Potter Anderson Named 2019 Delaware Powerhouse by Law360
September 2, 2019
Delaware Powerhouses Bolster State’s Legal Industry Growth
(The article is available here on Law360's website.)
By Jeff Montgomery
Law360 (September 2, 2019, 10:04 PM EDT) -- For decades, Delaware’s law firms, courts and services have been indispensable to the regional economy, with a legal sector growing faster than any other state’s, buttressed by nationally sought-after bankruptcy, patent, corporate and commercial law venues where, in 2019, Law360’s Delaware Powerhouses consistently excelled.
Six First State firms stood out among the rest in this year’s series: Fish & Richardson PC, Grant & Eisenhofer PA, Morris Nichols Arsht & Tunnell LLP, Pachulski Stang Ziehl & Jones LLP, Potter Anderson & Corroon LLP and Richards Layton & Finger PA.
They run the gamut of legal practice areas, from profession-leading bankruptcy and patent boutiques to a leader in shareholder and plaintiff litigation to three multi-practice firms operating only out of Delaware, but making their presence felt across the country.
All stand out in courts that attract an outsized share of the nation’s bankruptcies, patent cases and business disputes, with their work adding to the state’s reputation for consistent and quick resolutions.
“The key is the integrity of the corporate law and the fairness of the courts,” said Charles M. Elson, an attorney and director of the John L. Weinberg Center for Corporate Governance at the University of Delaware. “It's considered fair, smart and neutral. It’s a wonderful place to practice. It’s a very collegial and intelligent bar.”
William M. Lafferty, a corporate litigation partner with Morris Nichols Arsht & Tunnell LLP, also pointed to the quality of the state’s judges as an important factor.
“They are known for managing dockets and giving parties a fair shake. None of what we do would be possible without our high-quality judiciary,” Lafferty said. “With that constant, the practice of law in Delaware will continue to be healthy — I have every confidence the future is bright here in the First State.”
A Law360 analysis of annual state gross domestic product data prepared by the federal Bureau of Economic Analysis illustrates part of that picture. Legal services in Delaware have grown faster than in any other state or region for years, according to the data. Only the District of Columbia and New York counted the legal services sector as a greater percentage of state gross domestic product in 2017, the most recent year available.
A consistent standout in the IP arena is Fish & Richardson PC’s Delaware office, a prominent outpost of the Boston-based IP law boutique’s operations, which, at 364 attorneys nationwide and 17 in Delaware, occupies an important spot in this year’s Powerhouse lineup.
Fish & Richardson opened its Wilmington office in 1999. It ranks among the leading firms handling high-profile patent cases — with billions of dollars often at stake — in a crucial jurisdiction.
Although patent filings slowed in the U.S. District Court for Delaware for a time in the past decade, Kurt Glitzenstein, litigation practice group leader at Fish & Richardson, said the state's district court has seen considerable growth recently as a result of the U.S. Supreme Court’s T.C. Heartland decision, which obliged IP suits to be filed where a defendant is incorporated or has a regular and established place of business.
Yet Delaware’s federal district court is still on pace to handle more than 25% of all patent litigation in federal district courts this year, Glitzenstein said, with Fish & Richardson handling a large number for the firm’s pharmaceutical and technology clients.
“The District of Delaware is one of the best jurisdictions to litigate complicated patent cases,” Glitzenstein said. “The court has vast experience with intellectual property cases, and the bench has become extremely adept at handling complex and technical cases."
Delaware-based Grant & Eisenhofer PA has been at the forefront of Delaware’s stockholder suits for years, and has its name on seven of the 10 largest class settlements in Chancery Court history. The firm has 62 attorneys, with 44 based in Wilmington.
In late 2018, the firm secured a $69 million fee from Facebook that ended a dispute over $129 million in fees attorneys said they were owed for representing shareholders in a challenge to a since-dropped stock reclassification plan that would have kept founder Mark Zuckerberg in control despite selling off most of regular shares.
Zuckerberg dropped the plan after a Chancery Court call for his personal court testimony, with the firm estimating that shareholders benefited to the tune of $28 billion with abandonment of the reclassification.
Over the years, Grant & Eisenhofer has at times shown epic patience in its pursuit of shareholder and consumer justice. For example, it recently won a $7.3 million triple damages sanction against Overstock.com in a six-year-old suit whistleblower suit targeting unreported and effectively abandoned cash balances on gifts that should have been handed over to Delaware’s revenue agency.
The firm, which had been pursuing the case since 2013 with backing of the state Department of Justice, received a $2.75 million fee and about $780,000 in expenses.
Michael Barry, a director at the firm, noted that Delaware courts and legal community are in a period of change, with Chief Justice Leo E. Strine Jr. expected to retire before the end of the year after guiding the state’s highest court and those below for 5 ½ years.
“Delaware remains the single-most important forum for the development of corporate law throughout the United States," Barry said. "Unlike Vegas, what happens in Delaware doesn’t stay in Delaware, but impacts boardrooms across the country. It’s a privilege to practice before such a sophisticated court, and with the kind of civility that is emblematic of the Delaware bar.”
Morris Nichols Arsht & Tunnell LLP, one of three Delaware-centered firms on this year’s list, took part in some of the past year’s most epic corporate law battles, including the unfinished and potentially trailblazing Chancery Court fight between Cigna Corp. and Anthem Inc. over a $54 billion merger imploded by regulatory reviews and management power struggles.
Morris Nichols represents Anthem in the case, which will turn in part on the meaning and measure of “reasonable best efforts” to complete a deal, with post-trial arguments scheduled for later this year.
The firm also led in other high-dollar, “bet-the-business” cases, including a successful Delaware Supreme Court argument that won a reversal of a Chancery Court order for the multibillion-dollar sale of energy and commodity recycling company Oxbow Carbon LLC after investors invoked an exit right and sued for a buyout or company sale.
In addition, Morris Nichols advised private equity firm Apollo Global Management LLC in a complex leveraged tender offer and secondary buyout for the $1.1 billion acquisition of Smart & Final Stores Inc., a grocery and food service store operator, announced in April.
“The myriad of interesting, sometimes very technical or novel issues we hear from sophisticated clients and co-counsel make practicing in Delaware extremely rewarding ... Every day brings new questions, challenging us to innovate and grow as we help navigate important business issues,” said Andy Johnston, a Morris partner in corporate counseling and chair of the firm's executive committee.
With legal clout that vastly exceeds its size, Pachulski Stang Ziehl & Jones LLP is consistently ranked as a bankruptcy and restructuring leader, regularly landing prominent roles in such cases with national and sometimes global implications.
Eight of the firm's 68 attorneys operate out of Delaware, taking on wide-ranging work providing clients with counsel for prefiling, restructuring and prepackaging of cases as well as representation of secured and unsecured creditors.
Pachulski's recent big cases have included work as counsel to the official committee of unsecured creditors counsel in the Chapter 11 case of The Weinstein Companies following its collapse under a wave of sexual misconduct claims against co-founder Harvey Weinstein.
The committee’s complex and sensitive work included dealing with dozens of entertainment industry contracts and handling claims brought by women whose reports of sexual assault and harassment brought the case into the public eye.
Laura Davis Jones, a Wilmington native who clerked for U.S. Bankruptcy Judge Helen S. Balick — the judge widely credited with decisions that led to Delaware's bankruptcy prominence — opened Pachulski’s Wilmington office in 2000. The predictability and consistency of Delaware’s courts and judges over the years, Jones said, account for its importance and case traffic.
“It’s a very sophisticated, nuanced court with a lot of depth. It’s also a very respectful court. Whether you win, lose or draw, you’re heard, and there are courts where you are not,” Jones said. “Here, judges will give everyone their time.”
Pachulski during the past year has represented the creditors’ committee in the more than $1.2 billion, Ponzi scheme-driven collapse of the Woodbridge Group of Companies real estate empire, as well as the official committee of tort claimants in the massive Takata Holdings Inc. air-bag defect-related bankruptcy, among others.
Experience, depth, expansive capabilities and litigation success are the foundations that Potter Anderson & Corroon LLP relies on to attract clients to the firm, which traces its roots to 1826. It has long ranked as a go-to for corporate litigation, corporate and M&A transactions, alternative entities, and issues relating to intellectual property, bankruptcy, labor and employment, and real estate.
Across that spectrum, the firm has built a reputation as ready to serve, both as Delaware counsel for out-of-state firms and as lead counsel for companies and organizations in high-stakes litigation.
In the past year, Potter Anderson represented Fresenius Kabi AG in its successful, expedited Chancery Court battle for a first-of-its-kind ruling that “material adverse” dimensions of its $4.3 billion merger with Akorn Inc. justified termination of the deal. The company is now seeking to shift $46 million of its legal fees for the merger meltdown onto Akorn.
The company marked a major victory in its appellate practice, meanwhile, in Delaware Supreme Court arguments that overturned a Chancery Court order for the sale of William I. Koch’s multibillion-dollar Oxbow Carbon commodity and recycling business.
“Some of the most sophisticated and complex legal work in the world comes to Delaware. It’s a great venue for our clients and a terrific place to be a lawyer,” said Potter Anderson chair Kathleen Furey McDonough, who became the first woman to lead a major law firm in the state in 2018. “We’re in good company here: the number of people employed by the legal industry in Delaware is second only to New York on a per capita basis.”
Potter Anderson’s full-service patent practice has proven its mettle on offense and defense, guiding Apple in its successful defense in April against a $30 million claim by Evolved Wireless LLC that it infringed two patents related to LTE technology.
“We’re optimistic about the year ahead,” McDonough said. “In good economic times and in bad, Delaware remains the first choice for businesses in establishing their corporate homes and in resolving their most important disputes. We’ve built a diverse portfolio of practices — cyclical, counter-cyclical and non-cyclical — so that we can thrive in a variety of economic environments.”
Size and Scale
Meanwhile, Richards Layton & Finger PA, with 160 attorneys, today ranks as Delaware's largest state-based corporate practice with one main office in the state but a vastly wider practice area, with depth in all the state's flagship practice areas.
In a summary of the firm’s history and capabilities, Richards Layton said it has been “committed from its founding to helping sophisticated clients navigate complex issues and the intricacies of Delaware law,” participating in groundbreaking cases that helped to define law.
Late last year, the firm led private equity company Great Hill Equity Partners’ win in a Delaware Chancery Court fraud claim focused on the former CEO of payment-processing company Plimus Inc. Also secured was an opportunity to seek capped restitution for breaches of assurances by some of its directors in connection with the $115 million purchase of Plimus in 2012.
In Delaware’s bankruptcy court, Richards Layton served as co-counsel to TK Holdings, Takata Americas Corp. and affiliated debtors in their Chapter 11 case and ancillary litigation. The case involved the largest automotive safety recall in U.S. history and a complex, global restructuring that allowed a sale of substantially all of the debtor’s assets to KSS Auto Safety SA.
In bankruptcy litigation, Richards Layton was co-counsel to Claire’s Stores Inc., which secured bankruptcy court approval during the past year for restructuring of a $2.1 billion debt and emergence from Chapter 11, despite starting its case as a deeply overleveraged, traditional retailer of women's accessories in a changing economy that has been particularly hard on brick-and-mortar and mall chains.
"We are known as the go-to firm because our lawyers are well-versed in Delaware law and we have a deep bench in every practice area," said Doneene K. Damon, Richards Layton's president. "Our clients know when they retain us that they will have top-notch representation from some of the most seasoned and most respected lawyers in their field."
--Editing by Philip Shea.
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