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. The Legal 500 has named David as a ‘Leading Lawyer’ for M&A Litigation: Defense. In its 2019 edition, Chambers described David as “an outstanding lawyer who has excellent judgment, is responsive 24/7 and gives excellent, thoughtful and practical business-oriented advice.” He is also described as “smart and savvy,” and is praised for his “practical and commercial approach” to cases. Chambers noted David’s “ability to handle a wide range of corporate and white-collar criminal litigation,” with 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 has also been recognized by Benchmark: Litigation as a New York Litigation Star.
- Lead counsel for industrialist William I. Koch and certain of his affiliated investment vehicles, seeking to prevent a forced sale of Oxbow Carbon by its minority members in a highly-publicized multi-billion dollar dispute resulting in a victory for Mr. Hennes’s clients in the Delaware Supreme Court in January 2019. The case was initially tried in the Delaware Court of Chancery, which 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. Following Mr. Hennes’s argument, in a 5-0 en banc decision, the Delaware Supreme Court found that the plain language of the LLC Agreement controlled the dispute and reversed the Chancery Court’s implied covenant holding, vindicating Mr. Koch’s position as argued by Ropes & Gray in the Delaware Supreme Court.
- Lead trial counsel for Deutsche Bank in a highly-publicized trial victory stemming from the going private transaction involving Dole Food Company, Inc. 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. 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 $160 million.
- 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.
- Successfully represented Goldman Sachs (as lead underwriter); Merrill Lynch, Pierce, Fenner & Smith Inc.; Deutsche Bank Securities Inc.; Morgan Stanley & Co. LLC; Needham & Company, LLC; Cowen and Company, LLC; William Blair & Company, L.L.C.; Northland Securities, Inc. in securing the dismissal with prejudice of a federal securities class action following the $450 million secondary public offering of Acacia Communications, Inc. Following a significant decline in Acacia’s stock price, a series of stockholders filed putative class-action lawsuits claiming that Acacia and the underwriters violated Sections 11 and 10(b) of the Securities Act and the Exchange Act, respectively, for alleged failures to disclose purportedly material information. The court rejected the plaintiffs’ claims that the offering materials violated the federal securities laws, and denied their motion for leave to amend as futile, dismissing the action with prejudice. No appeal was taken.
- Lead counsel in obtaining dismissal of two breach of contract actions, on behalf of Shire and Novartis, filed by former stockholders of SARcode Bioscience Inc. in the Delaware Court of Chancery in which those stockholders sought $425 million in damages for alleged failure to make certain milestone payments pursuant to a merger agreement. We secured a first dismissal when the Court of Chancery held that our client did not owe the milestone payments under the clear language of the merger agreement, and 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.
- Representing a group of investment banks, including J.P. Morgan, Goldman Sachs, Morgan Stanley and China Renaissance Securities, who underwrote the IPO of Jianpu Technology, Inc. (a China-based corporation that provides a platform for consumer lending), in a federal securities class action asserting claims under Section 11 of the Exchange Act filed in the Southern District of New York.
- Represented 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.
- 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 a global biotechnology and health care 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.*
- 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.*
- Co-author, “Avoiding Pitfalls of ‘Use’ Clauses in NDAs,” The New York Law Journal (October 25, 2019)
- Co-author, “The Risks of Not Strictly Complying with a “No Shop” Clause,” Ropes & Gray Alert (September 13, 2019)
- Co-author, “In Delaware, notices and deadlines matter,” International Law Office Corporate Finance/M&A Newsletter (July 3, 2019)
- Quoted, “'One of the Perils' of Being a Director: Litigation,” Agenda (June 3, 2019)
- Co-author, “Delaware Supreme Court Reaffirms Importance of Deal Price in Appraisal Litigation,” Ropes & Gray Alert (April 22, 2019)
- Co-author, “Justices Could Trigger Sea Change for Tender Offer Suits,” Law360 (April 18, 2019)
- Co-author, “Lorenzo v. SEC: Expanded Scope of Securities Fraud Liability,” Harvard Law School Forum on Corporate Governance and Financial Regulation (April 14, 2019)
- Quoted, “Justices May Clear Up Private Right To Sue Over Mergers,” Law360 (April 12, 2019)
- Quoted, “Del. Courts Stand By Deal Contract Language In Q1,” Law360 (April 5, 2019)
- Co-author, “Ropes & Gray Discusses How Notices and Deadlines Matter in Delaware,” Columbia University Law School “Blue Sky Blog” (March 27, 2019)
- Co-author, “Oral Argument on Scheme Liability,” Harvard Law School Forum on Corporate Governance and Financial Regulation (January 6, 2019)
- 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)
- JD, cum laude, University of Pennsylvania Law School, 1995; senior editor, Law Review; co-chairman, Moot Court Board
- BA, with high distinction, University of Michigan, 1991