Joshua D. N. Hess

Securities Matters

• Successfully secured dismissal of class-action complaint against Schwab Investments, among others, on pathbreaking SLUSA preclusion defense, which was affirmed on appeal by the Ninth Circuit. This victory was also recognized as a “standout” [the highest award] in the Financial Times’ Legal Innovation Awards.
• Successfully secured dismissal with prejudice of a complaint against one of the largest mutual fund complexes asserting breach of contract and fiduciary breach claims premised on the fund's purported violation of an investment limit on securities related to “emerging markets.”
• Defended the ten independent directors of Lehman Brothers Holdings Inc. in the multitude of investigations, litigation, and corporate governance matters arising from the collapse of Lehman Brothers in what is the largest bankruptcy in U.S. history.
• Successfully defended OppenheimerFunds, Inc., and its senior officers and directors, in multi- billion dollar MDL proceedings brought by investors in seven municipal bond funds that invested in a range of allegedly volatile securities.
• Defended the largest bond fund manager in class-action market manipulation cases regarding Treasury futures.
• Successfully defended former CEO of Freddie Mac in enforcement actions and civil litigation stemming from the company’s restatement of billions of dollars in earnings.
• Obtained summary judgment on all claims for WorldCom’s 401(k) trustee, Merrill Lynch, against ERISA breach of fiduciary duty claims in aftermath of the collapse of WorldCom.

Shareholder Litigations and Internal Investigations

• Successfully defended Turtle Beach Corporation and its former private equity sponsor, Stripes Group, in shareholder litigation in Nevada stemming from its acquisition of Parametric Sound Corporation. Included successfully arguing precedent-setting decision on shareholder standing under Nevada law before the Nevada Supreme Court. Obtained a directed verdict at trial on all claims.
• Currently defending Guggenheim Funds Investment Advisors against novel breach of duty and contract class action in Delaware Chancery Court arising from collapse of energy-focused closed-end fund in Spring of 2020.
• Successfully represented Albertson’s in connection with litigation in numerous state and federal courts arising from its acquisition of Safeway to form the nation’s second-largest grocery chain. Defended the combined company in an appraisal proceeding in Delaware Chancery Court, which was the largest appraisal case by share volume filed in Delaware history.
• Won trial verdict in favor of Sierra Income Corporation, a business development company (“BDC”), in Delaware Chancery Court challenge of merger of Sierra with another BDC and simultaneous acquisition of its external manager.
• Represented an Independent Committee of Hewlett-Packard Co.’s Board of Directors (which included the Chairman) to represent the Committee in an investigation of certain shareholder derivative claims and demands concerning the termination of HP’s former C.E.O. and the Board’s oversight of various compliance issues.
• Defended Intersil Corp. and its directors against derivative shareholder litigation alleging breaches of duty in the wake of a negative “say on pay” vote. Obtained dismissal on motion to dismiss in first federal precedent holding the Dodd-Frank Act’s “say on pay” provisions did not create additional duties for corporate directors.
• Defended Buckeye Technologies, Inc. against shareholder litigation alleging inadequate proxy disclosures regarding the Company’s executive compensation plans. Defeated a motion to enjoin the Company’s annual shareholder vote.

Antitrust Matters

• Successfully defended CVS/Aetna against California Cartwright Act case alleging hub-and-spoke conspiracy related to reimbursement of out-of-network claims in California state court brought by bankrupt hospital system.
• Defended Micron Technology, Inc., the largest memory maker in U.S. in international criminal investigations into price-fixing in the dynamic random access memory (DRAM) and static random access memory (SRAM) markets, which received no criminal sanction in either investigation. Also represented this client in the extensive civil class actions, State Attorneys General actions, and opt-out litigations that followed in each product.
• Defended a large Taiwanese company in international criminal investigations into price-fixing in the TFT-LCD panel and cathode ray tube (CRT) markets. Also represented the client in the extensive civil litigation that followed.

Other Notable Matters

• Secured an award in excess of US$10 million in an International Chamber of Commerce arbitration for an investment arm of an international mining company.
• Won unprecedented US$93 million judgment against the United States in U.S. Court of Federal Claims and arbitration proceedings involving the U.S. Marshal’s Service’s seizure and subsequent mismanagement of a majority partnership interest of a Los Angeles-based card club.
• Represented Federal Retirement Thrift Investment Board, the overseer for the federal employee retirement plan, in litigation against government contractor for 9-figure valuation and processing technology contract. Secured substantial settlement on behalf of the client.
• Represented a prominent defense contractor in bid protest involving the award of the U.S. Air Force’s jet fighter flight simulators.

Pro Bono Matters

• Successfully defended Senator John McCain and the Republican National Committee against a suit seeking to block Senator McCain's candidacy for President in 2008 on the basis that he was not a “natural born citizen” of the United States due to his birth on a U.S. naval base in the Panama Canal.
• Successfully challenged Virginia’s “crimes against nature” statute in habeas corpus petition to the U.S. Court of Appeals for the Fourth Circuit on various grounds, including that the lower courts had erroneously and improperly interpreted the statute to remain valid as applied even in the wake of the U.S. Supreme Court’s decision in Lawrence v. Texas.

Includes matters handled at Dechert or prior to joining the firm.

• Recommended Lawyer - Securities Litigation: Defense, The Legal 500 US
• Recommended Lawyer - Dispute Resolution: M&A Litigation Defense, The Legal 500 US
• Rising Star in Litigation - Euromoney Legal Media Group’s Expert Guides
• Legal Innovation Award for “standout” defense of Schwab Investments - Financial Times

• Mutual Fund Litigation and Enforcement Update — Mutual Fund Directors Forum, Washington, D.C. (November 17, 2020)