Experience: Trials and Appeals: Miller v. Thane, Int'l. (C.D. Cal.): Trial defense verdict of a securities class action involving claims under Sections 12(a)(2) and 15 of the 1933 Act in one of the few post-Private Securities Litigation Reform Act cases to go to verdict. 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 and its officers in suit concerning the company s failure to remove restrictive legend on securities, allegedly causing plaintiff tens of millions of dollars in damages.; 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 and its officers and directors in a securities class action alleging violations of Sections 12(a)(2) and 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 and loss causation under Ninth Circuit law, and 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).; Miller v. Thane Int'l. ( Thane I ): Following trial, the district court granted judgment in favor of Thane, holding that the prospectus made no misstatements and that, in any event, the alleged misstatements were not material. The Ninth Circuit reversed, holding that the prospectus did make material misstatements and remanded for a determination on the reserved issue of loss causation. 519 F.3d 879 (9th Cir. 2007).; Simpson v. AOL Time Warner Inc.: Represented L90, Inc. in a seminal case involving round-tripping revenue recognition. The Ninth Circuit affirmed the district court's dismissal of the securities class action but remanded the case to allow plaintiffs to seek leave to amend under a new test the Ninth Circuit was then adopting for primary liability under Section 10(b) of the 1934 Act. That test was subsequently rejected by the U.S. Supreme Court in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008), which adopted our arguments based on the absence of the required element of reliance. 452 F.3d 1040 (9th Cir. 2006), vacated, 519 F.3d 1041 (9th Cir. 2008).; Lone Star Ladies Inv. Club v. Schlotzsky's, Inc.: Represented Schlotzsky's and its officers and directors in a securities class action alleging violations of 1933 Act and 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. The Fifth Circuit, however, held that plaintiffs could only state a claim for Section 12 liability in an amended complaint if plaintiffs sufficiently pled that the issuer actively solicited plaintiffs' purchases such that it essentially became the underwriters' agent, a standard plaintiffs could not meet. The case then settled for an immaterial sum. 238 F.3d 363 (5th Cir. 2001).; Colin v. Onyx Acceptance Corp.: Represented Onyx and its officers and 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 and its officers and 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 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, rejecting in California 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 and 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, notwithstanding certain language in the Securities Litigation Uniform Standards Act. 195 Cal. App. 4th 789 (Cal. Ct. App. 2011).; Significant Post-Trial Work: In re Apollo Group, Inc. Sec. Litig .: Retained after plaintiffs won a securities class action trial and also prevailed on appeal. Following post-judgment briefing on claims procedures raising the ability of sophisticated institutions to claim the benefit of the presumption of reliance, and the potential availability of offsets to class members' recoveries, the case settled for less than half of plaintiffs' damages assessment and under the company's publicly reported reserve.; Motions to Dismiss Granted or Settlements Achieved: Zamir v. Bridgepoint Education, Inc., 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 PLC., 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: Ariba/SAP: Defended Ariba's board of directors in derivative litigation in California and 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 and obtained voluntary dismissal of consolidated action.; The above representations were handled by Mr. Tyukody prior to his joining Greenberg Traurig, LLP.