M&A litigation: plaintiff in United States

Bernstein Litowitz Berger & Grossmann LLP

The New York and Delaware offices of Bernstein Litowitz Berger & Grossmann LLP are home to a stellar team of litigators who prosecute fiduciary duty actions against boards of directors and senior executives who engage in corporate misconduct. ‘The team has made a huge mark in Delaware since they opened an office here in town‘, remarks a client, adding that ‘they combine the clients, the horsepower and the capabilities of a big New York firm with an integrated local touch’. The lead partners are Mark Lebovitch, who works from both New York and Delaware and can ‘can spot a good case from a mile a way‘, and head of governance and ‘great trial lawyer‘ Jeroen van Kwawegenin New York. Delaware-based Greg Varallo has ‘been around the block in Delaware and has an artful touch‘, while David Wales in New York is a key partner in the corporate governance litigation practice. Up-and-coming partners Christopher Orrico and Edward Timlin also play key roles in the New York practice. Lebovitch and Varallo secured a $110m settlement in Hollywood Firefighters’ Pension Fund, et al. v. Malone, et al., which successfully stopped GCI Liberty’s and Liberty Broadband’s controlling stockholders from consolidating their voting power at the expense of stockholders.

Practice head(s):

Mark Lebovitch; Jeroen van Kwawegen

Other key lawyers:

Greg Varallo; David Wales; Christopher Orrico; Edward Timlin

Testimonials

‘The Bernstein Litowitz team has made a huge mark in Delaware since they opened an office here in town. They combine the clients, the horsepower and the capabilities of a big New York firm along with an integrated local touch. That is a fearsome combination.’

‘Mark Lebovitch can spot a good case from a mile a way. Jeroen van Kwawegen is a great trial lawyer. Greg Varallo has been around the block in Delaware and has an artful touch.’

‘Leaves no stone unturned in the preparation of concisely drafted materials and excellent strategic framework for dispute resolution.’

‘Christopher Orrico is a fierce advocate for client’s interests and tenaciously pursues innovation solutions to complex problems.’

‘They are intelligent, aggressive and experienced. With experienced former defense counsel, they know the tricks to the trade and know where to apply pressure.’

‘Greg Varallo is unparalleled in his skill set. He is a true force to be reckoned with.’

‘This practice has a unique concentration of hardworking, eager-to-please, results-oriented lawyers practicing at the top of their game.’

‘Jeroen van Kwawegen is extremely talented, knowledgeable in every specific field he touches, and works tirelessly for his clients and teammates. Bear in mind that technically I am a competitor of his, and I have nothing but admiration for his dedication and skills.’

Work highlights

  • Represented Hollywood Firefighters’ Pension Fund in a suit that successfully stopped GCI Liberty’s and Liberty Broadband’s controlling stockholders from consolidating their voting power at the expense of stockholders while securing a $110 million cash settlement.
  • Represented the plaintiff in The Williams Companies Stockholder Litigation, in which the Court struck down a novel and “extreme” anti-stockholder activism stockholder rights plan (or “Poison Pill”) adopted by Williams, finding that the Williams board failed to show that the Pill was a reasonable and measured response to a specific threat.
  • In re MultiPlan Corp. Stockholders Litigation, C.A. No. 2021-0300-LWW (Delaware Court of Chancery): This novel stockholder class action asserts breach of fiduciary duty claims against the board of directors of and controllers of Churchill Capital Corp. III, a special purpose acquisition company (“SPAC”), which presents novel questions about how Delaware’s corporate law applies to practices fairly common in the SPAC industry, has already garnered significant attention and caused founders of SPACs and their advisors to explore ways to structure their entities and transactions to better protect stockholder interests.

Kessler Topaz Meltzer & Check, LLP

Based in Radnor and San Francisco, Kessler Topaz Meltzer & Check, LLP has a deep bench of litigators with in-depth experience in prosecuting complex cases. Its corporate governance and M&A litigation department has a prominent role in major cases in both state and federal courts across the country, acting for institutional investors shareholder derivative and class actions, and representing large companies such as Tesla in contested deal litigation. Darren Check, Daniel Albert and Lee Rudy recently represented the plaintiff and secured a $44.75m settlement in In re Arkansas Teacher Retirement System v. Alon USA Energy, Inc. et al., concerning the 2017 acquisition of Alon by Derek US Holdings. Rudy and Albert lead the practice along with Eric Zagar and Justin Reliford , who are both representing the co-counsel in a derivative action for Tesla, Inc., which is facing a challenge over its 2016 acquisition of Solar City. All named partners are based in Radnor.

Practice head(s):

Lee Rudy; Eric Zagar; Daniel Albert; Justin Reliford

Other key lawyers:

Darren Check

Key clients

AP7 – Seventh Swedish National Pension Fund

SEB Investment Management AB

Industriens Pensionsforsikring A/S

Principal Global Financial Group

Franklin Templeton Investments

Nationwide Investment Funds

Nordea Investment Funds (Luxembourg)

Arkansas Teacher Retirement System

Equity-League Pension & Health Trust Funds

United Food & Commercial Workers 464(a) Benefit Funds

Lebanon County Employees’ Retirement Fund

Teamsters Local Union No. 142 Pension Fund

Laborers Joint Pension Trust for Southern Nevada

Work highlights

  • Representing the co-counsel in a derivative action brought on behalf of Tesla, Inc. and its minority stockholders challenging Tesla’s 2016 $2 billion acquisition of SolarCity Corporation.
  • Representing Arkansas Teacher Retirement System in proceedings before the Delaware Court of Chancery against Alon, in which the court approved a $44.75m settlement to resolve class action litigation concerning the July 1, 2017 acquisition of Alon USA Energy by its controlling stockholder, Delek US Holdings.

Grant & Eisenhofer P.A.

Grant & Eisenhofer P.A.‘s Wilmington office has ‘a well-deserved reputation as fearless and aggressive litigators with significant trial experience‘ and clients note that the firm has ‘a lengthy history of doing excellent work in plaintiff-side securities litigation‘. Recognised as a prominent in the field of corporate governance, with global experience in protecting the rights of shareholders and enforcing fiduciary responsibility, it is frequently involved in high-profile cases, among recent examples being a derivative action brought in state court in New York on behalf of Renren, Inc., a Cayman Islands incorporated social media company headquartered in China, in which it secured a $300m settlement. Jay Eisenhofer in New York, who focuses predominantly on securities litigation, leads the practice along with Delaware-based partners Michael Barry and Christine Mackintosh, who is ‘a powerful litigation force with excellent trial skills‘. Philadelphia's Kimberly Evans, who leads the civil rights practice, is a key member of the team and, with Mackintosh, defeated a motion to dismiss in a stockholder derivative action challenging related-party transactions proposed and structured by controlling stockholders of BGC.

Practice head(s):

Jay Eisenhofer; Michael Barry; Christine Mackintosh

Other key lawyers:

Kimberly Evans; Michael Barry

Testimonials

‘This practice is unique because it requires a combination of a very specific skills to do well. In addition to excellent litigation and trial skills (i.e. not just motion and discovery practice), this practice requires a very strong background in corporate finance and valuation, as well as the ability to interact with sophisticated judges, clients, defendants, and experts.’

The leading lawyers now are Christine MacKintosh and Mike Barry. Christine has excellent trial skills and is probably the best all-round litigator in the M&A field at Grant & Eisenhofer now.’

‘A well-reputed firm in plaintiff’s side M&A practice. The team still has knowledgeable and capable individuals.’

‘Mike Barry: a strong trial counsel with solid cross examination skills. Christine McIntosh: a solid “domain” expert with special focus in the area of expert valuation work.’

‘Grant & Eisenhofer has a lengthy history of doing excellent work in plaintiff-side securities litigation. They were truly leaders in the field of federal securities litigation and Delaware Court of Chancery litigation on the plaintiff-side in the 1990’s and in the 2000-2018 era.’

‘Christine Mackintosh is an aggressive litigator and very personable.’

‘The G&E team has a well-deserved reputation as fearless and aggressive litigators with significant trial experience.’

‘Michael Barry is extremely knowledgeable about all aspects of Delaware law, and Christine Mackintosh is a powerful litigation force with excellent trial skills.’

Work highlights

  • Represented an individual in a historic $300m (pending) settlement of a complex cross jurisdictional derivative action brought in state court in New York on behalf of Renren, Inc., a Cayman Islands incorporated social media company headquartered in China.
  • Represented institutional investors in reaching a $175m settlement against the current and former officers and directors of McKesson Corporation.
  • Represented stockholders in a $60m settlement reached with Tesla directors.

Labaton Sucharow LLP

The M&A litigation team at Labaton Sucharow LLP ‘comprises excellent, nimble, creative and knowledgeable litigators with a tremendous work ethic who know how to get results for their clients‘. The firm’s Delaware office is frequently involved in high-profile matters, among recent examples being a victory representing minority shareholders challenging the fairness of Earthstone Energy’s $335m acquisition of Bold Energy. Lead partner Ned Weinberger is praised as ‘one of the smartest and most effective plaintiffs lawyers in Delaware'. Up-and-coming partner Mark Richardson is recommended for corporate governance and transactional matters, including class action and derivative litigation. Both were involved in the Earthstone case and also handled a breach of fiduciary case for Plumbers and Steamfitters Local 60 Pension Trust that terminated a proposed merger between Versum Materials and Entegris.

Practice head(s):

Ned Weinberger

Other key lawyers:

Mark Richardson

Testimonials

‘The Labaton team comprises excellent, nimble, creative and knowledgeable litigators with a tremendous work ethic who know how to get results for their clients.’

‘In particular, Ned Weinberger is an excellent litigator whose depth of knowledge and experience far combines with his youthful vigor to secure great results for his clients.’

‘The team is led by Ned Weinberger, one of the smartest and most effective plaintiffs’ lawyers in Delaware. He picks good cases, asserts strong claims, and presents them effectively and efficiently.’

‘Ned Weinberger is the standout lawyer.’

Key clients

Steamfitters Local 449 Pension Plan

Peggy Olenik

Plumbers and Steamfitters Local 60 Pension Trust

Jody Britt

Shareholders of Sears Hometown and Outlet Stores, Inc.

Nantahala Capital Partners II Limited Partnership

Massachusetts Laborers’ Pension Fund

Cambridge Retirement System

Macomb County Employees’ Retirement System

Shareholders of Straight Path, including JDS1 LLC and The Arbitrage Fund

Richard Rose and Dennis E. Murray Sr.

Teamsters Local 443 Health Services & Insurance Plan

Work highlights

  • Representing Dell’s minority investors in a breach of fiduciary duty lawsuit challenging the conduct of Michael Dell in connection with a $14bn share exchange transaction.
  • Representing shareholders of QAD Inc. (“QAD” or the “Company”) in a suit against the Company, its controlling stockholder and several directors for breach of contract and breaches of fiduciary duty, and against Thoma Bravo and its affiliates for aiding and abetting such breaches of fiduciary duty in connection with Thoma’s June 27, 2021 proposed acquisition of QAD.
  • Representing Plumbers and Steamfitters Local 60 Pension Trust in a breach of fiduciary duty action seeking expedited injunctive relief, caused Versum Materials to terminate a proposed merger with Entegris and to abandon its adoption of a highly restrictive “poison pill,” resulting in significant value for Versum shareholders.

Robbins Geller Rudman & Dowd LLP

Robbins Geller Rudman & Dowd LLP has a strong reputation as a prominent plaintiff firm in securities fraud, antitrust, breach of fiduciary duty, consumer fraud, and privacy cases. It has a successful record of record-breaking recoveries and precedent-setting decisions in M&A-related shareholder litigation. Its practice is focused on preserving corporate assets and enhancing long-term shareholder value, often through shareholder derivative actions often brought by institutional investors. Practice head Randall Baron in San Diego is currently handling a trial for Roofers Local No. 149 Pension Fund against Tesla CEO Elon Musk concerning his role in the aborted acquisition and subsequent bailout of SolarCity. Shawn Williams in San Francisco, Chad Johnson in New York and San Diego-based Travis Downs are also recommended for breach of fiduciary duty cases.

Practice head(s):

Randall Baron

Other key lawyers:

Shawn Williams; Chad Johnson; Travis Downs

Work highlights

  • Representing shareholders in a challenge to Tesla’s multi-billion acquisition of SolarCity.
  • Represented shareholders in a challenge against the SolarWinds Board of Directors’ lack of oversight, resulting in catastrophic cyber attack.

Brown Rudnick LLP

Brown Rudnick LLP has two partners based in Hartford who handle M&A and private equity litigation, both on the defense side and for plaintiffs. Though small, the practice punches above its weight and frequently has a key role in high-stakes litigation in Delaware and in state and federal courts across the US. Mark Baldwin and Dylan Kletter are the lead partners. Kletter is currently representing Prospect Medical in a disputes concerning the $180m acquisition of a non-profit hospital network in Connecticut. Baldwin is acting for British Motor Works, LLC, a large Jaguar dealer in Connecticut, and One Commerce Drive, LLC in a superfund dispute with the Town of Fairfield. They predominantly handle major post-closing M&A disputes, including matters concerning earnouts, working capital and purchase price adjustments, fraud, and breaches of representations, warranties and covenants.

Practice head(s):

Mark Baldwin; Dylan Kletter

Key clients

Prospect Medical Holdings, Inc.

SPay, Inc, d/b/a/ Stack Sports

British Motor Works, LLC

Bobcat North America, LLC

Lupin Pharmaceuticals, Inc.

Scrum Inc.

Prometheus Group Enterprises, LLC

AMBA Investment Holdings, Inc.

Telestream, LLC

Work highlights

  • Represented Lupin Pharmaceuticals in a post-closing fraud dispute concerning its $880m acquisition of Gavis Pharmaceuticals  in the Southern District of New York.
  • Representing Prospect Medical Group Holdings in a post-closing dispute concerning the treatment of over eight-figures worth of assets arising out of its $180macquisition of a non-profit hospital, which has included the intervention of the Office of the Attorney General for the State of Connecticut.
  • Representing Prometheus Group in a post-closing dispute concerning up to $25m in earnout payments arising out of its acquisition of Utopia Global, which has involved both the Delaware Court of Chancery and arbitration proceedings.