Skadden, Arps, Slate, Meagher & Flom LLP and affiliates (“Skadden”) handles some of the most challenging, high-stakes securities litigation matters — “bet-the-company” cases that demand a full range of skills, in and out of the courtroom, as well as deep experience with often-overlapping internal investigations, derivative actions and investigations by the SEC and other federal or state regulators. The outcome of these proceedings can be vital to a company’s future, and Skadden’s approach of assembling collaborative teams of advisers with deep and relevant experience across our worldwide platform and the full range of disciplines is key to our successful track record on behalf of clients.
We have been selected as lead defense counsel in several of the largest and most important securities class actions in U.S. history, including representing Alcatel, Cendant Corporation, DaimlerChrysler AG, McKesson Corporation, Sunbeam Corporation, Waste Management, Inc. and the underwriters in the WorldCom bondholder litigation, among others. Skadden has successfully represented clients in significant and precedent-setting cases in appellate courts and before the U.S. Supreme Court, including Merrill Lynch in a unanimous win in Merrill Lynch v. Dabit. We also represented Merrill Lynch in securing two major victories before the U.S. Court of Appeals for the Second Circuit. This includes Lentell v. Merrill Lynch, in which the Second Circuit adopted a standard for loss causation that has been cited hundreds of times; and Wilson v. Merrill Lynch, which was the first auction rate securities (ARS) class action arising from the market collapse to be decided by an appellate court.
Our work includes representing financial institutions in matters related to subprime loans and the credit crisis, such as mortgage-backed securities litigation, securities class and derivative actions, and ERISA-related litigation. We also handle the broad range of issues that arise when any corporation, director or officer faces securities, class or derivative-related claims.
Skadden plays an active role in addressing and resolving litigation claims in the M&A context. In the last several years, our attorneys have defeated challenges to hundreds of billions of dollars in deals, in cases filed in Delaware and across the United States.
We advise on a wide variety of securities-related regulatory matters at the federal and state levels, and provide assistance in connection with investigations and proceedings before the SEC, the Commodity Futures Trading Commission, the Department of Justice, the offices of various state attorneys general, the Financial Industry Regulatory Authority and the New York Stock Exchange. We also have advised boards of directors and special committees in investigations of shareholder demands, accounting issues and other corporate governance matters. Many of our attorneys have valuable knowledge and experience from previous government service with the DOJ, SEC and CFTC.
Our Securities Litigation Group, which has received many top rankings and recognitions, was:
- for the third consecutive time named a member of the “Fearsome Foursome” — the four elite law firm litigation practices — and named as one of only three “powerhouses” for Securities and Finance Litigation in a survey of corporate counsel conducted by BTI Consulting and published by Law360 in 2013. We also were named as one of Law360’s Securities Groups of 2012.
- recognized for our defense of UniCredit S.p.A. in Madoff-related litigation in the 2013 Financial Times’ U.S. “Innovative Lawyers” report, which ranked Skadden first overall.
- ranked in the top tier for securities litigation by U.S. News — Best Lawyers “Best Law Firms” 2014.
- ranked in the top tier in securities litigation in Chambers USA 2013 and the U.S. Legal 500 2013. According to Chambers, “The team … has played a prominent role in the defense of securities claims for some of the most significant corporations and financial institutions.” Legal 500 said Skadden is “the top choice for ‘make or break’ litigation.”
- selected by The American Lawyer as a top firm in its 2010 Litigation Department of the Year issue.
We handle securities, derivative and deal-related litigation matters for clients in a wide range of industries. Our representations include:
Banks and Financial Institutions
- American Express Company, certain of its current and former officers, and officers of its American Express Financial Advisors subsidiary in the dismissal affirmed by the Second Circuit of a federal securities class action alleging misrepresentations of its high-yield exposure, its failure to disclose the lack of risk management controls and alleged violations of Generally Accepted Accounting Principles.
- Bank of America/Merrill Lynch; UBS; Royal Bank of Scotland; Société Générale; CIBC; Crédit Agricole and BNP Paribas, among others, in a series of residential mortgage-backed securities (RMBS) and other securities cases brought in state and federal courts and FINRA arbitrations throughout the country arising out of the credit crisis.
- Bank of America Corporation and certain of its affiliates in the first two civil cases brought by the federal-state RMBS Working Group involving the issuance of residential mortgage-backed securities: the first involving claims against the bank pursuant to the Financial Institutions Reform, Recovery and Enforcement Act of 1989 for alleged misrepresentations in connection with a single RMBS transaction, and the second involving claims against the bank for alleged wrongdoing in connection with the same RMBS transaction.
- Bank of America, Merrill Lynch & Co., Inc. and several former Merrill Lynch officers and directors in an affirmance of the dismissal of two double-derivative suits that sought to compel the BofA board to force its Merrill subsidiary to bring various claims against certain of Merrill’s former officers and directors in connection with Merrill’s allegedly risky investments in collateralized debt obligations.
- Barclays Bank in a FERC investigation regarding alleged market manipulation involving power trading in the western United States during late 2006 through 2008 and related federal court litigation.
- Canadian Imperial Bank of Commerce in successfully defeating a turnover application by the Commonwealth of the Northern Mariana Islands, which was seeking to enforce an $80 million tax judgment.
- Citigroup Inc. in securing the dismissal with prejudice of a shareholder class action arising out of a nearly $600 million transaction relating to Citi’s subsidiary, Student Loan Corporation.
- J.P. Morgan Chase in the dismissal of a federal class action brought by the Louisiana Municipal Police Employees Retirement System alleging that J.P. Morgan Chase failed to provide the “prevailing” rate on foreign exchange transactions executed through its AutoFX program.
- Merrill Lynch in the first class action dismissal affirmed by the Second Circuit arising from the collapse of the auction rate securities market, in connection with Merrill Lynch’s alleged manipulative conduct related to the ARS market.
- Morgan Stanley Private Equity Asia III Holdings in securing a denial for preliminary injunction in a class action challenging a going-private transaction involving Feihe International.
- Robert Hussey, a former Bank of America executive, in the affirmance of a dismissal in federal appellate court of a Section 10b-5(b) market timing claim brought by the SEC.
- Royal Bank of Scotland Group in the dismissal of a federal action brought by Woori Bank alleging false and misleading misrepresentations and omissions in connection with $120 million in collateralized debt obligations.
- Société Générale in the dismissal with prejudice of a federal shareholder class action alleging that SocGen knowingly understated its exposure to subprime mortgages through its CDO investments and knowingly misstated the strength of its risk management controls after a rogue trader in France circumvented these controls and put billions of euros at risk in unhedged trades.
- UBS Financial Services Incorporated of Puerto Rico, UBS Trust Company of Puerto Rico and directors of a group of mutual funds in the dismissal of remanded shareholder derivative claims in the U.S. District Court for the District of Puerto Rico alleging violations of federal securities and Puerto Rico laws. Prior to this, Skadden was successful in obtaining a grant of certiorari from the U.S. Supreme Court to resolve a circuit court split over the standard of review for appeals of dismissals pursuant to Rule 23.1 of the Federal Rules of Civil Procedure.
numerous major financial institutions in underwriting syndicates in:
- obtaining the dismissal with prejudice of a federal class action alleging that Deutsche Bank failed to adequately disclose its exposure to subprime and other residential mortgage-backed securities.
- the successful opposition of a motion in federal court seeking to file a second amended complaint in a federal securities class action brought on behalf of purchasers of certain securities issued by Bank of America Corporation.
- securing the dismissal with prejudice of a federal shareholder class action against a group of PrivateBancorp, Inc. underwriters alleging the materials of certain offerings of the company’s securities contained misstatements and omissions related to PrivateBancorp’s lending practices.
- a purported class action against the underwriting syndicates of 48 offerings by Citigroup Inc. alleging violations of the Securities Act based on misstatements and omissions concerning subprime exposure related to the offerings of debt and preferred securities.
- securing the dismissal of a securities class brought by U.S. investors against the underwriters of certain American Depositary Shares of Barclays Bank PLC seeking to recover losses stemming from alleged failure to disclose Barclays’ exposure to risky mortgage-backed assets.
- UniCredit, Pioneer Alternative Investments, Tremont Group Holdings and others in more than 25 actions stemming from the Bernard Madoff scandal, including litigation in federal trial and appellate courts in New York; state court actions in New York, California, Delaware, Massachusetts, Florida, Colorado, New Mexico and Washington; and, most notably, securing the dismissal of $60 billion in trebled RICO claims and common law claims brought against UniCredit by Irving Picard, the trustee for the Securities Investor Protection Act liquidation of Bernard L. Madoff Investment Securities.
- Allegheny Energy in achieving a global settlement of suits filed by plaintiffs in Maryland and Pennsylvania state and federal courts challenging a proposed stock-for-stock merger between Allegheny and FirstEnergy and claiming that the directors had breached their duties.
- Anadarko Petroleum Corporation in the dismissal of all but one alleged misstatement relating to the company’s investment and liability exposure for the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.
- the outside directors of Cano Petroleum in obtaining a dismissal with prejudice of a federal class action in Texas alleging violations of the Securities Act in connection with a secondary offering of Cano stock.
- Chevron Corporation in the dismissal of a shareholder derivative action in California state court arising out of the settlement of alleged violations of federal law, including the False Claims Act, in connection with leases for oil and natural gas production on federal and Native American lands.
- Exelon Corporation in the dismissal of a class action brought by shareholders of Constellation Energy Group in connection with its $7.9 billion merger with Exelon.
- GenOn Energy in litigation in the Delaware Court of Chancery and Texas state and federal courts arising out of the $1.7 billion stock-for-stock merger between GenOn and NRG Energy.
- Occidental Petroleum and its directors in the settlement of a federal shareholder suit asserting direct and derivative claims pertaining to director compensation.
- RRI Energy in successfully settling a $1.61 billion stock-for-stock merger transaction in Georgia between RRI and Mirant Corp.
- Seawell Limited in the dismissal of litigation in Texas and Delaware arising from Seawell’s nearly $1 billion acquisition of Allis-ChalmersEnergy.
- Star Gas Partners in obtaining a dismissal with prejudice of a federal class action complaint alleging violations of the Securities Act and the Securities Exchange Act alleging that statements by Star Gas about its business made in SEC filings, press releases and conference calls were fraudulent.
- XTO Energy in reaching a favorable settlement in litigation in Texas and Delaware arising out of a $41 billion transaction with Exxon Mobil Corporation.
- Amerigroup Corporation in successfully settling shareholder litigation in the Delaware Court of Chancery seeking to enjoin its proposed $4.9 billion acquisition by WellPoint.
- Baxter International in securing a favorable decision in a federal ERISA case arising out of Baxter’s announced financial results for the second quarter of 2002 and its subsequent announcement that it would restate its financial results for 2001 through the first quarter of 2004.
- Chattem in reaching a favorable settlement involving Tennessee corporation law arising out of a $1.9 billion transaction with Sanofi.
- Endo Pharmaceuticals in reaching favorable settlements in litigation involving Washington corporation law arising out of Endo’s $140 million acquisition of Penwest, along with related New York cases.
- Express Scripts in the settlement of a federal class action brought by shareholders of Medco Health Solutions related to Express Scripts’ acquisition of Medco. Skadden also obtained a dismissal of antitrust claims brought in Pennsylvania federal court.
- Gen-Probe Incorporated in obtaining the voluntary dismissal by the plaintiff and settlement in a case arising out of Hologic’s $3.7 billion acquisition of Gen-Probe.
- Gilead Sciences in obtaining a dismissal with prejudice of shareholder litigation in Delaware and New Jersey state court in connection with its $11 billion acquisition of Pharmasset involving allegations that the Pharmasset board of directors, aided and abetted by Gilead, breached its fiduciary duties by approving the merger and failed to disclose material information.
- Human Genome Sciences in defeating a request to temporarily enjoin GlaxoSmithKline’s $3.6 billion tender offer to acquire Human Genome Sciences in federal court, allowing the transaction to close, and also in successfully moving to dismiss two shareholder actions prompting both plaintiffs to capitulate and dismiss their actions with prejudice rather than respond to our motions to dismiss.
- Merck in successfully preventing a preliminary injunction motion in Delaware state court seeking to enjoin a shareholder vote under allegations that Millipore’s board of directors breached their fiduciary duties to shareholders by approving Merck’s acquisition of Millipore.
- Pfizer Inc. and its CEO in shareholder derivative litigation relating to FCPA issues at certain Pfizer subsidiaries.
- Pharmaceutical Product Development and its board of directors in achieving a favorable settlement and dismissal with prejudice of consolidated class actions in North Carolina state and federal court in connection with its $3.9 billion acquisition by affiliates of The Carlyle Group and Hellman & Friedman involving allegations that the PPD board of directors breached its fiduciary duties.
- Stryker Corporation in federal and state class actions in connection with Stryker’s tender offer to acquire all of the outstanding shares of Orthovita involving allegations that Orthovita’s directors breached their fiduciary duties.
- Abercrombie & Fitch Company, its CEO and its then-CEO and CFO as defendants in the settlement of a multidistrict federal securities class action alleging that the defendants made false and misleading statements regarding same-store sales figures.
- American Apparel in derivative and class actions filed in California federal and state court alleging violations of the Securities Exchange Act related to misstatements in American Apparel’s press releases and a failure to maintain internal controls.
- Burger King Corporation in achieving a favorable settlement in a litigation arising out of a $3.3 billion transaction with 3G Capital.
- The Coca-Cola Company in reaching a favorable settlement in a litigation arising out of a $12.3 billion transaction with its bottling company, Coca-Cola Enterprises.
- the special committee of the board of directors of The Gymboree Corporation in the settlement of a shareholder litigation in connection with Bain Capital’s acquisition of Gymboree.
- the independent directors of Inland American Real Estate Investment Trust in the dismissal with prejudice of a class action that challenged the value of shares sold to investors through a distribution reinvestment plan.
- the board of directors of Kid Brands in securing the affirmance by the Third Circuit of the dismissal of a shareholder class action alleging violations of the Securities Exchange Act in connection with customs compliance violations by the company’s subsidiaries, and in a related shareholder derivative action that was dismissed entirely.
- Oakley in obtaining an appellate victory limiting the awards of attorneys’ fees for shareholder class actions alleging breaches of fiduciary duty in connection with mergers.
- Playboy Enterprises, Inc., its CEO and various former directors in a favorable settlement of a securities class action lawsuit filed in Delaware over Playboy magazine founder Hugh Hefner’s successful $5.25 billion bid in 2011 to take the company private.
- Retail Ventures and certain of its directors in settling a consolidated class action in Ohio state court against RVI and its directors, and DSW, in connection with a February 2011 merger agreement between RVI and DSW involving allegations that RVI and its directors breached their fiduciary duties.
- Activision in achieving an appellate affirmance of a dismissal in a Delaware state court litigation in connection with Activision’s $18.9 billion transaction with Vivendi.
- BlackBerry (F/K/A Research in Motion Limited (RIM)) and certain of its officers in the dismissal with prejudice of a securities class action alleging that RIM made materially false and misleading statements regarding its financial condition and business prospects. The case is currently on appeal in the Second Circuit.
- current and former directors of Cadence Design Systems in two shareholder derivative actions in California state and federal courts alleging breach of fiduciary duty in connection with an earnings misstatement and a stock value drop.
- current and former members of the board of directors of Hewlett-Packard Company in securing dismissals in two separate shareholder derivative actions that arose from the highly publicized departure of HP’s one-time CEO Mark Hurd and HP’s acquisition of 3PAR.
- Computer Sciences Corp. and certain of its directors in the settlement of a federal securities class action complaint and dismissal of a related derivative litigation challenging certain statements related to the company’s performance of its agreement with the U.K. National Health Service to computerize the medical records for all U.K. residents in the areas covered by the agreement.
- ICX Technology in a litigation arising out of a $274 million transaction with FLIR Systems.
- Lawson Software in connection with Lawson’s $2 billion merger with GGC Software, a subsidiary of Golden Gate Capital.
- Qwest Communications International and its board of directors in the successful settlement of a federal class action brought by plaintiffs seeking to enjoin Qwest’s $22.4 billion merger with CenturyLink and alleging breach of fiduciary duties by Qwest board members and aiding and abetting by CenturyLink.
- Travelzoo Inc. and certain of its officers in securing the dismissal of a securities class action lawsuit brought challenging certain statements related to the company’s growth and its Getaways business, as well as in a related derivative action.
- William Ruehle, former CFO of Broadcom, Inc., in the successful defense of criminal and civil securities fraud charges brought by the DOJ and SEC. After an eight-week trial, all charges were dismissed, including the entire SEC complaint against all the defendants, including Ruehle.
- Yahoo! Inc. in the settlement of a consolidated shareholder and derivative class action in the Delaware Court of Chancery in connection with a proposed $44.6 billion unsolicited acquisition by Microsoft Corporation. Skadden also represented Yahoo! in the dismissal and subsequent affirmance of the dismissal on appeal of a related purported derivative complaint alleging breach of fiduciary duty and Section 14(a) claims.
Transportation & Automotive
- Autoliv in a securities class action involving alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act.
- DaimlerChrysler AG in securing a trial victory in a federal securities fraud action brought by Kirk Kerkorian involving the business combination of Daimler-Benz AG and Chrysler Corporation.
- KAR Auction Services in securing the denial of a preliminary injunction in the Delaware Court of Chancery to enjoin the merger between KAR Auction Services and OPENLANE.
- Wendelin Wiedeking, the former CEO of Porsche AG, in the dismissal of federal claims brought by several dozen hedge funds alleging misrepresentations and market manipulation arising out of Porsche’s attempted takeover of Volkswagen AG.