David A. Kotler

Mutual Fund and Financial Services

• Representing Guggenheim Funds Investment Advisors in breach of fiduciary duty class action and derivative litigation both challenging the merger of a closed-end fund and seeking recovery for alleged investment losses.
• Representing the Investment Company Institute as amicus in a Second Circuit appeal arising under Section 18(i) of the Investment Company Act of 1940.
• Representing Calamos Advisors and Calamos Financial Services in Section 36(b) litigation challenging advisory and distribution fees for the complex’s largest mutual fund.
• Representing Prudential Investment in Section 36(b) litigation challenging advisory fees for five mutual funds.
• Representing Security Investors, LLC in Section 36(b) litigation challenging advisory fees for a closed-end fund.
• Representing Harbor International Fund in Section 36(b) litigation challenging advisory fees for three mutual funds.
• Representing the independent trustees of several mutual fund complexes in Section 36(b) litigation.
• Representing one of the world’s largest ETFs in a derivative breach of fiduciary duty action threatened by investors in the mutual fund.
• Representing Charles Schwab & Co., in a breach of fiduciary duty class action challenging the advisory fees for a donor advised fund.
• Representing Oppenheimer Funds and Oppenheimer Acquisition Corp. in more than a dozen class action and individual lawsuits brought in several courts arising out the Madoff Ponzi scheme.
• Representing the investment adviser, distributor and key officers of the Rydex Series Funds in a Section 11 class action brought by investors in an inverse mutual fund.
• Representing Oppenheimer Funds Distributors, Inc. and several related entities/persons in a derivative action brought on behalf of two mutual funds that challenge the 12b-1 payments made to broker-dealers.
• Representing a family of mutual funds for one of the world’s largest money managers in a multi- billion-dollar Commodity Exchange Act class action arising out of the alleged manipulation of the U.S. Treasury futures market.
• Representing two mutual funds of one of the largest investment management companies in the U.S. in a precedent-setting Sarbanes-Oxley whistle-blowing matter before an administrative law judge.
• Representing a long-short hedge fund in a state law RICO action alleging an improper short- selling scheme.

Securities and Complex Commercial Litigation

• Representing the former CEO of Hertz Corp. in a precedent-setting clawback lawsuit.
• Representing the unsecured creditors committee of LATAM Airlines in an expedited litigation matter.
• Representing venture capital entrepreneur and investors in a series of federal and state court lawsuits arising out of private equity investment in a technology company.
• Representing international creditors of a Lehman affiliate in a US$100 million bankruptcy adversary proceeding.
• Representing the investment arm of a foreign government in bankruptcy litigation in connection with its purchase of real estate assets for US$1.5 billion.
• Representing one of New York’s largest commercial real estate developers in a series of complex litigation matters arising out of several transactions for the purchase of skilled nursing facilities.
• Representing the former controller of AIG in various direct and derivative securities fraud actions.
• Steiner v. MedQuist, Inc., Civil Action No. 04-5487 (D.N.J.). Represented a former CEO in Section 10(b)/Rule 10b-5 class action.
• In re IPO Securities Litigation, 21 MC 92 (S.D.N.Y.). Represented four issuers in Sec. 11 and Sec. 10(b)/Rule 10b-5 consolidated class action arising out of an IPO allocation process.
• Ball, et al. v. Golf Host Resorts, Inc., Case No. 99-7532-CI-15 (Fla. Cty. Ct.). Represented the issuer of an alleged investment contract.
• Ball v. Starwood Capital Group, L.L.C., et al., Case No. 01-8582-CI-15 (Fla. Cty. Ct.). Represented corporate and individual defendants in a veil piercing action arising out of an alleged breach of investment contract.
• Raintree Resorts International, Inc. v. Starwood Hotels & Resorts Worldwide Inc., et al., No. H-02- 3878 (D. Tex.). Represented equity investor Starwood Capital Group and several of its principals (including Barry Sternlicht) in a breach of fiduciary duty/tortious interference action.
• H.I.G. Capital, L.L.C. v. Vestcom International, Inc., et al., Docket No. C-249-02 (N.J. Ch. Div.). Represented the successful bidder for a publicly traded company.
• Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2 (2d Cir. 1996). Represented the issuer, a closed-end fund, in Section 11 and Section 10(b)/Rule 10b-5 class action.
• Karpus v. Hyperion 1997 Term Trust, Inc., 1996 WL 668860 (S.D.N.Y. 1996). Represented the issuer, a closed-end fund, in Sec. 11 and Sec. 10(b)/Rule 10b-5 class action; motion to dismiss granted.
• The successful resolution of a multi-million-dollar tortious interference and breach of fiduciary duty claim arising out of an Internet-based business.
• The successful application of an adult living community to expand its facility in the face of a challenge under an anti-eviction statute (a case of first impression in New Jersey).
• On a pro bono representation, obtaining a substantial federal jury verdict for sexual harassment in favor of a former New York Police Department employee.
  

M&A Litigation

• Representing Turtle Beach Corp., its CEO, and its former private equity sponsor in breach of fiduciary duty and equity expropriation litigation arising out of a reverse merger with Parametric Sound Corp.
• Representing Inhibitex, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Bristol-Myers Squibb for US$2.5 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of the acquisition of ArthroCare Corp. by Smith & Nephew for US$1.7 billion.
• Representing Buckeye Technologies, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Georgia Pacific for US$1.4 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of M*Modal for US$1.1 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of APAC Customer Services for US$470 million.
• Representing Tufco Corp. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Griffin Holdings.
• Heilman v. Baldino, Case No. MER-C-12808 (N.J. Ch. Div.). Represented the target company and its board of directors in shareholder litigation brought following a merger.
  

• Value for money – Changing the Retail Investor Landscape — IBA Global Challenges and Opportunities for the Asset Management Industry Conference, Boston, MA (June 11, 2024)
• Corporate Governane Symposium — Dechert LLP (February 27, 2024)
• Mutual Fund Litigation and Enforcement Update — Mutual Fund Directors Forum, Webinar (June 6, 2023)
• Mutual Fund Litigation and Enforcement Update — Mutual Fund Directors Forum, Webinar (March 23, 2022)
  
• SPAC Litigation: Issues and Trends (April 21, 2021)
  
• Mutual Fund Litigation and Enforcement Update — Mutual Fund Directors Forum, Webinar (November 17, 2020)
  
• Disclosures and Communications with U.S. Fund Investors in the Current Environment — Dechert LLP, COVID-19 Coronavirus Business Impact Webinar (April 7, 2020)
  
• Excessive Fee Litigation and Enforcement: Recent Decisions and Trends — Mutual Fund Directors Forum, Webinar (May 7, 2019)
  
• 2017 Fund Directors Conference — Presented by the Independent Directors Council, Chicago (October 23-25, 2017)
• 2017 Policy Conference — Mutual Fund Directors Forum, Washington, D.C. (July 24, 2017)
• Current Developments Affecting the Fund Industry — ICI Breakfast Briefing, Palm Desert, CA (March 14, 2017)
  
• The 2016 ALIC Annual Meeting, Colorado Springs, CO (May 16, 2016)
• 2016 Mutual Funds and Investment Management Conference — ICI Investment Company Institute, Orlando, FL (March 13, 2016)
• The SEC Perspective: SEC Regulation and Conversations with the SEC Staff — Practising Law Institute's Securities Products of Insurance Companies in the Course of Regulatory Reform 2015, New York, NY (January 21, 2015)
  
• New York Has an Axe to Grind and Plaintiffs Try to Axe Fees — American Council of Life Insurers Compliance & Legal Sections Annual Meeting, Ft. Lauderdale, FL (July 28, 2014)
• 2012 Policy Conference — Mutual Fund Directors Forum, Washington, DC (June 19-20, 2012)
• Developing Business 2012: Developing Networks and Client Relationships — Practising Law Institute, New York, NY (March 26, 2012)
• Effective Trial Testimony — LSI's Conference on Effective Development and Presentation on Expert Testimony, Chicago, IL (September 24, 2007)
• Understanding the Link Between Off-Label Sales/Promotion & Securities Fraud/Shareholder Derivative Suits — Pharmaceutical & Medical Device Counsel's Guide to Off-Label Communications, New York, NY (April 24, 2006)

• Board Minute Best Practices – Directors & Boards (July 10, 2024)
  
• The Developing Litigation Risks from the ESG Backlash in the United States – Dechert OnPoint (June 21, 2023)
• Delaware Court of Chancery Issues Significant Decision Addressing Fiduciary Duties of Officers, Including Holding that Officers Owe a Duty of Oversight – Dechert OnPoint (January 30, 2023)
• Navigating the Recent Wave of Section 36(b) Litigation: What Have We Learned? - The Investment Lawyer (February 2022)
• Dechert Secures Complete Victory for Antares Pharma Before the Third Circuit - Dechert OnPoint (January 25, 2022)
• Delaware Court of Chancery Issues First Decision Addressing Directors’ Fiduciary Duties in a De- SPAC Merger - Dechert OnPoint (January 18, 2022)
• Tenth Circuit Affirms Another Adviser Victory in Section 36(b) Lawsuit - Dechert OnPoint (August 20, 2021)
• SPAC Roundtable - Dechert OnPoint (April 21, 2021)
• Lessons Learned From ERISA Class Action Litigation Arising Out Of The “Great Recession” - Dechert OnPoint (January 07, 2021)
• A Look at the Current State of ERISA Class Action Litigation - Dechert OnPoint (November 20, 2020)
• California Superior Court Enforces Federal Forum Selection Provision Under California Law - Dechert OnPoint (September 11, 2020)
• Federal Court Issues Trial Ruling in Section 36(b) Lawsuit: Great-West Advisory Fees Held Not a Breach of Fiduciary Duty - Dechert OnPoint (August 17, 2020)
• For Whom the Bell Thole(s) – Supreme Court Holds that Fiduciaries Under ERISA-Covered Pension Plans May Be Constitutionally Shielded - Dechert OnPoint (June 10, 2020)
• Some Good News for the Loan Industry—Loans Are Not Securities - Dechert OnPoint (June 01, 2020)
• Asset Management Litigation/Enforcement Flash Report - Dechert OnPoint (May 22, 2020)
• COVID-19 Coronavirus Business Impact: Everything You Need to Know to Manage the Stock Delisting Risk - Dechert OnPoint (May 07, 2020)
• Financial Support for Nonprofit Organizations Pursuant to the U.S. CARES Act - Dechert OnPoint (April 07, 2020)
• Disclosures and Communications with U.S. Fund Investors in the Current Environment - Dechert OnPoint (April 07, 2020)
• Sixth Circuit Issues Section 36(b) Ruling Affirming Grant of Summary Judgment To Mutual Fund Investment Adviser - Dechert OnPoint (April 03, 2020)
• Managing Enforcement and Litigation Risks for Asset Managers in the Current Economic Climate - Dechert OnPoint (April 01, 2020)
• COVID-19 Coronavirus Business Impact: Regulatory Impact – Focus on Global Market Abuse Risks - Dechert OnPoint (March 31, 2020)
• Delaware Supreme Court Rules that Corporations Can Require Securities Act Claims to Be Filed Exclusively in Federal Court - Dechert OnPoint (March 20, 2020)
• NewsFlash: "Actual" Actually Means Actual - U.S. Supreme Court Rules in Sulyma on ERISA's Statute of Limitations - Dechert OnPoint (March 05, 2020)
• California Appeals Court Narrows Standing for ETF Retail Investors to Sue for Allegedly False or Misleading Registration Statements - Dechert OnPoint (February 18, 2020)
• Mutual Fund Litigation and Insurance Practice Guide - Dechert OnPoint (February 04, 2020)
• Recent Section 36(b) Post-Trial Ruling Awards Complete Victory to Mutual Fund Investment Adviser - Dechert OnPoint (October 10, 2019)
• Second Circuit Finds that Section 47(b) Provides for Private Right of Action, Raising New Implications and Considerations for Mutual Fund Advisers and Trustees - Dechert OnPoint (September 09, 2019)
• Court Credits Robust Board Process and Persuasive Independent Trustee Trial Testimony in Section 36(b) Victory - Dechert OnPoint (August 08, 2019)
• Chambers USA Recognizes 79 Dechert Lawyers and 33 Practices - Dechert OnPoint (May 03, 2018)
• US Courts Rule in Favor of Advisers in Three Mutual Fund Excessive Fee Cases - Dechert OnPoint (March 28, 2018)
• Examinations, Enforcement and Litigation: Developments and Trends to Watch in 2018 - Dechert OnPoint (November 28, 2017)
• 2017 San Francisco Investment Management Symposium - Dechert OnPoint (November 28, 2017)
• Combating diplomatic involvement in human trafficking - Dechert OnPoint (October 20, 2017)
• Chambers USA 2017 Recognizes 75 Dechert Lawyers and Practices across 33 Categories - Dechert OnPoint (May 26, 2017)
• Federal Court Denies “Fiduciary Exception” Challenge in Connection with Section 36(b) Excessive Fee Lawsuit - Dechert OnPoint (May 02, 2017)
• Updated CHOICE Act Proposes to Impose Heightened Pleading Requirement and Raise Burden of Proof for Plaintiffs in Section 36(b) Cases Against Mutual Fund Advisers - Dechert OnPoint (April 28, 2017)
• Federal Court Issues Trial Ruling in Section 36(b) “Manager of Managers” Lawsuit: Second Consecutive Opinion Finding Plaintiffs Failed to Meet Their Burden - Dechert OnPoint (March 03, 2017)
• Dechert survey: Developments in securities fraud class actions against U.S. life sciences companies - Dechert OnPoint (February 17, 2017)
• Federal Court Issues Trial Ruling in Section 36(b) "Manager of Managers" Lawsuit: AXA Advisory and Administrative Fees Held Not a Breach of Fiduciary Duty - Dechert OnPoint (January 01, 2017)
• Federal Court Issues Trial Ruling in Section 36(b) “Manager of Managers” Lawsuit: AXA Advisory and Administrative Fees Held Not to Constitute a Breach of Fiduciary Duty - Dechert OnPoint (September 19, 2016)
• Mutual Fund Litigation and Insurance Practice Guide: 2016 - 2017 Edition - Dechert OnPoint (September 01, 2016)
• Federal Court Issues Trial Ruling in Section 36(b) "Manager of Managers" Lawsuit - Dechert OnPoint (August 29, 2016)
• The Legal 500 US Recommends 104 Dechert Lawyers and Practices Across 31 Categories - Dechert OnPoint (June 15, 2016)
• Chambers USA Recognizes 73 Dechert Lawyers and Practices Across 32 Categories - Dechert OnPoint (May 27, 2016)
• Mutual Fund Litigation Update for Independent Directors - Dechert OnPoint (February 18, 2016)
• Basic Written Discovery - Dechert OnPoint (October 20, 2015)
• Financial Services Quarterly Report - Dechert OnPoint (October 01, 2015)
• Recent Developments in U.S. Excessive Fee Litigation - Dechert OnPoint (October 01, 2015)
• The Legal 500 Names Dechert Real Estate Firm of the Year; Recommends 105 Dechert Lawyers Across 27 Practice Categories - Dechert OnPoint (June 11, 2015)
• Three Court Cases Redefining Fund Governance - Dechert OnPoint (May 19, 2015)
• Chambers USA Recognizes 68 Dechert Lawyers and Practices Across 30 Categories - Dechert OnPoint (May 19, 2015)
• Dechert Advises PennantPark in Acquisition of MCG Capital - Dechert OnPoint (April 29, 2015)
• Dechert Survey of Securities Fraud Class Actions Brought Against US Life Sciences Companies - Dechert OnPoint (March 16, 2015)
• New York Has an Axa to Grind and Plaintiffs Try to Axe Fees - Dechert OnPoint (July 28, 2014)
• The Legal 500 Names Dechert Mutual Fund Firm of the Year, Recommends 94 Dechert Lawyers and Practice Groups in 20 Categories - Dechert OnPoint (June 26, 2014)
• Dechert’s Litigation Teams Recognized around the World by Chambers and The Legal 500 - Dechert OnPoint (June 01, 2014)
• Dechert’s Securities Litigation Team Recognized by Chambers and The Legal 500 - Dechert OnPoint (June 01, 2014)
• Chambers USA Recognizes 72 Dechert Lawyers and Recognizes Dechert’s Practices in 29 Categories - Dechert OnPoint (May 23, 2014)
• Financial Services Quarterly Report - Dechert OnPoint (March 24, 2014)
• US Fund Litigation Update: Where We are Now and Where We Could be Headed - Dechert OnPoint (March 24, 2014)
• Current Developments Affecting the Fund Industry - Dechert OnPoint (March 18, 2014)
• Clinical Trial Disclosure: Keeping Ahead of the Wave - Dechert OnPoint (June 25, 2013)
• Dechert’s Commercial Litigation Practice Recognized by Chambers USA in 2013 in California, New Jersey and Pennsylvania - Dechert OnPoint (June 14, 2013)
• Chambers USA Recognizes 72 Dechert Lawyers and Recognizes Dechert’s Practices in 30 Categories - Dechert OnPoint (May 24, 2013)
• Report: Life Sciences Securities Cases Increased in 2012 - Dechert OnPoint (March 21, 2013)
• Dechert Survey of Securities Fraud Class Actions Brought Against US Life Sciences Companies - Dechert OnPoint (March 20, 2013)
• Dechert Advises Sovereign Wealth Fund in Purchase of Hotel Assets from CNL/MSR Resorts - Dechert OnPoint (March 13, 2013)
• Dechert’s Matthew Larrabee and David Kotler Author “Mutual Fund Litigation and Insurance Practice Guide” - Dechert OnPoint (November 06, 2012)
• Mutual Fund Litigation and Insurance Practice Guide - Dechert OnPoint (September 27, 2012)
• 2012 Policy Conference - Dechert OnPoint (June 19, 2012)
• Dechert Secures Two Appellate Victories in Schron, Cammeby’s Equity Holdings Cases - Dechert OnPoint (May 23, 2012)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - (March 20, 2012)
• Demonstrating Scienter in Market Manipulation Claims under the Commodity Exchange Act: A Checkered History and an Uncertain Future - Dechert OnPoint (March 01, 2012)
• Emerging Trends in Merger & Acquisition Disputes - Dechert OnPoint (October 06, 2011)
• Strike Three: Dismissal of the Third Section 47(b) Lawsuit Brought Against Mutual Fund Trustees and Distributor for the Alleged Failure of Broker-Dealers That Receive Rule 12b-1 Fees to Register as Investment Advisers - Dechert OnPoint (June 14, 2011)
• EPJ Fund v. Halliburton: US Supreme Court Rules that Rule 10b-5 Plaintiffs Need Not Prove Loss Causation for Class Certification, But Leaves Other Potential Class Certification Defenses Untouched - Dechert OnPoint (June 13, 2011)
• Dechert LLP Obtains Dismissal of Actions Against OppenheimerFunds Distributor in 12b-1 Fee Matter - Dechert OnPoint (June 06, 2011)
• Another Section 47(b) Claim Dismissed Against a Mutual Fund’s Distributor and Trustees for the Alleged Failure of Broker-Dealers that Receive Rule 12b-1 Fees to Register as Investment Advisers - Dechert OnPoint (April 18, 2011)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (March 30, 2011)
• Why Funds’ Risk Management Strategy Must Address Insurance - Dechert OnPoint (March 29, 2011)
• “Statistically Significant” Standard Suffers an Adverse Event: Matrixx Initiatives, Inc. v. Siracusano - Dechert OnPoint (March 23, 2011)
• Amicus Curiae Brief, Matrixx Initiatives v. Siracusano - Dechert OnPoint (August 27, 2010)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (March 30, 2010)
• Advocates Have to Account for Juror Cynicism - Dechert OnPoint (February 01, 2010)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (April 14, 2009)
• Arbitration Clause and Post-Dispute Considerations for In-House Counsel - Dechert OnPoint (February 06, 2009)
• A Survey of Sanctions Awarded for E-Discovery Violations - Dechert OnPoint (January 01, 2009)
• The Potential Impact of the FDA’s Issuance of a “Complete Response Letter” on Publicly Traded Life Sciences Companies - Dechert OnPoint (November 01, 2008)
• Life Sciences Companies Remain Firmly in the Crosshairs of the Plaintiffs’ Securities Bar - Dechert OnPoint (August 01, 2008)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (June 05, 2008)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (October 30, 2005)
• Recent Case Summaries - Dechert OnPoint (October 03, 2005)
• Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (August 10, 2004)
• Sarbanes-Oxley’s Impact on State Corporate Governance - Dechert OnPoint (July 25, 2003)
• Court Invokes ‘Enron’ as Basis for Reinstating Securities Fraud Suit - Dechert OnPoint (March 14, 2003)