Cases
Experience: Trials, Appeals
Notable Cases: Miller v. Thane, Int'l. (C.D. Cal.): Trial defense judgment of a securities class action involving claims under Sections 12(a)(2)
15 of the 1933 Act in one of the few post-Private Securities Litigation Reform Act cases to go to judgment. After two trips to the Ninth Circuit, the judgment was ultimately affirmed on loss causation grounds. See Miller v. Thane Int'l., 615 F.3d 1095 (9th Cir. 2010).
Higuchi v. Watson Pharmaceuticals, Inc. (D. Utah): Defended company
its officers at trial in suit concerning the defendants' alleged failure to remove restrictive legend on securities, allegedly causing plaintiff tens of millions of dollars in damages. Trial decision on damages in only the mid six figures was a significant victory for the defense.
In re Apollo Group, Inc. Sec. Litig.: Retained by defendants after plaintiffs had already won a securities class action at trial
prevailed on appeal, leaving only the post-judgment claims process upon which to mount a defense. Following post-judgment briefing on claims procedures raising the potential availability of various offsets to class members' claims the case settled for less than half of plaintiffs' damages assessment,
under the company's publicly reported reserve.
Allergan Medical Optics, Inc. v. Staar Surgical Co. (C.D. Cal.): Defended licensee (Chiron Corp.) in jury trial concerning inventor/employee's rights to a patented medical device purportedly created prior to employment.
Miller v. Thane Int'l. ('Thane II'): Represented Thane
its officers
directors in a securities class action alleging violations of Sections 12(a)(2)
15 of the 1933 Act. Following a trial that resulted in a complete defense verdict, won affirmance on loss causation grounds in an opinion establishing the distinction between materiality
loss causation under Ninth Circuit law,
on an issue of first impression, holding that stock prices may be relied upon to determine loss causation even in inefficient markets. 615 F.3d 1095 (9th Cir. 2010).
Kang v. Apolo Ohno: Obtained a dismissal with prejudice on the opening motion to dismiss as well as Rule 11 sanctions against plaintiffs
their counsel for federal securities fraud claims related to a cryptocurrency endeavor involving America's most highly decorated Winter Olympic athlete.
Simpson v. AOL Time Warner Inc.: Represented L90, Inc. in a seminal case involving 'round-tripping' revenue recognition. Our client appealed the Ninth Circuit's decision on grounds that were subsequently adopted by the U.S. Supreme Court in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008), focusing upon the absence of the required element of reliance. 452 F.3d 104 (9th Cir. 2006), vacated, 519 F.3d 1041 (9th Cir. 2008).
Lone Star Ladies Inv. Club v. Schlotzsky's, Inc.: Represented Schlotzsky's
its officers
directors in a securities class action alleging violations of 1933 Act
1934 Act. The district court dismissed the case with prejudice on defendants' first motion to dismiss, but the Fifth Circuit reversed, holding that plaintiffs should have been allowed to replead. However, the Fifth Circuit also held that plaintiffs could only state a claim for Section 12 liability if plaintiffs could sufficiently plead 'active solicitation' which they could not,
as a result the case settled for an immaterial sum. 238 F.3d 363 (5th Cir. 2001).
Colin v. Onyx Acceptance Corp.: Represented Onyx
its officers
directors in a case involving three years of financial restatements. The Ninth Circuit affirmed the district court's dismissal, holding that plaintiff failed to adequately plead scienter. 31 Fed. App'x 359 (9th Cir. 2002).
Monty v. Leis: Represented Pacific Capital Bancorp
its officers
directors in obtaining the denial of a preliminary injunction threatening a recapitalization transaction that was the bank's best hope for survival following the 2008 financial crisis. The Court of Appeal's affirmance was groundbreaking in that it held that under California law, change in control transactions do not require a board to negotiate a so-called 'fiduciary out' allowing the company to accept a higher subsequent offer from another bidder. In so doing the court rejected the much-criticized rule to the contrary set forth by the Delaware Supreme Court in Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003). 193 Cal. App. 4th 1367 (Cal. Ct. App. 2011).
Luther v. Countrywide Fin. Corp.: Represented appellees Countrywide Financial Corporation
various affiliates in seeking to uphold the Superior Court's dismissal of a securities class action for lack of jurisdiction. The Court of Appeal reversed, holding that state courts continue to have concurrent jurisdiction with federal courts to hear class actions involving 1933 Act claims, notwithst
ing certain language in the Securities Litigation Uniform St
ards Act. 195 Cal. App. 4th 789 (Cal. Ct. App. 2011).
Motions to Dismiss Granted or Settlements Achieved: Zamir v. Bridgepoint Education, Inc.
In re Paysign, Inc. Sec. Litig.
Korzen v. Tetra Tech, Inc.
In re IndyMac Bancorp Inc. Sec. Litig.
In re NovaStar Fin'l. Corp.
In re Broadcom Corp. Sec. Litig.
In re Molina Healthcare, Inc. Sec. Litig.
Jurkowitz v. Pacific Capital Bank
McGee v. American Oriental Bioengineering
In re Gemstar-TV Guide, Inc.
In re NextCard, Inc.
In re Saatachi & Saatachi
In re Basin Water, Inc. Sec. Litig.
Singer v. Insight Enterprises, Inc.
Chan v. OrthoLogic Corp.
In re Mentor Corp.
Martin Grossman FBO v. Unison Healthcare Corp.
In re Turbodyne Corp.
In re Sienna Apparel Group Inc.
In re TouchStone Software Corp.
In re Coastcast Corp.
Colin v. Onyx Acceptance Corp.
In re L90, Inc.
Marks v. Simulation Sciences, Inc.
In re Ascend Commc'n Sec. Litig.
In re Circon Corp.
In re Illuminations, Inc.
In re Surebeam Sec. Litig.
In re First World Communications, Inc.
Significant Mergers & Acquisitions Cases: Pacific Capital Bancorp/Ready Capital: Defended acquired corporation against both Section 14(a) complaints
a certified class action in California pursued against a Maryl
REIT that settled for an immaterial amount.
Ariba/SAP: Defended Ariba's board of directors in derivative litigation in California
Delaware in connection with SAP's $4.5 billion acquisition of Ariba. Obtained complete walk-away with no additional consideration, corporate therapeutics or attorneys' fees paid.
Pacific Capital Bancorp/Ford Financial: Defeated plaintiffs' attempt at obtaining a preliminary injunction that would have prevented a recapitalization transaction that was the bank's best hope of survival following the 2008 financial crisis. Established the proposition that the much-criticized rule of the Delaware Supreme Court in Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003) barring transactions that do not employ a 'fiduciary out' is inapplicable under California law. Established the proper application of California Corporations Code Section 405(a) to recapitalization transactions.
Acer/Gateway: Defeated motion for preliminary injunction seeking to delay or prevent Acer's acquisition of Gateway Computing for $710 million.
McAfee/Secure Computing: Defeated plaintiffs' efforts to enjoin McAfee's acquisition of Secure Computing
obtained voluntary dismissal of consolidated action.
The above representations were h
led by Mr. Tyukody prior to his joining Greenberg Traurig, LLP.
