Delaware - Jurisdiction Review | Benchmark Litigation

Saul Ewing

Firm overview

Saul Ewing’s Litigation Department features approximately 200 attorneys across 18 offices, including our newest locations in Los Angeles and Irvine, California. We handle a wide range of matters including complex business and commercial disputes, bet-the-company legal proceedings, and high-profile cases in state and federal courts and Alternative Dispute Resolution (ADR) forums across the nation. We represent local, regional, national and international organizations as well as individuals across a diverse array of industries, including but not limited to energy and environmental, financial services, construction, insurance, health care, food/beverage/agribusiness, life sciences, cannabis, higher education, sports/entertainment and real estate.

Our deep bench of litigators work to protect the interests of our clients and mitigate the impact of litigation on business operations in all phases of litigation, including investigation, pleadings, motions, fact and expert discovery and depositions, hearings, trials, appeals, settlement negotiations, and enforcement of judgments. Among our ranks are seasoned trial lawyers and former government officials and prosecutors, whose insight and strategic judgment are a valuable resource to our entire team.

Our core areas of focus include:

Appellate

Class Actions

Consumer Financial Services Litigation

Cybersecurity and Privacy

Employee Benefits & ERISA Litigation

Labor & Employment

Environmental Civil Litigation

Insurance Litigation & Arbitration

Intellectual Property Litigation

Title Claims & Coverage Litigation

White Collar & Government Enforcement

Within these core areas of focus, we have extensive experience representing clients in pursuing and defending claims of breach of contract, tortious interference with contracts and business relationships, fraud and misrepresentation, lender liability, property liability, negligence, unfair competition, unfair trade practices, antitrust violations, conspiracy, RICO violations, breach of fiduciary duty, defamation, trade disparagement, false advertising, malicious prosecution, theft of trade secrets, intellectual property infringement, trespass, conversion, trust and estate controversies, partnership and corporate dissolutions and claims arising in shareholder and partner derivative actions, among others.

Our Approach: We start by tailoring a strategy to meet our clients’ objectives and risk management priorities, whether those focus on litigation avoidance, early settlement, resolution through dispositive motions, or pursuing a case through adjudication at trial. Using early case assessment tools, we develop a detailed roadmap for each case. We recognize that litigation can be expensive, distracting and time-consuming, and that our clients need cost predictability. Depending on client needs, we are able to create customized litigation plans and budgets at the matter, phase and/or task levels. Our project management team carefully monitors work volume and billing metrics to help ensure that our services align with project scope and needs, and to maximize proactive communication with clients about changes in cost, scope and/or strategy.

eDiscovery: For cases requiring electronic discovery, we rely on our in-house Litigation Support Services (LSS) team, which is driven by members with sophisticated technical knowledge and credentialing by the Association of Certified E-Discovery Specialists. With extensive experience managing complex eDiscovery collection, processing, review and production, our LSS team leverages advanced analytics and technology-assisted review to quickly identify and locate relevant information, process and analyze data efficiently, and help reduce overall litigation costs.

Updated Sep 2024

Abrams & Bayliss

Firm overview

Abrams & Bayliss LLP is a business litigation and advisory boutique that focuses on high stakes controversies and transactions carrying a high risk of litigation.

The firm’s Litigation Practice primarily involves actions in the Delaware Court of Chancery, the nation’s preeminent corporate and commercial law court, and the Delaware Supreme Court. The firm’s litigators have extensive experience representing public and private companies, stockholders, directors and executives in a wide range of business, corporate and alternative entity litigation matters at the trial and appellate level. The firm regularly litigates actions involving corporate control disputes, rights of equity holders, large public and private company controversies, complex transactions, and significant valuation and appraisal proceedings. Unlike many other firms, Abrams & Bayliss represents plaintiffs and defendants, giving their attorneys an added measure of insight on strategic and tactical issues in transactions and litigation. The firm has a proven track record of offensive and defensive litigation, including successfully pursuing and defeating injunction applications, conducting expedited trials and prosecuting and defending claims for significant monetary, declaratory or equitable relief.

The firm’s Transactional Practice primarily involves matters where there is a high risk of litigation or which raise complex or novel issues of Delaware law, such as contests for corporate control, private equity and portfolio company matters, going-private transactions, recapitalizations, refinancings and stockholder or board level disputes. Abrams & Bayliss also advises business entities and their constituents on Delaware issues relating to all phases of their life cycle, ranging from formation questions to continuing issues involving the payment of dividends and asset sales to end-of-life matters such as dissolution and receiverships. The firm regularly provides advice on the interpretation of certificates of incorporation and bylaws, whether for newly formed entities, initial public offerings, operating companies with internal disputes, reincorporations, restructurings or corporations seeking to amend their existing governance documents.

Abrams & Bayliss similarly advises business entities, directors, officers and stockholders on contracts relating to their governance structure and commercial relationships, including stockholder rights plans, stockholder agreements, and indemnification or advancement rights.

As a result of the firm’s expertise on fiduciary duty matters, Abrams & Bayliss regularly represents trust beneficiaries in claims against corporate and individual trustees for significant damages, the replacement of trustees and the amendment of trust instruments.

Abrams & Bayliss represents a broad array of clients including national and international corporations, limited partnerships, limited liability companies, joint ventures, stockholders, directors, equity investors and executives.

All of the firm’s lawyers have distinguished academic records and the firm’s attorneys are regular authors and speakers at national programs regarding Delaware business law matters.

Updated July 2024

Labaton Keller Sucharow

Firm overview

Founded in 1963, Labaton Keller Sucharow stands as a tenacious advocate for investors and consumers. The Firm represents institutional investors worldwide and has secured billions of dollars in landmark recoveries, earning a reputation as a renowned global leader. The Firm specializes in representing clients in U.S. and Non-U.S. securities litigation, consumer protection and data privacy litigation, and corporate governance and shareholder rights litigation, as well as alternative dispute resolution. The Firm’s success is built on its team of more than 80 attorneys as well as its industry-leading in-house investigators, financial analysts, and forensic accountants. Labaton Keller Sucharow's offices are strategically located in New York, Delaware, London, and Washington, D.C.

Skadden Arps Slate Meagher & Flom

Firm overview

In today’s legal and regulatory environment, litigation can threaten a company’s very existence. Skadden’s lawyers have extensive experience with such complex, “bet-the-company” litigation matters, and we are widely recognized for our ability to handle our clients’ most critical litigation issues. The firm can rapidly assemble a focused, integrated and efficient team to address all important aspects of a client’s problem and to handle numerous cases in multiple jurisdictions and forums. We have handled some of the largest and most high-profile cases in recent years, earning a reputation as a go-to firm for litigation, and we are responsible for numerous decisions, from the trial courts to the U.S. Supreme Court, that have shaped various areas of law.

Our Litigation Group comprises approximately 600 attorneys throughout the firm’s offices worldwide, and Skadden attorneys are admitted to practice throughout the United States as well as in more than 30 other countries and territories. In particular, our New York- based attorneys have extensively litigated in New York state and federal courts. Moreover, Skadden was the first national law firm to establish a presence in Delaware more than 40 years ago, and our Delaware litigation attorneys have a wealth of experience in the renowned Court of Chancery. Our California-based offices, in Los Angeles and Palo Alto, as well as our Washington D.C., Chicago, Boston and Houston offices, round out our national presence, allowing us to effectively handle complex disputes that may arise in any U.S. jurisdiction, or several jurisdictions at once. Our international experience, through offices in Asia Pacific, Europe and Latin America, and our numerous multilingual attorneys, further enable us to seamlessly represent clients globally and to successfully handle disputes of an international nature.

We represent clients in all stages of litigation, from applying cutting edge e-discovery capabilities to trials. Indeed, Skadden is recognized as having a leading national trial practice, and our attorneys score groundbreaking precedent-setting trial wins that are highly favorable to our clients’ bottom line. Our trial lawyers often inherit cases from other firms when trial is imminent, and we offer the capabilities to quickly pull together crisis teams to confront challenges wherever our clients face them. Moreover, our attorneys are no strangers to appellate state and federal courts throughout the country. We also frequently appear in arbitral forums, including the American Arbitration Association, JAMS, FINRA, the International Centre for Dispute Resolution and other domestic and international dispute resolution tribunals.

Our team represents clients in proceedings involving numerous government agencies, such as the Securities and Exchange Commission, the U.S. Attorney General’s Office, the Financial Industry Regulatory Authority, the New York Stock Exchange, the U.S. Department of Justice, the Federal Trade Commission, the U.S. Department of Housing and Urban Development, the U.S. Patent and Trademark Office, the U.S. Department of Labor and the Internal Revenue Service. We also serve in an advisory capacity, striving to achieve results that best align with our clients’ business goals.

Our attorneys have significant experience litigating all types of complex commercial claims, including contract disputes; fraud, breach of fiduciary duty and tortious interference claims; non-compete litigation; merger-related litigation and control disputes; joint venture and partnership disputes; bankruptcy and restructuring-related issues; and statutory claims. Our renowned securities litigation practice frequently handles some of the most challenging, high-stakes securities litigation matters, and we have served as lead counsel in several of the largest securities class actions in U.S. history. Our experience in these and other complex litigation claims spans numerous industries, including banking, energy, financial services, insurance, health care, manufacturing, mortgage, pharmaceutical, real estate, retail, technology and telecommunications.

In addition to handling some of the largest, most complex litigations, Skadden attorneys represent clients in a wide variety of pro bono matters, from trials to the U.S. Supreme Court.

Updated Sep 2024

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 is always at the top,” declares a peer, voicing a general consensus. “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.” A local peer confirms, “Greg is well known and well-liked by everyone in the Chancery community. He’s got a certain charisma and credibility.” A New York partner familiar with Varallo notes: “Greg did really well in a Gilead case – he got sanctions against the company that refused to produce documents!” The firm’s foray into the Delaware market is viewed as “smart and enormously successful,” in the eyes of peers. “There is a lot of action in Delaware nowadays, and plaintiffs know this, so to bring these actions in Delaware without having your own counsel here… I can’t imagine what the cut would be to hire Delaware counsel, but it would be big,” opines one Wilmington peer. “With Bernstein coming in here, they have not only won big within their own confines but have also pretty much put a few of the more historic Delaware plaintiff shops out to pasture.”

While based in the firm’s New York flagship office, Mark Lebovitch is also known for a Delaware element to his practice, which frequently involves derivative actions and often teaming up with Varallo. “If you’re a Delaware company, you are getting hit with a 220 demand,” states a peer, “and Mark ‘The Maestro’ Lebovitch is all over this. He is getting really aggressive, pushing for emails and text messages from company directors. Typically, that is not where discovery happens – it usually has to be on company-related documents – but Mark is saying, ‘Nah, listen – cell phones, personal emails, executives now frequently use these channels to communicate, and I want to see what’s happening on those channels.’ He is getting increasingly successful in convincing judges to allow this!” Lebovitch and Varallo represented the Hollywood Firefighters’ Pension Fund in successfully stopping GCI Liberty’s and Liberty Broadband’s controlling stockholders from using complex financial engineering in a merger of the two companies to consolidate their voting power at the expense of GCI Liberty’s public Class-A stockholders. The litigation caused the controllers to unwind all of the personal benefits they had sought for themselves while securing a $110 million cash settlement for former GCI Liberty stockholders. “Mark Lebovitch is strategic,” declares a peer, elaborating, “He doesn’t swing at every ball, he knows when to push. He is in a lot of securities cases right now – he’s in the Peloton securities class action!”

Peers note that the firm’s center of gravity, Max Berger, is “still the king when it comes to standing up and getting the settlements, but others are doing the heavy lifting. Hannah Ross, for one.” Berger and Ross initiated a comprehensive, proprietary investigation in the wake of the collapse of the Allianz Structured Alpha funds during the beginning of the pandemic. The investigation focused on alleged misconduct and breaches of fiduciary and contractual duties in the management of those funds, which had deviated from their stated market-neutral strategy. As a result of this, the Bernstein Litowitz team managed to secure settlements between February and April 2022 totaling nearly $2 billion to the firm’s clients. Sal Graziano, one of the firm’s most active litigators, scored a $175 million settlement in September 2021 on behalf of investors in Luckin Coffee, a Chinese coffee chain that received well-publicized infamy for being fraudulent.

Beyond the senior level, more junior partners are making their mark. Newly listed future star Edward Timlin is tipped by peers as one to watch. “Ed trained under [universally revered securities litigator] Adam Hakki and got defense expertise from this development at Shearman [& Sterling]. [He is] definitely worth keeping your eye on.”

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. 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. Canty 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].” 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. Villegas and Canty are lead counsel to the Public Employees Retirement Association of New Mexico in a securities action against California’s utility provider, PG&E.
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.

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.