M&A litigation: defense in United States
'In all areas of litigation defense, they are extremely Intelligent, knowledgeable, thoughtful, strategic, reasonable and prepared, and deliver what I think is the best outcome', says a client of the team at Cleary Gottlieb Steen & Hamilton, which climbs the ranking this year. Clients also note that the core team of Meredith Kotler, Roger Cooper and up-and-coming partner Jared Gerber in New York is 'consistently excellent'. The firm is widely seen as having cornered the market for defending aiding-and-abetting claims and Kotler acted in such a case for Bank of America Merrill Lynch, which served as financial adviser to Avista Corporation in its acquisition of HydroOne Limited, which is pending in Washington Superior Court. Cooper represented Syntura in actions arising from the take-private of the company, which were dismissed with prejudice by the judge in Delaware. He also defended Kindred Healthcare in shareholder derivative litigation brought in state court in Kentucky connected to its acquisition of RehabCare.
Last year, Cravath, Swaine & Moore LLP in New York handled putative class action, derivative and other litigation for contemplated, completed or terminated deals with a cumulative value of more than $490bn. Yonatan Even helped Anheuser-Busch InBev SA/NV secure the dismissal of a challenge to its $123bn acquisition of SABMiller PLC. Gary Bornstein is 'one of best lawyers in this space; he is a terrific lawyer with no pomp and no circumstance'. His work included winning the dismissal of a class action against Blount International that challenged its acquisition by American Securities and P2 Capital Partners in 2016. Robert Baron is another of the practice's leading lights and in In re Akorn, Inc. Data Integrity Securities Litigation, he is involved in one of the market's most high-profile cases, which centres on an investigation launched by Fresenius Kabi into issues affecting the companies' pending $4.3bn merger. Antony Ryan and Kevin Orsini, who handled numerous high-profile cases for energy company Williams, including In re The Williams Companies, Inc. Merger Litigation, are also recommended.
Kirkland & Ellis LLP represents purchasers and sellers, and their boards of directors and financial advisers, in cases arising from challenged mergers, tender offers and leveraged buyout transactions. It has extensive experience in state and federal courts throughout the US, as well as in Delaware Chancery Court. The firm's key partners - Sandra Goldstein, Yosef Riemer and Matthew Solum - are based in New York and are widely regarded as leading players in the market. Goldstein and up-and-coming partner Stefan Atkinson handled derivative litigation in federal court in Delaware on behalf of Qualcomm Inc. Solum and Jay Lefkowitz are acting for buyers of Kindred Healthcare in a breach of fiduciary case. In Chicago, the key partners are Joshua Rabinovitz and Devon Largio, who are representing AbbVie in a case brought by five large hedge funds alleging fraud connected to the failed $55bn merger between AbbVie and Shire plc. In Los Angeles, Mark Holscher , who handled Computer Sciences Corporation v Eric Pulier, et al. in Delaware for Eric Pulier, is the standout partner.
Latham & Watkins LLP has an outstanding reputation in M&A litigation cases in Delaware and across the US involving both public and private companies. Michele Johnson in Orange County and Blair Connelly in New York, who is 'the person to go to for complex cases', lead the practice and were the key lawyers in one of the standout cases of the year: the firm acted for ExamWorks in a Delaware Chancery Court case based on allegations of a flawed buyout process, and achieved a rare award of sanctions against the plaintiffs for discovery abuses in advance of trial. Connelly also worked with San Francisco-based partner Peter Wald in the defence of a shareholder derivative case against Oracle's board of directors, which alleged breaches of fiduciary duty causing the company to overpay for NetSuite Inc. The firm has a deep bench of respected partners, including Los Angeles-based Brian Glennon, who worked with Johnson to defend Avago Technologies in matters arising from its $37bn acquisition of Broadcom; James Brandt in New York; and Colleen Smith in San Diego.
Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York has 'an excellent group of corporate litigation attorneys who are valued counselors and can be aggressive litigators when necessary'. Lewis R. Clayton and Andrew Gordon, who is 'an up-and-coming litigation star', scored a major victory for German healthcare group Fresenius when the Delaware Court of Chancery ruled that it was justified in canceling its agreement to acquire Akorn, Inc. for $4.8bn. The firm's deep bench has 'tons of experience, superior judgment and excellent strategists'. Among the highly regarded practitioners are Jaren Janghorbani, who was part of the team that acted for Alere in claims arising from the cancellation of its $8bn sale to Abbott Laboratories in 2016; and Geoffrey Chepiga, who scored significant wins both in Delaware and in federal district courts. Of counsel Stephen Lamb, who is a former vice-chancellor in the Delaware Court of Chancery, has a strong practice in Wilmington.
Simpson Thacher & Bartlett LLP has a deep bench of 'solid, sensible and skilled litigators'. The firm has 'the people, the reputation and the track record' to excel in this area of law. The firm frequently handles shareholder M&A litigation in state and federal courts throughout the US and has substantial expertise in shareholder activist litigation, post-closing appraisal proceedings, and disputes between merger parties. Peter Kazanoff and Craig Waldman are the principal practitioners in New York. Kazanoff is currently acting for GardaWorld Consulting (UK) in a case arising form its acquisition of private security business Hestia. With Waldman, he is also representing KKR in cases connected with its $9.9bn acquisition of Envision Healthcare. Litigation co-chair Jonathan Youngwood, who handled three putative class actions in Texas for La Quinta Holdings, is also recommended. James Kreissman, the firm’s senior West Coast litigator and chair of its Asia litigation practice, and newly promoted partner Stephen Blake are the key names in Palo Alto.
Wachtell, Lipton, Rosen & Katz in New York is ‘the premier firm in M&A defense; it is more creative than the other firms’. It is frequently involved as co-counsel in some of the largest and most high-profile cases in Delaware, which recently included acting for CBS in expedited litigation with its controlling stockholder, National Amusements, arising out of the CBS board's decision dilute the shareholder's voting interest. The firm also represented a special committee of Facebook Inc. in litigation challenging the reclassification of the company's stock, and also acted for Cigna in a dispute arising from its the termination of its proposed $54bn merger with Anthem Inc. The firm's standout partner is William Savitt, who 'walks on water' according to one prominent defense lawyer. Corporate defense expert Theodore Mirvis and experienced Delaware Court of Chancery advocate Marc Wolinsky are highly recommended. Ryan McLeod is an up-and-coming partner.
Weil, Gotshal & Manges LLP in New York has a practice that is 'smart, hardworking, collaborative and knowledgeable', according to one client. Another describes the firm as 'a repeat player in this market with unparalleled experience, which brings a sophisticated and pragmatic approach to bear on litigation'. Leading lights John Neuwirth and Joseph Allerhand are co-heads of the securities litigation practice, in which clients highlight the talents of partners Joshua Amsel, Jonathan Polkes, Greg Danilow and newly promoted Evert Christensen. Neuwirth's track record of high-profile cases continued last year when he secured the complete dismissal of a class action against Brookfield Asset Management concerning its $2.8bn acquisition of Rouse Properties, Inc. The case raised issues of whether Brookfield was a controlling stockholder and owed fiduciary duties to Rouse’s shareholders. Danilow is representing Straight Path in high-profile litigation relating to its $3bn acquisition by Verizon Communications.
Davis Polk & Wardwell LLP
Davis Polk & Wardwell LLP has a highly respected national practice that advises on pre- and post-closing challenges to mergers and acquisitions. It frequently handles contested mergers and defends buyers, sellers, financial advisers and accounting firms against claims concerning post-closing adjustments, indemnities, breaches of contract, fraud and misrepresentation. Lawrence Portnoy in New York and Neal Potischman in Menlo Park lead the practice. New York-based Edmund Polubinski III is also among the firm's standout litigators. Portnoy's highlights included acting for a special committee of the directors of Blount International in shareholder litigation arising out of the company's 2016 sale to two private equity firms. He secured the dismissal of all disclosure and breach of fiduciary duty claims. Potischman is acting for a leading investment bank in litigation arising from Intel's acquisition of McAfee, with the case currently scheduled for trial in Santa Clara Superior Court. Andrew Ditchfield in New York acted for three directors of a large technology company in litigation challenging a $9bn acquisition.
Fried, Frank, Harris, Shriver & Jacobson LLP climbs the ranking this year, having had key roles in high-profile cases, including a challenge to the merger of Xerox and Fujifilm. Key partners James Wareham in Washington DC and Scott Luftglass in New York acted for four Xerox board members in an individual action brought by a stockholder, a consolidated class action and a derivative action, all of which alleged breach of fiduciary duty in approving the merger. The first two matters were successfully settled. Luftglass also handled a case in Delaware Chancery Court between his client Sinclair Broadcast Group and Tribune Media Company, following Tribune’s termination of their proposed merger. Both parties allege that the other breached provisions of the merger agreement. Another key matter saw Luftglass act for CVC Capital Partners in defeating a case brought by minority shareholders in Bolt - a subsidiary of target company Actua - who claim a right of first refusal for CVC's $328m acquisition of the parent company.
Gibson, Dunn & Crutcher LLP
The securities litigation group at Gibson, Dunn & Crutcher LLP, which handles deal-related matters in Delaware and in many other forums across the US, works closely with the firm's corporate team to provide pre-litigation strategy and advice on contentious matters. Known for taking a reasonable approach to settlements and an aggressive stance in litigation, the firm has handled numerous hostile takeover matters in the US and abroad, in which it is described as 'very tenacious'. It frequently acts for companies, directors and financial advisers in shareholder litigation. Brian Lutz in San Francisco handled a six-day bench trial in Las Vegas on behalf of China Housing & Land Development in which a hedge fund shareholder challenged the fair value of its shares following a going-private transaction. Adam Offenhartz in New York, who scored an appeal victory for Vista Outdoor in an earn-out dispute with the founders of Jimmy Styks, Meryl Young in Orange County, and up-and-coming partner Alexander Mircheff in Los Angeles are also recommended.
Morris, Nichols, Arsht & Tunnell LLP
'One of the best firms in Delaware generally, with particular strength in M&A litigation, it is my first call on Delaware matters', says a prominent defense lawyer of Morris, Nichols, Arsht & Tunnell LLP in Wilmington. He notes that the firm's lawyers are 'commercial, thoughtful and have a terrific read on the Delaware judges; they are also a pleasure to work with'. Led by Megan Ward Cascio and Kevin Coen, the practice is 'well respected, reasonable, strategic and highly professional'. Veteran partner William Lafferty is 'the best in the business, a leader of the Delaware litigation bar'. Kenneth Nachbar is another leading light and R. Judson Scaggs is praised as 'smart, well prepared, strong on his feet, and a pleasure to work with'. S. Mark Hurd and Jon Abramczyk are also recommended. Cascio and Nachbar handled an appraisal action on behalf of Kate Spade & Company, in which the fair value of its $2.4bn acquisition by Coach was challenged.
Richards, Layton & Finger, P.A.
Richards, Layton & Finger, P.A. in Wilmington is 'the premier law firm for all things Delaware', according to a partner at a leading national litigation firm. 'Their knowledge of substantive Delaware law, Delaware practice, and the Delaware judiciary is unparalleled, and they bring instant credibility to any litigant', remarks a client. The firm has 19 partners who handle corporate litigation, including Gregory Williams, who is described as 'one of the leaders of the Delaware litigation bar’, firm president Gregory Varallo, and the 'smart, practical and very insightful' Catherine Dearlove. Srinivas Raju and up-and-coming partner Blake Rohrbacher (who is 'a genius, the best writer in Delaware') also stand out in 'a deep bench with best-in-class experience'. The firm represented Dell Inc. in challenges to its $24bn going-private appraisal litigation, in which the court twice denied motions for expedited discovery, and also in statutory appraisal litigation in the Delaware Court of Chancery.
Ropes & Gray LLP handles high-profile shareholder and corporate disputes, predominantly for private equity and venture capital firms, and financial institutions. Key partner David Hennes in New York (of whom one peer says 'he has risen to the top level and really stands out') scored a major victory in the Delaware Supreme Court for William Koch, CEO of Oxbow Carbon, which saw a post-trial decision by the Court of Chancery reversed. The initial decision had allowed minority investors to force a contractual exit sale of the company under its LLC Agreement. In Boston, John Donovan and Peter Welsh are the standout partners. Donovan handled In re CEC Entertainment, Inc. Stockholder Litigation for Goldman Sachs in Kansas state court, which challenged the purchase of CEC by an affiliate of Apollo Global Management; the class action was dismissed. Welsh represented Elliott Management Corporation in a highly publicized case concerning the client's attempts to sell its interest in utility company Oncor as part of its long-running bankruptcy proceedings.
Ross Aronstam & Moritz LLP
Ross Aronstam & Moritz LLP in Wilmington, which climbs the ranking this year, is a specialist Delaware defense firm that, while smaller than some of its peers, is regarded as having lawyers of high quality and in-depth experience. It has six partners who focus exclusively on matters in the Delaware Court of Chancery. 'It is a firm that likes to try cases, and that is what it is set up to do', remarks one peer, who adds that 'it has the skills and insight to litigate the big cases'. Its three lead partners, David Ross, Bradley Aronstam and Garrett Moritz (whom one peer describes as 'one of the best legal minds in Delaware') gained extensive experience at leading national defense practices before starting the firm. This core team worked in partnership with Wachtell, Lipton, Rosen & Katz and Weil, Gotshal & Manges LLP in the defence of CBS Corporation and several of its directors and officers in expedited litigation with its controlling stockholder, National Amusements. Eric Selden and S. Michael Sirkin are up-and-coming partners.
Shearman & Sterling LLP in New York is a prominent firm in the representation of financial institutions in deal-related litigation. It has a steady flow of post-closing cases, including representation of Daimler and its CEO in cases brought by former Chrysler executives claiming the company was liable for retirement benefits lost in Chrysler's bankruptcy following its divestiture from Daimler and subsequent sale to Cerberus. The US Supreme Court denied a petition for certiorari seeking review of the dismissal of the claims. The key partners are Alan Goudiss, Paula Anderson and K. Mallory Brennan, and clients describe Anderson as 'extremely helpful in working through the issues of a case and helping clients see the points objectively; her advice is measured, balance and timely'. Goudiss and Brennan acted for CVS in matters arising from its $69bn acquisition of Aetna. Global managing partner and head of litigation Adam Hakki, who defended a former CEO of Providence Service Corporation in shareholder derivative and class litigation in Delaware, is also recommended.
'They just get it', says a client of the team at Willkie Farr & Gallagher LLP in New York, adding that 'they don't aggrandize or overreact to new developments even with bet-the-company stakes; they are very calm and tempered without minimizing the critical nature of the work'. The firm climbs the ranking this year and practice head Tariq Mundiya is described as 'exceptional - never surprised and always fully engaged - and he has a deep bench supporting him'. He is currently acting for Xerox Corporation in cases in state and federal courts arising from the termination of its deal with Fujifilm Holdings, which the latter alleged was wrongful and resulted in damages in excess of $1bn. He also led the successful defense of Hudson's Bay Company in litigation relating to its merger between with Saks Fifth Avenue. Also recommended are vice-chair of securities litigation group Todd Cosenza and partner Sameer Advani, who is 'a particularly good litigator who picks up complex and nuanced issues fast'.
Allen & Overy LLP
Allen & Overy LLP now has 45 litigators across its New York and Washington DC offices, for whom deal-related cases constitute a significant stream of work as the firm's global M&A practice continues to grow. The firm's outstanding cross-border capability is central to its growing prominence in the market, as evidenced by its representation of global health company Fresenius Kabi in nine putative class actions seeking to enjoin its proposed $4.3bn acquisition of Akorn. Eight of the cases have been dismissed. US litigation head Jacob Pultman led that case and rising star associate Bradley Pensyl also played a key role. Pultman also acted for Computer Sciences in relation to its Reverse Morris Trust deal, which involved Hewlett Packard Enterprise Company's enterprise services segment. He also represented Stratas Foods LLC in matters arising from its Supreme Oil Company acquisition, in which a bidder sought preliminary injunction in Delaware to block the sale.
At Baker Botts L.L.P., which climbs the ranking this year, the practice is 'focused, professional, responsive and results-oriented'. It is led from Houston by Danny David, who is 'unwavering in his dedication to his clients, walking them through every step of the process and achieving good results'. 'I cannot overemphasize how thoughtful, collaborative and effective he has been; he is pleasant, articulate, highly intelligent and a tremendous advocate', according to one client. Also in Houston, former chair of the firmwide litigation practice David Sterling is also recommended. The pair worked together on class and derivative actions arising from the $14bn sale of Westar to Great Plains Energy in which shareholders allege a breach of fiduciary duty by the board of Westar because it did not seek the best possible price, agreed to unreasonable deal protection devices, and did not adequately disclose the terms of the transaction. Sterling and San Francisco-based Jonathan Shapiro also acted for solar energy company 8Point3 Energy in defeating a consolidated class action challenging the proposed merger with affiliates of Capital Dynamics.
Dechert LLP has a broad client base of acquirers, sellers, bidders, directors, special committees, investment banks, venture capitalists, individual investors, private equity firms, hedge funds and other stakeholders for deal-related litigation in both federal and state courts throughout the US, including the Delaware Court of Chancery. David Kistenbroker leads the practice from Chicago, where Joni Jacobsen is also highly recommended. In Dagenbach v Bravo Brio Restaurant Group, Inc, et al, they both acted for Bravo Brio in a putative class action that alleged deficiencies in the company's proxy materials, purportedly in violation of Section 14(a) of the '34 Act. The case was dismissed and the merger proceeded as planned. In Berger v Ecolab, et al in the Appellate Court of Illinois, they are acting for Swisher Hygiene, which is alleged to have breached its fiduciary duties by approving the sale of assets to Ecolab. After a tough courtroom battle, they also prevailed in In re Talmer Bancorp Shareholder Litigation, which is now on appeal.
Goodwin handles deal-related litigation in state and federal courts throughout the US, often acting for the sellers in cases involving life sciences, technology, real estate and financial services companies. Deborah Birnbach is the standout practitioner in Boston following the retirement of Stephen Poss. She is currently awaiting a decision on a motion to dismiss in a case challenging her client NeuStar's $2.9bn merger with affiliates of Golden Gate Private Equity, which centers on allegations that the company made misleading statements about the transition of a key government contract to a new service provider. She also won a fiduciary duty case in Maryland State Court, which enabled LaSalle Hotel Properties to proceed with a $5.2bn merger. Michael Jones is an up-and-coming partner in Menlo Park and he defended DCT Industrial Trust in three shareholder disputes challenging its $4.8bn merger with Prologis. Also recommended are Adam Slutsky in Boston and, in New York, Marshall Fishman and Gabrielle Gould.
Paul Hastings LLP has significant litigation capability on both coasts, as well as in other key centres such as Houston and Chicago. It frequently acts for leading financial institutions in deal-related litigation and recently handled two key cases for Goldman Sachs. The first saw the firm handle a $50m claim in the New York State Supreme Court arising from GS Group’s investment in financial services research provider Netologic, Inc. The second case saw fellow co-chair Peter Stone in Palo Alto represent the client in its role as financial adviser to Amazon, Inc in matters arising from its $13.7bn acquisition of Whole Foods Market. Veteran litigator William Sullivan in Los Angeles handled a $500m case for Vance Street Capital as seller in a post-acquisition dispute with Precision Castparts Corporation. Samuel Cooper in Houston is also recommended. Douglas Flaum joined Goodwin.
Potter Anderson & Corroon LLP
Potter Anderson & Corroon LLP in Wilmington is 'one of the pre-eminent firms in the litigation market in Delaware', according to a leading defense lawyer. The firm, which climbs the ranking this year, has a deep bench of litigators focused on matters in the Delaware Court of Chancery, where the firm has extensive trial experience. Among its standout lawyers are three former Delaware judges, including Myron Steele, who has previously served as Chief Justice of the Supreme Court of Delaware, Delaware Superior Court judge and Vice-Chancellor of the Delaware Court of Chancery. Kevin Shannon represented AOL in appraisal litigation following its acquisition by Verizon Communications. Donald Wolfe and T. Brad Davey acted for Citigroup in Oklahoma Firefighters Pension & Retirement v. Corbat. Michael Pittenger was involved in a high-profile matter when he acted for Fresenius in litigation arising from the termination of its proposed $4.5bn merger with Akorn.
Winston & Strawn LLP
Winston & Strawn LLP 'has a cadre of lawyers in New York who continue to impress in the M&A litigation space - they are as good as anyone in the industry', remarks one client. Practice head James Smith is hailed as 'an exceptionally good lawyer, highly attentive to both the details and the big picture strategy', while another client notes that he 'remains one of the most eloquent lawyers I have ever encountered and has an excellent sense of what will - and will not - impress a judge'. He led the team that represented Lear Corporation in a post-closing action brought by ESG Holding arising from the $850m acquisition of Everett Smith Group. The case was dismissed without leave to replead. Also in New York, Richard Reinthaler 'has a great way of boiling down arguments and procedure into digestible advocacy', and Matthew DiRisio is 'a young partner to watch'. The firm also has a significant practice in Chicago, where William O’Neill leads the team and Thomas Weber is a key associate.
DLA Piper LLP (US)
DLA Piper LLP (US) has 15 lawyers handling M&A litigation including key partner John Reed in Wilmington, who has 20 years' experience in matters before the Delaware Court of Chancery and the Delaware Supreme Court. He recently handled In re Xura, Inc. Stockholder Litigation, in which he represented Mavenir, Inc, which was formerly known as Xura. The case challenged the price paid for Xura stock in its acquisition by Siris Capital Group in 2016. He also handled an appraisal case for Manti Holdings. James Mathias in Baltimore, who handled a case for Lasalle relating to its cancelled sale to Blackstone, is also recommended.
King & Spalding LLP has 'a very strong litigation team with good communicators who have successfully dealt with high-visibility matters'. The practice is led by Michael Smith in Atlanta, who represented SCANA Corporation in cases arising from its proposed $14.6bn merger with Dominion Energy, and Paul Bessette in Austin. Atlanta-based Warren Pope, who handled a high-profile case for Triangle Capital Corporation, is also recommended. In New York, Richard Marooney is a partner in the trial and global disputes practice and clients note that he 'stands out as very knowledgeable, extremely responsive and aggressive on behalf of his clients'. He worked with Israel Dahan and Peter Isajiw, also based in New York, on the defense of Genuine Parts Company following a challenge by private equity firm Sycamore Partners to the $362m merger of its office supply wholesaling business with Essendant.
Reed Smith LLP
Reed Smith LLP handled a range of high-stakes cases in 2018. For example, it acted for a large energy producer in shareholder litigation that sought to enjoin a $6.7bn acquisition of another energy company. It also represented a financial institution in a shareholder lawsuit that challenged a $1.4bn acquisition. The deal subsequently closed following supplemental disclosure. James Rockney in Pittsburgh, who is part of the firm's financial industry group, plays a key role in the practice. Key partner Roy Arnold moved to Blank Rome LLP in January 2019.
Vinson & Elkins LLP
Vinson & Elkins LLP represents issuers, underwriters, accounting firms, financial institutions, and directors and officers in deal-related litigation and it is a growing force in the MLP litigation space, handling cases in Texas, Delaware and across the US. In Dallas, John Wander and Michael Holmes (who is 'a rock star with a good strategic mind' and who often handles matters in Delaware) are key partners in the practice. The pair defended Energy Transfer Equity in Delaware Supreme Court and secured its right to terminate a $38bn merger with the Williams companies due to the failure of a condition precedent. The lawsuit, in which Williams sought to force ETE to close the merger, went from complaint to trial in just six weeks. Holmes also secured a major victory for C&J Energy Services when the Delaware Supreme Court affirmed the dismissal of a shareholder’s challenge to its $2.9bn transaction with Nabors Industries.
Young Conaway Stargatt & Taylor, LLP
Young Conaway Stargatt & Taylor, LLP in Wilmington has been active in Delaware for more than 50 years and has frequently worked with leading national defense firms on high-value, business-critical cases. The firm recently worked as local counsel with Latham & Watkins LLP in the representation of the Oracle board of directors in a putative shareholder derivative suit alleging that the defendants breached their fiduciary duties by causing Oracle to overpay when acquiring NetSuite Inc. Rolin Bissell and veteran David McBride are among the firm's the key partners.