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A creative and accomplished litigator, Nick Berg focuses his practice on complex litigation in state and federal courts around the country, as well as SEC enforcement matters and sensitive internal and external investigations. Clients rely on Nick for his innovative, efficient, tireless advocacy and, as they tell The Legal 500, his “outstanding understanding of the complexities of investigations spanning multiple jurisdictions.”
Nick has spent over two decades representing clients in transaction-related litigation and arbitrations, private equity-related disputes, and federal securities fraud and consumer class actions around the country. In addition, Nick routinely advises clients in connection with SEC and Special Committee investigations involving allegations of accounting errors and misstatements, insider trading, fraud, embezzlement, and bribery, among other topics.
Nick also has substantial experience advising clients in a broad array of industries in connection with government and internal investigations involving the FCPA, the U.K. Bribery Act, export control and economic sanctions laws and regulations, and other international risk issues.
Beyond his commercial practice, Nick is deeply committed to pro bono work. Nick led a team that won a trial victory in Iowa federal court on behalf of a class of juveniles subjected to unconstitutional mechanical restraints and solitary confinement at the Iowa Boys State Training School. Nick also litigated the first civil rights case under the Patient Protection and Affordable Care Act in East v. Blue Cross and Blue Shield of Louisiana, et al.—an action that successfully addressed the disparate impact on people living with HIV from insurers’ anticipated rejection of federal Ryan White funds.
Experience
Complex Litigation
- Representing a leading private equity firm, GTCR, in the highly publicized toxic tort litigation, In re Willowbrook Ethylene Oxide Litigation, in Illinois state court. We won dismissal with prejudice for our client on the eve of one bellwether trial, and we successfully severed the claims against our client in another bellwether trial, which resulted in an Illinois record judgment of $360 million against the remaining defendants. Nearly one thousand plaintiffs have already resolved their claims without our client contributing to any settlement, and we continue to win dismissal for our client in newly filed cases.
- Successfully represented a major shareholder of a public company in shareholder litigation before the Delaware Court of Chancery. Secured an injunction for our client requiring the Company to reinstate a record date and annual meeting date and prohibiting the Company from moving forward with a strategic transaction until approved pursuant to a proper process. After our client gained control of the public company in a proxy contest, the litigation team also successfully defended the new board members from a preliminary injunction brought by a billionaire shareholder to force a new board election.
- Successfully represented a private equity firm in a suit in Cook County, Illinois, arising from allegations against an employee of one of the sponsor’s portfolio funds. Based on personal jurisdiction and veil piercing arguments we raised in a motion to dismiss, the plaintiff agreed to voluntarily dismiss all claims against our client. As a result, our client successfully exited the case before the remaining parties reached a multimillion dollar settlement, the largest in a case of its kind in Illinois history.
- Represented a large hedge fund and several affiliated investment funds in expedited bankruptcy litigation that centered on Energy Future Holdings’ multiple attempts to sell the hedge fund’s interest in Oncor, a regulated utility company in Texas, and emerge from long-running Chapter 11 bankruptcy. Secured extremely favorable decisions in connection with two contested, multi-billion dollar transactions, which ultimately paved the way for a topping bid that provided creditors with significantly higher recoveries.
- Retained by specialty chemical company and its private equity sponsor to pursue third-party contribution claims against prior facility owners in a consolidated mass toxic tort litigation involving over 300 cases in Cook County, Illinois. Within one week of engagement, we secured a court order severing and staying the contribution claims, and subsequently guided our client through a bellwether trial settlement, defeated removal to federal court, and negotiated a favorable resolution with nearly all plaintiffs.
- Successfully moved to dismiss a private equity company from putative federal class action lawsuits and various state court suits related to the closure of a subsidiary of one of its portfolio companies, a for-profit law school.
- Represented a large hedge fund and several affiliated investment funds in expedited bankruptcy litigation that centered on Energy Future Holdings’ multiple attempts to sell the hedge fund’s interest in Oncor, a regulated utility company in Texas, and emerge from long-running Chapter 11 bankruptcy. Secured extremely favorable decisions in connection with two contested, multi-billion dollar transactions, which ultimately paved the way for a topping bid that provided creditors with significantly higher recoveries.
- Successfully represented a major shareholder of a public company in shareholder litigation before the Delaware Court of Chancery. Secured an injunction for our client requiring the Company to reinstate a record date and annual meeting date and prohibiting the Company from moving forward with a strategic transaction until approved pursuant to a proper process. After our client gained control of the public company in a proxy contest, the litigation team also successfully defended the new board members from a preliminary injunction brought by a billionaire shareholder to force a new board election.
- Representing global financial advisory firm in Sears Holdings Corp., et al. v. Lampert, et al. (S.D.N.Y.), Sears Holdings Corporation’s post-bankruptcy adversary proceeding brought by Sears’ unsecured creditors.
- Secured dismissal of a federal securities fraud class action and successfully defended that dismissal on appeal on behalf of a biotechnology client related to alleged misstatements regarding its pivotal developmental product and the product’s chances of FDA approval.
- Obtained dismissal of a consumer class action against a major hospital system related to its billing and collection practices.
- Capella Holdings v. Anderson (Del. Ch. 2017) and Anderson v. GTCR (D. Del. 2016): secured full dismissal of plaintiff’s alleged 9-figure claim and won summary judgment for our client, a private hospital system, in a dispute challenging the client’s recapitalization and sale. Also won dismissal of plaintiff’s related federal claim against Capella’s former private equity sponsor.
- Recovered over $20 million for a celebrity client defrauded by longtime financial, accounting, and legal advisers after an investigation into and ensuing civil litigation regarding the defendants’ criminal scheme.
- Obtained dismissal of a $50 million federal action against a major Internet company in the Northern District of Illinois alleging violations of the Computer Fraud and Abuse Act.
SEC Enforcement
- Conducted an investigation on behalf of the Special Committee of the board of a publicly-traded Fortune 50 company related to allegations of financial fraud and improper revenue recognition, successfully presented to the SEC in connection with the investigation, securing enforcement declination.
- On behalf of a large public company, successfully settled an SEC investigation on favorable terms relating to accounting entries and adjustments made to the company’s earnings per share calculations.
- Successfully represented the CFO of a publicly-traded company in connection with charges of accounting fraud.
- Received numerous enforcement declinations from the SEC in connection with representation of individuals and corporations under investigation for financial fraud and insider trading.
- Conducted an investigation on behalf of a multi-billion dollar public company into allegations of financial fraud, accounting irregularities, and bribery.
Anti-Corruption & International Risk Investigations and Compliance
- Advised a U.S.-based multinational medical device company in an industry-wide FCPA investigation involving countries across Europe, Asia, and South America, as well as in connection with anti-corruption related internal investigations and compliance issues.
- Spearheaded internal investigations for an oil & gas company regarding potential FCPA violations in the Middle East and Latin America.
- Represented a Fortune 500 company in connection with FCPA investigations in multiple jurisdictions, including Europe and Latin America.
- Served as anti-corruption and international risk counsel to large, publicly traded companies in the private equity, healthcare, oil & gas, and technology sectors, among others.
- Developed and implemented anti-corruption and international risk compliance programs for multinational companies in high-risk industries.
- Advised clients across industries regarding anti-corruption, trade sanctions, and export control due diligence in connection with joint ventures, mergers, acquisitions, and other key business partner relationships around the world.
Pro Bono
- Part of the trial team that represented a class of adolescents suffering from mental illness, who were confined at the Iowa Boys State Training School and were subjected to excessive and punitive use of solitary confinement and mechanical restraints. Ropes & Gray along with co-counsel, Children’s Rights and Disability Rights Iowa, litigated the case in a two week trial in the Southern District of Iowa.