarantee.  Alleging that EFCH had failed to charge an adequate interest rate on loans to EFCH’s parent company, Aurelius filed suit challenging the loans’ terms, arguing that its status as an EFCH creditor gave it standing to sue derivatively because EFCH was insolvent at the time suit was filed.  The court, dismissing for lack of standing, adopted Gibson Dunn’s argument in its entirety:  While the Texas Trust Fund Doctrine allows creditors to sue corporations and their directors for breach of fiduciary duty if the corporation both is insolvent and has ceased doing business, it was undisputed that EFCH had not ceased doing business.  Acknowledging that Delaware follows a different rule and allows creditors to bring derivative suits whenever a corporation is insolvent, even if still operational, the court concluded that the Delaware rule was inconsistent with the pronouncements of Texas intermediate appellate courts on the issue.
  • Secured dismissal with prejudice of all claims against the directors of Hewlett-Packard in a shareholder derivative suit arising out of the termination of former CEO Mark Hurd, and related claims of breach of fiduciary duty lodged against HP’s board of directors.  Plaintiff made demand on HP to bring claims against the directors for, among other things, violating their duty of oversight, making false statements in HP’s annual proxy statements, and approving an improper severance deal for Mr. Hurd when he was forced to step down as CEO following a personal scandal.  In response, HP conducted an internal investigation and concluded that the directors had not engaged in any wrongful conduct.  Plaintiff sued, claiming that his demand was wrongfully refused, and that HP’s independent committee, in-house and outside counsel had engaged in a “whitewash” investigation designed to exonerate the board and management.  The court dismissed the plaintiff’s original as well as amended complaints and denied further leave to amend.
  • Successfully defended the independent directors of Diamond Foods in shareholder derivative litigation in the state and federal courts in California and Delaware.  The cases arose out of Diamond’s announcement of a major accounting restatement in 2012, and the commencement of an SEC investigation into the restatement issues.  Gibson Dunn represented the audit committee in the company’s internal investigation leading to the announcement of the restatement.  Defendants successfully moved to dismiss both the federal and state court derivative actions, after which the derivative cases settled with no payment from our clients.
  • Obtained a victory on behalf of the directors of Allergan, Inc. in the Supreme Court of Delaware in a derivative lawsuit brought by shareholders who had filed substantively identical actions against the directors in both California and Delaware.  The Delaware court ultimately agreed with Gibson Dunn that the previous dismissal of the federal California action precluded further proceedings in Delaware, holding that under constitutional principles of full faith and credit, the preclusion law of California, not of Delaware, must be applied; and that under established California preclusion law, the dismissal of one shareholder derivative complaint precludes complaints by other shareholders on the same allegations and theories.
  • Successfully settled a shareholder derivative action brought against Gibson Dunn clients, the former independent directors of Wachovia Corp, alleging inter alia that Wachovia issued billions of dollars of “toxic” mortgage loans during the housing bubble and that the board of directors breached its fiduciary duties and failed in its oversight obligations.  Because Wachovia was acquired by Wells Fargo in 2009, plaintiffs asserted “double derivative” claims and alleged that Wells Fargo’s board also breached its fiduciary duties.  The settlement, which followed Gibson Dunn’s motion to dismiss and has been approved by the court, includes certain corporate governance reforms to be adopted by Wells Fargo, but no monetary payment from our clients.  The Northern District of California action is the last of several shareholder lawsuits in which Gibson Dunn acted as national monitoring counsel for the former directors of Wachovia, including class and derivative actions in New York, North Carolina, and Alabama, and a parallel SEC investigation.  The SEC action concluded with no action taken against any of our clients.

Securities litigation is sometimes preceded by, or occurs parallel with, an internal investigation under the supervision of a special committee of the board of directors.  Our lawyers are frequently called on to advise such special committees in conducting internal investigations into alleged insider trading, improper revenue recognition, breaches of fiduciary duty, and violations of U.S. federal and state statutes including the Foreign Corrupt Practices Act.  In recent years, we have conducted independent investigations for the audit committees of numerous Fortune 500 companies.

Gibson Dunn’s securities litigators know that early and aggressive crisis management can enhance a corporation’s credibility with law enforcement officials, regulators and the investment community and head off or limit corporate exposure.

Gibson Dunn’s Securities Litigation Group has extensive experience defending the litigation that inevitably follows the announcement of public company mergers.  We work closely with our corporate lawyers and anticipate potential issues before a deal is announced, minimizing the costs and risks associated with the fast-paced discovery and preliminary injunction battles that often accompany such deals.  We have successfully handled these types of proceedings all over the United States, through both aggressive litigation on the merits and, where appropriate, favorable settlement.

Our M&A practice, including takeover defense, is one of the most extensive and well-respected.  According to Corporate Control Alert, Gibson Dunn ranks among the top five firms in helping takeover targets defend themselves.  We have worked on many of the major hostile offers in the United States and abroad.

Our securities litigators also represent companies, directors and their financial advisers in connection with shareholder litigation arising out of proposed mergers.

Experience

Our track record is hardly surprising, as Gibson Dunn lawyers created many of the legal ideas and strategies that others in the legal industry now employ.

Recent representations include:

  • Obtained complete victory for Hewlett-Packard following a three-week JAMS San Francisco arbitration on all claims asserted by the former CEO of a company that had been acquired by HP.  He claimed entitlement to upwards of $150 million in damages as a result of a decision by the acquired company’s board of directors to terminate him for cause and unilaterally cancel millions of his backdated, in-the-money stock options.  Gibson Dunn successfully argued that both the termination and option cancellation were permissible under Delaware Law, and that the board’s decisions were both appropriate under the circumstances and entitled to deference.
  • Successfully represented hedge fund Eminence Capital in litigation that forced the hand of Jos. A. Bank to negotiate a merger with rival The Men’s Wearhouse, on terms that were highly favorable to both companies’ stockholders, including Eminence, which held significant stakes in both clothing retailers. Eminence commenced the lawsuit in the Delaware Chancery Court alleging that the Jos. A. Bank directors breached their fiduciary duties by refusing to pursue, and erecting improper obstacles to, a negotiated deal with The Men’s Wearhouse.  Following that move The Men’s Wearhouse filed a substantially similar case.  In response to the litigation pressure Jos. A. Bank ultimately dropped its refusal to negotiate. This case was another example of the continued growth in M&A litigation, now brought to challenge virtually all public company mergers and going private transactions.
  • Secured affirmance from the California Court of Appeal of summary judgment for Lawrence Ng, co-founder of oversee.net, a multimillion-dollar Internet marketing business that oversees and monitors over 600,000 domain names.  Plaintiff co-founder sued in connection with Mr. Ng’s decision to sell his shares to a private equity firm, alleging breach of fiduciary duty as a company director for failing to consider an allegedly superior offer for all outstanding company shares.  The trial court granted summary judgment based on Gibson Dunn’s argument that plaintiff was precluded from bringing the lawsuit because of a previous action he had brought against Mr. Ng in Delaware but then dismissed with prejudice so that he could participate in the sale to the private equity firm.
  • Secured partial acquittal and a declaration of mistrial in the District Court for the District of Columbia for a former executive of China North East Petroleum (CNEP) in the first-ever criminal securities fraud trial stemming from investigation of Chinese reverse mergers by the U.S. Department of Justice and Securities and Exchange Commission.  The client was indicted in connection with an alleged fraud stemming from two securities offerings raising more than $30 million in capital; CNEP had traded on the New York Stock Exchange.  The seven criminal counts included one of conspiracy to commit securities fraud, four of securities fraud and two of false statements.  Following a six-week criminal jury trial Gibson Dunn secured an acquittal on two of the four securities fraud counts and the jury deadlocked on the remaining five counts, prompting the court to declare a mistrial as to them.
  • Secured summary judgment from the Delaware Court of Chancery and affirmance by the Delaware Supreme Court for client Dr. Ernst Volgenau in a shareholder suit arising from the sale of government contractor SRA International, Inc. (SRA), founded by Dr. Volgenau, to Providence Equity Partners.  The decision importantly clarified the rights of controlling shareholders under Delaware law.  Providence acquired SRA for a substantial premium over SRA’s unaffected share price.  As part of the deal Dr. Volgenau rolled over a portion of his controlling equity stake into the new company and became chairman of the SRA Board of Directors.  Despite the premium to shareholders, plaintiff Southeastern Pennsylvania Transportation Authority (SEPTA) sued SRA, Providence and Dr. Volgenau, claiming a breach of fiduciary duties and alleging that Dr. Volgenau controlled the transaction and received an impermissible premium at the expense of the minority shareholders.  In granting the defendants summary judgment, the Court of Chancery had concluded that the transaction should be reviewed under the deferential business judgment rule because adequate procedural protections ensured that the minority shareholders’ rights were protected in the negotiation process.
  • Obtained from the Delaware Supreme Court a rare expedited ruling from the bench reversing an injunction of the Delaware Chancery Court against an $8.3 billion stock repurchase transaction involving client Vivendi S.A. and software publisher Activision Blizzard, Inc.  Gibson Dunn represented Vivendi in the transaction in which Vivendi agreed to sell most of its majority ownership stake in Activision back to the company and a consortium of investors.  After the transaction’s public announcement shareholder derivative suits were filed in California and Delaware challenging the sale.  Thereafter one of the shareholder plaintiffs sued in the Delaware Court of Chancery seeking to prevent the transaction from closing.  The day before the scheduled closing the Chancery Court issued a preliminary injunction barring it.  Gibson Dunn and several other firms representing Activision and its directors requested an expedited appeal to the Delaware Supreme Court, which agreed to hear it on an accelerated schedule.  The Supreme Court’s ruling reversing the injunction remanded the case, allowing the transaction to proceed.
  • Obtained reversal from the California Court of Appeal, First Appellate District, of a judgment of the California Superior Court invalidating the election of Gibson Dunn clients to the boards of directors for The McGraw Group of specialty insurance companies under the California Corporations Code.  Plaintiff, a one-third shareholder in The McGraw Group, sought to invalidate the election based on financial transactions between the Gibson Dunn clients’ affiliates and the majority shareholders who elected them.  The trial court agreed and declared the election and related actions invalid.  On appeal Gibson Dunn argued for reversal because the majority shareholders were indispensable parties who were not joined in the action, resulting in impairment of their ability to protect their interests, and exposure of Gibson Dunn’s clients to inconsistent obligations in subsequent litigation.  The Court of Appeal agreed and reversed, holding that it was error not to require plaintiff to join the other shareholders as parties to the action.
  • Successfully represented the Chandler Trusts in a case in the Southern District of New York alleging fraudulent transfer claims aggregating more than $8 billion against Tribune Company shareholders by former Tribune creditors.  The lawsuit challenged payments to the shareholders in connection with a leveraged buyout of the company in 2007.  The Tribune Company ultimately filed for bankruptcy protection approximately one year after the closing of the LBO in 2008.  The Chandler Trusts were among the largest Tribune shareholders.  The court dismissed all fraudulent transfer claims on the legal ground, developed by Gibson Dunn, that individual creditors lacked standing to pursue avoidance of the same transfers that a representative of the Tribune estate had previously sought and was continuing to seek avoidance of under an alternative theory of liability.
  • Successfully opposed an effort to enjoin the stockholder vote to approve Fushi Copperweld’s “going private” merger.  After Fushi, a Nevada corporation based in China, received a proposal to take the company private, various plaintiffs filed lawsuits alleging the directors had breached their fiduciary duty to stockholders.  Gibson Dunn was retained by the Special Committee and assisted the corporate team by negotiating terms for the benefit of unaffiliated stockholders.  The Special Committee approved the proposed merger and recommended it to Fushi’s board and stockholders.  Following argument, the U.S. District Court for the District of Nevada denied plaintiff’s motion, finding that plaintiff s had not satisfied any of the requirements for preliminary injunctive relief.  The court agreed with Gibson Dunn that the business judgment rule applies to protect the Special Committee’s actions.
  • Successfully opposed an effort to enjoin a stockholder vote on Ameristar Casinos, Inc.’s proposed merger with Pinnacle Entertainment, Inc.  Ameristar’s Board of Directors had analyzed and rejected the idea of remaining independent and restructuring the company as a real estate investment trust (REIT).   Plaintiffs alleged the Board breached its fiduciary duty to stockholders and sought a preliminary injunction on the vote, arguing that Ameristar’s definitive proxy statement filed with the SEC omitted certain material information provided by financial advisors regarding the “upside” of a REIT transaction.  The court denied the motion, agreeing with Gibson Dunn that plaintiffs had not established a likelihood of success on the merits of their disclosure claim.

Gibson Dunn is a leader in defending companies and individuals facing investigations by the U.S. Department of Justice, the SEC, state Attorneys General, and other federal and state regulatory agencies.  We represent directors, officers, issuers, underwriters and auditors in enforcement matters.  Our lawyers also routinely represent clients before FINRA (formerly NASD), the New York Stock Exchange, and other regulatory and self-regulatory organizations. 

Experience

While many of our finest representations are cases that were never brought and thus that we cannot detail, a few may be shared as examples.

Recent representations include:

  • In a high-profile, hard-fought struggle for exoneration (over 12 years), we secured a unanimous jury verdict in the Southern District of New York in favor of Nelson Obus and co-defendants in a long-running insider trading case. The Securities and Exchange Commission sued Mr. Obus, the general partner of Wynnefield Capital, Inc., his analyst Peter Black, and Black’s friend Brad Strickland in 2006, alleging that Black and Obus traded on inside information in connection with Wynnefield’s 2001 purchase of shares in SunSource, Inc. — two weeks before Allied Capital Corporation announced that it would acquire SunSource. The SEC charged Strickland with misappropriating information about the acquisition and tipping Black, who tipped Obus, who then traded. The agency sought an injunction against the three defendants, disgorgement of over $1.3 million in alleged ill-gotten gains, civil monetary penalties, and an order prohibiting each of them from acting as an officer or director of any issuer of securities. The jury verdict, coming after a two-week trial and one day of deliberations, ended years of litigation: The SEC first subpoenaed Mr. Obus, his codefendants and his hedge funds in 2002. The defendants moved for summary judgment on a novel theory in 2009, which the Southern District of New York granted in September 2010. The SEC appealed and the Second Circuit reversed, two years later, in the most significant reinterpretation of the misappropriation theory in 20 years. That opened the way for the trial and acquittal.
  • Secured partial acquittal and a declaration of mistrial in the District Court for the District of Columbia for a former executive of China North East Petroleum (CNEP) in the first-ever criminal securities fraud trial stemming from investigation of Chinese reverse mergers by the U.S. Department of Justice and Securities and Exchange Commission.  The client was indicted in connection with an alleged fraud stemming from two securities offerings raising more than $30 million in capital; CNEP had traded on the New York Stock Exchange.  The seven criminal counts included one of conspiracy to commit securities fraud, four of securities fraud and two of false statements.  Following a six-week criminal jury trial Gibson Dunn secured an acquittal on two of the four securities fraud counts and the jury deadlocked on the remaining five counts, prompting the court to declare a mistrial as to them.
  • Representing the former head of corporate cash on the fixed income desk at Thomas Weisel Partners LLP in an auction rate securities case, we secured dismissal of all fraud charges against him.  The Financial Industry Regulatory Authority (FINRA) had alleged that he engaged in fraud when he authorized the purchase of $15.7 million of auction rate securities for three corporate clients approximately two weeks before the unexpected and unprecedented freeze of the entire ARS market in February 2008.  After hearing testimony and reviewing hundreds of documents, The National Adjudicatory Council panel (the appellate review body of FINRA) agreed with a November 2011 decision by a three-member hearing panel and fully credited Gibson Dunn’s arguments that defendant believed the securities were safe and liquid investments, that the transactions were entirely consistent with years of practice at Thomas Weisel, and that there was no evidence of improper motive or intent.

RECENT PUBLICATIONS

2018 Mid-Year Securities Enforcement Update

-July 30, 2018

2018 Mid-Year Securities Litigation Update

-July 26, 2018

Supreme Court Rules That SEC ALJs Were Unconstitutionally Appointed

-June 21, 2018

Acting Associate AG Panuccio Highlights DOJ’s False Claims Act Enforcement Reform Efforts

-June 20, 2018

M&A Report – AOL and Aruba Networks Continue Trend of Delaware Courts Deferring to Deal Price in Appraisal Actions

-April 5, 2018

Supreme Court Holds States May Hear Securities Fraud Class Actions Under The 1933 Act

-March 20, 2018

ALJs Check Their Own Work, With Unsurprising Results

-March 6, 2018

Law360 Names Gibson Dunn Among its Securities 2017 Practice Groups of the Year

-February 13, 2018

Webcast: Shareholder Litigation Developments and Trends

-February 7, 2018

2017 Year-End Securities Litigation Update

-February 1, 2018

Second Circuit Vacates Class Certification Order on Price Impact Grounds

-January 19, 2018

M&A Report – Delaware Supreme Court Reaffirms the Importance of Deal Price As an Indicator of Fair Value in Appraisal Actions

-December 18, 2017

2017 Mid-Year Securities Litigation Update

-July 20, 2017

Court: Certificate of Incorporation Doesn’t Grant Preferred Stockholders Liquidation Preference

-July 19, 2017

The Financial Choice Act: Legislation Curbing SEC Enforcement Powers Moves Forward

-July 1, 2017

United States Supreme Court Limits Class-Action Tolling

-June 26, 2017

M&A Report – Delaware Chancery Court Finds Stockholder Vote To Be Coerced and Not Fully Informed in In re Saba Software, Inc. Stockholder Litigation

-April 12, 2017

Supreme Court Grants Review in Securities Case About Duty to Disclose

-April 3, 2017

Corporate Social Responsibility Statements – Recent Litigation and Avoiding Pitfalls

-March 9, 2017

M&A Report – New York and Delaware Part Ways on M&A “Disclosure-Only” Settlements

-February 17, 2017

Webcast: Shareholder Litigation Developments and Trends

-February 2, 2017

2016 Year-End Securities Litigation Update

-January 25, 2017

Claims Involving a Limited Partnership Deal Are Derivative Under ‘Tooley’ Test

-January 18, 2017

Right Back Where We Started From? In Salman, the Supreme Court Clarifies the “Personal Benefit” Test but Otherwise Leaves Undisturbed Insider Trading Contours

-December 7, 2016

Webcast: Election Results and Securities Litigation and Enforcement Trends

-November 11, 2016

Chancery Court: Disclosure Claims Should Be Brought Before Closing

-October 19, 2016

Bank Fraud Case Shows the Importance of Charging Decisions

-October 4, 2016

Special Interests at Stake When Dealing with Distressed Insurers

-September 21, 2016

Removing Securities Act Cases: MoneyGram Bucks the Trend

-September 9, 2016

CEO Misconduct Not Required to Clawback Pay

-September 8, 2016

Hastily Filed Derivative Suits Can Have Preclusive Effect

-July 20, 2016

2016 Mid-Year Securities Litigation Update

-July 14, 2016

New European Market Abuse Regime – What Do Non-EU Incorporated Issuers Need to Know?

-June 22, 2016

Delaware Court of Chancery Awards 28% Price Increase to Stockholders Who Dissented from 2013 Management-Led Buyout of Dell Inc.

-June 3, 2016

Bonus Compensation Clawbacks Are New Norm

-May 30, 2016

Eleventh Circuit Limits SEC Power to Seek Disgorgement and Declaratory Relief

-May 27, 2016

U.S. Supreme Court Narrowly Construes Exclusive Federal Jurisdiction in Section 27 of the Exchange Act, with Helpful Reminders and Potential Silver Linings for Defendants

-May 23, 2016

Deal Litigation After ‘Trulia’

-April 27, 2016

Best Buy Scores a Win Post-Halliburton II

-April 15, 2016

How to Use Analytics and Predictive Coding as Securities Litigators

-February 1, 2016

M&A Report: The End of M&A “Disclosure-Only” Settlements with Broad Releases In Delaware

-January 26, 2016

2015 Year-End Securities Litigation Update

-January 25, 2016

2015 Year-End Securities Enforcement Update

-January 11, 2016

2015 Year-End False Claims Act Update

-January 6, 2016

2015 Year-End Update on Corporate Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs)

-January 5, 2016

2015 Year-End FCPA Update

-January 4, 2016

Chancery Allows Advancement Claims to Proceed in Del. Despite Illinois Action

-December 16, 2015

M&A Report – Depomed Decision Highlights Importance of Careful Monitoring of M&A Non-Disclosure & Use Obligations

-November 20, 2015

SEC Examinations of Private Investment Funds

-October 29, 2015

Coerced Corporate Social Responsibility and the FCPA

-October 21, 2015

Chancery Denies Advancement for Ex-CEO of American Apparel

-October 21, 2015

SEC Enforcement Midway Through 2015

-September 30, 2015

SEC Moves in the Right Direction with Proposed Amendments to Rules Governing Administrative Proceedings, but the Changes Do Not Go Far Enough

-September 28, 2015

Omnicare in Action: City of Westland Decision Demonstrates Meaningful Pleading Bar to Opinion Statement Liability

-September 28, 2015

M&A Report – Delaware Court of Chancery Signals End to Disclosure-Only Settlements with Full Releases in Delaware

-September 24, 2015

DOJ Authority to Strike Deals With Defendants Limited

-September 23, 2015

Flawed Process Results in Flawed Valuation Determination

-September 16, 2015

2015 Mid-Year FCPA Update: Part 2

-August 31, 2015

Chancery Clarifies Scope of ‘Equitable Standing’ in Derivative Actions

-August 19, 2015

2015 Mid-Year FCPA Update: Part 1

-August 17, 2015

The Saga Continues: The Northern District of Texas Weighs in on Price Impact Test for Class Certification Post-Halliburton II

-July 29, 2015

The Data Security Governance Conundrum: Practical Solutions and Best Practices for the Boardroom and the C-Suite

-July 21, 2015

Delaware Supreme Court Issues Ruling Interpreting Advance Notice Bylaws in Favor of Stockholder Seeking to Propose Business and Nominate Directors

-July 16, 2015

2015 Mid-Year E-Discovery Update

-July 15, 2015

Chancery Court Looks Beyond Deal Price to Determine ‘Fair Value’

-July 15, 2015

2015 Mid-Year Securities Litigation Update

-July 14, 2015

2015 Mid-Year Securities Enforcement Update

-July 13, 2015

2015 Mid-Year Update on Corporate Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs)

-July 8, 2015

2015 Mid-Year False Claims Act Update

-July 8, 2015

2015 Mid-Year FCPA Update

-July 6, 2015

’Equalizing’ the Negotiation Process with a Trial-Ready SEC

-June 29, 2015

Delaware Enacts Legislation Endorsing Exclusive Forum Clauses and Prohibiting Fee-Shifting Provisions

-June 26, 2015

Chancery Describes Standard of Review for Demand Refusal Decision

-June 17, 2015

M&A Report – Delaware Court of Chancery Clarifies Director and Officer Advancement Rights

-June 1, 2015

The Double-Prosecution System Abandoned for French Market Abuse Related Offenses

-May 19, 2015

M&A Report – Delaware Supreme Court Issues Ruling Clarifying Important Protections Afforded to Independent Directors

-May 19, 2015

In Calma v. Templeton, Delaware Court of Chancery Finds Director Compensation Decision Subject to Entire Fairness Review

-May 11, 2015

M&A Report – “Exclusive Forum” Bylaws Fast Becoming a New Item on Public M&A Deal Checklists

-May 4, 2015

U.S. SEC Adopts Final Rules Implementing “Regulation A+” Offering Exemption for Offerings of up to $50 Million

-April 22, 2015

U.S. Supreme Court Issues Long-Awaited Decision in Omnicare, Resolving Circuit Split Regarding Opinion Statement Liability under Section 11 of Securities Act of 1933

-March 25, 2015

Hurdles in Appraisal Actions for Companies Sold in ‘Robust’ Auction

-February 17, 2015

Delineating a board’s duty to find the highest value

-February 12, 2015

SEC Permits Five Business Day Issuer Tender Offers for Non-Convertible Debt including Non-Investment Grade Debt

-February 3, 2015

Preliminary Injunctions and Share Counts in Merger Context

-January 27, 2015

Creating a Clear Circuit Split, the Second Circuit Holds That Failure to Disclose Known Trends or Uncertainties Under Item 303 of Regulation S-K Creates Liability Under Section 10(b)

-January 22, 2015

Advance Notice Bylaws: Trends and Challenges

-January 22, 2015

2014 Year-End E-Discovery Update

-January 20, 2015

2014 Year-End Securities Enforcement Update

-January 12, 2015

2014 Year-End False Claims Act Update

-January 7, 2015

2014 Year-End Update on Corporate Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs)

-January 6, 2015

2014 Year-End FCPA Update

-January 5, 2015

M&A Report – Delaware Supreme Court Issues Important Guidance on Revlon Duties

-December 22, 2014

A Reminder to Focus on Form in Assessing Limits of Business Entities

-December 17, 2014

United States v. Newman: Second Circuit Ruling Portends Choppier Waters for Insider Trading Charges Against Downstream Tippees

-December 15, 2014

Lessons in Control and Conflict Analysis

-November 26, 2014

SEC Adopts Rule Creating New Regulatory Framework to Strengthen Technological Infrastructure of U.S. Securities Markets

-November 25, 2014

SEC v. Obus: A Case Study on Taking the Government to Trial and Winning

-November 20, 2014

Exclusive Delaware and Non-Delaware Forum Bylaw Amendments

-October 15, 2014

Lessons of 2013: The Perils of ‘Ready, Fire, Aim’ and the Importance of an Integrated Litigation Strategy in Corporate Governance Matters

-October 1, 2014

Demand Futility Standards in the Executive Compensation Context

-September 24, 2014