Ellen is a senior associate who focuses her practice on securities litigation, including shareholder class actions and opt-outs, business disputes, investigations, and crisis management. She has experience advising clients in all stages of litigation, including pre-litigation counseling and negotiations, taking and defending depositions, drafting dispositive briefs and other filings, as well as assisting clients through the appeals process. She also has significant experience representing clients in internal investigations and interfacing with various government entities including the U.S. Department of Justice and the U.S. Securities and Exchange Commission. Ellen has represented companies and individuals in a variety of industries, including life sciences and financial services.
Ellen also has an active pro bono practice. To date, she has successfully represented individuals seeking asylum, a Section 8 tenant facing eviction, and a domestic violence shelter.
Prior to joining Mintz, Ellen was a litigation associate at a leading global law firm’s New York headquarters, where she worked on securities litigation and complex commercial cases, including for Fortune 500 companies.
While attending law school, Ellen was a legal intern for a New York-based civil rights lawyer, focusing on First Amendment matters and other issues. She also served on the executive board and as a submissions editor for the Harvard Journal of Law & Gender and as a primary editor for the Harvard Human Rights Journal.
Experience
Securities Litigation
- Represented a large multinational operator of membership warehouse clubs, and its former executives, securing dismissal of all claims pursuant to the Securities Exchange Act of 1934 arising from allegations that the company misled the public about its performance, among other alleged missteps.
- Represented wellness company and its board members, securing summary judgment, dismissing all federal securities claims pursuant to the Securities Exchange Act of 1934 and the Securities Act of 1933, as well as a breach of contract claim, arising from merger. Summary judgment affirmed by the Second Circuit.
- Represented wellness company and its board members, securing dismissal of all federal securities claims pursuant to the Securities Exchange Act of 1934, breach of contract, and common law fraud claims arising from merger.
- Represented pharmaceutical company and its executives, securing dismissal of all federal securities claims pursuant to the Securities Exchange Act of 1934 and Securities Act 1933, as well as common law claims, in connection with statements concerning pipeline drug. Dismissal affirmed by the Second Circuit.
- Represented CEO of software company against federal securities claims brought by the U.S. Securities and Exchange Commission concerning milestone payments related to a merger. Achieved favorable settlement for client.
- Represented financial firm and its executives against Securities Exchange Act of 1934 and Securities Act of 1933 claims in opt-out actions across the country arising out of the 2008 financial crisis.
- Represented numerous public companies in connection with shareholder demands.
White Collar
- Represented numerous executives in internal, SEC, FINRA, and DOJ investigations.
- Represented numerous biotechnology companies in FINRA investigations.
- Represented numerous biotechnology, life science, and wellness companies in SEC investigations.
- Represented individual in university-led investigation into, inter alia, allegations of research misconduct and fraudulent statements.
- Conducted internal investigation of private equity-owned portfolio company, assessing whistleblower’s pay-for-play allegations.
- Conducted internal investigation of start-up, assessing potential violations of various federal and state laws.
Business Disputes
- Represented members of an asset management company in dispute concerning put option and redemption rights in ICDR arbitration. Achieved favorable settlement for clients.
- Represented private equity investor in pre-litigation business dispute with former CEO of wellness-space portfolio company.
- Represented funds in business dispute concerning alleged trademark violation and breach of non-disclosure agreement. Achieved favorable settlement for clients.
- Represented a boutique investment bank focused on clean energy deals in a commercial dispute in an AAA arbitration. The matter was settled favorably on behalf of the client in mediation.
- Represented board member of public company, securing dismissal of fraudulent inducement claim brought by a shareholder. Dismissal and denial of post-judgment amendment affirmed by the Second Circuit.
- Represented pharmaceutical company against breach of contract claim concerning contingent value right milestones.
Case Studies
Case Study
Mintz represented XpresSpa Group, Inc. before the Second Circuit Court on appeal from the SDNY. Appellants sought to overturn the SDNY decision granting XpresSpa summary judgment and an earlier decision dismissing all of the appellants’ state law claims.
viewpoints
Court Denies Class Member’s Untimely Request to Be Excluded from Class Even Though Class Member Had Previously Filed a Separate Action
July 24, 2019 | Blog | By Joel Rothman
Supreme Court Denies Opportunity To Clarify Whether The Federal Securities Laws Carry a Duty to Update
May 22, 2019 | Blog | By Ellen Shapiro
The U.S. Supreme Court denied defendants-appellees’ petition for certiorari in Hagan v. Khoja. As set forth in our prior alert, the executives of the now-defunct biotechnology company, Orexigen, sought review of a Ninth Circuit decision, which not only created a departure from other courts in its narrow-approach to incorporation by reference and judicial notice, but according to the petition, also distinguished itself by being the first Circuit Court of Appeal to find that an issuer owes a duty to update a statement of historical fact that was accurate when made. At issue was whether Orexigen had a duty to disclose data that demonstrated interim results from an obesity drug trial were not as promising as once touted. In opposition to the petition for certiorari, respondent argued, inter alia, that “[e]ven if petitioners were correct . . . that this case implicates whether companies have a duty to update earlier statements of historical fact, the interlocutory posture of this case would make it the worst kind of vehicle for considering that question.”
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Teva Putative Federal Securities Class Member Seeks to Toll Statute of Repose with Motion to Intervene
March 12, 2019 | Blog | By Kevin Mortimer, Ellen Shapiro
The United States District Court of the District of Connecticut will soon decide whether a putative class member may intervene “for the limited purpose of tolling the statute of repose.” Statutes of repose place an outer limit on when a claim can be brought. For example, claims brought under Sections 11 and 12 of the Securities Act of 1933 are subject to a 3-year statute of repose, 15 U.S.C. § 77m, and claims brought under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 are subject to a 5-year statute of repose. 15 U.S.C. § 1658. Less than two-years ago, the U.S. Supreme Court held that unlike statutes of limitations, which may be tolled by the pendency of a class action, statutes of repose cannot be so equitably tolled. CALPERS v. ANZ Securities. Should the District Court deny the motion, the putative class member, who purchased millions of Teva shares during the proposed class period will be time-barred from opting-out of the securities class action at-issue or asserting its own claims should the action be dismissed.
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Petition for Certiorari Asks Supreme Court to Clarify Whether the Federal Securities Laws Carry a Duty to Update
February 14, 2019 | Blog | By Ellen Shapiro
Last week, executives of the now-defunct biotechnology company, Orexigen filed a petition for certiorari before the U.S. Supreme Court, seeking clarification of the duty to update under the federal securities laws. The petition seeks further review of a recent decision by the Ninth Circuit, Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), which not only created a departure from other courts in its narrow-approach to incorporation by reference and judicial notice, but according to Orexigen, also distinguished itself from other Circuit Courts by being the first Circuit Court to find that an issuer owes a duty to update a statement of historical fact that was accurate when made. Specifically, the Ninth Circuit held that “by touting and publishing the ‘surprisingly’ positive 25 percent interim results [of the drug at-issue’s ability to decrease cardiovascular events], Orexigen created its own obligation to report that those results did not pan out after all” as evidenced by the 50 percent interim results.
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Delaware Chancery Court Holds Corporations Cannot Enact Federal Forum Provisions To Bypass Cyan and Preclude State Courts from Hearing Securities Act Claims
January 17, 2019 | Blog | By Ellen Shapiro, Joel Rothman
In 2017, courts across this country were split on whether plaintiffs could assert a class action alleging claims under the Securities Act of 1933 (which provides a private right of action against issuers and others for providing false or misleading statements in offering materials) in state court. While California state courts recognized such jurisdiction, in New York, similar suits were routinely removed to federal court. In the midst of this jurisdictional uncertainty and prior to launching their respective initial public offerings, Blue Apron Holdings, Roku Inc., and Stitch Fix, Inc. adopted charter-based Federal Forum Provisions, in an attempt to make federal district courts the exclusive forum for the resolution of any complaint asserting claims arising under the Securities Act.
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Judge Rakoff Highlights the Financial Risk to Objectors of Class Settlements
October 23, 2018 | | By Joel Rothman, Ellen Shapiro, Kevin Mortimer, Alain Mathieu
On August 15, 2018, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York awarded an objector to the Petrobras class settlement nearly $12,000 in attorneys’ fees (click here for the Order). The objector had asked the Court for almost $200,000 to cover 231.7 hours of legal work. Approximately one month later, Judge Rakoff sanctioned another objector to the Petrobas class settlement (click here for the Order). In the September Order, Judge Rakoff issued a grave warning to future objectors and reminded counsel that it is the Court’s duty to “safeguard the ability of objectors to protect class members from abusive settlements while in turn protect[] class members from being abused by the objectors themselves.
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U.S. District Court Holds that Certain Claims by Opt-Out Plaintiffs Are Barred by the Statute of Repose
October 10, 2018 | Blog | By Joel Rothman, Kevin Mortimer, Ellen Shapiro, Alain Mathieu
In a recent ruling in In re: BP p.l.c. Securities Litigation the United States District Court for the Southern District of Texas dismissed claims asserted by opt-out plaintiffs as time barred by the Exchange Act’s statute of repose pursuant to the U.S. Supreme Court’s ruling in ANZ Securities. This decision underscores that institutional investors should closely monitor the statutes of limitation and repose applicable to securities fraud claims to ensure they are not later barred from recovery.
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Court Allows Volkswagen Bondholder Action to Proceed, But Expresses Doubts about the Plaintiff’s Ability to Certify a Class
October 1, 2018 | Blog | By Joel Rothman, Alain Mathieu
As we previously noted in this post, the United States District Court for the Northern District of California dismissed the Volkswagen Bondholder Plaintiff’s first amended complaint, with leave to amend, holding that it could not rely on the Affiliated Ute or Basic presumptions to plead reliance, and that it had not sufficiently pleaded direct reliance. On April 2, 2018, the Plaintiff filed a Second Amended Bondholder’s Class Action complaint (SAC), which added allegations: (1) of direct reliance, (2) that the bonds at issue were priced and traded on an efficient market, (3) that the defendants’ alleged fraud created the market, and (4) that Volkswagen committed fraud on the regulatory process. On September 7, 2018, the court denied the defendants motion to dismiss, and ruled that that the case may proceed to discovery, but also expressed concerns about the Plaintiffs’ ability to certify a class.
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In Khoja, the Ninth Circuit Limits Defendants’ Ability to Argue Facts in a Motion to Dismiss
September 18, 2018 | Blog | By Ellen Shapiro, Joel Rothman
In Khoja v. Orexigen Therapeutics, Inc., the Ninth Circuit clarified the “rare circumstances” when a court may review documents extraneous to the pleadings in ruling on a motion to dismiss. Given that it has become routine for securities defendants to attach numerous documents to motions to dismiss, this decision has the potential make it easier for plaintiffs to survive a motion to dismiss. Over the next several months, it will be interesting to see whether this decision survives the defendants’ petition for en banc review, and if so, whether courts outside the Ninth Circuit follow this decision to curtail the use of extraneous documents in deciding motions to dismiss.
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News & Press
Twenty-nine Mintz Attorneys Named to 2023 New York Metro Super Lawyers List
September 22, 2023
NEW YORK – Mintz is pleased to announce that 18 attorneys have been named New York Metro Super Lawyers and 11 attorneys have been named New York Metro Rising Stars by Super Lawyers for 2023.
Member Jacob Hupart and Associate Ellen Shapiro co-authored an article published by the American Bar Association discussing ESG and securities litigation.
Mintz is pleased to announce that 120 firm attorneys have been recognized as leaders by Best Lawyers® in the 2024 edition of The Best Lawyers in America©.
ESG Mandates For Banks May Bring Compliance Challenges
August 2, 2023
Members Keith Kollmeyer and Jacob Hupart and Associate Ellen Shapiro co-authored an article published by Law360 analyzing the implications of ESG mandates for banks.
OpEd: Navigating Fiduciary Duties Amid The Rise Of Anti-ESG Rulemaking
February 14, 2023
Members Douglas P. Baumstein, Jacob H. Hupart and Associates Will G. McKitterick and Ellen Shapiro authored an article for The Deal discussing divides amongst state legislations regarding the implementation of ESG factors in investment decisions.
'Caremark' Liability Following The SEC's New ESG Reporting Requirements
December 15, 2022
Members Douglas P. Baumstein, Jacob H. Hupart, and Securities & Capital Markets Chair and Life Sciences Co-Chair Jonathan L. Kravetz, and Associates Will G. McKitterick and Ellen Shapiro authored an article for the New York Law Journal analyzing the role corporate boards play in monitoring and overseeing a company's operations, particularly in light of the SEC's imminent ESG disclosure rules.
Twenty-six Mintz Attorneys Recognized as 2022 New York Super Lawyers and Rising Stars
September 29, 2022
17 Mintz attorneys have been named New York Metro Super Lawyers and nine Mintz attorneys have been named New York Metro Rising Stars by Super Lawyers for 2022.
Fraud in Cryptocurrency, and How the SEC Is Applying Federal Securities Laws to Stop It
March 7, 2019
This New York Law Journal outside analysis column discusses the rapidly growing cryptocurrency space and how multiple federal and state agencies are trying to regulate these evolving markets. The column is authored by Mintz Members David Siegal and Jason Halperin. Associates Ellen Shapiro and Matthew Novian assisted in the preparation of this column.
Events & Speaking
Mar
2
2023
Cutting Edge Topics in Private Securities Litigation
Federal Bar Council
Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, New York 10001-8602
Apr
22
2021
Recent Trends in Securities Litigation: What You Need to Know for 2021 and Beyond
Federal Bar Council
Virtual
Sep
16
2020
The Experts on Expert Witnesses: Working with Expert Witnesses from Disclosure through Trial
Federal Bar Council
Virtual
Recognition & Awards
Best Lawyers in America "Ones to Watch": Litigation - Securities (2022-2024)
Best Lawyers in America "Ones to Watch": Commercial Litigation (2024)
New York Super Lawyers - Rising Stars (2022 - 2023)
Involvement
- Federal Bar Council, Program Committee, member
Recent Insights
Preparation for 2023 Fiscal Year-End SEC Filings and 2024 Annual Shareholder Meetings
December 15, 2023| Advisory|
