Fried, Frank, Harris, Shriver & Jacobson LLP

Fried Frank litigators in the US, Europe and Asia represent global corporations and financial institutions in their most challenging, complex and important matters.  Our attorneys are active in trial and appellate matters in federal and state courts, and our diverse practice runs the gamut from agency, state, and federal court cases, to grand jury investigations, and arbitrations. We also act on behalf of clients in public-interest issues, frequently pro bono. We approach every representation focused on the client's strategic business objectives, appreciating that litigation is useful to the client only if it is in pursuit of those objectives.  Our partners work closely with our clients to identify the key legal and factual issues that are likely to drive the final outcome of the litigation process.  We efficiently deploy our resources, assigning lawyers with the requisite expertise and experience.

We also draw upon the expertise of our other practices as the complexity of any business dispute may require.  We do not view litigation as an end in itself; thus we constantly evaluate our progress to make certain that the litigation strategies are advancing the client's goals.  We believe our approach places us at an advantage to our adversaries in achieving an outstanding result before courts, regulators or whatever tribunal in which we find ourselves.  Because our adversaries ultimately come to understand this, we achieve outstanding negotiated results, as well.  We believe that our approach also minimizes, to the extent possible, lengthy, unnecessary and expensive pre-trial activity.

Litigation: Selected Representations:

• Counsel to the Special Litigation Committee of the Board of Directors of Chiquita Brands International, Inc. in an investigation and various multi-district federal and state proceedings arising out of payments made by the Company's Colombian subsidiary from approximately 1989 through July 2004 to left-wing guerrilla and right-wing paramilitary group.
   
• Counsel to Humana, Inc. and certain of its senior officers in a consolidated federal securities class action brought in the US District Court for the Western District of Kentucky on behalf of investors who purchased Humana common stock.  The complaint alleged that the defendants misled investors by knowingly making materially false and misleading statements regarding Humana's projected earnings per share, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.  The complaint was filed after Humana announced that it was revising its earnings guidance downward by US$360m five weeks after it had been initially issued and two weeks after it had be re-affirmed by senior management.  US District Judge Joseph McKinley granted the defendants' motion to dismiss, dismissing the action without granting the plaintiffs leave to replead.
   
• Counsel to Wachovia Corporation and its current and former directors and officers in a series of federal securities law and related derivative litigations in multiple jurisdictions arising out of Wachovia's alleged exposure to the "sub-prime" mortgage crisis.
   
• Counsel to International Longshoremen's Association in a civil RICO lawsuit brought by the US alleging mail and wire fraud and extortion.  The Court dismissed the government's amended complaint in its entirety, concluding that the complaint violated the pleading requirements of Rule 8(a) and failed to adequately allege the existence of a RICO enterprise.  The dismissal marks the first time a government civil RICO suit against an international union has been dismissed.  The government filed a second amended complaint.  The ILA filed a motion to dismiss the second amended complaint and defendants also filed similar motions.  The case is now awaiting the judge's decision.
   
• Counsel to the Beacon Group II – Focus Value Fund, LP, in a multi-district class action securities litigation arising out of the 2002 multi-billion dollar collapse of National Century Financial Enterprises, Inc. (NCFE) and a public company partially owned by NCFE called e-MedSoft.com.  Plaintiffs asserted violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against the Focus Value Fund based on the allegation that e-MedSoft.com artificially inflated its stock price by issuing a series of false and misleading public statements.  The US District Court for the Southern District of Ohio dismissed the 10(b) and 20(a) claims against the Focus Value Fund, and we continue to represent them in remaining lawsuits asserting state law claims as part of the MDL.
   
• Counsel to Forest City Ratner Companies in connection with a lawsuit against the US$4b Atlantic Yards development in Brooklyn.  The lawsuit challenged the condemnation of about a dozen businesses and homes to make way for the 22-acre project, claiming that constitutional rights were violated by the planned condemnation of the property.  The US District Court for the Eastern District of New York dismissed the constitutional claims and the US Court of Appeals for the Second Circuit affirmed, finding that the complaint failed to state a claim for relief.
   
• Counsel to Citadel Investment Group, LLC and CIG Media, LLC in lawsuits brought in the Delaware Court of Chancery by holders of two series of preferred stock of ION Media Networks, Inc. in connection with the restructuring of ION media.  The preferred stockholders claimed that an exchange offer made to them was wrongfully coercive and improperly extracted value from the preferred stockholders for the benefit of Citadel and NBC Universal, Inc.  After expedited discovery and briefing, the Court denied the plaintiffs' motion for a preliminary injunction that would have halted the exchange offer, and the exchange offer has now been successfully completed.
   
• Counsel to three Goldman Sachs managing directors in an action in the Delaware Court of Chancery alleging breaches of fiduciary duty in connection with clients' service on Board of Directors of Clearwire Technologies, Inc., resulting in dismissal of all claims (NACEPF v. Gheewalla, et al., CA 1456-N (Del. Chancery, September 1, 2006).  On appeal the Delaware Supreme Court affirmed the Chancery Court and issued landmark ruling holding that directors of Delaware companies in the "zone of insolvency" do not owe fiduciary duties to creditors (NACEPF v. Gheewalla, No. 521 (Del. Supreme, May 18, 2007).
   
• Counsel to 24 current and former directors and officers of Glenayre Technologies, Inc., who were embroiled in a wave of so-called "options backdating" litigation.  Plaintiffs asserted claims under both the Securities and Exchange Act of 1934 and state law alleging that all of the directors and officers were complicit in an alleged options backdating scheme at Glenayre.  The US District Court for the Southern District of New York granted our motion to dismiss all of the federal securities claims against all defendants with prejudice, and declined to exercise pendent jurisdiction over the state law claims.
   
• Counsel to Allied Waste Industries, one of the country's leading waste hauling and recycling companies, and its senior officers in a class action securities fraud case for which we obtained a dismissal with prejudice.  The Complaint, citing nine alleged "confidential witnesses," claimed that the defendants intentionally issued overly optimistic EBITDA and free cash flow projections, which the Company then failed to meet, causing a decline in its share value.  The US District Court for the District of Arizona granted the defendants' motion to dismiss with prejudice and denied plaintiffs' request for leave to replead.  The plaintiffs appealed that decision to the US Court of Appeals for the Ninth Circuit, which affirmed the dismissal with prejudice, upholding the District Court's decision on all grounds.
   
• Counsel to a Special Litigation Committee of Computer Associates International, Inc. in connection with derivative actions in the US District Court for the Eastern District of New York arising out of an investigation of accounting impropriety conducted by the US Attorney's Office and the SEC.  The SLC issued its report, finding that primary responsibility for the fraud ultimately lay with CA's two former chairmen and CEOs.  Consistent with its findings, the report directed CA to vigorously pursue the litigation against these and other employees to recoup the hundreds of millions of dollars in compensation they earned while at CA.  To date, the SLC has entered into settlements totaling US$25m with several of CA's current and former senior executives.  The District Court entered an order denying certain shareholders' motions to re-open the settlements of prior derivative litigations.  That ruling is currently on appeal, and the District Court has stayed consideration of the SLC's motion to dismiss the current derivative litigation until the US Court of Appeals for the Second Circuit acts.
   
• Appellate counsel to Tenber Associates, a major commercial landlord, after the trial court had dismissed an action it had commenced against its former tenant, Bloomberg LP.  The New York Appellate Division reversed the trial court's ruling, holding that Tenber's petition should have been sustained and that Tenber is entitled to recover double rent of more than US$1.7m a month for the holdover period, as well as prejudgment interest and attorneys' fees.
   
• Counsel to Yankee Candle Company, Inc. in a class action lawsuit filed in Massachusetts state court immediately after the announcement of its merger with Madison Dearborn Partners.  The complaint alleged that Yankee Candle and its directors breached their fiduciary duties to Yankee Candle's stockholders in approving the proposed transaction and that Madison Dearborn aided and abetted the alleged breaches.  Prior to any motion practice, Fried Frank positioned the litigation to prevent the filing of a preliminary injunction in order to enable the shareholder meeting to occur, at which meeting Yankee Candle's shareholders overwhelmingly approved the transaction with Madison Dearborn.  Following the meeting, Fried Frank ultimately was able to successfully negotiate a dismissal of the lawsuit with prejudice.
   
• Counsel to Millennium Hotels in its claims for negligence, fraud and breach of fiduciary duty against its insurance broker, Willis of New York, arising out of business interruptions losses at the Millenium Hotel from the September 11, 2001 terrorist attacks.  After the event, Millenium was sued by its US$400m excess insurance carrier, Travelers, which sought to rescind its policy and alternatively to limit its business interruption coverage based on alleged misconduct by Willis in negotiating the coverage.  The action was settled for US$85m after the Court granted Millenium's motion to dismiss all of Traveler's claims other than its claim for declaratory relief limited the term of its business coverage.  Millenium then sued Willis seeking to recover the shortfall of its insurance recovery (estimated at US$30m).  After the parties submitted briefs on Willis' summary judgment motion, the action was settled with Willis paying Millennium an undisclosed amount.
   
• Counsel to Kindred Healthcare, Inc., a leading operator of hospitals and nursing homes, in a series of disputes with its primary landlord, Ventas Realty Limited Partnership.  These disputes revolve around a series of Master Leases through which Kindred leases from Ventas 276 hospitals and nursing homes throughout the United States.  Pursuant to the Master Leases, Ventas was permitted to seek a one-time-only appraisal of the properties and to "reset" the annual rental to that amount.  Fried Frank represented Kindred in that reset process and obtained a very favorable result, with Ventas receiving an award of less than 30% of the reset amount that it sought.
   
• Counsel to HG Estate LLC, a subsidiary of the Howard Gilman Foundation, in an action pending in the Superior Court of New Jersey.  In the action, plaintiffs -- Corporación Durango SA de CV and Durango Paper Company -- claim that Grant Thornton LLP is liable to them for over US$300m in damages as a result of allegedly false audit opinions issued by Grant Thornton for Gilman Paper, a former subsidiary of HG Estate which was sold to Durango Paper Company in 1999.  The challenge to the financial statements relates to the capitalization of expenses that were incurred on machinery and equipment.  Grant Thornton, in turn, sued HG Estate, claiming that it was entitled to be indemnified by HG Estate for any damages as to which Grant Thornton may be found liable.  The court granted HG Estate's motion for summary judgment and dismissed Grant Thornton's indemnification claim in its entirety.
   
• Counsel to PDI, Inc.,a pharmaceutical sales and marketing services provider, and its former CEO and CFO in a class action securities fraud law suit brought to the US District Court for the District of New Jersey under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5.  The plaintiffs allege that PDI issued sham earnings projections over a fifteen-month period while PDI was exploring new business opportunities that ultimately proved to be unsuccessful.  The case was dismissed without prejudice based on a motion to dismiss that we filed on behalf of PDI, but the trial judge granted the plaintiffs leave to file an amended complaint based on new Third Circuit case law.  An amended complaint was subsequently filed and the trial court granted PDI's motion to dismiss the amended complaint, this time with prejudice, finding that the plaintiff's allegations – supplied largely by confidential witnesses – neither demonstrated scienter nor were described with sufficient particularity under the Private Securities Litigation Reform Act of 1995.
   
• Counsel to Club Méditerranée S.A. ("Club Med") in successful litigation filed by former nationals of Cuba who alleged that Club Med illegally trespassed on "their" land in the Republic of Cuba when Club Med operated a resort in Cuba from 1997 through 2003.  The Plaintiffs argued that they owned the land on which the Club Med Resort was located, notwithstanding the alleged expropriation of the land in 1959, because United States law (and in particular the Helms-Burton Act of 1996) does not recognize the validity of Cuban expropriations.  In a published decision, the US Court of Appeals for the Eleventh Circuit affirmed the dismissal of the case, holding that application of the act of state doctrine precluded any claim for trespass or unjust enrichment.
   
• Counsel to Delta & Pine Land Company, a publicly-traded international leader in transgenic and conventional cotton seed, in longstanding litigation over its failed 1999 merger with Monsanto.  The case involved complex antitrust, patent and contract issues.  We also represented Delta & Pine Land Company in additional arbitrations with Monsanto that covered intellectual property issues, complex accounting questions, international issues, and partnership law questions.  The matters were settled on the second day of the arbitration hearing, in connection with a transaction in which Monsanto agreed to acquire Delta & Pine Land Company for US$1.6b.  The transaction was subsequently closed.

Diversity and Inclusion

Ours is a stimulating, open-minded and progressive environment, where we respect and build upon the assets and talents of everyone at the Firm.

Diverse perspectives enrich the experience of our colleagues and, ultimately, the service we provide to our clients.  We actively seek to reflect the diversity of the global community in which we work and live.

Our Firm is committed to maintaining an inclusive environment and fostering a professional atmosphere that promotes equal opportunity and prohibits discriminatory practices.  Our Diversity Committee provides a forum for identifying, prioritizing and discussing diversity issues, as well as for developing and supporting related proposals, initiatives and programs.  

We offer a multicultural and varied workplace.  Minorities and women lead several Firm practices and participate actively in governance activities.  In fact, our chairperson is a woman.

At Fried Frank, diversity is a standard principle.