Advice to Board of Directors in M&A Transaction
Advised board of directors of public company involved in merger transaction on minimizing risks and exposure of potential shareholder fiduciary duty and busted deal litigation.
Clawback Claims Against Hedge Fund
Represented hedge fund in connection with clawback claims asserted by bankruptcy trustee for debtors that invested in Ponzi scheme.
Investment Bank Representation in M&A Litigation
Represented investment bank which supplied fairness opinion to target company in connection with breach of fiduciary duty class action challenging M&A transaction.
$1.2 Billion Buyout - Restaurant and Casino Company
Represented the company in a $1.2 billion management led-buyout of a NYSE casino, hotel and restaurant company.
Alamosa Holdings, Inc. Securities Litigation
We obtained a dismissal with prejudice of consolidated putative securities class actions brought against a company that provides wireless mobile communications network services, and several of its officers and directors, that alleged securities fraud in connection with revisions to the company’s projections of subscriber growth. In re Alamosa Holdings, Inc. Sec. Litig.,
382 F. Supp. 2d 832 (N.D. Tex. 2005).
As a result of the dismissal of the securities class action, the plaintiffs in a related shareholder derivative case voluntarily dismissed their claims.
Animal Health International, Inc. Acquisition Litigation
Represented Lextron, Inc. in connection with the successful acquisition of Animal Health International, Inc., and five shareholder class actions filed in Delaware and Texas state courts, alleging breaches of fiduciary duties by the target's directors, and purported aiding and abetting by the acquiror.
Capstead Mortgage Corporation Securities Litigation
Obtained a dismissal of a federal suit against a REIT that engaged in mortgage-backed assets and mortgage services, and certain officers and directors, alleging that federal securities laws were violated through the company’s accounting and other disclosures. In re Capstead Mortgage Corp. Sec. Litig.,
258 F. Supp. 2d 533 (N.D. Tex. 2003).
We defeated plaintiffs’ subsequent motion to vacate the dismissal and to allow further amendments to the complaint. In re Capstead Mortgage Corp. Sec. Litig.,
2003 U.S. Dist. LEXIS 16525 (N.D. Tex. Sept. 19, 2003).
Catarido Ramirez, Individually and on behalf of others similarly situated, v. Berks' Warehouse & Trucking Corp, No. 3:12-cv-FLW-DEA
Represent a warehouse and shipping company in a lawsuit seeking an FLSA collective action and New Jersey state class action. The lawsuit alleges a failure to pay the overtime premium under the Fair Labor Standards Act and New Jersey law. On April 4, 2014, the Court entered an order on plaintiff's motion for conditional certification under the FLSA, finding that plaintiff had failed to meet his burden for conditional certification.
Cellstar Corp. Derivative Litigation
We defended a shareholder derivative suit against officers and directors of a company alleging claims for breach of fiduciary duties, waste and violations of Delaware statutes regarding the proposed divestiture of a significant portion of the company’s operations in Asia.
Cellstar Corp. Securities Litigation
We obtained dismissal of a putative class action against a marketer of various wireless communication products alleging improper revenue recognition and other misrepresentations and omissions. Echavarri v. Cellstar Corp.,
2001 U.S. Dist. LEXIS 25347 (S.D. Fla. Sept. 28, 2001).
Citadel Security Software Securities Litigation
We defended a computer and privacy software company, its chief executive officer and its chief financial officer in a putative class action challenging the company’s revenue projections and deferred revenue accounting. We successfully negotiated a global settlement of this putative class action along with parallel federal and state derivative suits.
Dean Foods Company Derivative Litigation
Represent Dean Foods Company in shareholder derivative litigation in which current and former directors are alleged to have breached their fiduciary duties to the company by participating in, or failing to prevent, violations of U.S. antitrust laws.
Dynegy Inc. Securities and Derivative Litigation
Represented Dynegy Inc. in putative securities class action and in shareholder derivative suits arising from allegations of fraudulent accounting treatment of certain energy contracts and a natural gas transaction, and from purported energy market manipulation.
Energytec, Inc. Litigation
Represent a securities broker in a federal suit alleging, among other things, federal securities fraud and violations of violation of Texas securities statutes, and obtained dismissal of those claims against our client. Energytec, Inc. v. Proctor
, 516 F.Supp.2d 660 (N.D. Tex. 2007).
Enron Corporation Securities Litigation
We are defending a major investment banking firm in multi-district litigation arising out of the collapse of Enron Corporation and involving single institutional plaintiff and class action suits.
First Command Financial Planning, Inc. Securities Litigation
We are representing financial services entities in suits asserting federal securities fraud claims, among others, and seeking to certify classes on behalf of purchasers of certain systematic investment plans.
FirstCity Financial Corporation Merger Litigation
Represented acquired entity, FirstCity Financial Corporation and its board of directors in connection with two shareholder class actions (filed in Texas and Delaware) alleging breaches of fiduciary duty in connection with the board’s approval of an acquisition of the company by Värde Partners, Inc.
FirstPlus Securities Litigation
Defended a specialized finance company, its chief executive officer, president and its chief financial officer alleging misrepresentations in connection with accounting for securities transactions. We obtained dismissal of the claims against the chief financial officer, and successfully negotiated a settlement of the claims against the remaining defendants.
Fleming Companies Securities Litigation
Defended underwriters of a grocery wholesaler's secondary stock offering against a class action alleging accounting misstatements were made in the offering registration statement and prospectus.
Flowserve Corporation Derivative Litigation
Obtained dismissal of shareholder derivative suits in New York and Texas alleging that directors and officers breached their fiduciary duties in connection with accounting restatement, merger integration issues, and missed earnings projections.
Flowserve Corporation Securities Litigation
Defending a worldwide manufacturer of pumps, valves and seals for flow control systems in a class action alleging securities fraud arising from accounting restatement, merger integration issues, and missed earnings projections. Obtained an order denying class certification and granting complete summary judgment in favor of the defendants, which was remanded for further proceedings after appeal.
Frozen Food Express Derivative Litigation
Represented special litigation committee of one of the country's largest temperature-controlled transportation services companies in investigating breach of fiduciary duty claims arising from related-party transactions.
Frozen Food Express Special Litigation Committee
Represented independent directors of Frozen Food Express Industries, Inc. in multiple suits filed in state and federal court arising from the company’s announced acquisition by Duff Brothers Capital. Argued against and defeated shareholder plaintiffs’ motion for preliminary injunction to halt the transaction, and obtained subsequent voluntary dismissal of all actions.
Gerdau/Quanex Class Action and Derivative Litigation
Representation of Brazilian steel company, Gerdau, and its U.S. subsidiary against aiding and abetting claims brought in Texas state court by Quanex shareholders in connection with Gerdau's acquisition of Quanex. Action was ultimately non-suited by plaintiffs.
Helen of Troy Securities Litigation
Represented a major marketer and distributor of personal care and houseware products in a putative securities class action arising from revisions to sales and earnings projections.
ICO, Inc. Special Litigation Committee
Represented the Special Litigation Committee of ICO, Inc. in connection with investigating and resolving allegations raised in a shareholder derivative suit filed in Harris County, Texas, alleging breaches of fiduciary duty in connection with the ICO board’s approval of an acquisition of the company by A. Schulman, Inc.
In re Adams Golf, Inc. Shareholder Litigation
Representation of Adams Golf and its board of directors in shareholder class action suit alleging breaches of fiduciary duty in connection with board approval of acquisition by TaylorMade-adidas Golf. Resolved case by disclosure-only settlement, allowing transaction to close.
In re Arena Resources, Inc. Shareholder Litigation
Represented acquired entity, Arena Resources, Inc., and its board of directors in nine shareholder class actions filed in two Nevada state courts, two Oklahoma state courts, and Oklahoma federal court, alleging breaches of fiduciary duty in connection with the board’s approval of the $1.6 billion acquisition of the company by SandRidge Energy, Inc.
In re AT&T, Inc. Shareholder Derivative Litigation
Represented the directors of AT&T, Inc. in a shareholder derivative lawsuit filed in Dallas County Court at Law, asserting breaches of fiduciary duty under Delaware law. Obtained dismissal of petition for failure by plaintiff to adequately plead futility of a pre-suit demand to the board.
In re EF Johnson Technologies, Inc. Consolidated Shareholder Litigation
Represented acquired entity, EF Johnson Techonologies, Inc. and its board of directors in two shareholder class actions filed in Texas state court alleging breaches of fiduciary duty in connection with the board’s approval of an acquisition of the company by Francisco Partners.
In re Parallel Petroleum Corporation Shareholder Litigation
Represent acquired entity, Parallel Petroleum Corporation, and its board of directors in five shareholder class actions filed in Delaware Chancery Court, District Court of Midland County, Texas, and District Court of Harris County, Texas, alleging breaches of fiduciary duty in connection with the board’s approval of an acquisition of the company by Apollo Global Management, LLC.
In re Parkcentral Global Litigation
Represent entities in a class action alleging breach of fiduciary duty and vicarious liability in connection with the failure of the Parkcentral Global hedge fund.
In re Schmitz, 285 S.W.3d 451 (Tex. 2009)
In a significant victory for businesses that elect to incorporate under the laws of Texas, obtained the first ruling by the Texas Supreme Court on the strict statutory prerequisites for commencing shareholder derivative litigation. Clarified that a shareholder demand letter must provide meaningful notice of a corporation’s supposed wrongdoing.
Intelect, Inc. Securities Litigation
Successfully opposed class certification in an action brought under Section 10(b) of the Securities Exchange Act of 1934 against a manufacturer of fiber-optic, multi-service access platform products and video communication products arising out of a restatement of the company’s quarterly financial results. The court denied class certification on the ground that the proposed class representatives were inadequate. Umsted v. Intelect, Inc.,
2003 WL 79750 (N.D. Tex. Jan. 7, 2003).
Joe W. and Dorothy Dorsett Brown Foundation v. Frazier Healthcare V, L.P., et al.
Represented multiple funds as alleged majority controlling bloc of a Delaware corporation in minority shareholder suit filed in the U.S. District Court for the Western District of Texas, arising from the sale of Ascension Orthopedics to Integra LifeSciences. Argued and won decisions in the trial court and in the Fifth Circuit Court of Appeals dismissing alleged improper equity dilution and minority shareholder oppression claims under Delaware law.
La Quinta Corporation Shareholder Derivative Litigation
Represented a public company in the hotel industry as a nominal defendant, in a putative derivative suit filed in Texas state court alleging fiduciary duty violations in connection with the Board’s approval of an acquisition of the company.
Microtune Corporation Derivative Litigation
Obtained a motion to dismiss the purported stockholder derivative lawsuit. The lawsuit alleged various claims, including breach of fiduciary duties and violations of the Securities Exchange Act of 1934, as amended, related to the company’s historical stock option granting practices described in its Annual Report. Pedroli v. Bartek,
564 F. Supp.2d 683 (E.D. Tex. 2008).
Microtune, Inc. Securities Litigation
We defended the former CEO of a silicon and systems company that develops radio frequency-based solutions for broadband communications, automotive electronics and wireless markets in a putative class action alleging misrepresentations regarding the company’s revenue recognition. The court granted partial dismissal, Angeloni v. Microtune, Inc.,
No.4:03-CV-56 (E.D. Tex. 2004), and we negotiated a settlement of the sole remaining claim.
Motient Corporation v. Dondero
We obtained dismissal on behalf of hedge funds in an action brought by a corporate issuer against the funds alleging violations of Section 13(d) of the Securities Exchange Act for statements made regarding proposed corporate transactions.
Natural Health Trends Securities Litigation
Defended the former President and CFO of a public company in a securities fraud class action arising out of the alleged failure to disclose related-party transactions.
Neutral Posture Ergonomics, Inc. Securities Litigation
We obtained dismissal on behalf of a chair manufacturer and its officers and directors of class action lawsuit alleging violations of Texas securities laws, common law fraud and negligent misrepresentation.
pcOrder.com, Inc. Securities Litigation
Obtained a dismissal of a putative class action brought under Section 10(b) of the Securities Exchange Act of 1934 against an e-commerce software company, its public subsidiary, and certain directors and officers alleging a lack of internal controls, improper revenue recognition, and undisclosed sales and product problems. Alcina v. pcOrder.com, Inc., 230 F. Supp. 2d 732 (W.D. Tex. 2002). In a companion case under Section 11 of the Securities Act of 1933, we successfully opposed class certification on grounds that the proposed class representatives lacked standing to sue and that the proposed representatives and their counsel were inadequate. Krim v. pcOrder.com, Inc., 210 F.R.D. 581 (W.D. Tex. 2002). We obtained dismissal of the remaining individual plaintiffs’ claims. Krim v. pcOrder.com, Inc., 2003 WL 21076787 (W.D. Tex. May 5, 2003). That ruling was affirmed on appeal by the Fifth Circuit. 402 F.3d 489 (5th Cir. March 1, 2005).
Positive Software Solutions v. New Century Mortgage, et al., 476 F.3d 278 (5th Cir. 2007), cert. denied, 127 S. Ct. 2943 (2007) (en banc)
In the case that set the standard for vacatur of arbitration awards in the Fifth Circuit, persuaded en banc Fifth Circuit Court of Appeals to reverse order vacating arbitration award in favor of leading nationwide specialty mortgage-banking company, setting standard for vacatur in Fifth Circuit.
Salomon Smith Barney, Inc. Litigation
We successfully opposed class certification in a federal suit brought against a major national brokerage firm by a customer alleging breach of contract in connection with alleged inaccuracies in the accounting for certain transactions in the customer’s account. Kase v. Salomon Smith Barney, Inc.,
218 F.R.D. 149 (S.D. Tex. 2003).
Securities and Exchange Commission v. Bartek, 484 Fed. App'x 949 (5th Cir. 2012)
Defended client Douglas Bartek, the former chairman and CEO of Microtune, Inc. in a stock options backdating case in Federal District Court and the Fifth Circuit Court of Appeals.
Silverleaf Resorts, Inc. Derivative Litigation
Represented Cerberus Capital Management and its affiliates in connection with the successful acquisition of Silverleaf, a Texas corporation, and related state court derivative litigation alleging breaches of fiduciary duties by the target's directors, and purported aiding and abetting by the acquiror.
Special Committee Investigation
Represented special committee of the board of directors a public company in investigation of alleged wrongdoing by senior management.
The Blackstone Group
Defense of The Blackstone Group against "aiding and abetting" claims asserted in class action brought in Texas state court by shareholders of Alliance Data Systems, in connection with intended merger and acquisition transaction.
The Pinnacle Fund, L.P. v. World Wireless Communications, Inc.
Successfully represented hedge fund as plaintiff in action arising from the defendant company’s failure to register shares with the SEC as required by the offering materials in a PIPE transaction.
Trilogy, Inc., Versata Enterprises, Inc. (Selectica v. Versata)
Represented a provider of enterprise software solutions in the Delaware Chancery Court and Delaware Supreme Court in the trial and appeal of the first case to challenge the validity of a 4.99% shareholder rights plan (or net operating loss “poison pill”), arising from the triggering of the pill and the subsequent dilution of the investor’s holdings.
Triton Energy Corp. Securities Litigation
Defended an oil and gas company in a putative class action alleging misrepresentations and omissions regarding the company's oil and gas production prospects, and the status of a bidding process for the company's assets.
Triton Energy Corp. Securities Litigation - Texas State Court
Obtained dismissal of claims by certain shareholders filed in Texas state court against an oil and gas company and two of its officers alleging misrepresentations in connection with a bidding process for the company's assets and an announcement of certain accounting write-downs, Sherman v. Triton Energy Corp
., 124 S.W.3d 272 (Tex. App. - Dallas, 2003), and subsequently obtained summary judgment against the remaining plaintiff shareholders.
Vaalco Energy, Inc. Proxy Contest Litigation
Filed lawsuit alleging securities laws violations on behalf of independent oil company against a hedge fund-led insurgent group that had launched a proxy contest aimed at unseating three of the company’s directors. Obtained temporary restraining order, which prompted immediate settlement whereby insurgent shareholder group withdrew competing nominees to board of directors and cast votes in favor of company’s director nominees.
ViaGrafix Corp. Securities Litigation
Obtained a dismissal with prejudice of a putative class action against an issuer and certain individuals under Section 11 of the Securities Act, arising out an initial public offering by a provider of interactive training and educational course products for the information technology market. Special Situations Fund III, L.P. v. ViaGrafix Corp.,
2001 WL 182666 (N.D. Tex. Jan. 22, 2001).
WebLink Wireless Securities Litigation
We obtained a dismissal of a federal suit against an individual officer/director arising out of alleged misrepresentations in a press release containing optimistic statements about possible sources of funding for the company. Berger v. Beletic,
248 F. Supp. 2d 597 (N.D. Tex. 2003).
Wyndham International, Inc. Derivative Litigation
Represented certain directors of Wyndham International, Inc., and the company as nominal defendant, in a putative derivative suit filed in federal court in the Northern District of Texas alleging fiduciary duty violations in connection with the Board's approval of an acquisition of the company.