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M&A litigation: plaintiff
New York firm Bernstein Litowitz Berger & Grossmann LLP is ‘formidable’, according to sources, ‘undoubtedly a top-tier firm’, and it has a long history of litigating some of the most high-profile M&A and derivative cases. One of the most significant highlights for its corporate governance and shareholder rights litigation group was the recovery of $153m that it helped achieve in Freeport-McMoRan Copper & Gold Inc. Derivative Litigation, which was the second-largest shareholder derivative settlement in the history of the Delaware Court of Chancery. The ‘sharp, capable’ Mark Lebovitch is ‘an especially talented lawyer, the real deal’. Lebovitch and David Wales acted as co-lead counsel in a successful challenge to ‘Dead Hand Proxy Puts’, which provide that if stockholders replace a majority of the incumbent board by nominating and electing their own director candidates, the company’s lenders can put the company’s debt into default. In Pontiac General Employees Retirement System v Ballantine, et al., Lebovitch and rising star Jeroen van Kwawegen represented Merrion Capital Investment Funds seeking appraisal of their shares in Safeway following its merger with Albertsons, in which they obtained a 26% premium over the initial merger price. The firm is considered to be ‘possibly the leading plaintiff side firm for shareholder litigation’.
The Wilmington office of Grant & Eisenhofer P.A. is ‘one of the real leaders for M&A litigation and has a very long and successful history in this space’. The firm has a track record that few others can match and is one of the most active plaintiff firms in the courts in Delaware. Stuart Grant is ‘a formidable lawyer and continues to be a major player on the plaintiff side’. Grant, Geoffrey Jarvis and Nathan Cook acted as co-lead counsel for public stockholders of Dole Food Company in a class action that alleged breaches of fiduciary duty by the company’s directors, its CEO and controlling stockholder David Murdock in connection with the going-private transaction initiated by Murdock for $13.50 per share. After a nine-day trial, the court held the defendants liable for $148m in damages plus interest. Grant and Michael Barry are engaged in the post-trial phase of re Appraisal of Dell, Inc., representing shareholders of Dell seeking appraisal of fair value of their shares following company founder Michael Dell’s $24.6bn management-led LBO. Another high-profile matter led by Grant and Barry was re Freeport-McMoRan Copper & Gold, Inc. Derivative Litigation, in which the Delaware Court of Chancery awarded a $153m settlement and the implementation of corporate governance enhancements in a matter arising from Freeport’s $20bn acquisition of McMoRan Exploration Co. and Plains Exploration & Production. The award is one of the largest cash settlements of a derivative action in Delaware.
Labaton Sucharow LLP is ‘a firm that defense counsel takes seriously, it litigates hard and has a great investigations team’. Wilmington-based Christine Azar, who chairs the corporate governance and shareholder rights litigation practice, is ‘smart, pragmatic and level-headed - a dedicated advocate who gets things done’. In re Freeport-McMoRan Copper & Gold Inc. Derivative Litigation, she acted as co-lead counsel in a challenge to what the plaintiffs saw as an orchestrated acquisition of a failing mining company, and helped secure a total settlement of $153m with Freeport’s board of directors and Freeport’s financial adviser in the deal, Credit Suisse, which represents the second largest derivative settlement in history of the Delaware Court of Chancery. Azar is also acting for Haverhill Retirement System in a shareholder class and derivative action relating to the Providence Service Corporation’s $400m acquisition of healthcare provider CCHN Group, alleging an improper financing arrangement by the chairman of Providence’s board of directors. In New York, Michael Stocker - who is lead strategist in the firm’s case evaluation team - and seasoned litigator Ira Schochet are recommended.
Robbins Geller Rudman & Dowd LLP is ‘the 800-pound gorilla, a real force on the plaintiff side’, according to sources. The firm has ‘earned its reputation as a serious player and its lawyers do an effective job at trial in sophisticated matters’. Randall Baron in San Diego is recognized as a leading practitioner and is ‘always highly active in this space’. The firm represented plaintiffs in a putative class action against ATMI and its board of directors challenging the company’s $1.15bn merger with Entegris, and also brought a challenge to Centerbridge Partners’ $1.1bn acquisition of P.F. Chang’s China Bistro. Baron also played a central role in re Kinder Morgan, Inc. S’holders Litig., in which plaintiffs won a $200m settlement in a class action lawsuit arising from the leveraged buyout of Kinder Morgan.
Based in San Diego, Robbins Arroyo LLP is known for ‘focusing on cases that bring positive results for shareholders’. It is highly regarded for prosecuting class actions on behalf of shareholders seeking to safeguard their economic and voting rights during corporate acquisitions, mergers or similar combination transactions. Stephen Oddo is the firm’s most prominent practitioner in M&A litigation, to which he has dedicated his practice for over ten years, and during which he has secured tens of millions of dollars of additional consideration for shareholders whose investments have been adversely impacted by corporate transactions. He is currently working on a case arising from the acquisition of Saba Software by private equity firm Vector Capital on the grounds that the $9 per share was not the result of a fair process to obtain maximum value and adequately compensate shareholders. Felipe Arroyo has over two decades’ experience in litigating complex matters and focuses much of his practice on shareholder rights litigation. Gregory Del Gaizo is also recommended.
Kessler Topaz Meltzer & Check, LLP has a growing track record representing investors in M&A-related litigation and has secured significant settlements for shareholders. A recent highlight was the $148m awarded to stockholders of Dole Food Company in the wake of chairman David Murdock’s move to take the company private. Marc Topaz in Radnor, Pennsylvania, is the firm’s most prominent partner in this practice area.