ProfessionalsRichard A. Rosen
A partner 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 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 fourteenth consecutive year in the 2018 edition of Chambers USA: America’s Leading Business Lawyers. In 2015, he was awarded “Lawyer of the Year” for Bet-the-Company Litigation by Best Lawyers and recognized as a “New York and National Litigation Star” in General Commercial and Securities Litigation by Benchmark Litigation, which has recognized him each year since 2007. He was “Highly Recommended” in New York for both Dispute Resolution and Securities Litigation by PLC Which Lawyer? Yearbook 2007-2012 and has been selected by Lawdragon as one of the 500 leading litigators in America. He is listed in the 2007-2017 editions of The Legal 500, the 2006-2017 editions of New York Super Lawyers, the 2006-2019 editions of The Best Lawyers in America and the 2007-2012 editions of Who’s Who in American Law. Richard was singled out as the “Litigator of the Week” by The American Lawyer in February 2009 for his “huge victory for corporate directors” in obtaining dismissal by the Delaware Chancery Court of a derivative suit against the directors of Citigroup.
Representative clients for which he has handled significant litigations are: Morgan Stanley, Citigroup, JP Morgan Chase, Goldman Sachs, UBS, Thomas H. Lee Partners, Van Kampen Investments, Turquoise Hill, Brixmor Property Group, Omega Protein Corp., Teco Energy, Warner Chilcott, Ltd., Hotels.com, Continental Grain Company and Carnival Corporation. 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 recent experience includes:
- Representation of 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, and dismissed all claims against one executive.
- Defense of Brixmor Property Group Inc. (Brixmor), a real estate investment trust (REIT) 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.
- Defense of 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 ultimately agreed to voluntarily dismiss the complaint.
- Defense of 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.
- Representation of seventeen financial institutions 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.
- Defense of 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.
- Representation of 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.
- Representation of the sixteen underwriters – including Citi, Goldman Sachs, UBS, J.P. Morgan and Evercore — of a secondary offering of common stock of 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 federal court in Denver.
- Representation of the outside directors of 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.
- Defense of a Canadian mining company and several of its officers arising out of an earnings restatement. The federal district court dismissed the action with prejudice and plaintiffs declined to appeal.
- Representation of officers of a major bank in derivative suit involving robo-signing and other retail mortgage practices; district court dismissed the complaint and Second Circuit affirmed.
- Defense of 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.
- Representation of 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.
- Representation of 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 reaching a settlement.
- Representation of 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.
- Representation of 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.
- Defense of 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; motion to dismiss with prejudice granted and plaintiffs did not appeal.
- Defense of 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.
- Representation of 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.
- Defense of 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.
- Representation of 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.
- Defense of 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.
- Defense of 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.
- Defense of a syndicate of underwriters in a class action arising out of an initial public offering of tracking stock by an international telecommunications company; the plaintiffs voluntarily dismissed the action against our clients without prejudice.
- Defense of 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.
- Defense of mortgage insurer, its CEO and CFO in securities fraud class action arising out of adverse financial performance of the company; court dismissed the complaint with prejudice.
- Defense of pharmaceuticals company in securities class action arising out of its initial public offering; action was settled, with vast bulk of consideration paid by D&O insurance.
- Defense of 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.
- Defense of 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.
- Defense of 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 Court of Appeals 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.
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 the Ukraine, Richard also lectured at the International Humanitarian University.