M&A litigation: plaintiff in United States

Bernstein Litowitz Berger & Grossmann LLP

'This firm always does its homework and invests its resources when it has a real case to pursue', say defense counsel of Bernstein Litowitz Berger & Grossmann LLP. Based predominantly in New York, the firm is recognised for its rigorous approach to cases on behalf of public pension funds and institutional investors in securities litigation, corporate governance and shareholder rights issues. It has an outstanding track record in prosecuting cutting-edge fiduciary duty issues in connection with M&A transactions, and its recent successes include securing investor voting rights in cases combating “dead hand” proxy puts in corporate debt agreements. The practice is led by Mark Lebovitch and Jeroen van Kwawegen in New York and new recruit Greg Varallo, who built a stellar reputation as a corporate defense lawyer at Richards, Layton & Finger, P.A. and is now in charge of the firm's new Delaware office. David Wales is New York is also recommended for derivative, class, and private litigation arising from breaches of fiduciary duty and other misconduct by boards of directors and senior executives at public companies.

Other key lawyers:

David Wales

Testimonials

This firm always does its homework and invests its resources when it has a real case to pursue.

The firm is judicious in its selection of cases.’

They are always willing to put up a fight.

Greg Varallo is a really good guy, a real statesman.

Key clients

Louisiana Sheriffs Pension & Relief Fund

Key West Police & Fire Pension Fund

The Amalgamated Bank

The Blue Sky Group

Iron Workers Local No. 25 Pension Fund

Bluemountain Financial Holdings

Union Asset Management

Pentwater Capital

Westchester Capital Management

Paloma Partners

Hudson Bay Capital Management LP

Work highlights

  • Acted for John Cumming and derivatively on behalf of Nominal Defendant New Senior Investment Group, Inc. in recovering $53m and securing important corporate governance reforms following a Section 220 case against Fortress Investment Group LLC.
  • Secured a $29bn recovery – the first such financial recovery to be obtained in a derivative action based on a cyber/data breach – on behalf of Patricia Spain and Oklahoma Firefighters Pension and Retirement System following an extensive investigation, including obtaining books and records of Yahoo pursuant to Section 220 of the Delaware General Corporations Law following Yahoo’s announcement in 2016 of a deal with Verizon to sell its core business for $4.83bn.
  • Obtained a $282m judgment obtained in shareholder appraisal rights litigation and trial overTransCanada’s acquisition of Columbia Pipeline Group on behalf of Westchester Capital Management, Paloma Partners, David Kempner and Hudson Bay Capital Management.
  • Obtained partial summary judgment against natural gas company Regency Energy Partners LP, claiming its board knew an $11bn merger with Energy Transfer Partners LP was not in its best interests.

Robbins Geller Rudman & Dowd LLP

Defense counsel is full of praise for Robbins Geller Rudman & Dowd LLP, describing it as 'aggressive, tenacious and in a league of its own', and noting that it is 'the best firm and the best financed, so it is able to take risks and it stands alone in this area of law.' The firm is best-known for its prosecution of corporate takeovers, having secured billions of dollars and beneficial changes on behalf of shareholders in the context of M&A transactions. Randall Baron in San Diego leads the practice, which climbs the ranking this year. Also in San Diego, Rick Atwood has a strong track record in class actions and derivative suits, while up-and-coming partner David Knotts acts for both individual shareholders and institutional investors in securities class actions relating to mergers and acquisitions.  Maxwell Huffman and David Wissbroecker, who works in both the San Diego and Chicago offices, are also recommended.

Practice head(s):

Randall Baron

Testimonials

The firm is judicious in its selection of cases and is willing to put up a fight.

It is aggressive, tenacious and in a league of its own.

It is the best firm and the best financed, so it is able to take risks and it stands alone in this area of law.

Work highlights

  • In re Calamos Asset Mgmt., Inc. Stockholder Litig., saw the Delaware Court of Chancery approve a settlement of up to $30m for a class of investors in a controlled investment management firm that was taken private by its controlling shareholder for a payment of about $130m to the minority stockholders.
  • In re Oracle Corporation Derivative Litigation saw the firm appointed co-lead counsel in derivative litigation on behalf of Oracle Corporation challenging its $9.3bn acquisition of NetSuite Inc.
  • Duncan v. Joy Global, Inc., saw the firm secure a $20m post-merger settlement agreement in favor of a stockholder class – the largest pure Section 14(a) settlement in the history of the Seventh Circuit.

Grant And Eisenhofer

Grant And Eisenhofer ‘seriously litigates matters and has smart lawyers’. Headquartered in Wilmington, the firm is is well-known to the Delaware courts for representing both public and private clients in a wide range of matters under Delaware corporate law, including matters relating to the enforcement of institutional investors' rights, such as as proxy voting. The firm is also a leading name in cases involving shareholder activism, with heads of the corporate governance practice Jay Eisenhofer in New York and Michael Barry in Wilmington recognised for their in-depth knowledge of such cases. The firm has served as lead counsel in eight of the largest settlements in the history of Delaware Chancery Court and its track record also includes the largest derivative settlement in any jurisdiction - a $922m settlement with UnitedHealth Group. In Wilmington, partner Nathan Cook focuses on trial and appellate litigation in Delaware and senior counsel Kimberly Evans handles appraisal rights, corporate governance and other complex corporate litigation.

Practice head(s):

Jay Eisenhofer; Michael Barry

Other key lawyers:

Nathan Cook; Kimberly Evans

Testimonials

‘The firm seriously litigates matters and has smart lawyers.

Work highlights

  • Represented the class of shareholders of Starz against cable mogul John Malone and other Starz directors alleging their breaches of fiduciary duty in negotiating and approving the sale of Starz to Lions Gate Entertainment Corp. for an unfair price.
  • Handled a derivative action that challenged Ebix’s adoption and implementation of an agreement that would provide the Company’s CEO with a bonus upon a change in control worth 20% of the equity value of the company.
  • Representing clients in two actions against Tesla – the first a derivative/class action alleging that CEO Elon Musk and company directors caused Tesla to overpay in its 2016 purchase of SolarCity, and that defendants issued false and misleading statements to stockholders in connection with the transaction; the second a derivative suit was filed in response to Musk’s social media use, and its effect on Tesla’s stock price.

Kessler Topaz Meltzer & Check, LLP

Kessler Topaz Meltzer & Check, LLP is 'one of the three strongest firms in this space', according to defense counsel. It has a selective approach to the cases it pursues and since it was founded in 1987, it has recovered billions of dollars on behalf of its clients and the classes they represent. The firm has 90 attorneys focused on complex commercial cases, of which eight partners focus on shareholder derivative and M&A litigation. It has a client base that includes 300 institutional investors from around the world, among which are South Miami Pension Plan and Arkansas Teacher Retirement System. Darren Check leads the practice but Lee Rudy is the most prominent litigator in deal-related cases. Most of Rudy's cases are brought before the Delaware Chancery Court, where he has won notable successes at trial. Eric ZagarDaniel Albert and associate Stacey Greenspan also play key roles in the practice. All are based in the Radnor office, though the firm also has an office in San Francisco.

Practice head(s):

Darren Check

Testimonials

This is one of the three strongest firms in this space and it has a very aggressive approach.

Work highlights

  • The firm and its co-counsel filed a settlement agreement with the Delaware Court of Chancery, proposing the resolution of a six-year litigation primarily concerning Ebix, Inc., a global supplier of on-demand software and e-commerce services to the insurance, financial and health care industries.
  • Served as co-lead counsel in a mixed direct and derivative action, which principally challenged breaches of fiduciary duty by the founder, former chairman and controlling shareholder of Liberty Tax, John Hewitt.
  • Filed a lawsuit on behalf of stockholders of Starwood Waypoint Residential Trust relating to SWAY’s proposed acquisition of its manager SWAY Management LLC, as well as the related proposed merger between SWAY and Colony American Homes, Inc.
  • For I.A.T.S.E. Local No. One Pension Fund, the firm filed an action challenging a series of mergers in which General Electric Company, the controlling stockholder of General Electric Capital Corporation, unfairly eliminated the Series A, Series B and Series C Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock of GECC.
  • Appointed as co-lead counsel in an action against Energy Transfer Equity on behalf of Chester County Employees’ Retirement Fund, which arose out of the defendants’ plan to issue Energy Transfer Equity convertible units to Chairman and CEO Kelcy Warren and other insiders, related amendments to ETE’s governing limited partnership agreement and the ultimate distribution of the convertible units.

Labaton Sucharow LLP

'They prepare their cases and choose their cases more effectively than many other comparable firms', says a client of Labaton Sucharow LLP. The firm has a track record in corporate governance and other shareholder actions, including prosecuting claims relating to unfair related-party transactions, and interference with shareholding voting rights, that goes back more than 50 years. Since opening its Delaware office in 2009, it has become a regular player in high-value matters before the Delaware Chancery Court. Among its successes was the second largest derivative settlement, $153m, in Court of Chancery history. Ned Weinberger in the Wilmington office, who is 'one of the best plaintiffs' lawyers in Delaware', leads the eight-lawyer team, which includes two partners. Star associate Thomas Curry is also recommended for his representation of investors in stockholder litigation, with a particular focus on litigation in the Delaware Court of Chancery, where he recently achieved success in two appraisal cases.

Practice head(s):

Ned Weinberger

Other key lawyers:

Thomas Curry

Testimonials

The team is able to put together complex facts and innovative legal theories together to make compelling cases. They prepare their cases and choose their cases more effectively than many other comparable firms.

Ned Weinberger is one of the best plaintiffs’ lawyers in Delaware. He is the engine that drives the team, and even from the perspective of an adversary, he commands respect and generates productive discussion where it is needed.

Key clients

Steamfitters Local 449 Pension Plan

Cambridge Retirement System

Norfolk Retirement System

Massachusetts Laborers’ Pension Fund

Plumbers and Steamfitters Local 60 Pension Trust

Work highlights

  • Secured a $35.5m  settlement for H&N Management Group and AFF Cos. Frozen Money Purchase Plan in a derivative lawsuit challenging decisions made by the board of directors of mortgage REIT AGNC Investment Corp.
  • Represented minority shareholders in a breach of fiduciary duty lawsuit challenging the Clear Channel Board of Director’s decision to continue lending greater than $1bn to Clear Channel’s controlling shareholder, iHeartMedia, which had been saddled with $20bn in debt after being acquired by two private equity firms.
  • Won 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.
  • Representing Straight Path’s minority shareholders in a lawsuit concerning Straight Path Communication’s $3.1bn merger with Verizon.
  • Appointed co-lead counsel in a class action against Dell’s controlling stockholders stemming from a $14bn share exchange transaction.

Friedlander & Gorris, P.A.

'The firm is for sure one of the serious players in the market', say defense counsel of Friedlander & Gorris, P.A. Based in Wilmington, the small practice has three key partners - Joel Friedlander, Jeffrey Gorris and Christopher Foulds - as well as associate Christopher Quinn - who handle corporate law litigation, alternative entity disputes, commercial litigation and federal securities law cases in Delaware state and federal courts. Its main focus is on prosecuting stockholder actions and its track record includes securing one of the largest-ever cash settlements in the Delaware Court of Chancery and largest-ever cash settlement of a stockholder derivative action, which was $275m on behalf of Activision Blizzard. With a team of four, the firm is highly selective about the cases it pursues, focusing on high-value rather than high-volume settlements.

Practice head(s):

Joel Friedlander; Jeffrey Gorris

Testimonials

The firm is for sure one of the serious players in the market.