David B. Hennes

Notable examples of David’s recent work for clients include:

• David led the multi-office, multidisciplinary team that successfully prosecuted first-of-their-kind claims on behalf of Nippon Steel, including the litigation filed against President Biden arising from his improper use of CFIUS to block Nippon Steel’s $14.9 billion acquisition of U.S. Steel. These constitutional claims, filed in the D.C. Circuit, led to securing the first-ever reversal of a blocked transaction of any kind following a CFIUS review. David oversaw five separate, major litigations and arbitrations arising from the deal, including an expedited litigation seeking injunctive relief against a U.S. Steel competitor and an antitrust class action brought on behalf of putative indirect steel purchasers. David’s rapid, coordinated litigation response strategy helped shift the legal landscape and public narrative surrounding the deal, which supported the firm’s corporate and regulatory teams’ ability to negotiate with President Trump’s administration free from third-party and political disruptions.
• Securing dismissal of a first-of-its-kind Federal Trade Commission enforcement action filed in federal court in Texas targeting private equity firm Welsh, Carson, Anderson & Stowe for alleged anticompetitive conduct, seeking to hold the private equity sponsor liable for the alleged acts of its portfolio company. A major win for the private equity industry, the victory was the subject of a Wall Street Journal editorial entitled “Another Lina Khan Theory Loses in Court,” in which the WSJ wrote that the FTC “had hoped to use the case to expand liability under the antitrust laws and set a precedent that the agency has the power to unroll minority-stake acquisitions.” In addition to winning dismissal of the FTC action, David and his team secured Welsh Carson’s dismissal in a follow-on civil class action antitrust lawsuit.
• Defeating a motion for a preliminary injunction and emergency appeal filed in New York Supreme Court, seeking to block the proposed sale of publicly traded client Sculptor Capital Management to Rithm Capital. The lawsuit was brought by four former executive managing directors of Sculptor at the conclusion of an 18-month-long, highly contentious sales process and claimed that those former Sculptor employees had a contractual consent right over the sale of the company. The suit was litigated on an expedited basis; the New York Supreme Court rejected all elements of the injunctive relief that was sought, and the sale was able to close as planned.
• Achieving a major victory in the Delaware Supreme Court on behalf of industrialist William I. Koch, founder and CEO of Oxbow Carbon LLC. The case has important implications for the law of contracts, the implied covenant of good faith and fair dealing, and the governance of Delaware LLCs—the preferred form of organization for privately held businesses. As lead counsel in this highly publicized multibillion-dollar dispute, David sought to prevent a forced sale of Oxbow Carbon by its minority members. Following a trial, the Delaware Court of Chancery initially found that Mr. Koch had advanced the only logical interpretation of the LLC Agreement—which operated to prevent a forced sale under current market conditions—but that an implied covenant existed to reverse that result. However, on appeal, David persuaded the Delaware Supreme Court—in a 5–0 en banc decision—to reverse the Chancery Court’s implied covenant holding, vindicating Mr. Koch’s position.
• Serving as lead trial counsel for Deutsche Bank in a highly publicized trial victory stemming from the going-private transaction involving Dole Food Company. In a suit seeking $700 million in damages, 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 in connection with the sales process. Following a multi-week trial, the Delaware Court of Chancery found that Deutsche Bank was not liable to the shareholder class, while co-defendants were held liable for $180 million for breach of duty.
• Securing dismissal of class action Securities Act claims brought by plaintiff shareholders in the Southern District of New York against underwriters Citigroup Global Markets Inc., Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC, in connection with securities issued by Vertiv Holdings Inc. The complaint centered around Vertiv’s November 2021 $496 million secondary public offering following Vertiv’s going public in a $415 million merger with GS Acquisition Holdings Corp., a special purpose acquisition company. Plaintiffs alleged violations of Sections 11 and 12(a)(2) of the Securities Act of 1933 against the underwriters, alleging that the underwriters were responsible for the contents and dissemination of allegedly false and misleading statements in Vertiv’s prospectus/registration statement. The district court granted our underwriter clients’ motion to dismiss in its entirety.
• Serving as lead counsel for Blackstone and its two designees on the board of directors of Coral Acquisition Inc., the parent company of One Call Corporation, in obtaining dismissal of a putative derivative action filed by One Call’s largest shareholder, Chatham Holdings VI, LLC, in the Delaware Court of Chancery. The lawsuit, which was amended three times, named Blackstone and its two designees to the Coral board as defendants, along with KKR and the other five Coral directors, and claimed that One Call’s directors breached their fiduciary duties by unanimously rejecting Chatham’s proposal for a debt exchange in which only Chatham would have participated, and that Blackstone and KKR aided and abetted that alleged breach. No appeal was taken.
• Obtaining dismissal of three breach of contract actions brought against Shire and Novartis, filed by former stockholders of SARcode Bioscience Inc. in the Delaware Court of Chancery, in which those stockholders sought $525 million in damages for the alleged failure of Shire to make certain milestone payments pursuant to a merger agreement. David and his team secured a first dismissal when the Court of Chancery held that Shire did not owe the milestone payments under the clear language of the merger agreement; a second dismissal when the Court later held that res judicata barred the stockholders from obtaining extensive data under the information rights provision of the merger agreement to further pursue their claim to the milestone payments; and a third dismissal when the Court rejected the argument that the original judgment should be vacated on the basis of fraud. The Court then awarded legal fees to Novartis in connection with defending the third action.
• Successfully represented global investment bank PJT Partners in litigation in the Delaware Court of Chancery challenging the sale of RockPile Energy Services to private equity firm White Deer Energy. PJT Partners acted as a financial advisor to RockPile during the lead-up to the transaction with White Deer. The suit, which was brought by a former creditor of RockPile and sought in excess of $200 million in damages, alleged claims against PJT Partners for breach of duty, aiding and abetting, and civil conspiracy. Following David’s presentation at oral argument, the plaintiff agreed to voluntarily dismiss its claims against PJT Partners with prejudice.
• Successfully representing the board of Skillsoft Corp. in a derivative lawsuit challenging Skillsoft’s $525 million acquisition of Codecademy in April 2022 claiming, among other things, that Skillsoft's alleged controlling stockholder, MIH Learning, B.V., stood on both sides of the transaction and caused Skillsoft to overpay for Codecademy, and that members of the board acted disloyally and prioritized MIH's interests over the interests of Skillsoft's stockholders in negotiating and approving the transaction. Despite concluding that the “entire fairness" standard of review applied to the transaction given the presence of an alleged conflicted controlling stockholder, Vice Chancellor Travis Laster dismissed the case for failure to state a claim. Finding this was the “rare” case, Vice Chancellor Laster agreed with David's argument that MIH, which had invested $500 million and owned a 37.5% stake in Skillsoft, had no incentive to cause Skillsoft to overpay for an asset—Codecademy—in which it had invested only $40 million and owned only a 23.8% stake. In light of that and other facts, the Court held that the plaintiff had failed to plead “economic unfairness" in connection with the transaction and that dismissal was required.
• Representing Deutsche Bank in a first-of-its-kind putative class action lawsuit filed by an anonymous “Jane Doe” plaintiff who alleged that Deutsche Bank violated federal and New York State law by facilitating a criminal sex-trafficking enterprise through its provision of routine banking services to Jeffrey Epstein from 2013 to 2018. In March 2023, David and team secured the dismissal of a majority of Jane Doe’s claims by U.S. District Judge Jed Rakoff, and in May 2023, reached a favorable settlement to resolve the remainder of Jane Doe’s claims on a class-wide basis.
• Securing a major victory for Deutsche Bank AG and more than 40 current and former members of its supervisory and management boards by obtaining dismissal of a shareholder derivative lawsuit filed in New York Supreme Court alleging foreign-law breach of fiduciary duty and related secondary liability claims based on allegations that the individual defendants failed to properly supervise the bank and its employees for over a decade. The suit sought $18 billion in damages on behalf of the bank, and argued that while the law of the country of incorporation (Germany) governed her substantive breach of fiduciary duty claims, as a procedural matter, New York law should determine whether the plaintiff had standing to bring those claims. David and his team moved to dismiss the action on three primary grounds: first, that German (and not New York) law should determine whether the plaintiff had derivative standing, and the plaintiff lacked standing under German law; second, that even if New York law applied to the question of standing, neither New York's Business Corporation Law nor the New York Banking Law provided the court with jurisdiction to hear the plaintiff's derivative claims, since Deutsche Bank is registered as a foreign corporation; and third, dismissal was appropriate under the forum non conveniens doctrine because the connections to Germany were overwhelming, including the alleged failure of supervision by the boards, which formed the core of the plaintiff's claims. After David’s oral argument, the Supreme Court dismissed the claims in their entirety, adopting all three of the proposed grounds for dismissal.
• Serving as lead counsel for global investment bank Houlihan Lokey Capital, Inc. in obtaining a dismissal with prejudice of a class action lawsuit filed 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 for a variety of reasons. No appeal was taken as to Houlihan Lokey.