Our firm focuses on the representation of investors on a full- or partial-contingent fee basis in complex commercial litigation, including: merger and acquisition cases, securities and other corporate fraud litigation, shareholder derivative actions, and disputes arising from earn-out provisions.
Since our founding in 2011, our firm has recovered together with co-counsel, over $120 million on behalf of investors.
Our focus on the representation of plaintiffs and use of contingent fee arrangements prompts us to litigate differently from firms using the traditional hourly model. We invite you to read more about our approach below, and we would be glad to answer any questions about how we work or discuss a potential matter.
Our guiding principle is to drive cases to resolution – through trial or otherwise – as rapidly as practicable. Real value in any litigation comes from the threat of an adverse decision, either at the preliminary injunction stage or after trial. Our job as plaintiff’s counsel is to make that prospect real and present to the defense through the focused and sustained application of resources and effort.
In addition to accelerating resolution, intensive litigation improves outcomes. With time, documents go missing, the claim that “I don’t recall” becomes more plausible, key witnesses disappear, defendants go bankrupt. None favors the party with the burden of proof and need to collect a judgment.
Maintaining a high litigation tempo also preserves the plaintiff’s initiative and momentum – factors that are hard to quantify, but exert a strong influence on how both sides view the case and its value. The pace of litigation also affects the Court’s perspective. Cases that are litigated with urgency are treated accordingly; cases that linger do not age well – think milk, not wine – and run afoul the judicial imperative to maintain a current docket.
In practical terms, a commitment to moving cases means that we accord case scheduling and management a high priority. It also means that we do not take on matters that we cannot intensively staff, and tolerate the higher risk that comes with concentrating our resources.
While we litigate with urgency, we do not rush to file. The initial complaint is a crucial document: it frames the case, communicates the commitment of effort and quality of counsel, and sets the tone for the litigation.
The quality of the complaint also strongly influences whether the case survives the first major hurdle in most litigation – the motion to dismiss. While court rules permit multiple attempts to plead a claim, judges have grown increasingly reluctant to allow multiple bites at the apple, and are often overtly skeptical of follow-on complaints that add new allegations to fix earlier deficiencies. Even with a sympathetic judge, an initial complaint that fails to pass muster typically sets the litigation back by a year or more, a major blow to the case’s momentum.
For a rushed complaint, the motion to dismiss is a bullet to be dodged. For a well-drafted complaint that tells an accurate story, the motion is an opportunity: it permits the plaintiff to introduce the case to the judge on the plaintiff’s terms, and prevailing on the motion validates the plaintiff’s claims, creates “law of the case,” and establishes a roadmap for subsequent litigation.
Reflecting our commitment to early investment in cases, we establish a centralized web-based, searchable repository for each active matter at its inception. Litigation depends heavily on effective knowledge management, and the early creation of a central repository allows documents and analysis to be captured and shared, greatly improving the efficiency of the litigation team, facilitating ongoing engagement with our clients (see point 3 below), and allowing close collaboration with co-counsel at other firms.
We believe that cases ultimately rise or fall on the ability to tell a simple story about the wrong done to the plaintiff. Often, it is the client who is in the best position to tell that story, identify and address weaknesses in their own case, and react to the narratives developed by counsel. While initial client interviews are typical, we also actively solicit clients’ involvement on an ongoing basis, consult on draft court submissions, and share information gathered through discovery. As discussed in point 2, we utilize a web-based platform to facilitate collaboration and provide clients broad-based access to court documents and case discovery.
We do not ask our adversaries for all potentially-relevant documents, and resist their efforts to provide them. Even the most complex case ultimately boils down to a limited number of documents, and in most litigation, the key documents have necessarily passed through the hands of a small number of central players. We have found that savvy defense counsel are often the most generous with documents, and for good reason: larger productions delay the litigation, require that more of the review effort be delegated to attorneys outside the core litigation team, and impede the ability of senior attorneys to mine the document set through text searches and other document analysis tools.
Likewise, we do not believe in conducting fishing expeditions when it comes to depositions. While depositions of people with relevant knowledge are an integral part of discovery, duplicative depositions educate opposing counsel and generate increasingly unhelpful testimony, creating a stronger record for the defense at summary judgment and a deeper pool of potential witnesses at trial.
We gear our litigation strategy for trial. This affects the conduct of the case in ways large and small, from carefully planning out the elements of the proof required at trial, to laying the foundation for non-party documents at deposition, to withholding some lines of questioning at deposition to maximize their impact at trial. We believe the most important benefit of anticipating a trial, however, is one of mindset: the expectation that work will eventually be reflected in a presentation to judge or jury alters the way we view the effort devoted to a case.
#6 Pick Our Battles
While litigation is inherently adversarial, we work hard to avoid unnecessary disputes. As litigators, turning the other cheek and accepting the innocent explanation do not always come naturally, but we believe our clients’ interests and the good of the case depend on staying focused on the merits and avoiding non-essential conflicts that delay resolution, divert resources and draw attention away from the wrongdoing by defendants at the heart of the case.
#7 Use Experts Selectively
We approach the use of expert testimony with caution. While robust science can make for devastating proof, the expert testimony most common in corporate and commercial litigation – from economists and other social scientists – typically involves far less scientific consensus. By introducing expert testimony on an issue, the proponent accords it weight and creates the risk that the adversary will be able to call a competing expert with better credentials or a more convincing analysis. At best, testimony often devolves into an inconclusive “battle of the experts.” At worst, the adverse testimony can undermine the case. Even a draw ordinarily favors the defense, and however resolved, the battle defeats the plaintiff’s essential goal of telling a simple, compelling story. Judges’ intense skepticism of paid expert testimony also creates the further risk that testimony will be excluded or narrowed, disrupting trial planning.
We do often retain consulting experts to develop our understanding of technical areas and formulate questions for discovery, and we look out for issues where robust scientific proof or a strong expert consensus can narrow the issues in controversy. When in doubt, however, we prefer to make our case through fact witnesses and let the judge or jury draw their own conclusions.