ProfessionalsRichard A. Rosen
1285 Avenue of the Americas
New York, NY 10019-6064
Of counsel in the Litigation Department and former co-chair of the Securities Litigation and Enforcement group, Richard A. Rosen has extensive experience in civil litigation in the state and federal courts in the fields of securities, directors’ and officers’ liability, mergers and acquisitions, derivatives, banking, commodity futures and other complex business disputes. Richard was a partner in the litigation department from 1986 until his retirement at the end of 2022.
Richard has frequently represented public companies and underwriting syndicates in securities fraud class action litigations, as well as both issuers and investment banking firms in a wide variety of other securities matters, including merger and acquisition litigations. He has also defended many class actions involving open and closed-end funds and limited partnerships. Richard also often appears on behalf of directors and officers in derivative suits alleging breaches of fiduciary duty and as counsel for Special Litigation Committees.
Richard is listed (for the eighteenth consecutive year) in the 2022 edition of Chambers USA, where clients note he is “the smartest lawyer [they] have ever worked with” and “an excellent attorney who gets great results.” He is listed in “Band 1” in Litigation: Securities (New York), consisting of only nine lawyers and is also listed (since 2006) in U.S. News and World Report’s 2021 “The Best Lawyers in America” in three categories: Litigation – Securities, Bet-the-Company Litigation and Commercial Litigation. He has been identified as a nationwide “National Practice Area Star” and a New York “Local Litigation Star” in both Securities and General Commercial in the 2022 edition of Benchmark Litigation (which has listed him since 2007). He was recognized for the fifteenth consecutive year in the 2021 edition of The Legal 500 US as a “Hall of Fame” lawyer (there are only 16 lawyers with this recognition) in Securities Litigation: Defense. He is listed in New York Super Lawyers in 2021 (for the sixteenth consecutive year).
Representative clients for which he has handled significant securities litigations are: Morgan Stanley & Co., Inc., Citigroup/Salomon Smith Barney, JPMorgan Chase, Goldman Sachs & Co., Spectrum Brands Holdings, Inc., EchoStar Corporation, Henry Schein, Inc., Carnival Corp., UBS AG, Thomas H. Lee Partners L.P., Van Kampen Investments, Turquoise Hill Resources, Ltd., Kirkland Lake Gold, Brixmor Property Group Inc., Omega Protein Corporation, Teco Energy Inc., Warner Chilcott Ltd., Hotels.com, and Continental Grain Company. He has filed amicus curiae briefs in both the United States Supreme Court and the United States Court of Appeals for the Second Circuit on behalf of the Securities Industry Association in cases raising issues of particular concern to the securities industry.
He has frequently represented major money center banks, as well as other financial institutions and major bank customers, in a wide variety of litigation matters and potential litigation, ranging from borrower bankruptcies and workouts to lender liability actions, age discrimination claims, letter of credit disputes and other commercial controversies. Representative clients for which he has handled significant matters include Citibank, Chase Manhattan Bank, N.A., DEPFA Bank, Mitsubishi Bank, Bank One, Korea First Bank, Bankers Trust Company and Marine Midland Bank.
Richard has also been defense counsel in the two most significant commodity futures manipulation class actions of recent decades: the silver market cases and the copper market cases.
Richard’s experience includes:
Representations of Public Companies and Their Officers and Directors
- Carnival Corp., the world’s largest cruise operator, and Carnival’s CEO, in obtaining the dismissal of a securities fraud class action in Florida federal court alleging that defendants made material misstatements and omissions concerning the risks posed to Carnival by COVID-19, and about the company’s commitments to regulatory compliance and health and safety.
- Henry Schein Inc., a global distributor of medical and dental supplies and its executive vice president in securing the dismissal, with prejudice, of a securities fraud lawsuit arising out of the disappointing financial performance of a new veterinary services company, Covetrus, Inc., formed in 2019 when Henry Schein’s animal health business was spun off and merged with Vets First Choice.
- Spectrum Brands Holdings, Inc. in two securities class actions in Wisconsin state court and Wisconsin federal court. The state court action alleged misstatements in the registration statement issued in connection with Spectrum’s merger with HRG Group in 2018. The federal case alleged that the company made material misstatements about the progress of its consolidation of manufacturing and distribution centers. Both cases were settled with funding from D&O insurance.
- A former independent member of the board of SunEdison in several securities lawsuits arising out of SunEdison’s bankruptcy in April 2016, all of which have been settled with no payment by our client.
- Alere, a medical device and point-of-care testing company, in a securities class action in the District of Massachusetts alleging material misstatements and omissions regarding numerous aspects of the company’s business operations and financial statements. The court dismissed all claims except those concerning the recall of a single diagnostic product; the case was subsequently settled with funding from D&O insurance.
- Brixmor Property Group Inc., a real estate investment trust traded on the New York Stock Exchange that owns more than 500 shopping centers, in a 10(b) class action arising out of claims that senior executives had engaged in smoothing income items between reporting periods contrary to GAAP. The case was settled with funding from D&O insurance.
- Intra-Cellular Therapies, Inc., a pharmaceutical company, in a securities class action in the Eastern District of New York arising out of claims that it had concealed adverse results of non-human toxicology studies of its schizophrenia drug. Plaintiffs’ counsel voluntarily dismissed the iv complaint.
- Omega Protein Corporation and two of its officers in a securities class action in the Southern District of New York alleging misstatements and omissions regarding environmental and probation violations. The District Court granted our motion to dismiss the complaint and no appeal was filed.
Omega Protein Corporation and its board of directors in shareholder lawsuits filed in state and federal courts in Nevada arising out of the company’s $500 million all-cash merger with Cooke Inc. The complaints alleged that the disclosures in the proxy statement were insufficient and that the merger was the product of an unreasonable process and resulted in an unfair price. Plaintiffs were persuaded not to seek injunctive relief without offering a settlement.
- Outside directors of OSC, a shipping company, in Securities Act class actions arising out of financial restatements and the subsequent bankruptcy of the company; actions were settled with no payment by our clients.
- Turquoise Hill Resources (TRQ), an international mining company, and certain of its officers and directors, in securing the dismissal with prejudice of a securities class action regarding alleged misstatements about TRQ’s financial performance as it related to a change in revenue recognition practices by a partially owned subsidiary. Plaintiffs did not appeal.
- TRQ in a pending securities fraud class action arising out of the announcement of unanticipated delays and cost overruns in the development of a Mongolian copper mine.
- Kirkland Lake Gold, a gold mining company, in a pending securities class action arising out of the announcement of the acquisition of another mining company.
- Officers of major bank in derivative suit involving robo-signing and other retail mortgage practices; district court dismissed the complaint and Second Circuit affirmed.
- Outside Directors of Nio Inc., a Chinese electric vehicle manufacturer, in a ’33 Act class action in New York state court alleging that the company made misrepresentations and omissions in its registration statement regarding the development of a manufacturing facility in Shanghai and that reductions in Chinese government subsidies for electric cars would materially impact sales.
- U.S.-listed mainland China jewelry manufacturer and its officers in SEC investigation and class action under 33 and 34 Acts arising out of restatements.
- The former CEO and CFO of Triad Guaranty, Inc., a mortgage insurer in bankruptcy, in securing the dismissal with prejudice of a securities class action alleging that the company and its officers concealed the risks associated with its principal line of business, understated its loss reserves and misreported its risk-to-capital ratio.
- Warner Chilcott, Ltd., a pharmaceuticals company in a securities class action arising out of its initial public offering; action was settled, with vast bulk of consideration paid by D&O insurance.
- Katanga Mining, a Canadian mining company, in a securities fraud class action arising out of a restatement of financials and allegations of bribery in the Congo; the case was settled for a minimal amount paid entirely by D&O insurance.
Representations of Underwriters of Public Offerings
- Seventeen financial institutions, including lead underwriter Deutsche Bank, in connection with a securities class action in the District of New Jersey against Valeant Pharmaceuticals, a generic drug maker, for which the financial institutions were initial purchasers of $15 billion of senior notes issued in Rule 144A private placements as well as underwriters of a secondary offering of common stock. Addressing an issue of first impression in the Third Circuit, the court dismissed all of the claims relating to the Rule 144A offerings.
- 37 underwriters led by Citigroup in putative securities class actions related to the April 2014 initial public offering by Ally Financial, Inc. The shareholders in each case allege that Ally and the underwriters made misstatements and omissions in the offering materials for Ally’s IPO on the subject of the risks in Ally’s loan portfolio.
- Four underwriters led by HSBC and Citigroup in a securities class action related to an April 2015 stock offering by Horizon Pharma PLC, a drug manufacturer and marketer. The shareholders alleged that the offering documents contained misstatements and omissions about certain aspects of Horizon’s “Prescriptions-Made-Easy” patient assistance program, including in the materials accompanying the public offering. The Southern District of New York granted all defendants’ motion to dismiss with prejudice and without leave to replead.
- Sixteen underwriters – including Citi, Goldman Sachs, UBS, J.P. Morgan and Evercore — of a secondary offering of common stock of Jagged Peak, an oil drilling company that allegedly failed to disclose the business risks associated with operating in the geographic area in which their operations were concentrated. The case is pending in the Colorado Supreme Court.
- The underwriters, led by Citigroup and HSBC, in a securities class action related to a $609 million secondary offering of shares of Abengoa S.A.;
- Three underwriters, including Morgan Stanley, Goldman Sachs and Canaccord Genuity, in securities class actions stemming from GT Advanced Technologies Inc.'s secondary equity offering and concurrent senior convertible notes offering;
- A syndicate of underwriters, led by Citigroup Global Capital Markets, Goldman Sachs and UBS Securities in a class action under the Securities Act of 1933 arising out of the underwriting and sale of thirteen offerings of mortgage asset-backed pass-through certificates, in which our clients were alleged to have systematically disregarded the applicable underwriting guidelines in the origination of mortgage loans underlying the certificates;
- UBS AG as underwriter of $1.4 billion of certificates of participation issued by special purpose entities to defray municipal pension obligations in all matters arising out of the Detroit bankruptcy.
- All underwriters of over $20 billion in debt and equity securities of American International Group sold in 2006-2008; action was settled with no payment by our clients.
- Three lead underwriters in a Section 11 class action arising out of an initial public offering by a fast food chain; action was settled with no payment by our clients.
- A syndicate of underwriters in a class action arising out of an initial public offering of tracking stock by AT&T; the plaintiffs voluntarily dismissed the action against our clients.
Other Representations of Financial Institutions, General Partnerships and Private Equity Firms
- Major financial services firm in 10b-5 and 33 Act class actions filed by its shareholders and note holders based on losses in subprime mortgage market.
- Morgan Stanley Private Equity Asia, as part of a buyer consortium, in the defense of shareholder litigation in Nevada state court arising out of a $339 million management-led buyout of NASDAQ-listed Yongye International, a Chinese agricultural nutrient company. We defeated two successive preliminary injunction motions and the transaction closed.
- Morgan Stanley in securing the dismissal of a consolidated multidistrict litigation alleging that the largest financial institutions were involved in bid-rigging auctions for U.S. Treasury securities. Paul, Weiss was tapped by all 26 defendants, each separately represented by a major law firm, to serve on the defense steering committee.
- Morgan Stanley in securing the dismissal of a putative antitrust class action brought by traders of odd-lot bonds—groups of bonds that are worth less than $1 million—alleging that 10 financial institution defendants were engaged in a conspiracy to increase prices on odd-lot bond trades by group boycotting certain odd-lot e-trading platforms.
- A buyer group composed of Apollo Global Management, LLC, Apollo Investment Fund VIII, L.P., AP VIII Queso Holdings L.P., Socrates Merger Sub, Inc., the Vistria Group and Najafi Companies, LLC, in defense of a class action filed in state court in Arizona that sought to enjoin the group’s $1.14 billion “going-private” acquisition of Apollo Education Group. After the terms of the transaction were revised for commercial reasons, the litigation was settled and the deal closed as scheduled.
- Principals of real estate limited partnerships in federal and state court actions for fraud and breach of duty arising out of purchase of real estate assets that have declined in value. The federal district court dismissed action with prejudice and Second Circuit affirmed; the state court dismissed the related action and the state appellate court affirmed.
- Real estate investment firm and its senior management in series of 10b-5 class actions arising out of its decision to sell certain assets and cut its dividend; actions were dismissed for failure to plead scienter or any duty to disclose and Second Circuit affirmed.
- Private equity firm specializing in healthcare in dispute with significant limited partner over allocation of investment opportunities.
- Hedge Fund in parallel investigations of options trading by SEC and DOJ; both investigations were closed with no action being taken.
- Private equity firm that conducted LBO of a major derivatives dealer, took it public, and shortly thereafter discovered a major financial fraud at the company. One major class action was dismissed and Second Circuit affirmed; balance of actions settled.
- Financial services firm in securities fraud class action alleging that public filings concealed risks associated with its banking and securities businesses; district court dismissed complaint with prejudice and Second Circuit affirmed.
Representations of Investment Advisors
- Investment adviser in ERISA litigation claiming that the pension fund assets of the hospital should not have been invested in mortgage-backed securities. District court dismissed with prejudice and Second Circuit affirmed.
- Investment advisers and distributors of mutual fund complex in derivative suit alleging breach of duties and violations of Investment Company Act and Investment Advisers Act arising out of alleged market timing and late trading in the funds; our motion to dismiss with prejudice was granted and plaintiffs did not appeal.
- Two parallel actions in New York federal court challenging the independence of directors and the magnitude of advisory and 12b-1 fees under Section 36(b) of the Investment Company Act; the court dismissed both complaints with prejudice and Second Circuit affirmed.
- An investment advisor and its officers in derivative suits and special litigation committee investigations arising out of the decisions by the trustee of two different mutual fund complexes to redeem auction rate preferred securities and issue tender option bonds; both Boards of trustees adopted the Special Litigation Committees recommendation to decline to pursue actions and court rejected challenge to those decisions.
- A mutual fund sponsor, adviser and distributor in two Securities Act class actions alleging that trust investment decisions for technology funds were influenced by improper considerations; district court dismissed complaints with prejudice, accepting our argument that there was no duty to disclose the information at issue. Second Circuit unanimously affirmed.
Richard has frequently published articles on corporate and securities law issues. These include articles on the Private Securities Litigation Reform Act and a series of articles on liability for soft information and projections. He is the general editor of the only comprehensive book on the law of settlement agreements and the settlement process, Settlement Agreements in Commercial Disputes: Negotiating, Drafting and Enforcement, published by Wolters Kluwer. Most recently, Richard was selected among the finest law firm writers of 2016, along with corporate partner Udi Grofman, with a Burton Award for their article, “Political Intelligence and U.S. Insider Trading Regulations,” published in Bloomberg BNA's Securities Regulation & Law Report. This is the second time Richard has won a Burton Award.
LAW SCHOOL TEACHING EXPERIENCE
Richard was a visiting Professor of Law in May 2013 at the National University, Odessa Law Academy in Odessa, Ukraine, where he taught a course on civil litigation in the United States. While in Ukraine, Richard also lectured at the International Humanitarian University. Richard will be teaching at the Faculty of Law, Eotvos Lorand University, in Budapest, Hungary in Spring 2023.