ProfessionalsLewis R. Clayton
A partner in the Litigation Department, Lew Clayton is a deeply experienced trial lawyer whose strength in the courtroom has yielded consistently favorable outcomes for his clients in their most significant commercial disputes.
During four decades in practice, Lew has successfully handled a broad range of litigation, including pre- and post-closing M&A litigation, including appraisal litigation; contested bankruptcy matters; high-value contract and employment disputes; the defense of securities and other fraud allegations; and a variety of regulatory investigations.
Lew is highly regarded nationally in the area of intellectual property litigation, including advertising and defamation matters. He has also been consistently ranked as preeminent in ERISA litigation by Chambers USA, with clients noting that Lew “is truly exceptional at getting results.” Lew also regularly advises boards on fiduciary duty, governance and litigation issues in acquisitions, creditor disputes and recapitalizations.
Lew’s clients include a wide range of publicly listed companies, financial institutions, hedge funds, and private equity firms and their portfolio companies. He has also represented prominent individual executives and public figures facing fraud and other allegations, as well as in libel matters.
Representative merger litigations include:
- Fresenius Kabi AG, as advisor and lead trial counsel, obtaining the only ruling of a Delaware court finding that termination of a proposed $4.3 billion merger with Akorn Pharmaceuticals Inc. was justified because of a “material adverse change” in Akorn’s business.
- Apollo Global Management, LLC:
- and portfolio company CORE Media Group in the successful defense of a stockholder class action arising from Apollo’s acquisition of CORE, in which shareholders alleged that Apollo aided and abetted CORE’s directors in alleged breaches of their fiduciary duties;
- portfolio company CKx, Inc. in the successful defense of an appraisal proceeding in which the Chancery Court held, after a full trial on the merits, that the merger price being offered by the acquirer, certain funds managed by affiliates of Apollo Global Management, LLC, was the best available measure of CKx’s fair value. That decision was affirmed by the Delaware Supreme Court; and
- Apollo and portfolio company Hexion Specialty Chemicals in the favorable settlement of multi-billion dollar claims asserted by Huntsman Corporation in multiple jurisdictions after an adverse judgment in the Delaware Court of Chancery regarding a merger agreement with Huntsman.
- Several investment funds that collectively held a minority stake in Loral Space & Communications in a significant trial victory in a challenge to an equity transaction in which the Delaware Court of Chancery issued a sweeping injunctive relief and an award of all attorney’s fees.
Representative bankruptcy litigations include:
- Cumulus Media Inc. in a bankruptcy court bench trial win resolving a valuation dispute and confirming a chapter 11 plan.
- Caesars Entertainment Corporation in connection with litigation related to the chapter 11 cases of its subsidiary Caesars Entertainment Operating Company, Inc.
Representative ERISA and pension litigations include:
- Alaska Retirement Management (ARM) Board in the groundbreaking $500 million settlement of a malpractice litigation brought by pension plans for public employees in the State of Alaska against Alaska’s former actuary, Mercer (US) Inc., claiming that the actuary’s mistakes contributed to at least $1.8 billion to Alaska’s pension shortfall, resulting in a “Litigator of the Week” recognition for Lew in The American Lawyer.
- Numerous matters for Citigroup, including:
- the dismissal, affirmed on appeal, of ERISA claims alleging that Citigroup pension plan fiduciaries shouldn’t have allowed retirement plan participants to invest in Citigroup stock from 2008 to 2009, when their investments allegedly dropped by more than $1.5 billion. It was among the first successful motion to dismiss a “stock drop” case alleging that ERISA participants suffered losses on company stock following a landmark Supreme Court decision in Fifth Third Bancorp;
- a Second Circuit victory reversing the district court and throwing out claims alleging that Citigroup’s multi-billion dollar cash balance plan violated ERISA’s backloading, age discrimination and notice requirements; and
- the settlement of an ERISA litigation in which plaintiffs alleged that the plan’s investment committees breached their fiduciary duties by selecting or failing to remove as investment options certain mutual funds affiliated with Citigroup and that allegedly charged excessive management fees.
Representative IP and advertising litigations include:
- Carnival in the dismissal of claims alleging infringement of copyrights in Broadway musicals in performances on cruise ships traveling outside of U.S. waters.
- Castrol in the successful defense of five separate advertising litigations, securing federal court injunctions against continued broadcast of competitors’ nationwide advertising campaigns.
Representative complex commercial and contract disputes include:
- JPMorgan’s investment management division in the trials, and subsequent favorable resolution, of two lawsuits alleging billions of dollars in damages brought by Ambac and Assured, guarantors of bonds that suffered catastrophic losses in 2007-2008 and by a major corporate investor in subprime securities. Each lawsuit alleged gross negligence and breaches of contract and fiduciary duty.
- Simon Property Group in the dismissal, affirmed by the Delaware Supreme Court, of a high-profile Chancery Court litigation arising out of stock-based compensation allocated to its CEO.
Lew has been selected by his peers for The Best Lawyers in America in commercial litigation, banking and finance litigation, ERISA litigation and intellectual property litigation. He has been consistently recognized by Chambers USA and The Legal 500 for ERISA litigation, and by The Legal 500 for employee benefits and executive compensation.
Lew previously served as chair and co-chair of the Committee on Intellectual Property of the Commercial and Federal Litigation Section of the New York State Bar Association. He is a regular contributor to the New York Law Journal and the National Law Journal, where he writes a column on intellectual property litigation. He serves on Paul, Weiss’s Technology Committee.