The national securities litigation practice at Skadden is frequently recognized for handling 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. According to Chambers USA 2017, which ranked the firm in the top tier for securities litigation, Skadden “enjoys an extremely strong reputation in both securities litigation and regulation.” In 2017, for the seventh consecutive time, Skadden was named to the BTI Consulting Group’s list of top litigation law firms — The BTI Fearsome Five — and named as a Powerhouse for Securities and Finance Litigation in the BTI Litigation Outlook 2018. Skadden is the only firm named to both of these lists in every edition of the report.
Our attorneys have deep experience with often-overlapping internal investigations, derivative actions and investigations by the U.S. Securities and Exchange Commission 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 acted as lead defense counsel in some of the most high-profile securities class actions, including representing Anadarko Petroleum Corporation, MacAndrews & Forbes Holdings, Inc., and News Corp. (now known as 21st Century Fox), among others. Most recently, we have represented or are currently representing clients in cutting-edge securities litigation, including Abercrombie & Fitch, Co., American Apparel, BlackBerry Limited, El Pollo Loco, Iconix Brand Group, Inc., Pfizer Inc., the former CEO of Porsche Automobil Holding, Sprint, The Walt Disney Company and all the major financial institutions.
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, and securing a grant of certiorari on behalf of UBS Financial Services Incorporated of Puerto Rico and UBS Trust Company of Puerto Rico to resolve a circuit court split over the standard of appellate review for dismissals of derivative suits pursuant to Rule 23.1
- 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.
- Vivint Solar, Inc., several of its officers and directors, and The Blackstone Group in securing a significant Second Circuit decision in a case of first impression that created a circuit split on the standard for determining the disclosure of interim financial data in a prospectus. The court’s decision affirmed the dismissal with prejudice of a putative securities class action complaint stemming from Vivint Solar’s Oct. 1, 2014, IPO, rejecting the plaintiff’s argument that centered around the “extreme departure” disclosure standard set forth in the First Circuit’s ruling in Shaw v. Digital Equipment Corp., and instead, holding that law of the Second Circuit is the materiality test set forth in DeMaria v. Andersen, which we also successfully argued on behalf of the underwriters in 2003.
Beyond providing a wealth of innovative solutions to U.S.-based companies, our global presence and experience also has made us a firm of choice for clients worldwide. For example, we recently obtained dismissals of two separate securities class actions against Asia-based ChinaCache International Holdings Ltd. and Jumei International Holdings Ltd., each of which were accused of misleading investors. Within two days, we secured the dismissals of both actions in the Central District of California and the Southern District of New York, respectively. We also secured the complete dismissal of a securities class action complaint against China-based AirMedia Group, Inc. and its CFO, in which investors alleged AirMedia engaged in a scheme to artificially inflate the trading price of American depositary receipts.
We handle the broad range of issues that arise when a corporation, director or officer faces securities class action or derivative-related claims. 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 represent clients in numerous cases related to the foreign exchange/commodities industries, addressing issues pertaining to foreign exchange rates, market manipulation and price-fixing allegations. In addition, we are advising a number of clients in litigation arising from various issues within the energy industry.
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 group has consistently received many top rankings and recognitions, including:
- in 2017, for the seventh consecutive time, Skadden was named to the BTI Consulting Group’s list of top litigation law firms — The BTI Fearsome Five — and named as a Powerhouse for Securities and Finance Litigation in the BTI Litigation Outlook 2018. Skadden is the only firm named to both of these lists in every edition of the report.
- has more top-tier rankings (eight) in U.S. News — Best Lawyers “Best Law Firms” 2017 for securities litigation than any other law firm.
- served as defense counsel in more federal securities cases in the U.S. from 2009 to 2016 than any other firm, according to statistics from Lex Machina.
- ranked in the top tier in securities litigation in Chambers USA 2016 and The Legal 500 United States 2015.
- named as one of Law360’s Securities Groups of 2014 and ranked in the top 10 in “Securities and White Collar Law360 100,” which lists the firms that have dedicated the most partners globally to securities litigation, government financial investigations and enforcement, and white collar defense.
- selected by The American Lawyer as a finalist in its 2014 Litigation Department of the Year issue.
- 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.
We handle securities, derivative and deal-related litigation matters for clients in a wide range of industries. Recent representations include:
Banks and Financial Institutions
- AXA Equitable Life Insurance Company in securing a dismissal in a series of federal and state class actions alleging AXA Equitable breached its contractual obligations to variable annuity holders.
- Bank of America/Merrill Lynch, UBS, Royal Bank of Scotland, Société Générale, CIBC, Crédit Agricole and BNP Paribas, among others, in 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 and certain of its current and former directors in the dismissal of a shareholder derivative action for alleged breaches of fiduciary duty related to purportedly improper residential mortgage-backed securitization practices and alleged manipulation of LIBOR;
- Barclays Bank in a FERC investigation regarding alleged market manipulation involving power trading in the western United States from late 2006 through 2008 and related federal court litigation.
- BNP Paribas in securing the dismissal of federal fraud and negligent misrepresentation claims arising from BNP’s marketing and underwriting of notes issued by Schmolz + Bickenbach, a global steel manufacturer. Canadian Imperial Bank of Commerce in breach of contract litigation brought by an affiliate fund of Cerberus Capital Management alleging that CIBC failed to make required payments under two separate agreements that reference a portfolio of CIBC’s structured assets, including certain synthetic assets.
- Citigroup Global Markets Inc. in a series of putative class actions alleging that numerous primary dealer defendants colluded to manipulate the U.S. Treasury securities markets in violation of federal antitrust laws and the Commodity Exchange Act;
- Citibank N.A. and affiliates in a putative class action alleging that numerous defendants conspired to fix prices in the secondary market for supranational, sub-sovereign and agency (SSA) bonds in violation of federal antitrust laws;
- and other underwriters of Petrobras offerings in a series of victories, including a Second Circuit judgment that vacated the district court’s class certification order and found that the district court failed to consider the need for individualized inquiries regarding whether each class member’s securities transaction was “domestic” under the Supreme Court’s decision in Morrison v. National Australia Bank;
- as the underwriting syndicate of various debt and equity offerings by Cobalt International Energy in a securities litigation asserting Section 11 and 12 claims involving allegations that Cobalt misrepresented and omitted material facts concerning its oil exploration prospects and compliance with the FCPA; and
- as the 17-member underwriting syndicate of Santander Consumer USA Holdings Inc.’s IPO in connection with two securities class actions (S.D.N.Y.) alleging that the offering materials for the company’s IPO were false and misleading and violated Sections 11 and 15.
- Fidelity Investments
- Fidelity Investments and certain of its officers in a putative class action in connection with allegations that Fidelity offers products to plan sponsors that violate ERISA’s fiduciary duty and prohibited transaction provisions; and
- FMR LLC and Fidelity Brokerage Services, LLC in securities class action litigation brought in the U.S. District Court in the Southern District of New York regarding high-frequency trading.
- HSBC Finance Corp. in securing a 7th Circuit opinion reversing and remanding for retrial an appeal from a $2.5 billion jury verdict following a trial in which a jury found the company and three of its former executives liable for making false and misleading statements to the market; and
- HSBC Holdings PLC’s subsidiary Household Finance in securing the settlement of a federal securities class action over alleged misrepresentations about whether the company engaged in predatory lending, re-aging of delinquent loans and certain accounting practices by its subsidiary Household International (now HSBC Finance).
- JPMorgan Chase
- in the dismissal of a putative class action in the U.S. District Court for the Southern District of New York alleging that JP Morgan Chase failed to provide the “prevailing” rate on foreign exchange transactions executed through their AutoFX program; and
- in securing the favorable settlement of a federal antitrust litigation brought by a proposed class of investors alleging manipulation of foreign exchange rates, such as the WM/Reuters Closing Spot Rates.
- MacAndrews & Forbes Holdings Inc. and certain directors in securing the affirmance of a dismissal in a Delaware shareholder class action relating to controlling stockholder squeeze-out transactions. This opinion was the first to dismiss a lawsuit challenging a controlling stockholder merger conditioned on both procedural protections.
- New Residential Investment Corp. and its directors in securing the dismissal in large part of a stockholder lawsuit challenging the company’s acquisition of the assets of Home Loan Servicing Solutions Ltd. for approximately $1.4 billion.
- Stilwell Value LLC and Joseph Stilwell in securing the favorable settlement of an SEC investigation alleging that Stilwell entities failed to adequately disclose conflicts of interest presented by approximately 20 interfund loans made over a 10-year period between certain pooled investment vehicles that they managed.
- UBS AG in securing summary judgment in a federal securities lawsuit that significantly reduced the amount of prejudgment interest entitled to the plaintiff trusts on their residential mortgage-backed securities claims;
- UBS Financial Services Incorporated of Puerto Rico in successfully defeating an attempted interlocutory appeal of an order denying class certification in a putative securities class action; and
- UBS Real Estate Securities Inc. (UBS RESI) in securing the dismissal of a New York state breach-of-contract action brought on behalf of a residential mortgage-backed securities (RMBS) trust, alleging that UBS RESI breached certain representations and warranties relating to the mortgage loans underlying the trust.
- 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; securing a Second Circuit affirmance of the dismissal of federal claims brought against Tremont by an investor alleging fraud; 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, for which the U.S. Supreme Court denied certiorari.
- Officers and directors of Apollo Education Group, Inc. in securing a settlement of a securities class action following dismissal with prejudice, judgment in favor of defendants and briefing of an appeal before the 9th Circuit.
- New Oriental Education & Technology Group Inc. in securing a partial dismissal and successful settlement of a putative securities class action filed following an SEC inquiry and short-seller attack.
- Cheniere Energy, Inc. in securing the settlement of a Delaware Chancery Court litigation challenging a stockholder vote on Cheniere’s incentive plan and the related issuance of shares as incentive compensation.
- Current and former directors of Pacific Gas & Electric Company in securing a favorable ruling in a California shareholder derivative lawsuit in connection with the September 2010 explosion of a gas transmission line in San Bruno, California, alleging breach of fiduciary duty by violating pipeline safety laws and regulations and failure to oversee adequate internal controls.
- Seadrill Limited and North Atlantic Drilling Limited in securing the dismissal of a federal class action alleging that the companies had failed to disclose the possible impact of an evolving global sanctions regime on contracts with Rosneft, the Russian oil company.
- Current and former members of the board of directors of Sempra Energy in securing the dismissal of a shareholder derivative suit brought against them alleging breach of fiduciary duty.
- TCP International Holdings, Ltd. in obtaining the dismissal of a consolidated securities class action in which the plaintiff claimed that TCP’s IPO registration statement and prospectus contained material misstatements or omissions.
- Vivint Solar, Inc., several of its officers and directors, and The Blackstone Group in securing a significant Second Circuit decision in a case of first impression that created a circuit split on the standard for determining the disclosure of interim financial data in a prospectus.
- XTO Energy, the settlor of a publicly traded royalty trust, in a derivative action where the unitholder claimed the ability to sue XTO despite the refusal of the trustee to initiate litigation against XTO.
Health Care, Life Sciences and Pharmaceuticals
- Baxter International Inc. in securing an order under recently enacted Section 205 of the Delaware General Corporation Law validating a charter amendment destaggering the board of directors of Baxter International Inc.; and in securing the settlement of a consolidated federal class action brought following its announcement of financial results for the first quarter of 2010 and a Food and Drug Administration order regarding Baxter’s Colleague infusion pump.
- Biogen Inc. and certain of its current and former officers in securing the dismissal of a putative federal class action alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5 thereunder, asserting that the defendants intentionally misled the market regarding revenue projections for the company’s multiple sclerosis drug, Tecfidera. We also secured the denial of the plaintiffs’ motion to vacate the dismissal.
- Centene Corp. in defense of a putative securities fraud class action arising out of its $6 billion acquisition of Health Net, Inc.
- Cytrx Corporation
- and certain of its officers in securing the dismissal of a purported federal securities class action alleging fraud after its stock price fell following the July 2016 release of preliminary data from the double-blind pivotal Phase 3 trial of its cancer drug aldoxorubicin; and
- in securing a dismissal upholding a Delaware forum-selection bylaw in a shareholder derivative suit.
- Current and former directors of E. I. du Pont de Nemours and Co. in securing federal and Delaware state appellate victories in the dismissal of two shareholder derivative lawsuits alleging breaches of fiduciary duty in connection with litigation against Monsanto Co.
- Express Scripts and certain of its current and former directors and officers in multiple shareholder derivative lawsuits filed in federal and state courts alleging breaches of fiduciary duty in connection with Express Scripts’ contractual dispute with Anthem, Inc.
- Gentium S.p.A. in securing a dismissal with prejudice in a putative securities class action lawsuit arising out of the company’s auction and sale to Jazz Pharmaceuticals.
- Insys Therapeutics, Inc. in securing a significant victory against claims arising out of a reverse stock split.
- Pfizer Inc. in defeating a stockholder’s demand for Pfizer’s books and records pursuant to 8 Del. C. § 220 in the Delaware Court of Chancery; and in securing a complete dismissal of a shareholder derivative suit brought against certain former and current officers and directors arising out of its settlements with the government concerning alleged FCPA violations.
- Questcor Pharmaceuticals, Inc. in securing the favorable settlement of a federal securities class action in connection with claims involving its principal drug, Acthar.
- 11 former directors and officers of Savient Pharmaceuticals in securing the dismissal of a securities class action concerning statements it made prior to its filing of Chapter 11 bankruptcy petitions.
- Abercrombie & Fitch, Co. in securing a settlement of a federal stockholder derivative action following a demand to inspect the company’s books and records pursuant to Section 220 of the Delaware Code for the purpose of investigating alleged wrongdoing.
- American Apparel in securing the dismissal of shareholder derivative claims in federal court concerning breach of fiduciary duty claims and alleged misconduct by their former CEO, securing a TRO against the former CEO from further breaching the terms of a standstill agreement, defeating a motion for preliminary injunction to enjoin the 2015 shareholder meeting and force a revote on the 2014 annual shareholder meeting, and securing summary judgment in a subsequent matter involving a demand for advancement of expenses incurred in defending against the company’s breach-of-contract claims.
- Caribou Coffee in securing a favorable post-trial opinion in a federal appraisal action stemming from Joh. A. Benckiser Company’s acquisition of Caribou Coffee in January 2013.
- Jumei International Holding Limited, a Chinese online retailer, in securing the dismissal of a putative federal securities class action alleging that it made false and misleading statements regarding its financial performance.
- El Pollo Loco Holdings, Inc., Trimaran Capital Partners and other individual defendants in twice securing the dismissal of a putative securities class action.
- Members of the special committee of the board of directors of Steinway Musical Instruments Inc. in securing the settlement of a shareholder class action lawsuit that challenged the company’s go-private sale to Paulson & Co.
- Vipshop Holdings Limited in securing the dismissal of a federal securities class action alleging that it made false and misleading statements regarding its financial performance.
Technology and Media
- 21Vianet, a Chinese internet data center service provider, in a federal securities class action alleging that it made false and misleading statements regarding its financial performance.
- Activision Blizzard, Inc. in a Delaware Chancery derivative and class action litigation challenging its $5.8 billion buyback of its shares from Vivendi, S.A., and related transactions.
- ChinaCache International Holdings Ltd. in securing the dismissal without prejudice of a federal securities class action alleging it made false and misleading statements about its financial performance.
- Covisint Corporation in a federal securities class action alleging that Covisint purportedly issued a misleading registration statement leading up to its September 2013 initial public offering.
- Directors of EMC Corporation in securing the affirmance of the dismissal of shareholder claims arising out of its 2016 merger with Dell Inc.
- Freescale Semiconductor, Ltd., its directors and Freescale Holdings, L.P. in defeating a putative federal class action brought by a shareholder seeking to enjoin Freescale Semiconductor, Ltd.’s proposed $40 billion merger with NXP Semiconductors, N.V.
- iDreamSky Technology Limited in a federal SLUSA securities class action alleging claims in connection with its August 2014 initial public offering.
- The individual directors of IntraLinks in securing the dismissal with prejudice of a New York derivative action in connection with the FDIC’s termination of its relationship with the company, resolving the last of several related lawsuits.
- MOL Global, Inc., a Malaysian data processing company, in putative securities class actions involving allegations of failing to disclose material information in connection with the listing of the company’s American Depositary Shares during its IPO.
- NQ Mobile Inc. in a federal securities class action alleging, based on a short seller attack, that the company’s financial statements and disclosures were false and misleading.
- Schawk Inc. and five of its directors in securing the dismissal of a Delaware Chancery Court litigation in connection with its approximately $575 million merger with Matthews International.
- Sprint-Nextel Corporation in securing the settlement of a securities class action alleging that Sprint issued false and misleading statements in connection with Sprint’s merger with Nextel Communications.
- Current and former directors and executive officers of The Walt Disney Company in securing the dismissal with prejudice of a stockholder derivative action accusing them of breach of fiduciary duty and unjust enrichment.
Transportation and Automotive
- Avianca Holdings SA in a New York state action brought by its second-largest shareholder in an attempt to block, among other things, a contemplated strategic partnership between Avianca, Colombia’s largest airline, and United Airlines.
- Embraer S.A. in a federal shareholder class action involving claims of alleged violations of federal securities law.