Peter L. Welsh

Experience

• Tesaro, Inc.: Secured complete dismissal of a class action complaint filed in the Delaware Court of Chancery challenging the $5.1 billion acquisition of Tesaro, Inc. by GlaxoSmithKline, plc. The Court rejected each of the plaintiff’s alleged disclosure claims and held that the plaintiff had failed to plead that the stockholders’ decision to tender their shares was not fully informed. As a result, the Court concluded that under Corwin the business judgment rule applied and compelled dismissal. Successfully defended the Court of Chancery’s dismissal before the Delaware Supreme Court, obtaining a unanimous affirmance from the Supreme Court en banc.
• Advent International Corp.: Represented Advent in one of the first cases in the COVID-19 era to test how “material adverse effect” clauses in merger agreements apply in the context of the pandemic. Following execution of a merger agreement by which Advent would acquire Forescout for nearly $2 billion, Forescout’s financial performance declined dramatically and the company appeared to deviate from its ordinary course of business. Advent notified Forescout that it would not close the merger, and Forescout then sued in the Delaware Court of Chancery, seeking an order forcing Advent to consummate the transaction. Following highly expedited fact and expert discovery—including over 40 depositions in three weeks—the case settled the week before trial, with Forescout agreeing to a lower transaction price.
• National Amusements: Trial counsel defending Shari Redstone and National Amusements, Inc. against parallel actions in the Delaware Court of Chancery brought by former stockholders of Viacom and former stockholders of CBS challenging the multi-billion dollar merger of Viacom and CBS in 2019. Plaintiffs claim that the merger was unfair to the stockholders of each respective company, and that defendants allegedly breached their fiduciary duties to both companies in connection with the merger.
• Immunomedics, Inc.: Successfully represented former independent directors of Immunomedics, first in highly-expedited and high-profile trial litigation and then in post-transaction damages litigation, resulting in a favorable settlement for our client. A major Immunomedics shareholder filed suit in the Delaware Court of Chancery alleging that the members of the Immunomedics Board breached their fiduciary duties and sought to entrench themselves by approving a license transaction. We reached a favorable settlement of all claims against our clients.
• Akebia Therapeutics, Inc.: Secured complete dismissal by the District of Delaware of litigation arising from a $1.3 billion dollar merger, by which Akebia acquired Keryx Biopharmaceuticals, Inc, and successfully defended the District Court’s dismissal before the Third Circuit, obtaining a unanimous affirmance. The case involved former shareholders of Keryx filing multiple putative class actions against Keryx and its former directors alleging that the registration statement filed in connection with the merger contained allegedly false and misleading statements or failed to disclose certain allegedly material information in violation of Section 14(a) and 20(a) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and Rule 14a-9 promulgated thereunder.
• Bain Capital Real Estate, LP: Represented an affiliate of BCRE in pursuing claims against a former manager (“REDCO”) of a joint venture formed to pursue commercial real estate opportunities. We developed a comprehensive strategy for BCRE to address REDCO’s misconduct, including removing REDCO as manager and then seeking injunctive relief in the Delaware Court of Chancery to prevent REDCO from continuing to unlawfully compete. The case presented untested issues about choice-of-law and forum provisions, particularly involving restrictive covenants outside of the employment setting, with dueling arguments under Delaware and California law. Reached a very favorable settlement effectively achieving complete victory for the client.
• Elliott Management Corp.: Trial counsel representing Elliott and several affiliated investment funds in expedited bankruptcy litigations that center on Energy Future Holdings’ multiple attempts to sell their 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 transactions, which ultimately paved the way for a topping bid that provided creditors with significantly higher recoveries.
• LPL Financial Holdings: Secured complete dismissal of a putative securities class-action lawsuit filed in the Southern District of California on behalf of LPL, its former CEO and its current CFO. Plaintiffs filed suit in response to a drop in the company’s stock price, alleging that LPL made false statements and failed to disclose adverse information to artificially inflate its stock price for a share repurchase program.
• Sterling Partners LLC: Secured the dismissal of federal class action lawsuits related to the closure of a subsidiary of one its portfolio companies. The lawsuit alleged that Sterling Partners and two of Sterling Partners’ Funds violated Illinois and North Carolina statutory and common law arising out of the closure of several for-profit schools of law. Plaintiffs asked the court to pierce the corporate veil against Sterling Partners and the two Funds and hold them liable for damages allegedly arising out of the closure of the schools.Courts in Illinois and North Carolina dismissed several lawsuits against Sterling and its funds.
• Public Life Sciences Company: Lead counsel for publicly traded life sciences company in defense of breach of contract claim and other claims by an alleged broker claiming an oral agreement with the public company allegedly to receive 10% of the company’s equity value. Successfully obtained complete dismissal with prejudice of all of plaintiff’s claims following briefing and argument on defendants’ motion to dismiss on the pleadings.
• LINN Energy, LLC: Trial counsel for the Official Committee of Unsecured Creditors of LINN Energy, LLC, an independent oil and natural gas production company, in contested and expedited trial proceedings in Chapter 11 case in the Southern District of Texas.
• EZCORP, Inc.: Secured complete dismissal of three former independent outside directors of EZCORP, Inc. in a derivative action alleging that they breached their fiduciary duties by entering into contracts with a consulting firm owned by the company’s controlling shareholder. One of the first cases to be argued following the decision by the Delaware Supreme Court in the seminal case In re Cornerstone Therapeutics Inc. regarding the pleading requirements for non-exculpated breaches of fiduciary duty.
• Special Committee of Affiliated Computer Services: Part of deal and trial team that successfully represented the Special Committee of Affiliated Computer Services in the $6 billion acquisition of ACS by Xerox Corporation. Successfully represented Special Committee in numerous shareholder actions in Delaware and Texas.
• Medivation: Represented the Pfizer subsidiary in a Delaware appraisal case with approximately $360 million in shares seeking appraisal arising out of Pfizer’s acquisition of Medivation for $14 billion. Settled the case on very favorable terms.
• Pfizer, Inc.: Represented Pfizer in connection with shareholder litigation challenging its $17 billion acquisition of Hospira. The parties ultimately agreed to dismiss the action with prejudice in connection with a settlement. 
• Demoulas Supermarkets: Part of the litigation team that represented a special committee of Demoulas Supermarkets' Board of Directors (owners and operators of supermarket chain Market Basket). Helped guide the committee through a highly complex and contested transaction valued at $2 billion, which received widespread and long-standing national media attention. As part of this effort, represented the chairman of the board against a motion for preliminary injunction challenging his independence and seeking to enjoin a $300 million dividend by the Board. Successfully opposed preliminary injunction motion and moved to dismiss the complaint, ultimately allowing Ropes & Gray’s client to continue serving as chairman of the board.
• OTK Associates, LLC: Lead trial counsel representing OTK Associates, LLC in shareholder litigation against Morgans Hotel Group before the Delaware Court of Chancery. Successfully secured an injunction for our client, a significant shareholder of Morgans, 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.
• Public Company Appraisal Litigation: Have represented several public companies in appraisal claims and litigation in the Delaware Court of Chancery arising out of public M&A transactions.
• Major University Endowments: Lead litigation counsel in litigation in California and Delaware involving a real estate joint venture and a real estate project recapitalization. Orchestrated a litigation strategy across multiple jurisdictions that achieved a very favorable settlement for our client.
• Large international investment company: Successfully represented a large international investment company in shareholder litigation arising out of the bankruptcy of one of its portfolio companies within weeks of making a $10 million investment. Recovered 90% of the investment in the portfolio company.
• M&A Advice: Advise numerous private equity sponsors and public and private companies concerning fiduciary duties and transaction process in financial and strategic transactions.
• Director and Officer and General Partnership Liability Insurance Advice: Part of nationally-recognized practice advising dozens of private equity sponsors, hedge fund and mutual fund complexes, and public and private companies on their professional liability and transactional risk insurance coverage and contractual indemnification protections.