A partner in the Litigation Department and 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.

Experience | Professional Activities | Publications

EXPERIENCE

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 thirteenth consecutive year in the 2017 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 2006-2018 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 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.

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Publications

• General Editor, Settlement Agreements in Commercial Disputes: Negotiating, Drafting and Enforcement (Aspen Law and Business, 2000-2016).
• “The Safe Harbor for Forward-Looking Statements After Twenty Years,” 30 Insights 8
  (May 2016) forthcoming in May 2016 Issue of Insights.
• “Waivers from Securities Law Disqualifications,”29 Insights 2 (August 2015)
• “Political Intelligence and U.S. Insider Trading Regulations,” 47 Securities & Law Report 34 (August 24, 2015)
• “Best Practice for Dealing with Confidential Witness Allegations in Securities Fraud Complaints: The Implications of In re Millennial Media and Other Recent Decisions,” 47 Securities Regulation & Law Report 1483 (July 27, 2015).
• “Adopting and Enforcing Effective Forum Selection Provisions in Corporate Charters and Bylaws,” 47 Securities Regulation & Law Report 285 (February 9, 2015).
• “The Statutory Safe Harbor for Forward-Looking Statements: A Scorecard in the Courts From November 2004 Through November 2006,” 39 Securities Regulation & Law Report 2 (January 15, 2007).
• “Pleading and Proving Loss Causation After Dura Pharmaceuticals: What’s Happening in the Lower Courts?” 37 Securities Regulation & Law Report 2043 (December 12, 2005) and 4 Corporate Accountability Report 60 (January 20, 2006).
• “The Safe Harbor for Forward-Looking Statements in the Courts, May 2003 - October 2004: Does Asher Change the Rules?” 36 Securities Regulation & Law Report 2135 (December 6, 2004).
• “A Defendant’s Guide to Loss Causation,” 18 Insights 2 (February 2004).
• “The Statutory Safe Harbor for Forward-Looking Statements: A Scorecard in the Courts From January 2002 Through April 2003,” 35 Securities Regulation & Law Report 24 (June 16, 2003).
• “Litigation Implications of the CEO and CFO Certification Requirements of the Sarbanes-Oxley Act,” 17 Insights 1 (January 2003).
• “A Litigator’s Perspective on Sarbanes-Oxley: An Assessment of Some Key Issues,” 35 Securities Regulation & Law Report 4 (January 27, 2003).
• “Liability for Optimistic Research Reports Prepared by Securities Analysts,” 16 Insights 9 (April 2002).
• “Safe Harbor for Forward-Looking Statements in the Courts: A Year 2001 Scorecard,” 34 BNA Securities Regulation & Law Report 3 (January 2002). Reprinted in 70 United States Law Week 2443 (January 29, 2002).
• “The Kwiatkowski Decision: Implications for the Nature and Scope of Duties of Brokers and FCM’s to their Customers,” 22 Futures & Derivatives Law Report 10 (December 2002).
• “The Scope and Nature of Common Law Duties of Financial Institutions to Customers and Counterparties: A Brief Survey of the Leading Cases,” 21 Futures and Derivatives Law Report 8 (November 2001).
• Chaired subcommittee that prepared “Secondary and Supervisory Liability Under the Commodity Exchange Act: An Update,” 56 The Record of the Association of the Bar of the City of New York 239 (Spring 2001).
• “The Statutory Safe Harbor for Forward-Looking Statements in the Courts: A Scorecard,” Securities Regulation Law Journal (Winter 2000).
• “The Statutory Safe Harbor for Forward-Looking Statements in the Courts: A Year 2000 Scorecard,” published in course materials for 32nd Annual Institute on Securities Regulation, sponsored by Practicing Law Institute (November 2000).
• “U.S. Securities Litigation in a Time of Legislative Change,” 18 International Financial Law Review 19 (October 1999).
• “The Changing Responsibilities of Corporate Officers and Directors in the United States,” 5 World Securities Law Report 33 (September 1999).
• “Does New York’s Consumer Fraud Act Apply to the Sale of Securities?” New York Law Journal (June 17, 1999).
• “The Statutory Safe Harbor for Forward-Looking Statements: Has It Changed the Law? Has It Achieved What Congress Intended?” 76 Washington University Law Quarterly 645 (1998).
• Principal author of report by Securities Regulation Committee of Association of the Bar of the City of New York, “Forward-Looking Statements and Cautionary Language After the 1995 Private Securities Litigation Reform Act: A Study of Current Practices,” 53 The Record of the Association of the Bar of the City of New York 723 (1998).
• “Clinton Signs Bill Pre-empting Securities Suits,” National Law Journal (November 16, 1998).
• “Confidentiality Agreements Become Increasingly Elusive,” National Law Journal (July 20, 1998).
• “Corporate Governance in the 1990s. Part Two: Institutionalizing Policies and Procedures to Minimize Risk,” 21 Director’s Monthly 5 (June 1997).
• “Corporate Governance in the 1990s. Part One: New Standards, New Risks,” 21 Director’s Monthly 5 (May 1997).
• “Special Problems in Drafting Class Action Settlement Agreements,” 8 The Practical Litigator 69 (January 1997).
• “Permissible Scope of Indemnification of Corporate Officers and Directors Under Delaware Law,” 10 Insights 21 (November 1996) and Directorship (January 1997).
• “The Private Securities Litigation Reform Act of 1995: A User’s Guide,” 24 Securities Regulation Law Journal 143 (Summer 1996).
• “Liability for Soft Information - New Developments and Emerging Trends,” 23 Securities Regulation Law Journal 3 (Spring 1995).
• “New Developments in Summary Judgment Practice,” The Practical Litigator (two-part article) (January and March, 1995).
• Principal author of report by Futures Regulation Committee of Association of the Bar of the City of New York, “Secondary and Supervisory Liability Under the Commodity Exchange Act: A Field Guide,” 49 The Record of the Association of the Bar of the City of New York 51 (1994).
• “Indemnification of Officers and Directors Under Delaware Law,” 4 Corporate Legal Times 43 (June 1994).
• “New Developments in Summary Judgment Practice,” New York Law Journal (July 1, 1993).
• “Making Discovery Tools Work,” 3 The Practical Litigator 51 (November 1992).

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Professional activities

• Member, Committee on Investment Management, Association of the Bar of the City of New York, 2013-2017 and 2005-2007.
• Panelist, “Securities Class Action Update – Trends in the U.S. and Canada” at the ABA National Institute on U.S. – Canada Securities Litigation, Toronto, Canada, May 18, 2016
• Panelist, “Insider Trading Liability Risks in the Consulting Industry and How to Mitigate Them,” AON Consulting Industry Symposium, New York City, June 14, 2011.
• Member, Committee on Securities Litigation, Association of the Bar of the City of New York (2007-2010)
• Panelist, “Securities Class Actions,” Cross Border Litigation Forum, Langdon Hall, Cambridge, Ontario, Canada (March 1-3, 2010).
• Panelist, “Expert Testimony Regarding Loss Causation and Damages After Dura Pharmaceuticals v. Broudo,” program sponsored by Association of the Bar of the City of New York (May 20, 2009).
• Panelist, “The Challenges of Electronic Discovery,” Securities Industry and Financial Markets Association, Law and Compliance Division, in Phoenix (March 2007) and in Orlando (March 2008).
• Chairperson, “Quantifying Securities Class Action Damages,” Panel Discussion sponsored by Alix Partners, New York City (February 2008).
• Panelist, “Conflicts of Interest and Ethical Issues,” Securities Industry Association Compliance and Legal Division’s Fall Compliance Seminar (November 2006 and November 2007).
• Panelist, “Attorney/Client Privilege in the Context of Investment Company Regulatory Inspections, Investigations & Enforcement Proceedings” and “D&O/E&O Insurance/Civil Litigation Update,” at program on “Hot Topics For Investment Companies – Legal, Ethical & Business Issues,” New York City Bar (June 2007).
• Moderator, “Directors’ and Officers’ Liability: Risks and Exposure,” at IQPC’s 2nd Securities Litigation Conference, New York (May 2007).
• Panelist, “Dura: Are the Courts Getting it Right?” Institutional Investor Educational Foundation’s Annual Conference on Global Shareholder Activism (December 2006).
• Chairperson, “Settlement Strategies,” Legal IQ’s Securities Litigation Conference (November 2006).
• Panelist, “Current Legal and Ethical Issues Facing Investment Companies and Their Counsel,” program sponsored by the Association of the Bar of the City of New York (June 2006).
• Panelist, “Pleading and Proving Loss Causation in Securities Class Actions Post Dura Pharmaceuticals,” program sponsored by Section of Litigation of American Bar Association (December 13, 2005).
• Panelist, American Bar Association Annual Meeting, program on securities litigation developments, Chicago (August 2005).
• Panelist, “Major Liabilities,” Securities Industry Association Law and Compliance Division Annual Meeting (March 2002, April 2003 and April 2004).
• Chair, “Legal Ethics and Personal Liability of Corporate Counsel,” sponsored by the Director’s Roundtable, New York (September 2003).
• Panelist, “Litigation Implications of Sarbanes-Oxley,” American Bar Association, Annual Meeting of Litigation Section, Houston (April 2003).
• Panelist, “Sarbanes-Oxley Act: Impact on Civil Litigation under the Federal Securities Laws,” Conference at Fordham Law School sponsored by ALI/ABA (December 2002).
• Faculty Member, “Introduction to the Deal: What’s Involved Once Your Company Goes Public?” Association of the Bar of the City of New York (January 2001).
• Faculty Member, 29th, 30th, 31st and 32nd Annual Institute on Securities Regulation, sponsored by Practising Law Institute, New York (November 1997-2000).
• Panelist on “Updates in Corporate and Securities Law,” speaking on Selected Issues Under the Private Securities Litigation Reform Act, Association of the Bar of the City of New York (May 2000).
• Panelist, “Protecting Yourself and Your Company from Potential Liability Pitfalls,” at conference on “Communicating with Investors, Analysts and the Media,” New York (March 2000).
• Member and Chairman of Litigation Subcommittee, Committee on Securities Regulation, Association of the Bar of the City of New York (1995-1998).
• Lecturer, American Conference Institute Program on Securities Litigation and Enforcement (June 1996, May 1995, May 1994 and June 1993).
• Chairman, “Corporate Disclosure after the Private Securities Litigation Reform Act,” Conference, Chicago (May 1996).
• Panelist, “Securities Litigation Reform: How Will This Affect Investors and Public Companies Alike?” sponsored by New York University Law Review Alumni Association Annual Symposium (May 1996).
• Lecturer, “The Private Securities Litigation Reform Act of 1995: A User’s Guide,” sponsored by Association of the Bar of the City of New York (May 1996).
• Lecturer, Canadian Institute Program on Directors’ and Officers’ Liability, Toronto (September 1996 and April 1993).
• Panelist, “New Developments in Securities Litigation,” International Bar Association, Section on Business Law, Paris (September 1995).
• Lecturer, American Conference of Investment Counsel Annual Meeting (October 1993).

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