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Securities Litigation

Overview

Securities litigators represent individuals and corporations in securities class actions, stock-drop cases, and derivative actions. The work is in some ways similar to criminal defense work, determining what your client has done, whether it violates securities regulations, and how to defend the case. Securities litigators perform internal investigations on behalf of corporate audit committees and represent those audit committees, individuals, and companies in SEC investigations. Securities litigators also advise corporations on director and officer liability insurance issues. The cases can be complicated and involve complex facts patterns; practitioners will spend a lot of time reviewing documents and interviewing witnesses to develop the facts.

Featured Q&A's
Get an insider's view on working in Securities Litigation from real lawyers in the practice area.
Dana Seshens, Partner
Davis Polk & Wardwell LLP

Describe your practice area and what it entails.

My securities litigation practice focuses on representing clients facing civil litigation brought under federal or state secu-
rities laws. It ranges from representing clients who have been sued as issuers of a security to clients who have served as underwriters to public company clients who have been sued for statements made to shareholders in connection with their annual shareholder meeting. Typically, shareholders bring the suits and claim that our client has misrepresented or omitted material information in the relevant offering or other documents filed with the SEC.

I also represent clients in antitrust class actions, bankruptcy litigation, and other complex commercial litigation.

What types of clients do you represent?

I represent a mix of corporate (issuer) and financial institution clients in securities cases. In cases where I represent corporate clients, they are typically the issuer of the relevant securities, which means they are the companies whose securities are being sold or whose SEC filings are at issue. When I represent financial institutions, they are often banks and affiliated financial institutions who participated in the particular securities transaction or transactions that are the subject of the suit.

What types of cases/deals do you work on?

I am fortunate to work on a broad range of securities litigation matters, from large securities class actions involving numerous parties to one-shareholder cases that reach beyond just securities issuances. Most recently, I have worked on several securities cases that were brought under the federal securities laws, including cases brought against Livent Corporation—a leading lithium producer—in state and federal court and cases brought against the underwriters of offerings for PG&E and Southern Consolidated Edison, both California utility companies. During the financial crisis, I spent considerable time defending Morgan Stanley in a number of securities cases related to residential mortgage-backed securities. Another major case I worked on over the past number of years was defending the owners of the New York Mets in connection with litigation arising out of the Bernard Madoff Ponzi scheme. Although that was a case that originated in the bankruptcy court, it had several securities law components.

How did you choose this practice area?

I have always been interested in the financial markets—how they work, what moves them, and the role shareholders play in them. A natural area for me to practice would have been in a transactional group, but I always wanted to be a litigator and was less interested in deal work. When I realized that there was a whole world of litigation that arose out of transactions in the financial markets, I knew that was what I wanted to do.

What is a typical day like and/or what are some common tasks you perform?

Given the scope and diversity of my practice, there really is no typical day or week. Depending upon where in the litigation process my cases are at any given time, I spend time drafting and arguing motions, preparing witnesses, defending and taking depositions, and—of course—preparing for trial. I also always fold into my days and weeks strategy discussions with both co-defendants and clients, depending upon the nature of the case. As part of the work that I do, I also regularly meet with my case teams to discuss and strategize about issues in the case. My case teams are typically comprised of lawyers at all levels, from first years to senior associates, and our collaborative approach ensures that we offer the best solutions for our clients.

I also devote a good deal of time to firm initiatives outside my practice. I recently became one of the co-heads of our Civil Litigation practice group, and I have served as one of the firm’s two hiring partners for the past three years. Prior to my role as hiring partner, I served as co-chair of Davis Polk’s alumni committee.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Although nothing can compare to on-the-job training, there are certainly classes and experiences I would recommend for someone interested in securities litigation. Of course, taking courses in law school on securities regulation, corporations, and legal writing are key, but I also would recommend doing clinical work, moot court, or any kind of experience that lets you write and argue, irrespective of the subject matter. Getting “on-your-feet” experience is invaluable, even at the early stages of your career.

What is the most challenging aspect of practicing in this area?

In securities litigation, we often represent clients in their most critical, sensitive, and high-profile matters. There is a lot on the line in these cases—often billions of dollars and sometimes a company’s reputation or livelihood—and it is our job to get the best result for our client. Providing advice and guidance in these matters can be challenging, but it is usually that challenge that makes the practice as interesting and rewarding as it is.

What do you like best about your practice area?

I would say the interdisciplinary nature of the practice is one of the best parts. It marries securities transactions with complex litigation and gives rise to some of the most interesting and cutting-edge legal issues. None of the legal issues is ever simple, and I really enjoy having to dig into a complicated issue to try and break it down to its simplest form and then synthesize it with the rest of the case. It is always presenting new intellectual and strategic challenges.

What misconceptions exist about your practice area?

I wish I would have known that sometimes cases move slowly. Oftentimes, that may be beneficial for your client, in which case there is no reason to change anything about the pace of a litigation, but I also like to keep things moving and to keep pressure on our adversary. I have learned over the years when it is best to apply pressure and when it is best to sit back and let events unfold, but I had not appreciated before I started practicing that different litigations would move at different paces and that there would be times to go fast and times to go slow. You don’t really understand that dynamic until you experience it.

What is unique about your practice area at your firm?

Davis Polk is unique in many ways. One thing that makes our securities litigation group unique is the consistent excellence of the practice that only gets stronger over time. I am so fortunate to practice with some of the leaders of the securities litigation bar, who take the time to mentor and teach both associates and partners. In part because Davis Polk is a lockstep firm (another unique characteristic), partners are always willing to take the time to help their fellow partners, as well as associates. It makes for a more collaborative work environment, which ultimately inures to the benefit of our clients.

Dana Seshens, Partner—Litigation

Ms. Seshens is a partner in Davis Polk’s Litigation department and co-head of Davis Polk’s Civil Litigation group. Her practice focuses on complex commercial litigation, securities class actions, and bankruptcy litigation. She has extensive experience representing corporate clients and professional firms with respect to a wide range of civil litigation and advisory matters. Law360 named her a 2014 Rising Star in Securities Litigation. Dana is one of Davis Polk’s two hiring partners. She received her B.A., magna cum laude, from Duke University and her J.D., cum laude, from Georgetown University Law Center. Following law school, she clerked for the Honorable Carol Bagley Amon of the U.S. District Court for the Eastern District of New York. Dana joined Davis Polk in 2003 and was elected partner in 2011.

Edward Moss, Partner
O'Melveny & Myers LLP

Describe your practice area and what it entails.

My practice spans various areas—securities, antitrust, and general commercial litigation. I litigate all aspects of cases, from motions to dismiss through post-trial motions and hearings. These types of cases are filed (and our clients are) everywhere, and so at any given time, I find myself litigating in many different courts throughout the country.

What types of clients do you represent?

I work on a broad range of matters for clients across several industries. For example, I have represented banks and investment companies, technology companies, energy providers, medical device providers and pharmaceutical companies, sports franchises, manufacturers, and airlines—to name a few.

What types of cases/deals do you work on?

I most often help defend companies against antitrust, securities-fraud, or contract claims. There is a lot of class action work, but I also represent companies in disputes against business partners or competitors—and sometimes I even wind up on the plaintiff’s side in those types of disputes. Although the substantive legal issues can overlap between cases, every case involves different businesses and different personalities. There’s always something new to learn and a new challenge (or many) to overcome.

How did you choose this practice area?

Coming out of college as an Economics major, I was torn between starting law school and going into finance. In law school, my favorite class was Business Associations—which was basically Delaware corporate law. And entering the profession, I knew I wanted to work on high-stakes, bet-the-
company matters. Putting all those together, securities litigation was a natural fit.

What is a typical day like and/or what are some common tasks you perform?

I spend many days in depositions or in court, and those are always the most fun. But the other days are exciting, too—always challenging and full of strategic decisions. I spend a lot of time preparing for depositions or court, writing briefs, negotiating with or writing to opposing counsel, advising clients, and meeting with my teams to discuss projects and status. On some days, things are relatively quiet, and I can focus on one or two cases. On other days, everything seems to hit at once, and I’m putting out fires on up to 10 or 12 matters—all in one day. But no matter what kind of a day it is, I usually end up accomplishing a lot—while also having more on my to-do list than when the day started!

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

In many ways, being a securities litigator is a lot like litigating in other areas: It’s important to develop strong writing and oral-advocacy skills. But in my view, learning how to try cases is the biggest key to success. Preparing for and conducting trials teach all the skills you need to be a strong litigator, including writing, advocacy, and time management, as well as having grace under pressure, working on teams, gaining trust of clients, and thinking strategically. And once you know how to try a case, that type of mindset makes you better at all of the pre-trial phases, especially developing a record in discovery. In all litigation, but particularly in the context of federal securities cases that most often don’t go to trial, having a lawyer who is not afraid to try the case gives clients a big advantage. I’d recommend that law students who want to be litigators take trial-advocacy classes (especially those that involve mock trials) and that new litigators try to get staffed on as many trials as possible. Although the latter involves some luck, one good way to make your own luck is to take on pro bono cases, which often provide stand-up court experience for more-junior attorneys.

What do you like best about your practice area?

Federal securities cases often present high stakes and large potential liability, and clients tend to focus intently on M&A litigation because it typically involves important transactions. As a result, securities litigation gives lawyers an opportunity to truly partner with clients, spend time with them, and learn their business, and also develop a strategy that not only meets the needs of the case, but also of the client’s overall business objectives.

What misconceptions exist about your practice area?

I think there’s a misconception that securities litigation is dry and repetitive and that cases can drag on for years with little activity, but my experience has been the opposite. Federal securities cases at their core are about how companies represent their business to the market, and litigating them requires a deep dive into fascinating issues like how companies operate and what drives their business, as well as an understanding of what types of information move stock prices and how. And M&A litigation is often fast paced and can provide the chance to essentially try a case, soup to nuts, in a matter of weeks.

How do you see this practice area evolving in the future?

Like me, many securities litigators on the defense side tend to practice across several areas, including white collar, antitrust, and general commercial litigation. I believe that trend not only will continue, but will increase. Securities litigation skills are transferrable to other types of cases. For example, there have been several antitrust class actions in recent years that allege collusion by financial institutions in setting interest rates or terms under which they offer debt. These types of cases require the type of in-depth understanding of financial products that securities litigators have (and many of these cases are filed by plaintiffs’ firms that we know well because they also play in the securities space). Similarly, ERISA cases involve many of the same concepts as securities and M&A litigation, and there’s obvious overlap between securities litigation and SEC work. As some clients look to partner with a smaller number of law firms for the bulk of their work, I expect securities litigators to work on an increasing number of related but different—and equally challenging and interesting—types of cases.

What are some typical career paths for lawyers in this practice area?

In my view, strong litigators with training in complex cases can do anything across the profession. Many securities litigators stay at law firms or go into government, but there are also a wealth of in-house opportunities at banks and financial-services and investment companies, as well as at public and private companies across nearly every other industry. Although many in-house opportunities are targeted to transactional lawyers, I think someone with deep experience litigating contract and other commercial disputes is extremely well-suited even for transaction-heavy in-house roles because he or she understands what types of provisions (in contracts, disclosures,
etc.) are most likely to cause problems and will be particularly adept at seeing around corners and assessing and advising on risk.

Edward Moss, Partner—Litigation

Edward Moss is a trial lawyer who represents companies and individuals in state and federal courts across the country in a wide range of high-stakes commercial litigation, with a focus on securities, antitrust, and merger-and-acquisition-related lawsuits. Edward has conducted 10 trials, hearings, or evidentiary hearings and teaches a trial-skills workshop for junior antitrust lawyers. Benchmark Litigation has recognized Edward as a “Future Star” and named him to its “40 & Under Hot List” in Antitrust, General Commercial, and Securities. Edward also maintains an active pro bono docket.

Julia Malkina, Partner
Sullivan & Cromwell LLP

Describe your practice area and what it entails.

I am a member of S&C’s Litigation group, and a focus of my practice is securities litigation. I represent clients in shareholder class actions, shareholder derivative actions, and other shareholder disputes. Our Securities Litigation practice also includes managing investigations and enforcement actions brought by the SEC and other regulators that allege false statements to shareholders, insider trading, and other financial misconduct. Such investigations and enforcement actions are often brought concurrently with shareholder litigation, so we frequently engage with the government and private parties on related issues. As a securities litigator, I practice across federal and state courts, at the trial and appellate levels, and before regulators.  Because S&C litigators are trained as generalists, my practice is broad and also encompasses commodities, white collar, and other areas.

What types of clients do you represent?

The breadth of my practice is also reflected in the diverse set of clients I represent—from leading financial institutions to multinational corporations to individuals. Those clients come from vastly different industries and are located around the world. For example, I have represented Goldman Sachs in a shareholder class action in federal district court, the Second Circuit, and the Supreme Court; Jumia Technologies AG, the largest e-commerce company in Africa, in IPO litigation in federal district court and state trial court; and the former chairman of five public companies in more than 15 shareholder and consumer class actions, shareholder opt-out actions, and shareholder derivative actions in federal district court, state trial court, and the Third Circuit.

What types of cases/deals do you work on?

Recently, my securities litigation work has included a shareholder class action alleging securities fraud in connection with collateralized debt obligations and alleged conflicts of interest; parallel shareholder class actions alleging false disclosures in connection with a 2019 IPO; and shareholder class actions and shareholder opt-out actions alleging securities fraud in connection with mortgage-servicing activities and alleged conflicts of interest. The cases I work on can actively shape the development of securities law. My recent representations include precedent-setting cases charting the standard and the evidence courts may consider for rebutting price impact following the Supreme Court’s Halliburton II decision and testing important issues left unresolved by the Supreme Court’s Cyan decision. Reuters referred to the former, which the Supreme Court will hear this term, as a case that “could redefine the ability of shareholders to pursue class actions against public companies whose stock prices fall.”

How did you choose this practice area?

The complexity and stakes of the cases attracted me to securities litigation. The practice focuses heavily on legal analysis; many cases are won or lost on dispositive motions. We often deal with novel, evolving issues of law and litigate first-of-their-kind cases following—or sometimes even creating—pathmarking decisions by the Supreme Court and the courts of appeal. The cases, moreover, are of critical importance to our clients. Our clients often face outsized exposure because of the class-action mechanism in shareholder actions. For some clients, it’s their first major litigation as a public company or their first major U.S. litigation. And the stakes are always elevated when the SEC is involved. 

I also found that my appellate background was a great fit for securities litigation because of the emphasis on legal analysis and writing. But unlike an appellate specialist, I get to do many things in addition to writing briefs, like taking depositions and preparing witnesses for interviews with regulators. I feel lucky to have found a practice that combines intellectually challenging analysis with a diverse range of tasks.

What is a typical day like and/or what are some common tasks you perform?

My days vary significantly depending on what stage my cases are at. For example, at the motion-to-dismiss stage, I craft strategy and arguments on interesting and difficult legal issues.  And I write, edit, and edit yet more so that we present those arguments as clearly and convincingly as we can. During fact discovery, I strategize about what documents we need from our adversaries and how we can rein in our document-production obligations. And I prepare for, take, and defend depositions. At the expert-discovery stage, I work with our experts, including preparing them for depositions. And I critically analyze our adversaries’ expert reports and develop lines of attack for depositions and Daubert motions. I truly enjoy the full arc of a matter; each stage brings unique challenges and pushes you in different ways.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Generally, I recommend trying to expose yourself to different areas of the law as much as you can in law school to develop a better understanding of what you enjoy thinking about. But that is only part of the puzzle. I find that people who are most passionate about their practice tend to enjoy both thinking about the legal issues in that area and doing the common tasks in that area.  For the latter, there is no substitute to actually trying the work. Take advantage of your 1L and 2L summers, law school clinics, and other opportunities to dip your toes into what the work looks like in practice.

If you are interested in securities litigation (or any area of litigation for that matter), I recommend focusing on developing your writing skills: Take research and writing courses, select and edit writing for law journals, write briefs for clinics, comment on writing as a teaching assistant, or pursue a summer internship or clerkship with a judge. My clerkships and time at the Solicitor General’s Office were invaluable for learning how to craft the complex legal arguments that are essential to securities litigation.

What is the most challenging aspect of practicing in this area?

The most challenging aspects of securities litigation are also what I find most exciting and stimulating: The cases I work on are high stakes and often novel. They present outsized exposure or other significant risks for our clients and can be bet-the-company matters. Our clients place their trust in us for these securities litigations, and we do everything we can to get the best results for them. And the results really matter. Consequently, we must think critically through all options and weigh their benefits and drawbacks. Sometimes, we must advise on what can be difficult calls on whether to keep litigating. 

Our cases can also raise issues of first impression. Securities litigation is a constantly evolving area of the law, and we frequently see Supreme Court and court of appeals decisions that alter the legal landscape. As a result, we must think creatively and frame innovative legal arguments. Litigating issues for the first time without a set playbook is certainly a challenge, but it’s one of the things I enjoy most about securities litigation.

What do you like best about your practice area?

I enjoy grappling each day with legal questions that are both interesting and difficult. The intellectual challenge is intense in the best way possible. It’s what allows me to continue to learn and grow. I also feel fortunate to get to practice with incredible colleagues in a culture that prizes collaboration and teamwork. What is more, that collaboration is not limited to any one securities litigation team. We collaborate across teams and across practice areas, which means I never hesitate to call a colleague when I have a question, would benefit from their input, or simply want to bounce ideas off of them. Our culture of collaboration is rooted in the fundamental view that our clients are clients of the firm, as opposed to of any individual lawyer.  That is not only a terrific approach to client service, but it also makes our day-to-day more dynamic, interactive, and—simply put—fun.

What are some typical tasks that a junior lawyer would perform in this practice area?

Our junior lawyers’ tasks, just like mine, vary significantly depending on the stage of the case.  For example, at the motion-to-dismiss stage, a junior associate might be researching key elements of our arguments or drafting sections of our motion. Indeed, more junior lawyers have an opportunity to distinguish themselves early in securities litigation because of the strong focus on writing. During fact discovery, a junior associate might be identifying important documents in our adversaries’ productions or drafting an outline for a deposition. And at the expert-discovery stage, a junior associate might be researching potential experts for our side or critically analyzing the reports of our adversaries’ experts. Regardless of the stage of litigation, our junior lawyers engage substantively with the issues. That is part of S&C’s ethos, and our teams are relatively leanly staffed to ensure that all are getting experience and contributing from the outset.

How important is it for securities litigators to have a business background and understanding of corporate law, and what should junior attorneys do if they don’t?

It’s important to have an understanding of corporate law—from state law fiduciary duties to federal law disclosure obligations to key procedural issues for securities litigation. You can start developing that understanding through law school courses, but you will invariably learn a great deal by doing. As for a business background, of course it can be helpful. But it’s certainly not required. What is essential is having a zeal for learning about your clients’ objectives, businesses, and organizations. Each client is unique, and you must be deeply attuned to each client’s needs to provide the best possible legal advice. So, adopt a growth mindset, and take every opportunity to learn and grow.

Julia Malkina, Partner—Litigation

Julia Malkina is a partner in S&C’s Litigation group. She joined the firm in 2015 after serving as a law clerk to Justices Sandra Day O’Connor (Ret.) and Stephen G. Breyer of the U.S. Supreme Court, a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice, and a law clerk to then-Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit.

Julia represents prominent corporations, financial institutions, and individuals in their most complex and high-stakes matters. Her practice comprises trial court litigation, appellate court litigation, and regulatory proceedings in a number of areas, including securities, commodities, and criminal law. Julia was named a 2020 Rising Star by the New York Law Journal for her representations in precedent-setting cases across those areas.

Julia also represents clients pro bono in criminal matters, both at the trial court level and on appeal. She is a member of S&C’s Women’s Initiative Committee, which seeks to recruit, retain, and advance the firm’s women lawyers.

Ryan A. McLeod, Partner
Wachtell, Lipton, Rosen & Katz

Describe your practice area and what it entails.

My practice focuses on litigation related to corporate matters—complicated transactions, securities issues, and corporate governance. Such cases involve issues of both federal and state (usually Delaware) statutory and common law, and they generally concern the interaction between corporate entities, their investors, and their officers and directors. Because litigating these cases has required me to learn a lot of substantive corporate law, my practice also includes advisory work for clients when they are considering taking actions or engaging in transactions that might lead to litigation. As a result, I have the chance to do more than just classic litigation.

What types of clients do you represent?

I have been lucky to work for a diverse, eclectic, and talented group of individuals and businesses. Our clients come from just about every industry sector there is and at every stage of the corporate life cycle. In the past few years, for example, I have represented Chemours in litigation concerning its spinoff, AOL in an appraisal proceeding, the directors of Facebook in a suit challenging a proposed revision of the company’s governance structure, Harman International Industries in multi-forum stockholder and securities litigation challenging its merger with Samsung, Lionsgate in litigation related to its acquisition of Starz, and the board of Sotheby’s in connection with litigation challenging its use of a poison pill against an activist stockholder during a proxy fight.

What types of cases/deals do you work on?

My caseload is pretty varied. The bulk of my work is made up of stockholder litigation alleging breaches of fiduciary duty by corporate boards, traditional securities matters (such as defending Section 11 suits brought against underwriters and Section 14(a) claims against companies issuing proxy statements in support of proposed mergers), takeover battles between hostile acquirers and target companies, and busted deal litigation between jilted merger partners. These cases are often litigated on extremely expedited schedules that call for rapid document productions, compressed deposition schedules, and swift briefing and argument. It makes for an intense practice, but it also means my cases do not tend to drag on and on for years.

How did you choose this practice area?

I am an unabashed corporate law and equity jurisprudence geek. Several years ago, then-Chancellor Strine of the Delaware Court of Chancery wrote about how a particular legal issue was only fit for discussion among a Red-Bull-fueled group of nerdy corporate law junkies; if you replace Red Bull with Diet Pepsi, I would be in that group. Late last year, Vice Chancellor Glasscock included a footnote in an opinion asserting that “equity enthusiasts” exist, and I’m living proof. I have been interested in this sort of law since I was a 2L at Duke, I got the best break in the world by securing a clerkship with Chancellor Chandler in Delaware, and I found a home of like-minded lawyers at Wachtell Lipton.

What is a typical day like and/or what are some common tasks you perform?

My days and weeks are seldom predictable, and they largely depend on the matters I am handling and the stage of litigation of those matters. Some weeks, I spend the bulk of my time holed up in my office with cases and treatises scattered about while I type away at a brief; others, I spend flying around the country meeting with witnesses to prepare them for and then defend them in depositions.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

As with any form of litigation, writing skills are key. That goes well beyond wordsmithing. The foundation of good writing is good structure; knowing how to put together a sound and logical argument, organized in a simple and clear way, makes for a great writer. It also makes for a great litigator because building your case requires the same sort of thinking. As to the specifics of my practice, I would recommend to anyone interested to take all the corporate law courses available, to keep current on recent developments by reading blogs on corporate governance, and to try to take a basic corporate finance class to understand some of the fundamentals behind the transactions that generate all this litigation.

What is the most challenging aspect of practicing in this area?

The most challenging part of my practice is how intense it is. Litigating high-stakes matters on expedited schedules can be stressful and taxing. It requires putting in very long days, mastering an incredible volume of evidence in uncomfortably little time, and staying ever vigilant in thinking strategically. These cases are won in inches, and, thus, small details and tiny tweaks in one’s theory can make all the difference in the end.

What do you like best about your practice area?

The best thing about my practice is the opportunity it affords for creative, tactical thinking. Litigation concerning matters of corporate control and governance is dynamic—the cases are “live” as we are litigating them, and the facts can change during the course of a matter. This means a good litigator in my practice has more weapons in her arsenal than in most other types of litigation. She can, and should, seek to mold the record as the case progresses to optimize the outcome for her client. In more traditional forms of commercial litigation, by contrast, cases generally involve facts that happened long ago—an immutable, cold record—and all the litigators can do is try to marshal them in a persuasive fashion. Here, though, we can modify the structure of a deal or create and implement a different defense and, consequently, make new, more-favorable law.

What misconceptions exist about your practice area?

I think many people believe that securities litigation is limited to 10b-5 fraud suits involving routine matters subject to the same sorts of motion practice over and over again. Not so. If there is one thing about my practice that is predictable, it is how unpredictable it is. Nothing about what I do can fairly be said to be routine. The M&A markets are constantly evolving, and M&A-related litigation consequently evolves along with them.

What is unique about your practice area at your firm?

The litigation practice at Wachtell Lipton is unique, I think, because there is so much crossover with our corporate practice. Not a day goes by that I fail to talk with my corporate partners about the transactions they are doing and the cases I am litigating. They come to me to get my perspective on how courts would consider transactions that have not yet happened, and I go to them to benefit from their expertise in understanding how past transactions have worked and the reasons they were structured the way they were. It is a symbiotic relationship that makes all of us better lawyers.

Ryan A. McLeod, Partner—Litigation

Ryan A. McLeod is a litigation partner at Wachtell, Lipton, Rosen & Katz. His practice focuses on representing corporations and directors in complex corporate, commercial, securities, and deal-related litigation and advising on transactional, fiduciary, and governance matters. Ryan received his B.A. in Latin and English from Ursinus College in 2004 (summa cum laude, Phi Beta Kappa) and his J.D. from the Duke University School of Law in 2007 (magna cum laude, Order of the Coif). After graduating from law school, he clerked for the Honorable William B. Chandler III, the former Chancellor of the Delaware Court of Chancery. Ryan is a lecturer in law at Columbia Law School, where he teaches a seminar on corporate litigation; a fellow of the Leadership Council on Legal Diversity; and a member of Wachtell Lipton’s Diversity Committee. He is admitted to practice in New York and Delaware.

Koji Fukumura, Partner • Jessica Valenzuela Santamaria, Partner
Cooley

Describe your practice area and what it entails.

Koji: I am a securities litigator and counselor. I defend public companies and their officers and directors who are targeted by stockholders, regulators, or the U.S. Department of Justice. I also counsel public and private company boards of directors on a wide range of corporate governance matters and conduct internal investigations for company boards of directors or their committees.

Jessica: I am a securities litigator. The vast majority of my practice entails representing companies and their directors and officers in disputes involving shareholders or corporate governance matters. This includes claims under the federal securities laws and claims for breach of fiduciary duty (typically under Delaware law). I also represent clients with respect to regulatory activity initiated by the Securities and Exchange Commission. My clients also seek my advice to help avoid disputes in the first place, and I often counsel public companies regarding disclosure obligations and compliance with federal securities laws.

What types of clients do you represent?

Koji: I represent innovators, which, in many ways, is natural because innovators are the life blood of Cooley’s client base. Clients include companies involved in technology (e.g., semiconductors, software development, video game development, internet commerce, IT infrastructure, and device development) and life sciences (e.g., drug/therapy discovery and development, medical devices, and health care-related products and services). Examples of our tech and life sciences clients include Qualcomm, Activision Blizzard, Horizon Therapeutics, Acadia Pharmaceuticals, and CD Projekt Red. I have also represented large non-tech clients like GNC Holdings, Rivera Holdings, Charlotte Russe, Hot Topic, and Guess.

Jessica: At Cooley, I represent companies that disrupt traditional industries and business models. Most of my clients are in the tech space—enterprise software providers, development-stage pharmaceutical companies, and internet or mobile-app-based businesses, to name a few.

What types of cases/deals do you work on?

Koji: I regularly defend clients who are defendants in representative actions, like class actions and shareholder derivative suits. The class actions are typically brought under the federal and state securities laws, rules, and regulations or under state laws governing the duties of officers and directors. This includes traditional “securities fraud” class actions as well as class actions for breach of fiduciary duty or some other state or federal law duties related to mergers and acquisitions. Over the years, I have defended more than 70 shareholder representative actions (class actions and derivative suits), 50 M&A transactions, and almost 100 regulatory/government investigations or inquiries.

Jessica: I defend mostly public companies and their directors and officers who have been accused of violating federal securities laws, breaching a fiduciary duty, or otherwise harming their shareholders. These claims may be based on allegedly false or misleading disclosures made to investors, they may arise out of actions taken by boards of directors (such as approving merger transactions or executive compensation), or they may be based on a theory that the board should have prevented some event that caused the company’s stock price to drop (such as a data breach, a failed clinical drug trial, or poor business performance). 

How did you choose this practice area?

Koji: In my first year of practice, I defended an institutional investor in an SEC investigation—which morphed into a civil enforcement action. Within a few years, I defended a number of other clients in SEC investigations and enforcement actions. Early on, therefore, I found myself immersed in bet-the-company or livelihood (in the case of an individual) matters. As I reflected on what I wanted to focus my career on, it occurred to me that SEC enforcement and the defense of private securities litigation, unlike other practice areas where government enforcement depended on the occupant of the White House, was always going to be an active practice area. It was the right decision.

Jessica: This practice area chose me. I had no intention of being a securities litigator. As a junior associate, however, there was an influx of shareholder lawsuits filed against Silicon Valley public companies arising out of the way that the companies accounted for employee stock options. In the span of a couple years, I was exposed to nearly every facet of a securities litigation practice—shareholder class action lawsuits, breach of fiduciary duty lawsuits, SEC investigations, and internal corporate investigations. I loved the work, and I have never looked back.

What is a typical day like and/or what are some common tasks you perform?

Koji: My typical day is a mix of counseling and litigation. I frequently field questions on federal securities regulation or corporate governance from clients or my business partners. Many of these questions require on-the-spot answers or jumping on with a client or the board of a client to handle an emergency or time-sensitive question. On the litigation side, I am truly fortunate to work with teams of lawyers who are now experts in the defense of securities and corporate governance-related matters. I help develop strategy and arguments and generally try to stay out of the way and not micromanage these well-led teams until it is time for oral argument or a contested hearing. This frees me up to help generate business by interacting with a host of different constituencies that help bring us new cases.

Jessica: As about half of federal securities lawsuits are dismissed at the pleading stage, the motion to dismiss is one of the most important events in the life of a lawsuit. As a result, the practice involves a significant amount of brief-writing. Precedent is important, so I am constantly reading new judicial opinions to stay on top of developments in the law. As I also advise public companies about their public disclosures and compliance with SEC reporting, I spend a lot of time reading and reviewing SEC filings, investor communications, press releases, and other disclosures.    

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Koji: At bottom, we are litigators. Our craft is persuasion. Yes, we have specialized knowledge of the relevant laws, rules, and regulations, but all of that knowledge is ascertainable with diligence and effort. What cannot be learned from a book, though, is how to be an effective advocate—not only orally but, more importantly, in writing. Writing is the foundation of effective advocacy. Accordingly, if I were going to give someone advice, I would tell them to focus on developing their skills as a writer.

Jessica: While no particular training or background is necessary (I was an English major), an understanding of capital markets, corporate securities, and how investors value public company stock; a general background in public company accounting; the ability to read and understand financial statements and a familiarity with basic SEC reporting; and a class on Delaware law corporate governance would provide a good foundation for a securities litigation practice.

What is the most challenging aspect of practicing in this area?

Koji: The most challenging aspect of our practice is to reduce complex technology or science into concepts or a story that is accessible to judges and their law clerks. Whether it is explaining issues relating to the development of a semiconductor chip, problems with a complex device like a 3D printer, or the failure of a drug candidate in its clinical trials, there is a delicate balance between explaining everything and explaining just what is essential so that the court or a jury understands what is truly important.

Jessica: Being asked to give thoughtful advice about a complex, nuanced issue at a moment’s notice. A public company might have a crisis that implicates federal securities laws and disclosure issues at any time. They need to make a decision quickly, and there isn’t always a clear answer.  

What do you like best about your practice area?

Koji: I love learning about what our clients do. I have a background in molecular biology and naturally gravitate towards biotech companies. We have clients with cutting-edge small molecule (ingestible drugs) and large molecule (complex proteins having therapeutic effect that are usually injected or infused) technology, which absolutely fascinates me. Having said that, I enjoy equally learning about semiconductors or devices (handheld/tablet) or other technologies that we rely on in every facet of our modern life. Every new case is an opportunity to learn about the amazing things our clients are working on.

Jessica: I am in the boardroom and in the C-suite advising the people who make the decisions that drive our economy and impact the lives of millions of people—employees, investors, and consumers who use their products. It would be hard to find someone in the U.S. who our clients’ products and services have not impacted in some way.

What is unique about your practice area at your firm?

Jessica: Cooley’s client base comprises innovators who have products and businesses that are disruptive and novel. As trailblazers, they often operate within a legal and regulatory structure that was not designed for them. As a result, they face legal issues for which there is no precedent. These types of forward-thinking companies require forward-thinking lawyers who are creative, can think outside the box, and can help our clients develop their own paths and sometimes transform the law.

How important is it for securities litigators to have a business background and understanding of corporate law, and what should junior attorneys do if they don’t?

Koji: Focusing on business corporations, securities regulation, and corporate governance during law school will definitely give a lawyer a head start. So too will an understanding of how business corporations operate, generally, and of subjects like finance and economics. I, however, did not focus on any of those subjects during law school. I wanted to be a criminal defense lawyer. So, there is no “set” background that a lawyer needs to have to succeed as a securities litigator. As a junior lawyer, I took it upon myself, on my own time, to learn about securities regulation (I literally read the key statutes and regulations on my own) and developed my understanding of business over the course of almost 30 years doing this type of work.

What I tell junior associates is that the law is not a job, it is a profession; it is your craft. Find ways to make yourself more knowledgeable. Read a legal blog every couple of days in your practice area so that you are armed with the most current cases and thought leadership. This will allow you to think more expansively about cases and assignments and allow you to participate more meaningfully in group discussions.

Koji Fukumura, Partner, and Jessica Valenzuela Santamaria, Partner—Securities Litigation

Koji Fukumura is a partner in Cooley’s Securities Litigation practice and serves on the firm’s board of directors. His practice focuses on complex commercial litigation, including the defense of securities class actions, derivative suits, M&A-related class actions, and government investigations. He also regularly conducts internal investigations for boards as well as their audit or special litigation committees. Koji is a past chair of Cooley’s Securities Litigation practice and the ABA Section of Litigation.

Jessica Valenzuela Santamaria is a member of the firm’s Fall Recruiting Commitee, and her practice focuses on securities, corporate governance, and other complex business litigation, including the defense of securities class actions, derivative suits, and M&A-related class actions. In addition to representing clients in state and federal courts, she also represents companies, boards, and special committees in government and internal investigations and counsels public and private companies and their directors and officers about a wide range of issues relating to corporate governance, insider trading, disclosure obligations, director and executive compensation matters, and litigation risk and strategy.

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