Case Study: Mintz Levin Secures Dismissal of Securities Fraud Claims Against Biotech Company
Mintz Levin litigators successfully defended a biotech company in a class action suit alleging violations of the Securities Exchange Act.
The plaintiffs’ claims of securities fraud were made after our client, a biotech company specializing in the development of therapeutic drugs for neurodegenerative diseases, announced encouraging results from preliminary clinical trials of the company’s leading drug candidate for the treatment of Alzheimer’s disease. Following the company’s statements, its stock dropped significantly, and a putative class action was filed asserting a claim of securities fraud under § 10(b) of the Securities Exchange Act as well as individual liability for officers under § 20(a) of the Exchange Act. The complaint alleged that our client’s characterization of the study’s results as “statistically significant” was a misstatement because the release did not elaborate on the underlying statistical analysis, specifically, the p-value used.
The Mintz Levin team moved quickly to file a dismissal motion on the basis that the complaint failed to allege a securities fraud violation. Attorneys Frank Earley and Adam Sisitsky, assisted by attorneys John Sefick and Lexie Calistri, argued that there is no requirement under the securities laws to disclose the statistical methodology behind announced results, and thus plaintiffs failed to identify a material misstatement or omission. The team also argued the complaint failed to allege scienter and loss causation.
The Court (SDNY) agreed and granted our motion to dismiss. Further, while the judge provided plaintiffs with the ability to replead (only after receiving Court approval to do so), she also stated in her opinion that any attempt to amend would be futile.
Case Study: Win for Carpenters on Rival Unions' Antitrust Claims
Mint Levin recently obtained summary judgment in favor of the New England Regional Council of Carpenters (the Carpenters) dismissing claims by rival construction trade unions that enforcement of subcontracting requirements in collective bargaining agreements (CBAs) resulted in a monopoly and an illegal restraint of trade in violation of the Sherman Act.
Growing use of panelized exterior systems in commercial construction has led to increasing demand for carpenter labor to perform the panel installation. The Carpenters' CBAs with construction industry general contractors prohibit subcontracting work claimed by the Carpenters, such as panel installation, to non-Carpenter shops. Competing trade unions, which lacked CBAs with general contractors, brought suit alleging that the Carpenters' CBAs violated labor law and the Sherman Act by channeling the exterior work to the Carpenters. Requiring substantial counsel with deep antitrust capabilities, the Carpenters retained Mintz Levin to defend the case.
We utilized a two-pronged defense strategy. First, as to plaintiffs' labor law claims, our focus was on showing that the use of subcontracting restrictions was an established practice within the construction industry, and that the Carpenters' enforcement of those restrictions represented the valid exercise of their rights under labor law and their CBAs. Second, as to the antitrust claims, we focused on proving that plaintiffs' claim to have been foreclosed from performing the exterior work was pure exaggeration, and that plaintiffs could not establish any adverse economic impact to any relevant market. Expert discovery was particularly important on the antitrust claims, as we were able to show that plaintiffs' expert failed to define a valid economic market or quantify adverse impacts in any market. We moved for summary judgment on both labor law and antitrust grounds.
Mintz Levin obtained summary judgment twice. Initially, the trial court ruled based solely on labor law exemptions from antitrust scrutiny, without addressing any antitrust law arguments. After a partial reversal of the labor law ruling by the Second Circuit, the trial court heard argument on the antitrust issues and entered summary judgment a second time based on plaintiffs' failure to establish any dispute of fact concerning market power or adverse price, output. or quality impacts to a properly defined market. In so doing, the court rejected plaintiffs' request to enjoin enforcement of the subcontracting provision under the Sherman Act.
The Mintz Levin team for this case included Member Bruce Sokler from the firm’s Washington, DC office and several professionals from Boston, including Members Keith Carroll and Kevin McGinty, Special Counsel Andrew Nathanson, and Associates Michael Ticcioni and Caitie Hill.
Case Study: Mintz Levin Helps Investment Firm Resolve 10 Merger Objection Lawsuits
Funds affiliated with Apollo Global Management, a leading global alternative investment firm, acquired gourmet grocery chain The Fresh Market in a tender offer valued at approximately $1.36 billion. Following the announcement of this acquisition, 10 separate suits were filed in federal and state courts in Delaware and North Carolina. Apollo, its new portfolio company, The Fresh Market, and The Fresh Market's directors and officers retained Mintz Levin to oversee all litigation strategy, supervise local counsel in each jurisdiction, and coordinate all defense activities.
As coordinating litigation counsel, we successfully negotiated the early resolution of the first four lawsuits. We subsequently negotiated the successful resolution of two consolidated appraisal actions — in which petitioners sought an additional $140 million for their shares of The Fresh Market — following extensive e-discovery and on the eve of several party depositions. We also represented The Fresh Market and individual defendants in a breach-of-fiduciary-duties suit in the Delaware Chancery Court and a federal securities law class action in the Middle District of North Carolina. The North Carolina action was dismissed, and the Delaware Chancery Court granted defendants' motions to dismiss all of plaintiff's claims. Plaintiffs’ appeal of the Delaware Chancery Court’s decision is now pending in the Delaware Supreme Court.
In under two years, we successfully opposed all 10 complaints filed against our clients. The practice of resolving merger objection suits with a global release at the preliminary injunction stage has fallen out of favor in the Delaware Chancery Court, leading plaintiffs to pursue a wider range of procedural approaches to challenge merger transactions. We successfully assisted The Fresh Market in navigating this changing legal landscape by using a variety of strategies to resolve and defend it against a number of such deal challenges.
The Mintz Levin Team for this case included Bob Bodian, Adam Sisitsky, Scott Rader, Larry Schoen, John Sefick, Lavinia Weizel, Kaitlyn Crowe, Mackenzie Queenin, Michael Ticcioni, Patrick McDonough, and Amanda Blaske.
Case Study: Mintz Levin Helps Restaurant Group Obtain Quick Dismissal of TCPA Case
Mintz Levin litigators recently defended Hofman Hospitality Group in an Eastern District of California case filed under the Telephone Consumer Protection Act (TCPA). The plaintiff alleged that a Hofman Group restaurant, Lucille’s BBQ, sent him a cell phone text message that violated the TCPA. Although the Plaintiff willingly provided his phone number to the restaurant in connection with a dinner reservation, he claimed he did not consent to receive advertisements.
The Mintz Levin team moved quickly to file a dismissal motion on the basis that the message was in furtherance of an ongoing business transaction — the plaintiff dining at the restaurant. The firm argued that an exemption under the TCPA applied because the message was connected to the transaction. The District Court agreed and granted Hofman’s motions to dismiss all of the plaintiff's claims with prejudice, which bars the plaintiff from refiling the complaint.
The team’s success in discharging the purported class action on an initial round of motion practice and without any discovery helped Hofman avoid potentially costly litigation. Other Fortune 500 companies have cumulatively paid over $100 million in settlements for nearly identical allegations. This victory is a significant ruling for businesses who contact consumers via cell phone as part of an ongoing transaction.
The Mintz Levin legal team included Joshua Briones and Nicole Ozeran.
Case Study: Mintz Levin Secures Dismissal of Privacy Rights Case for Mobile App Developer
Mintz Levin litigators recently represented a mobile app developer in a privacy rights case in the Northern District of California. The plaintiff filed a lawsuit alleging that our client and a major transit agency developed an app that secretly tracked users. In fact, our client developed an app which allows passengers who downloaded it to discretely report suspicious or criminal activity.
The plaintiff was represented by a well-known firm, which has built a national reputation for filing privacy-related lawsuits. In an effort to push the envelope of existing law, the plaintiff alleged claims based on the California Cellular Communications Interception Act, the California Invasion of Privacy Act, and the California Constitution, along with a claim for intrusion upon seclusion.
We filed a motion to dismiss on a variety of bases. We argued that liability does not extend to our client under the Cellular Communications Interception Act and that liability does not exist under California’s invasion of privacy law based on the statute’s legislative history. We also maintained that the plaintiff failed to state claims based on the California Constitution or intrusion upon seclusion in light of the allegations and social norms.
The Court agreed and granted our motion to dismiss in this novel area of the law. Notably, the motion was granted before the plaintiff’s counsel took any discovery in the case.
The Mintz Levin Legal Team included Joshua Briones, Mandy Carozza, and Esteban Morales.
Case Study: Shopping Center Wins Case, Remains Open for Business
About 90% of legal disputes settle out of court. When the firm’s litigators handle a dispute that proves to be among the remaining 10% — as this case did — clients take comfort in our team’s winning reputation and track record. Mintz Levin litigators are renowned for their ability to take tough cases to trial and win!
In January 2016, when a neighboring property owner threatened to shut down a longtime real estate client’s shopping center, we quickly stepped in to inform the neighbor that the claims had no merit. Nevertheless, the neighbor proceeded to file a complaint. In response, we tendered the claim to title insurance and procured defense counsel.
In pre-trial proceedings, the plaintiff’s litigation style was rigid and unyielding. The neighbor refused to see the merits of our client’s defense and demanded significant compensation. After concerted attempts to mediate proved unsuccessful — with the plaintiff standing by its unreasonable monetary demands — we worked extensively with title counsel to prepare an unbeatable trial strategy.
Drawing on our significant litigation experience and deep knowledge of the real estate industry, we persuasively framed the issues so the court could clearly see the merits of our defense argument. At trial in early March of 2017, the court affirmed our position in a quick, stunning, and comprehensive defeat of the plaintiff’s unreasonable claims. As a result, our client’s shopping center remains open and in operation.
Case Study: Litigation Team Resolves Kosher Food Case Successfully
We achieved a significant victory for our client Manischewitz, a
leading brand of kosher food products, in a dispute before the New
York State Supreme Court. The plaintiff sued Orthodox Union and
Manischewitz for violations of GBL 349, which bars businesses from
engaging in deceptive acts or practices; intentional infliction of
emotional distress; tortious interference with contract; prima facie
tort; and defamation. The plaintiff alleged that Manischewitz and
the Orthodox Union (OU) excluded him from the koshering process
and that Manischewitz's products did not meet the OU kashrut
standards required to be sold with the OU symbol. The New York
State Supreme Court granted Manischewitz and the Orthodox
Union’s motion to dismiss all causes of action for lack of subject
matter jurisdiction and failure to state a claim.
Case Study: Reverse Discrimination Case Resolved in Client’s Favor
On March 1, 2017, Mintz Levin won a defense verdict in a highly publicized reverse discrimination case on behalf of our client, the Shelby County Board of Education. The Shelby County School District is the largest school system in Tennessee and one of the largest in the country. The plaintiffs, two white security guards at a Memphis high school, sued the Shelby County Board of Education after they were terminated for the use of excessive force in taking a 17-year-old female student to the ground. The plaintiffs claimed they were terminated because they were white. After a two-day non-jury trial in the US District Court for the Middle District of Tennessee on August 29-30, 2016, the Court found the plaintiffs failed to establish a prima facie case and resolved the matter in our client’s favor. At trial, the defense team proved that the security guards were in clear violation of board policies as well as local police guidelines regarding the use of force.
The outcome of the trial is financially important for Shelby County Board of Education — as a defeat would have resulted in a significant loss of taxpayer dollars — and will make it easier for schools to take appropriate disciplinary measures, up to and including termination, when there are clear and unacceptable policy violations, especially with regard to students. The outcome is also impressive because it shows the importance of school districts acting decisively to protect students from being subjected to excessive force, and sends a strong message to young people, including students, that our system of justice remains one of the best — if not the best — in the world.