David, co-chair of both the firm’s corporate and securities litigation practice and investment banking industry group, is a partner resident in Ropes & Gray’s New York office. David has over 20 years of experience litigating a broad array of corporate disputes, with an emphasis on complex corporate litigation, securities cases, corporate-control disputes, and enforcement litigation. He regularly represents buyers, sellers, and financial advisors in all forms of litigation arising out of transactional matters, including breach of duty litigation, breach of contract and business tort cases, and post-closing disputes. He frequently handles complicated federal securities class actions and state law derivative actions, and advises Boards and Board Committees (including Special Litigation Committees) on their responses to these litigations. David has represented corporate and individual clients in all aspects of these matters at the trial and appellate levels in federal and state courts throughout the United States, as well as in non-public SEC, FINRA and state securities investigations.
David has been consistently recognized by Chambers USA: America’s Leading Lawyers for Business as a leading individual in General Commercial Litigation. He is described as a “seasoned litigator with a breadth of experience” as well as “smart and savvy,” and is praised for his “practical and commercial approach” to cases. Chambers also noted David’s “ability to handle a wide range of corporate and white-collar criminal litigation” and he is described as having a “great ability to argue and convince regulators of his position.” Sources commend David for his “great balance between aggressive advocacy and the ability to close on a compromise” and fellow practitioners offer praise for his “judgment and strategic thinking.” Legal 500 calls him a “first-rate litigator” and “solution-oriented.” David is also recognized by Benchmark: Litigation as a New York Litigation Star.
- Lead trial counsel for Deutsche Bank in a highly publicized trial stemming from the going private transaction involving Dole Food Company, Inc. Deutsche Bank was alleged to have aided and abetted breaches of fiduciary duty by Dole's CEO and controlling shareholder and members of Dole's Board of Directors. Following a multi-week trial, the Delaware Court of Chancery found that our client was not liable to the shareholder class.
- Obtained a dismissal with prejudice of a class action lawsuit filed against global investment bank Houlihan Lokey Capital, Inc. in the Delaware Court of Chancery. The suit challenged the acquisition of Synutra International, Inc. by its controlling stockholder, arguing that the special committee of the Synutra Board of Directors that was formed to negotiate that transaction breached its fiduciary duties and that Houlihan Lokey, which served as the special committee’s financial advisor, aided and abetted those breaches. No appeal was taken.
- Represented Shire Plc in securing complete dismissal in the Delaware Court of Chancery of a $450 million claim by shareholders of SARcode that milestone payments were due based upon the results of clinical trials of SARcode’s key product after that company’s acquisition by Shire.
- Representing Deutsche Bank in Chancery Court litigation stemming from the acquisition of PLX Technology by Avago Technologies. Deutsche Bank was alleged to have aided and abetted breaches of fiduciary duty by the PLX Board in connection with the sale.
- Lead counsel representing a global biotechnology and healthcare company in a suit against a packaging company and its publicly-traded parent company alleging defendants breached their obligations under a non-disclosure agreement and misappropriated our clients’ trade secrets. Successfully defeated a motion to dismiss the complaint and a separate motion to stay discovery in connection with a potential transaction.*
- Lead counsel representing Knight Transportation in litigation in connection with its public unsolicited offer to acquire USA Truck, Inc. Following expedited discovery in advance of an expedited trial, the parties reached a settlement resolving the litigation.*
- Successfully secured a motion for summary judgment for The Bank of New York Mellon Trust Company (BNY Mellon) in litigation against Santander Holdings, the U.S. subsidiary of Banco Santander SA, Spain’s largest bank. BNY Mellon sued Santander alleging a breach of contract and seeking declaratory relief, asserting that Banco Santander’s acquisition of Sovereign Bancorp, Inc. constituted a “Change of Control” under a debt indenture. Following a damages trial, BNY Mellon was awarded US$308 million in damages plus all of its fees and costs.*
- Lead counsel representing NetSpend Corp. and its Board of Directors in defeating a motion for preliminary judgment seeking to enjoin a shareholder vote on NetSpend’s proposed US$1.4 billion acquisition by Total System Services, Inc.*
- Representing major broker-dealers and their employees in non-public SEC, FINRA and state securities investigations with respect to, among other things, insider trading, a joint federal and state investigation into conflicts of interest among research analysts, research analyst conduct, prime brokerage practices, and securities allocation issues. David also represents numerous senior corporate executives in connection with SEC, FINRA, United States Attorney and corporate internal investigations, including in the technology, pharmaceutical, financial, medical, media, and newspaper industries.*
*Representations completed prior to joining Ropes & Gray.
- Co-author, “Company's unaffected market price is best evidence of fair value for appraisal valuations,” International Law Office Corporate Finance/M&A Newsletter (March 14, 2018)
- Author, “Delaware Chancery Court dismisses disclosure claims relating to AOL's acquisition of Millennial Media,” International Law Office Corporate Finance/M&A Newsletter (May 31, 2017)
- Co-author, “Delaware Chancery Court applies Corwin standard and makes sale subject to business judgement rule,” International Law Office Corporate Finance/M&A Newsletter (May 24, 2017)
- Quoted, “Delaware Rundown: What You Missed In Q1,” Law360 (April 11, 2017)
- Quoted, “M&A Cases to Watch in 2017,” Law360 (January 2, 2017)
- Co-author, “Delaware Court of Chancery rejects claim of bad faith,” International Law Office (October 5, 2016)
- Author, “Dead Hand Proxy Puts – What You Need to Know,” Harvard Law School Forum on Corporate Governance and Financial Regulation (June 2015)
- Author, “Lessons from Delaware Court of Chancery’s Recent El Paso Decision,” Transaction Advisors (May 2015)
- Author, “Why El Paso Will Have Very Limited Applicability,” Law360 (May 2015)
- Author, “Fried Frank Discusses Proposed Appraisal Statute Amendments, Which Would Permit Companies to Reduce Their Interest Cost,” CLS Blue Sky Blog (March 2015)
- Author, “How Appraisal Statute Amendments Would Affect Mergers,” Law360 (March 2015)
- Author, “Family Dollar: Continuing Delaware Trend of Increased Deference to Independent Directors’ Decisions, Chancery Court Confirms Target’s Right Not to Negotiate With Competing Bidder,” VC Experts (March 2015)
- Author, “Court Confirms Target’s Right Not to Negotiate With Competing Bidder,” Transaction Advisors (January 2015)
- Author, “Now What? Managing Litigation Risk in a Post-Merger Boardroom,” NACD Directorship Supplement (November/December 2014)
- Author, “Howard-Anderson Does Not Increase Potential D&O Liability,” Law360 (August 2014)
- Author, “New Activist Weapon – A Look at Appraisal Arbitrage Cases,” Law360 (August 2014)
- Author, “More Deal Litigation? Appraisal Suits on the Rise,” NACD Directorship (September/October 2013)
- Author, “Preparing for Life Under The JOBS Act,” Compliance Reporter (July 2012)
- Moderator, “#MeToo, Other Workplace Behavior Issues and Pay Equity,” Director Summit roundtable series, Palo Alto, CA (November 13, 2018)
- Panelist, “Banker Liability in M&A Transactions: Recent Developments Regarding Independence, Conflicts of Interest and Fairness Opinions,” American Bar Association's 2018 Annual Conference of the Section of International Law, New York, NY (April 18, 2018)
- Presenter, “All this Confusion around Fraud Claims!,” Tulane University Law School 30th Annual Corporate Law Institute, New Orleans, LA (March 16, 2018)