Josh Pemstein's litigation practice focuses on bankruptcy and corporate restructuring, as well as complex commercial and employment disputes.
In bankruptcy matters, Josh has represented debtors, secured creditors, creditors' committees, trustees and third parties in restructurings, workouts, liquidations, adversary proceedings and appeals. He also counsels domestic and international clients on a broad range of bankruptcy-related issues, including intellectual property licenses, executory contracts and acquiring technology-related assets from insolvent companies.
Josh handles complex commercial and employment disputes in state and federal courts, administrative agencies and arbitrations, including shareholder liability claims, securities disputes, breach of contract actions, whistleblowing/retaliation claims and tortious interference claims.
In addition, Josh represents brokerage firms, financial advisors and executives in litigation arising from employee and executive transitions. He serves as regional counsel to Morgan Stanley Smith Barney LLC. Josh has extensive experience litigating cases involving non-competition agreements, confidentiality and non-solicitation agreements, misappropriation of trade secrets, employee raiding and disputes arising from the securities industry's Protocol for Broker Recruiting.
As a member of the firm's Security and Privacy Practice Group, Josh counsels financial firms, independent broker dealers and brokers on obligations with respect to customers' personal nonpublic information under state and federal law, including SEC Regulation S-P.
Josh is active in Foley Hoag's pro bono program and coordinates the firm's participation in the Boston Bar Association's Chapter 7 pro bono initiative.
Josh served as Special Assistant District Attorney for Norfolk County, Massachusetts in 2006 and was lead prosecutor in over twenty trials and evidentiary proceedings.
Representative Experience
The following is a brief summary of Joshua's experience and accomplishments:
· Bankruptcy and Restructuring Practice
- In re Radianse, Inc. Represented Chapter 11 debtor. Case confirmed with 100% dividend to unsecured trade creditors as a result of successful auction of the debtor's assets; obtaining summary judgment on a claim objection and prevailing on appeal; and favorably settling patent infringement and breach of contract claims by alleged secured creditor for zero dollars plus withdrawal of claim.
- In re Engage, Inc. Represented the Creditors Committee, Post Effective Date Committee and Creditor Trust, including multi-million dollar breach of contract fraudulent conveyance, preference and equitable subordination action, resulting in 61% dividend to general unsecured creditors.
- In re Malden Mills, Inc. Represented Creditors Committee and Creditor Trust. Prosecuted over 100 preference actions and successfully litigated and resolved objection to multi-million dollar unsecured claim, resulting in ~22-25% dividend to general to unsecured creditors.
- In re Organogenesis Inc. Represented the debtor in Chapter 11 reorganization. Case confirmed with substantial cash and stock dividend to creditors.
- Represented leading international publishing company in defense of multi-million dollar preference action and subsequent appeal to Sixth Circuit.
· Litigation Practice
- Bear Stearns & Co. v. Sharon, 550 F. Supp. 2d 174 (Mass. 2008) and Bear Stearns & Co. v. McCarron, et al. (Mass. Super. Ct., Bus. Litigation Session). Successfully defended a former executive and former financial advisors of Bear Stearns in highly publicized state and federal court actions to enforce "garden leave" notice provisions.
- Merrill Lynch, et al. v. Morgan Stanley, et al. (NASD No. 07-387). Defended brokers against claims for conversion and unfair competition; obtained favorable award.
- Counseled and/or defended over 100 financial advisors in connection with post-employment restrictive covenants and transitioning to new employer.
- Negotiated favorable settlement in OSHA proceeding involving whistleblower/retaliation claims under Sarbanes-Oxley and Dodd-Frank asserted against leading asset management and securities services company.
- Successfully defended medical device manufacturer and distributor and its sales representatives against tortious interference, breach of contract, non-competition and misappropriation claims in AAA arbitration.
- Successfully opposed biodiesel manufacturer's motion for preliminary injunction against distributor and negotiated favorable settlement in subsequent AAA arbitration (Mass. Super. Ct.).
- Obtained dismissal of multi-million dollar shareholder liability claims against private equity fund (N.Y. Supr. Ct.).
- Secured court order purging high profile client's sensitive, non-public information from publicly available website (D. Mass.).
Professional / Civic Involvement
· Boston Bar Association, Bankruptcy Law Section, Member
· American Bankruptcy Institute, Member
· Major fundraiser for Children's Hospital Boston Miles for Miracles annual pledge walk (2006-present)
Publications
· Andrew Schwartz and Joshua Pemstein, The Effect of BAPCPA's Amendments to §§ 548 and 503(c) on Pre- and Post-Petition Transfers to Insiders (ABI Northeast Bankruptcy Conference, July 2007)
· Kenneth Leonetti and Joshua Pemstein, Business Case Update: Decisions Under BAPCPA Affecting Businesses and Chapter 11 Cases (ABI Northeast Bankruptcy Conference, July 2006)