M&A litigation: plaintiff in United States

Bernstein Litowitz Berger & Grossmann LLP

When defense counsel are asked about worthy opponents, one of the first firms to be named is often Bernstein Litowitz Berger & Grossmann LLP, which is 'a firm that distinguishes itself time and time again'. Acting for a large institutional investor client base, the firm focuses on high-value and meritorious cases against boards of directors and senior executives who engage in corporate misconduct. Its long track record of setting precedents in challenging unfair deals continues to this day; David Wales recently secured a $52m settlement for shareholders of real estate investment trust New Senior for an unlawful scheme to enrich Fortress Investment Group and its affiliates through self-dealing transactions. In New York, the practice is led by Mark Lebovitch and head of governance Jeroen van KwawegenGreg Varallo (whose stellar reputation on the defense side stretches back almost 40 years) is becoming a force in the plaintiff bar as the head of the firm's Wilmington office, where Lebovitch also divides time.

Practice head(s):

Mark Lebovitch; Jeroen van Kwawegen

Other key lawyers:

Greg Varallo; David Wales

Work highlights

  • Represented both the Police & Fire Retirement System of the City of Detroit and Amalgamated Bank, as Trustee for Longview LargeCap 500 Index Fund and Longview LargeCap 500 Index VEBA Fund in In re McKesson Corporation Derivative Litigation.
  • Following a mediation process, the firm secured a settlement of $53m to be paid to New Senior, as well as important corporate governance changes including a shareholder vote to amend the company’s certificate of incorporation and bylaws to eliminate the company’s classified Board over a period of three years and an amendment to the bylaws providing for the election of directors by a majority of the votes cast in uncontested elections.
  • After extensive, arm’s-length negotiations, the firm reached a settlement of $42.5m in cash, and key governance provisions in In re Pilgrim’s Pride Corp. Derivative Litigation, No. 2018-0058-JTL (Delaware Court of Chancery), which  alleged, among other things, that certain of PPC’s directors and PPC’s controlling stockholders breached their fiduciary duties by causing PPC to acquire Moy Park at an unfair price and following an unfair process.

Kessler Topaz Meltzer & Check, LLP

With a presence in Radnor, Pennsylvania, and in San Francisco, California, Kessler Topaz Meltzer & Check, LLP is one of the largest and most successful shareholder litigation firms in the market, and climbs to the top tier in this year's the rankings. Lee Rudy, Eric Zagar, Daniel Albert and Justin Reliford lead the practice, which handles shareholder actions in state and federal courts across the country, including in Delaware. The firm has been involved in some of the most high-profile cases in recent years, a prime example being its role as co-lead counsel in a derivative and class action challenging Tesla’s 2016 acquisition of SolarCity Corporation. Rudy, Reliford and Darren Check were the lead partners in that matter. Also recommended is associate Stacey Greenspan who worked with Zagar and Albert on the represention of Chester County Employees’ Retirement Fund in a challenge to the merger between KCG Holdings and Virtu Financial, alleging that KCG directors breached their fiduciary duties by approving the merger price.

Practice head(s):

Lee Rudy; Eric Zagar; Daniel Albert; Justin Reliford

Other key lawyers:

Darren Check; Stacey Greenspan

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

  • Acting as co-lead counsel in a derivative and class action by minority stockholders challenging Tesla’s 2016 acquisition of SolarCity Corporation.
  • Appointed co-lead counsel challenging the 2016 merger between Towers Watson & Co. and Willis Group Holdings to form Willis Towers Watson.
  • Acting on behalf of plaintiff Equity-League Pension Trust Fund; filed a complaint for inspection of books and records under Section 220 of the Delaware General Corporation Law to investigate whether Wayfair’s corporate directors breached their fiduciary duties by rushing Wayfair into an unnecessary, self-dealing financing transaction before the market could fully correct itself.

Grant & Eisenhofer P.A.

Grant & Eisenhofer P.A., which is predominantly based in Wilmington, has a long history of involvement in precedent-setting cases in the Delaware courts. 'It has a legacy of success and strong institutional knowledge', remarks one client, noting that the firm was 'the first and most aggressive in embracing shareholder appraisal litigation'. The 'strategically strong' Michael Barry, Christine Mackintosh (who is 'good at multi-tasking across cases and industries') and New York-based Jay Eisenhofer lead the firm's corporate governance practice, which plays a key role in M&A litigation. Mackintosh and Barry recently secured a $60m settlement from directors of Tesla in a case alleging that they caused the company to overpay in 2016 to purchase SolarCity Corp. Experienced trial lawyer Kimberley Evans is a growing force in both deal-related and civil rights litigation.

Practice head(s):

Jay Eisenhofer; Michael Barry; Christine Mackintosh

Other key lawyers:

Kimberly Evans

Testimonials

‘G&E’s practice was for many years the pre-eminent Delaware M&A plaintiff firm. It has a legacy of success and strong institutional knowledge.’

‘G&E’s plaintiff M&A practice was the first and most aggressive in embracing shareholder appraisal litigation as an avenue to protect shareholder interests when the Delaware Courts became increasingly hostile to shareholder litigation over third-party M&A deals.’

‘G&E’s lawyers are reliable and dependable co-counsel who get things done. Mike Barry is strategically strong and Christine Mackintosh is good at multitasking across cases and industries.’

Work highlights

  • Reached a $175m settlement against the current and former officers and directors of McKesson Corporation.
  • Reached a $60m settlement with Tesla directors, with trial pending in March 2021.
  • Secured reversal of dismissal in Towers Watson merger.

Labaton Sucharow LLP

Labaton Sucharow LLP in Wilmington has attracted high praise from clients, who highlight the team's ability to 'generate strong cases and take creative and innovative positions'. Clients have also singled out lead partner Ned Weinberger, 'a tenacious advocate'; one client noted that he 'makes good strategic decisions, knows the law and the facts well, and effectively pushes his client's position on the issues that matter'. Weinberger works closely with of counsel Mark Richardson and together they secured an important victory for minority shareholders when the Delaware Supreme Court overturned a Court of Chancery decision dismissing a lawsuit challenging the fairness of Earthstone Energy’s $335m acquisition of Bold Energy.

Practice head(s):

Ned Weinberger

Other key lawyers:

Mark Richardson

Testimonials

‘The firm has well established offices in both New York and Delaware, which distinguishes them from many plaintiff law firms that are in one location or the other. They have established a strong reputation in Delaware which attracts other law firms to want to work with them on a co-counsel basis.’

‘I have a high regard for Ned Weinberger, the head of their Delaware office. He has been very successful in building that office and gaining the respect of his peers both externally in the legal community and internally. This has enabled him to take cases that his predecessors either didn’t get to see or couldn’t get the head office to commit to.’

‘They do good work, generate strong cases and take creative and innovative positions, and they fight hard when it is time.’

‘Ned Weinberger is the leader of their group and the person I primarily deal with. He is professional, cordial, and easy to deal with, but also a tenacious advocate. He makes good strategic decisions in his cases, knows the law and the facts well, and effectively pushes his client’s position on the issues that matter.’

Key clients

Steamfitters Local 449 Pension Plan

Massachusetts Laborers’ Pension Fund

Cambridge Retirement System

Peggy Olenik

Macomb County Employees’ Retirement System

Plumbers and Steamfitters Local 60 Pension Trust

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

Jody Britt

Richard Rose and Dennis E. Murray Sr.

Shareholders of Sears Hometown and Outlet Stores, Inc.

Teamsters Local 443 Health Services & Insurance Plan

City of Dearborn Police and Fire Revised Retirement System and Martin Rosson

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 investors in a class and derivative lawsuit challenging the fairness of Earthstone Energy’s $335m acquisition of Bold Energy.
  • Won removal of poison pill measures instituted by Versum’s board of directors, resulting in a $1.43bn increase in merger consideration.

Robbins Geller Rudman & Dowd LLP

As one of the largest and best-financed plaintiff firms in the market, Robbins Geller Rudman & Dowd LLP frequently secures prominent roles in some of the most closely watched deal-related cases. Recently, the firm acted as co-counsel for institutional investors in Tesla in relation to a derivative and class action suit alleging that the company's board caused the company to overpay in its 2016 purchase of SolarCity Corp; Maxwell Huffman in San Diego played a key role in that matter. Also in San Diego, Randall Baron leads the practice and focuses on securities litigation, corporate takeover litigation, and breach of fiduciary duty actions; and David Knotts is known for representing both individual and institutional investors in deal-related cases.

Practice head(s):

Randall Baron

Other key lawyers:

David Knotts; Maxwell Huffman

Friedlander & Gorris, P.A.

Defense counsel and plaintiff firms alike cite Wilmington-based  Friedlander & Gorris, P.A. as one of the key players in the Delaware courts. The firm fields three partners partners—Joel Friedlander, Jeffrey Gorris and Christopher Foulds—and two associates, but is nevertheless regularly involved in high-value stockholder actions. It has secured some of the largest cash settlements in the Delaware Court of Chancery, including the largest-ever cash settlement of a stockholder derivative action. Its current caseload features high-stakes matters including a challenge to Oracle's acquisition of NetSuite, and a case against JPMorgan concerning the buyout of The Fresh Market.

Practice head(s):

Joel Friedlander; Jeffrey Gorris; Christopher Foulds