Benchmark Litigation

Delaware

Review

Dispute resolution
Abrams & Bayliss

Wilmington boutique Abrams & Bayliss has staked a firm claim in the community, placing itself on equal footing with the more historically established shops. In fact, some actually consider the firm to be in an advantageous position to overtake those firms. “There is a generation of lawyers in Delaware that are 20 years senior to those at Abrams & Bayliss that for the past 20 years have dominated Delaware. Well, those people are ready to retire! That puts a firm like Abrams & Bayliss, who has a consistently strong bench of people in their 40s and 50s, ready to take over from those other firms who had one major star and no one else because they didn’t groom the younger partners.” The firm is also said to be “very selective with its associates.” A peer offers in summation, “Abrams & Bayliss is terrific, incredibly plugged into the Delaware space. They don’t do as much in the federal space but in Delaware they are second to none.” Clients are equally appreciative; one testifies, “They served as counsel for a large class action where we worked with plaintiffs. They offer strategy, legal research, and practical thinking. [They are] Extraordinarily creative and thorough.”
     Thompson Bayliss has emerged as the firm’s “leading light” in recent years, enjoying a well-earned ascent in profile due to his raft of commercial Chancery litigation in both the plaintiff and defense capacities. A client insists, “He's the top. He sees the whole playing field.  He's a great strategist and a great tactician, and he knows his audience so thoroughly. He's also great at getting the best out of his team.”  As Delaware co-counsel, Bayliss scored big for AbbVie in a long-running and hard-fought commercial case concerning the drug Lupron. This drug was manufactured by Takeda, whose factory got shut down due to regulatory issues, causing a major shortage of Lupron. AbbVie sued for all the lost business, triumphing in March 2024 with a $500 million verdict. Bayliss was also retained in early 2024 by the Special Committee of Tesla, as Delaware counsel in connection with its mandate to explore whether Tesla should remain incorporated in Delaware or should reincorporate elsewhere, and Tesla CEO Elon Musk’s 2018 compensation plan should be put to a ratification vote at a meeting of Tesla’s stockholders. In April 2024, the Special Committee issued a report containing its conclusion that reincorporating in Texas and ratifying Musk’s compensation are in the best interests of Tesla and should be approved by Tesla’s stockholders.

Bernstein Litowitz Berger & Grossmann

Bernstein Litowitz is an undisputed leader in the securities-focused plaintiff arena. Peers on both the same and opposite sides of the “V” offer plaudits and admiration on a near-unanimous basis. “Bernstein does the whole ‘Bernstein,’ thing, which is baseline excellent,” declares a peer, summing up the general consensus. Another contemporary elaborates, “They are one of the few firms in this capacity that files the big, meaty securities cases, and they litigate them hard. They’re not just ‘first-to-filers’ trying to get out as quickly as possible with a weak settlement.” Another peer concurs: “We see Bernstein Litowitz a lot but only in the bigger cases – they are more selective.” 
     Historically a New York-based institution positioned as “an attack dog for Wall Street,” the firm has also attended to a Delaware practice, a stance that the firm cemented when it recently opened an office in Wilmington and installed Greg Varallo to run it. Varallo, long known to the Delaware Chancery community as a defense lawyer at Wilmington institution Richards Layton & Finger, raised eyebrows and had the legal market talking when he “flipped sides.” “Greg Varallo is pretty amazing, he’s got a big presence in Wilmington,” ventures a peer. A client states, “Greg is a Delaware veteran with deep knowledge of the law and the personalities of Delaware's bench and bar.  He is a formidable adversary who litigates with a unique personal style.” Varallo leads a team, which includes New York’s Jeroen van Kwawegen, that continues to litigate appeals related to the historic corporate governance decision on behalf of shareholders, in which the Delaware Court of Chancery nullified Elon Musk’s entire $55 billion compensation package at the request of a Tesla stockholder represented by the Bernstein team. During the trial, Tesla shareholders alleged that they had proved that a number of key milestones in the compensation plan that Musk and the board described in proxy disclosures as very difficult to achieve were, in fact, expected based on Tesla’s confidential projections shared with banks and rating agencies. Shareholders also claimed that the proxy falsely characterized the compensation committee and the board as “independent.” This case, Tornetta v. Musk, is, several claim, the biggest corporate governance case in Delaware in years. “It’s the single biggest talking point in Delaware right now,” opines one fellow Wilmington partner. Another speculates, “The plaintiff bar was very emboldened by the Tornetta case. We’re all waiting to see if it’s going to get reversed or not, but at the moment, that’s for sure Bernstein planting a flag in Delaware and looking to get a big fee.” van Kwawegen is championed by a client for his “legal expertise, communication and accessibility.”
     New York’s Hannah Ross is touted by a client for her “consummate legal skills, intuitive approach to client management and excellent client communication.” Ross works with John Rizio-Hamilton  as co-lead counsel in a lawsuit against three underwriter defendants related to $3 billion of public offerings of Viacom stock in March 2021 and the concurrent implosion of family fund Archegos Capital Management. The defendants include certain underwriters of the offerings, namely Goldman Sachs, Morgan Stanley, and Wells Fargo. The lawsuit alleges that the underwriters had a severe conflict of interest that arose from total return swap transactions that they entered into with Archegos. Through those transactions, Archegos and numerous defendants amassed an exposure to billions of dollars’ worth of highly leveraged positions in a few companies, including Viacom. When Archegos suffered a liquidity crisis, the underwriters’ conflict of interest caused them to execute massive block sales of their own Viacom holdings at fire-sale prices—all of which was not disclosed to investors. As a result of defendants’ undisclosed conflict of interest, the prices of the Viacom securities—which defendants had just sold to investors—cratered to roughly half the offering prices. After several years of hard-fought litigation, the parties agreed to settle all claims for $120 million. Ross also works with Salvatore Graziano on an action against Facebook in which shareholders allege that the social media giant’s risk disclosures were misleading because they presented the risk of improper third-party data access and misuse as a hypothetical possibility, even though the company and its executives knew Facebook had recently experienced such an incident on a massive scale in the Cambridge Analytica scandal. Defendants also misrepresented that Facebook users could control their personal data on the platform.

 

Labaton Keller Sucharow

Plaintiff shop Labaton Keller Sucharow (newly christened thus in 2024 from its former Labaton Sucharow name) is strategically placed in the financial district of New York as well as in Wilmington, Delaware and Washington, DC, where it is well poised to feed heartily on a steady diet of corporate disputes arising on Wall Street and in the Delaware Court of Chancery. As far as its prized securities practice, the firm remains at the top echelon, as a defense-side peer says, “Labaton is one of the few plaintiff firms that get the big, meaty securities cases and they litigate them.” The firm has also made inroads into the privacy space, with a number of partners delving into the practice. “It’s a whole new crew coming up there,” declares one peer.
     One such partner is New York’s Michael Canty, who is making significant strides in profile as of late. “Michael is very good, [he has] really made a name for himself,” confirms one peer. Canty served as co-lead counsel representing Public Employee Retirement System of Idaho in a securities fraud case against Alexion Pharmaceuticals and certain of its executives. The suit alleged that Alexion, a pharmaceutical drug company that generated nearly all of its revenue from selling the Company’s flagship drug, Soliris, made materially false and misleading statements and omissions principally connected to Alexion’s sales practices in connection with the marketing of Soliris. After years of vigorous litigation that commenced in 2019, the parties reached a $125 million settlement, which was affirmed in December 2023. Jonathan Gardner, also based in New York, acted with Canty on this matter. “Jonathan is very good at running cases,” opines a peer, who goes on to address Gardner as “very poised, a great presence with the court.” Canty also leads the trial representing Carpenters Pension Trust for Northern California and the Carpenters Annuity Trust Fund for Northern California, among others, in a securities class action filed against Allstate, the company’s CEO and its former President of Allstate Protection. The case arises from the company’s alleged growth strategy that ultimately led to relaxed underwriting standards which caused claims to increase.  Canty laid the ground before trial with several critical victories, including prevailing against the defendants’ motion to dismiss, class certification, and defeating the defendants’ motion to exclude the opinions of his experts. Finally, once again in December 2023, the parties received approval of a $90 million joint settlement. Carol Villegas is lauded for her “grit and talent” and denoted by a market peer as “the one who’s very prominent [at Labaton]. She has a lot of work now.”  Villegas serves as the youngest team leader in the firm’s history, spearheading the burgeoning Consumer Protection and Data Privacy Practice. In the privacy space, she serves as co-lead class counsel in their case alleging violations of privacy rights and related statutes against Flo Health, a women's health app developer that allows users to track data such as fertility and menstruation. While Villegas is trailblazing through the privacy and consumer protection litigation, she continues to be a pillar of the plaintiff-side securities bar; she is part of a team leading an action against Boeing concerning misleading statements made regarding its (allegedly unfulfilled) changes to corporate policy in the wake of its well publicized 737 crashes. Christine Fox, another New York partner with a growing profile, also acts on this matter. “Christine is running point on the Boeing case on the securities side,” attests a peer.
     Labaton has also been steadily building out its Delaware practice. This has largely been attributed to the efforts of Ned Weinberger, a partner who has made a splash in the Delaware market and has had the community talking. “Ned Weinberger has been killing it,” exclaims a peer, who goes on to elaborate, “Dell Class V was a milestone, a huge settlement. He’s gotten some pretty good wins. Just in terms of presence, aptitude and skills, I think he will keep the flag planted [in Wilmington.]” In the alluded-to Dell case, Weinberger served as co-lead counsel against controlling stockholders of Dell, alleging they had breached their fiduciary duties by expropriating billions of dollars in value from Dell’s Class V Stockholders. After hotly contested litigation, Dell agreed to pony up a $1 billion cash settlement in lieu of a trial. Weinberger was also appointed co-lead counsel in a class action against Advance/Newhouse, challenging the entity’s use of its equity stake and designees on the board of directors of Discovery  to extort the board into transferring corporate value to Advance/Newhouse at the expense of other stockholders in connection with Discovery’s $43 billion acquisition by AT&T. The parties executed a term sheet to settle the action for $125 million, which was approved in July 2024.

 

Ross Aronstam & Moritz

Wilmington corporate and commercial litigation boutique Ross Aronstam & Moritz has edged its way into a position at the forefront of the crowded Delaware community, earning “a top seat at the table” among larger, older and more established institutions. “Ross Aronstam has come a long way,” confirms a local peer, “and they did it fast! We are all watching them and respect them equally.” The firm has even earned acclaim from out-of-town firms, several of whom are themselves widely championed brand-name “white shoe” firms who have partnered with Ross Aronstam. “A lot of ‘big law’ firms have this high-handed attitude in Delaware,” elaborates one peer. “They come in and go, ‘I respect your opinion, and I want to hear what you have to say, but ultimately, it’s our case. This is a BIG MISTAKE! Judges in Delaware spot it immediately and hate it. But Ross Aronstam is one firm I have never witnessed this happening to! They get immediate respect, and I don’t just think it’s luck - I think that alone speaks volumes as to their reputation.” Indeed, the firms calling on Ross Aronstam’s services as Delaware counsel read like a “who’s who” of blue-ribbon big law and out-of-town litigation boutiques, and the cases the firm handles illustrate a broad cross section of commercial and Chancery disputes.
      All three name partners are namechecked by peers. David Ross is called “the one l would go with for case strategy, if I had to choose only one lawyer in Delaware. He also knows the bench really well.” Ross provides lead counsel to Facebook in several matters. In one, he represents the company and its current and former officers and directors in a purported derivative action seeking to recover based upon alleged issues concerning advertising metrics, competitive practices, and executive compensation. Ross is also co-counsel to Facebook in connection with various litigations arising out of the well publicized Cambridge Analytica privacy breach scandal, including derivative actions and actions seeking to inspect company books and records. In another of his (non-Facebook-related) matters, Ross represents Swipe Acquisition Corporation, the acquirer in action asserting fraud arising out of a substantial indirect acquisition by a fund advised by Platinum Equity Advisors. Bradley Aronstam is attending to novel matters in the rapidly burgeoning SPAC area; in one such matter, he is partnering Weil Gotshal & Manges in representing Churchill Capital Corp III and the former directors of Churchill in consolidated stockholder litigation challenging Churchill’s SPAC acquisition of MultiPlan Corp. Garrett Moritz is attending to a diverse basket of matters straddling several practices. He acts with Cravath in representing the directors of Tesla in stockholder litigation challenging Tesla’s acquisition of SolarCity in a stock-for-stock transaction that valued SolarCity at approximately $2.6 billion to $2.8 billion. Shortly before trial, the director defendants other than Elon Musk reached an agreement in principle, subject to court approval, to settle for $60 million to be funded by insurance. Trial was set to proceed in the Court of Chancery in March 2020 with respect to Elon Musk but was delayed due to the COVID-19 crisis. Trial moved scheduling to July 2021. In a more commercial-related matter, Moritz acts with Gibson Dunn & Crutcher in representing Keurig Dr. Pepper affiliate The American Bottling Company in litigation against BA Sports Nutrition, LLC and the Coca-Cola Company for wrongful termination of a distribution contract with The American Bottling Company to distribute the sports drink Bodyarmor in order to wrongfully move distribution to Coca-Cola. ABC’s contract and tortious interference claims seeking to recover hundreds of millions of dollars or more in losses have survived a motion to dismiss. The case is currently in discovery, with a jury trial scheduled for February 2022 in Delaware Superior Court. In a derivative matter concerning corporate governance, Moritz represents McDonald’s in a lawsuit against McDonald’s former CEO Stephen Easterbrook for breach of fiduciary duty and fraudulent inducement. The case arises from McDonald’s discovery - after entering into a Separation Agreement with the Easterbrook after learning that he had engaged in a sexual relationship with a subordinate - that Easterbrook had lied about the existence of other sexual relationships with other Company employees during an internal investigation, and that Easterbrook had approved an equity grant to one of the employees, in violation of Company policy. In February 2021, the Court of Chancery denied Easterbrook’s motion to dismiss. The case is currently in discovery and trial is expected to be held in mid-2022.