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 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.