Governance Disputes & D&O Litigation

Ulmer & Berne attorneys have extensive experience representing public and private companies, boards of directors, and individual shareholders, partners, members, directors and officers in governance disputes and director and officer (D&O) litigation. The breadth of our client base, from large national and multinational corporations to individuals, has made us particularly sensitive to the specific needs of each client. We litigate governance and D&O disputes in state and federal courts and alternative dispute resolution forums throughout the nation.

Through motions and appeals, our attorneys have obtained favorable decisions for our clients that have shaped securities law in regional, state and federal courts. We have achieved a high level of success in securing early dismissals through motion practice and favorable settlements of cases against directors and officers prior to trial. We are not solely writers and negotiators, however; we bring an unusual depth of hands-on trial experience to the process. Our experience enables us to analyze these disputes quickly and efficiently, and to work with our clients to determine the best strategy to achieve success in each unique situation.

Governance disputes and D&O claims are by nature complex. Our litigators and support staff have years of experience in putting together efficient trial teams and handling complicated discovery issues. We are knowledgeable about the special practice rules that govern derivative and class action litigation. As regular participants in this litigation arena, we are familiar with the major plaintiffs’ law firms and can give our clients guidance as to their likely tactics and strategies. We have substantial experience dealing with D&O carriers and advising clients on coverage issues in appropriate situations.

Disputes among shareholders or partners can involve not only sophisticated legal issues, but also highly charged emotions. We recognize that, in this type of litigation, careers are made and broken and reputations are on the line. Ulmer & Berne litigators have successfully resolved such disputes for clients ranging from large corporate entities to closely held companies and partnerships. Our attorneys regularly defend boards and individual directors and officers in high-profile matters.

We are also experienced in representing special litigation committees and conducting internal company investigations. We counsel directors on corporate governance issues that may deflect potential disputes, or that arise in connection with litigation. We have represented numerous companies and individuals in regulatory investigations and regulatory enforcement proceedings.

We regularly deal with a wide range of substantive issues, including SOX violations, revenue recognition and financial fraud, risk disclosure, conflicts of interest, insider trading, market manipulation, misleading statements and practices, executive compensation, and fiduciary duty, in governance and D&O litigation.

Representative engagements include:

  • Securing dismissal on preliminary motion of a Fortune 500 company in class action litigation arising from a merger.
  • Securing dismissal of outside directors in Illinois federal court case stemming from a class action filed against a large financial institution and related individuals that ultimately resulted in a $3 billion jury verdict against remaining defendants.
  • Representing institutional investment shareholders in proxy contests for Ohio corporations.
  • Representation of Special Litigation Committee of the board of directors of a large Illinois utility in connection with demand received as part of a proposed derivative action.
  • Obtaining early dismissal, through motion to dismiss, of directors of a national bank from shareholder litigation in Ohio state court challenging a corporate merger.
  • Securing the seminal U.S. Sixth Circuit opinion on removal of a shareholder suit from state to federal court.
  • Successful representation of a former CEO of a Midwest health care company in a contested mediation with a Fortune 100 company supplier.
  • Successfully representing a national bank and its president in 300-plaintiff securities fraud litigation in Florida and Ohio.
  • Securing the seminal U.S. Sixth Circuit decision on the “bespeaks caution” doctrine.
  • Successfully representing the controlling shareholder of a large private company in a control dispute.
  • Successfully representing controlling members of large private LLC in control dispute with minority member.
  • Representing minority shareholders of private companies on breach of fiduciary duty and corporate waste claims.
  • Successfully representing former CFO of bankrupt law firm in bankruptcy trustee’s suit alleging breach of fiduciary duty and negligence.

The current pandemic and attendant disruption in securities markets are creating unprecedented challenges for directors of both public and private companies. In the coming months, directors can expect to see a rash of shareholder derivative and class action lawsuits based on their actual and perceived missteps in handling the complex...

Representative Experience

  • Representing an institutional investment shareholder in a proxy contest for an Ohio corporation.
  • Securing the seminal Ohio opinion on removal of a shareholder suit from state to federal court.
  • Successfully representing a national bank and its president in securities fraud litigation in Florida and Ohio.
  • Representing the board of directors of a publicly traded company in a formal investigation.
  • Representing directors and officers in connection with governance and liability issues in bankruptcy proceedings.
  • Representing publicly traded companies and their boards of directors in securities and derivative litigation.
  • Representing numerous companies on issues associated with corporate governance.
  • Representing numerous companies, directors, officers, and shareholders in fiduciary duty and minority shareholder litigation.
  • Representing numerous companies and their boards in regulatory investigations.
  • Early dismissal, through motion to dismiss, of directors of a national bank from shareholder litigation in Ohio state court challenging a corporate merger.
  • Successfully defended directors and officers of a Massachusetts REIT in litigation alleging violations of fiduciary duty and securities fraud which arose in the context of a hostile takeover.
  • Successfully represented directors of an Ohio REIT in opposing and thwarting two successive takeover attempts in part through offensive and defensive litigation strategies, including claims for violation of the federal proxy and takeover laws.