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Shareholder Litigation Developments and Trends


Speaker(s): Brian M. Lutz, Jason J. Mendro, Jennifer L. Conn
Recorded on: Jan. 17, 2017
PLI Program #: 205422

Brian M. Lutz is a partner in the San Francisco office of Gibson, Dunn & Crutcher. He is a member of Gibson Dunn's Litigation Practice Group and serves as a member of the Diversity Committee.

Mr. Lutz recently was named a Rising Star by Law360 in the Securities category—a distinction awarded to five attorneys nationwide under the age of 40. In November 2015, he was named "Litigator of the Week" by AmLaw Litigation Daily (an American Lawyer publication) for his work in securing a rare preliminary injunction that prevented a hostile takeover attempt of the pharmaceutical company Depomed, Inc. Mr. Lutz has experience in a wide range of complex commercial litigation, with an emphasis on corporate control contests, securities litigation, and shareholder actions alleging breaches of fiduciary duties. He represents public companies, hedge funds, private equity firms, investment banks and clients across a variety of industries, including bio-pharma, high tech, finance, retail, health care, energy, accounting and insurance.

Mr. Lutz received his Juris Doctor from Harvard Law School. He received his Bachelor of Arts in History and Political Science from the University of Michigan, where he was a member of Phi Beta Kappa. Mr. Lutz is admitted to practice law in New York and California.

Representative Matters:

  • Depomed: Represented Depomed in successful defense of hostile takeover attempt by Horizon Pharma. Won rare preliminary injunction stopping hostile takeover based on improper use of Depomed's confidential information. Within one hour of ruling, Horizon Pharma dropped its hostile takeover attempt altogether.
  • Eminence Capital: Represented Eminence in litigation and proxy contest commenced in connection with the combination of The Men's Wearhouse and Jos. A. Bank.
  • Tenet Healthcare: Represented Tenet in successful defense of unsolicited takeover offer from Community Health Systems. Less than one month after Tenet filed a complaint against Community alleging misstatements in Community's proxy solicitations, Community withdrew its takeover proposal. Also defeated efforts by shareholder plaintiffs to obtain expedited discovery and preliminary injunction hearing on breach of fiduciary duty action in Nevada state court, a case that was dismissed in its entirety before any discovery.
  • Transatlantic Re: Represented Transatlantic and its directors in various litigation brought by hostile bidder and dissident stockholders alleging breaches of fiduciary duties in connection with potential merger or sale of Transatlantic. Won key victories before Delaware Chancery Court in which the Court refused to grant plaintiffs' motions to expedite proceedings and to set a preliminary injunction hearing date. Also filed action that forced hostile bidder to withdraw invalid proxy materials that conflicted with company bylaws.
  • Confidential Client: Representing major retailer and its directors and officers in shareholder derivative litigation pending in Delaware and Arkansas. The actions arise out of an April 2012 New York Times article contending that a major retailer subsidiary committed violations of the Foreign Corrupt Practices Act. The cases are at the pleadings stage.
  • JP Morgan Chase: Representing the independent directors of JP Morgan Chase in derivative litigation alleging breaches of fiduciary duties in connection with trading losses at the Company's London-based Chief Investment Office desk.
  • UBS: Represented UBS in action alleging that UBS violated the federal securities laws in connection with the issuance of mortgage-backed securities. Won a rare dismissal of all claims at the pleadings phase. That decision was affirmed by the Third Circuit Court of Appeals.
  • Major Underwriters: Won rare defeat of class certification in securities class action case arising out of IPO of energy company.
  • Daimler AG: Represented former directors of DaimlerChrysler who were alleged to have breached their fiduciary duties when Daimler transferred a majority stake of Chrysler to the private equity firm Cerberus. Within days of oral argument on a motion to dismiss the complaint, the plaintiffs voluntarily dismissed our clients from the action.
  • ChinaCast Education Corp.: Represented outside director in obtaining rare TRO from Delaware Chancery Court postponing annual meeting so our client could run competing slate of directors. With the TRO in place and the meeting date moved, our client's director nominees were elected to the ChinaCast Board by a wide margin.
  • Hewlett-Packard: Represented the former directors of Hewlett-Packard in a shareholder derivative action concerning payments made to the Company's former CEO. The U.S. Court of Appeals for the Ninth Circuit affirmed a district court decision granting a motion to dismiss the action in favor of HP and our clients.
  • Textron Inc.: Represented Textron and certain of its subsidiaries, officers and directors in a high-stakes, multibillion-dollar shareholder class and derivative action concerning alleged misstatements and breaches of fiduciary duties in connection with Cessna and Textron Financial Corporation. Won complete dismissal of all claims at the pleadings phase, and the dismissal of the securities case was affirmed by the U.S. Court of Appeals for the First Circuit.
  • Baker Capital: Represented Baker Capital in lawsuit alleging fraud and breach of a fiduciary duty in connection with its investment in Internet retailer Wine.com. Won complete dismissal of all claims against our client after three-week trial in San Francisco Superior Court.
  • Confidential Client: Obtained preliminary injunction in Delaware Chancery Court preventing former business partner of a leading international insurance organization from using trade secrets and confidential information. Key victory paved the way to successful resolution for client.
  • Intel: Represented Intel and its directors and officers in shareholder derivative litigation alleging breaches of fiduciary duties in connection with alleged violations of the antitrust laws in the micro-processing industry. Case was successfully resolved pre-trial.
  • Marsh & McLennan: Represented Marsh & McLennan in various shareholder class and individual actions relating to brokerage practices and compensation disclosure. Several cases were successfully dismissed against our client on pre-trial motions.

Publications

  • Author, "Chancery Court Provides Guidance on 'Don't Ask, Don't Waive' Standstill Provisions," Delaware Business Court Insider (January 16, 2013).
  • Author, "How, if at all, Does the Dodd-Frank Whistleblower Provision Change the Compliance Regime for Companies?", Bloomberg Law Reports (February 21, 2012).
  • Author, "The SEC's Final Whistleblower Rules: The Floodgates Open on a New Wave of Whistleblower Claims, as the SEC Authorizes Massive Bounties to Anonymous Tipsters Are There Lessons To Be to Be Learned From Private Securities Class Actions' Use of 'Confidential Sources'?", Securities Litigation Report, Vol. 8, Issue 7 (July/August 2011).

Education

  • Harvard University - 2002 - Juris Doctor
  • University of Michigan - 1998 - Bachelor of Arts

Admissions

  • California Bar
  • New York Bar

Recent Publications


Jason J. Mendro is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher, where he practices in the firm's Litigation Department. Mr. Mendro has extensive experience defending class and derivative action lawsuits at the trial and appellate level, in both federal and state courts. He is a member of the Steering Committee of the Firm's Securities Litigation Practice Group. Law360 recently recognized Mr. Mendro as a "Rising Star" in the category of securities law.

Mr. Mendro has defended numerous securities class actions and shareholder derivative actions, representing directors and executives against a host of challenges to their decisions, oversight, and compensation. Mr. Mendro played a leading role in the following representations, among others:

  • Winning dismissal of parallel securities and derivative litigation arising from a leading government contractor's $500 million deferred prosecution agreement with the Department of Justice;
  • Winning dismissal of a derivative action claiming that the board of directors of a major pharmaceutical company improperly awarded executive compensation that did not qualify for tax deductions;
  • Winning dismissal of a derivative action accusing executives of a top technology company of backdating stock options;
  • Securing voluntary dismissal of a prominent consulting firm in a derivative action arising from the "Say on Pay" provisions of the Dodd-Frank Act;
  • Successfully settling a $400 million derivative action challenging CEO and director compensation at a biotechnology company; and
  • Winning dismissal of two major underwriters from a securities class action arising out of a disputed stock offering by a real estate finance company.

Mr. Mendro has also defended complex litigation involving a broad spectrum of other disputes, including claims under ERISA, the Fair Labor Standards Act, and the Sarbanes-Oxley whistleblower protection laws. He has conducted internal investigations, represented special litigation committees, and defended companies in investigations and actions by the Consumer Financial Protection Bureau, the Securities and Exchange Commission, and self-regulatory organizations.

Mr. Mendro also has significant experience in appellate litigation and in rulemaking challenges.Among other recent matters, Mr. Mendro was a key contributor to successful challenges to numerous, controversial regulations with broad implications for the global swaps market, as well as a precedent-setting appellate victory that reversed a multi-million-dollar jury verdict under the False Claims Act.

Mr. Mendro graduated cum laude from Harvard Law School. He earned a bachelor's degree from the University of Florida, where he graduated first in his class. Mr. Mendro also served as a law clerk to the Honorable Gerald B. Tjoflat of the United States Court of Appeals for the Eleventh Circuit.

Education

  • Harvard University - 2002 - Juris Doctor
  • University of Florida - 1998 - Bachelor of Arts

Admissions

  • California Bar
  • District of Columbia Bar
  • New York Bar

Recent Publications


Jennifer L. Conn is a litigation partner in the New York office of Gibson, Dunn & Crutcher LLP. She is a member of Gibson Dunn's General Commercial Litigation, Securities Litigation, Appellate, and Privacy, Cybersecurity and Consumer Protection Practice Groups.

Ms. Conn is a commercial litigator, who has extensive experience in a wide range of complex commercial litigation matters, including those involving securities, accounting malpractice, antitrust, contracts, insurance and information technology. Prior to joining Gibson Dunn, Ms. Conn was an associate with Cravath, Swaine & Moore in New York. She also was a law clerk for the Honorable Lawrence M. McKenna, United States District Judge for the Southern District of New York.

Ms. Conn received her Juris Doctor from Columbia University School of Law in 1995, where she was a Harlan Fiske Stone Scholar. She graduated, cum laude with distinction in all subjects, from Cornell University, College of Arts and Sciences, in 1992, with a Bachelor of Arts in Government.

Ms. Conn is admitted to practice in the State of New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Courts of Appeal for the Second and Eighth Circuits and the United States Supreme Court.

Ms. Conn regularly writes and speaks on various subjects, particularly those relating to securities litigation. She is the co-author of the Firm's Practicing Law Institute Treatise, Securities Litigation: A Practitioner's Guide.

Recent Significant Representations

  • ITT Educational Services, Inc.: Representing ITT Educational Services, Inc. in securities class action lawsuits pending in the United States District Courts for the Southern District of New York and Southern District of Indiana, relating to alleged misrepresentations concerning ITT's private student loan agreements with third party lenders and accounting for those agreements.
  • Royal Bank of Canada: Representing RBC in a securities fraud action pending in state court in Milwaukee, Wisconsin relating to RBC's sale of synthetic collateralized debt obligations.
  • Eastman Kodak Company: Represented officers of Kodak in securities class action in the United States District Court for the Southern District of New York relating to allegations that Kodak and its officers misrepresented the company's financial prospects prior to filing for bankruptcy. The dismissal of the action was unanimously affirmed by the Second Circuit Court of Appeals.
  • Flagstar Bancorp: Represented Flagstar in actions brought against it by monoline insurers in the United States District Court for the Southern District of New York relating to residential mortgage-backed securitizations.
  • Marsh & McLennan Companies, Inc. and Marsh Inc.: Represented Marsh & McLennan Companies, Inc. and Marsh Inc. in a consolidated securities class action in the United States District Court for the Southern District of New York and in various state actions around the country, relating to allegations first made by the New York Attorney General relating to misconduct in connection with insurance placements.
  • Mercer: Represented Mercer in an actuarial malpractice action in state court in Juneau, Alaska.
  • UBS AG: Represented UBS AG in connection with investigations into its conduct relating to the setting of LIBOR by antitrust agencies around the world, including those in the United States, the European Union and APAC.
  • PricewaterhouseCoopers LLP: Represented the Canadian firm of PricewaterhouseCoopers LLP in a securities class action in the United States District Court for the Southern District of New York concerning allegations relating to accounting for theater installations by its client, IMAX.
  • Deloitte LLP: Represented the Cayman Islands firm of Deloitte LLP in several accounting malpractice actions in federal courts in Nebraska and Texas and in the Cayman Islands.
  • Deloitte LLP: Represented the U.K. firm of Deloitte LLP in an accounting malpractice action in Florida state court.
  • Deloitte LLP: Represented the Irish and Bermuda firms of Deloitte LLP in an accounting malpractice action in California state court.
  • Deloitte LLP: Represented the Irish firm of Deloitte LLP in connection with disciplinary proceedings before the Irish Institute of Chartered Accountants.
  • Issuers and individuals in securities class action: Represented several issuers and individuals in a consolidated securities class action in the United States District Court for the Southern District of New York concerning allegations relating to the issuers' initial public offerings.
  • Accounting firms: Represented several accounting firms in connection with SEC civil actions and investigations of their clients relating to various issues, including allegations of accounting improprieties and subprime issues.

Education

  • Columbia University - 1995 - Juris Doctor
  • Cornell University - 1992 - Bachelor of Arts

Admissions

  • New York Bar

Practice

    Securities Litigation
    Appellate and Constitutional Law
    Litigation
    Media, Entertainment and Technology
    Privacy, Cybersecurity and Consumer Protection