James P. Gillespie, P.C.

Jim’s extensive experience in the fields of securities, ERISA, shareholder and corporate governance litigation include matters such as:

• In re Caterpillar Inc. Securities Litigation (Northern District of Illinois: US District Court): Lead counsel for Caterpillar in putative securities class action. Successfully obtained dismissal of the case on a motion to dismiss.
• Caterpillar Derivative Actions (Delaware Court of Chancery): Currently serving as lead counsel for Caterpillar in shareholder derivative action.  
• Cleco Corporation Merger Litigation (Orleans and Rapids Parish (Louisiana) Courts): Lead counsel for a consortium of investors led by Macquarie Infrastructure Funds and John Hancock Financial that purchased Cleco Corporation (a central Louisiana energy company). Cleco shareholders filed class action and derivative actions challenging the Cleco’s Board of Directors decision to enter into the $ 4.7 billion go-private deal with the investor consortium. After obtaining dismissal of the Orleans Parish litigation, defeated a preliminary injunction motion seeking to enjoin the Cleco shareholder vote on the transaction brought be a plaintiff group led by Robbins Geller. The matter is in the motion to dismiss phase.
• Pepco Energy Holdings Merger Litigation (Delaware Chancery Court): Lead counsel for Exelon Corporation in its $ 6.8 billion acquisition of the Washington, D.C., utility Pepco. Pepco shareholders sought to block the merger, alleging that the Pepco Board of Directors breached fiduciary duties by agreeing to an unfairly priced transaction. After expedited discovery and briefing on a motion to enjoin the Pepco shareholder vote on the deal, the matter settled (pending court approval) for additional proxy disclosure to Pepco shareholders and the plaintiffs withdrew their motion for preliminary injunction.
• American Realty Capital Properties Shareholder Derivative and Securities Litigation (SDNY, Maryland State Court): Lead counsel for the former CEO of American Realty Capital Properties (ARCP), which was the largest REIT by market capitalization, in multi-jurisdictional shareholder derivative and securities class action litigation arising out of ARCP’s restatement of financial statements over 2011 - 2014. Obtained dismissal of shareholder derivative actions in both New York federal court (SDNY) and Maryland State court. The securities class action pending in the SDNY is in the motion to dismiss phase.
• Wal-Mart Stores, Inc., Shareholder Derivative and Securities Litigation (W.D. Ark., Delaware Chancery Court): Counsel for the former Wal-Mart CEO and Chairman in shareholder derivative and securities class action arising out of a New York Times article that alleged Wal-mart’s Mexican subsidiary made improper payments to Mexican government officials to expedite permitting for construction of stores. Obtained dismissal of the shareholder derivative action in W.D. Ark. (appeal pending in the Eight Circuit); a motion to dismiss a parallel shareholder derivative action in Delaware Chancery Court is pending. The W.D. Ark. securities class action is in the class certification stage.
• Siemens Hearing Securities Litigation (D.N.J): Acting as lead counsel in class action brought on behalf of former shareholders of HearUSA who allege that Siemens Hearing, Inc. violated Sections 9, 10, and 18 of the Securities Act of 1934 by purportedly making SEC filings containing false statements about HearUSA’s financial condition. After obtaining dismissal of a number of claims, the matter settled on favorable terms (less than $3 million).
• Idearc ERISA Litigation (N.D. Tex): Acting as lead counsel to Idearc (now, Depmedia, Inc.) and its former ERISA plan fiduciaries defending against an ERISA class action alleging that it was imprudent for Company ERISA plans to hold Idearc stock. Obtained dismissal of all claims in the District Court, which decision the Fifth Circuit affirmed. While a petition for certiorari on the Idearc the motion to dismiss ruling was pending, the United States Supreme Court’s decision in another case changed the applicable pleading standards, causing the Idearc case to be remanded back to the District Court. On remand, Idearc has filed a motion to dismiss under the new pleading standard.
• SRA International Merger Litigation (Delaware Chancery Ct., Delaware Supreme Court, and E.D. Va.): Lead counsel for SRA International and a Special Committee of the SRA Board of Directors defending against shareholder claims that SRA International and its Board breached their fiduciary duties and violated federal securities law in agreeing to merge with an affiliate of Providence Equity Partners and providing related proxy disclosure. In the Delaware action, the plaintiffs abandoned their attempt to enjoin the merger after SRA filed its Opposition to the Motion for Preliminary Injunction. In the related Virginia federal action, the District Court denied plaintiff’s Motion for Preliminary Injunction. In post-closing damages proceedings, the Delaware Chancery Court granted defendants motion for summary judgment, which the Delaware Supreme Court affirmed last year. Notably, this case established new Delaware corporate law regarding structuring transactions involving a controlling shareholder such that Delaware courts will review the merger under the business judgement rule.
• Rue 21 Merger Litigation (Delaware Chancery Court):  Lead counsel for the Special Committee of Rue 21’s Board of Directors in consolidated shareholder suits seeking to enjoin Rue 21’s $1.6 billion merger with an affiliate of Apax Partners, LLP.  Asserting that the deal consideration undervalued the company, shareholders claimed that the Rue 21 Directors breached their duty to obtain the highest transaction price.  Court granted defendants’ motion to dismiss. 
• OfficeMax--Office Depot Merger Litigation (Illinois and Florida Courts):  Acting as lead litigation counsel for the Office Depot Board of Directors in putative shareholder class action litigation challenging the fairness of the OfficeMax - Office Depot merger.  Litigation is pending in state courts in Illinois and Florida and is in the motion to dismiss phase.
• In re GeoEye Merger Litigation (E. D. Va.):  Serving as lead counsel for the Directors of GeoEye and the Company in a class action suit challenging the GeoEye’s Board’s decision to merge with a competitor, Digital Globe.  The lawsuit asserts that the GeoEye Board breach fiduciary duties to shareholders in the pricing to the transaction and providing disclosure about the merger.  The case is in the motion to dismiss phase.
• Wyndham Hotels Data Breach Shareholder Derivative Litigation (D.NJ, Third Circuit): Lead Counsel for Wyndham Worldwide Corporation and members of its Board of Directors in a shareholder derivative action arising from a series of data breaches in which hackers obtain credit card and other personal information of Wyndham Hotel guests. Shareholders alleged that the Wyndham Board of Directors and senior executives breached fiduciary duties in failing to take reasonable steps to prevent such data breaches, which are now the subject of a lawsuit against Wyndham brought by the US Federal Trade Commission. Obtained dismissal of the shareholder breach of fiduciary duty claims in the District Court. Plaintiffs abandoned their appeal in the Third Circuit after briefing earlier this year.
• Constellation Energy Group ERISA and Securities Litigation (D. Maryland): Serving as lead counsel to Constellation Energy Group in multi-District shareholder litigation regarding the significant decline Constellation’s stock price in the midst of the contraction of the global credit market and subsequent proposed merger with Mid-American Energy Holdings. These events gave rise to class action claims that Constellation’s ERISA Plan should not have held company stock, and various claims under the Securities Acts of 1933 and 1934. The District Court dismissed the ERISA action, all 1934 Act claims, and a majority of the 1933 Act claims. Plaintiffs sought damages in excess of $1 billion. The remaining claim settled for less than $5 million.
• Raytheon ESOP Litigation (D. Mass.): Acting as lead counsel defending Raytheon against employee-shareholder claims that Raytheon and members of the Board of Directors breached fiduciary duties by permitting the Company’s employee stock ownership program and other related ERISA plans to invest in Company stock. The ERISA claims were premised on purported Raytheon violations of Section 10(b) of the Securities Act of 1934; plaintiffs claimed the Company misled shareholders about the financial health of Raytheon by overstating revenue and earnings. Settled on favorable term
• Accredited Home Lenders Securities Litigation (S.D. Cal.): Acted as lead counsel for Accredited in defending against securities class actions. As consolidated, the class action complaint alleges that Accredited violated Sections 11 and 12 of the Securities Act of 1933 and Section 10(b) of the Securities Act of 1934. Settled on favorable terms.
• In re Hospira ERISA Litigation (ND Ill.):  Acted as lead counsel in an employee shareholder class action asserting that inclusion of Hospira stock in a Company retirement plan violated ERISA’s prohibition against imprudent investment.  After briefing a motion dismiss the matter, the plaintiff withdrew the complaint and stipulated to a dismissal of the action with prejudice.
• Constellation Energy Group - Exelon Corporation Merger Litigation (Maryland state and federal courts): Serving as lead counsel defending Constellation and members of Constellation’s Board of Directors in Maryland State and Federal Court actions asserting that the Constellation Board breached its fiduciary duty in approving a merger between Constellation and Exelon as well as violated state and federal shareholder disclosure law by allegedly providing insufficient disclosure regarding the merger. Recently, the Maryland State Court found that plaintiffs failed to plead colorable claims and denied plaintiffs’ motion to expedite discovery. Thereafter, the case settled on favorable terms.
• Siemens AG Securities Litigation (EDNY): Served as lead counsel defending Siemens AG and its most senior officers in a securities class action alleging that the Company provided investors overly optimistic earnings and revenue projections which were not realized due to project cost overruns and delays. Claims are brought under Sections 10(b) and 20 of the Securities Act of 1934. Earlier this year, the Eastern District of New York granted Siemens’ motion to dismiss all claims.
• Perini Corporation Securities and Merger Litigation (Massachusetts state and federal courts): Served as lead counsel to Perini Corporation and its directors in federal and state court litigation arising coincident with Perini’s merger with Tutor - Saliba, Inc. In the federal securities action filed in the District of Massachusetts, the class alleged that Perini and certain of its directors violated the Sections 10(b) and 20 of the Securities Act of 1934 by purportedly not disclosing construction counter-party risk that adversely impacted Perini’s share price. The court dismissed the claims. In the Massachusetts state court merger litigation, a shareholder class action suit sought to enjoin the merger alleging Perini directors approved a transaction overvaluing Tutor-Saliba. After an evidentiary hearing, the state court denied the shareholders’ motion for preliminary injunction and later dismissed the case.
• Accredited Home Lenders Merger Litigation (Ca. Sup. Ct.): Acted as Accredited’s lead counsel responding to a shareholder challenge of the company’s decision to sell itself to a private equity concern, Lonestar Capital. The shareholder claimed that a Special Committee of the Board of Directors breached its fiduciary duty by agreeing to a transaction price that undervalued Accredited and was generally disabled due to conflicts of interest. The merger was consummated and the case has been dismissed.
• Pre-paid Legal Services, Inc., Merger Litigation (Oklahoma state courts): Acted as lead counsel for MidOcean Partners in litigation brought by Pre-Paid Legal shareholders challenging MidOcean’s acquisition of Pre-Paid Legal. Among other claims, plaintiffs asserted that the price MidOcean paid for Pre-Paid Legal was insufficient. After obtaining dismissal of aiding and abetting claims against MidOcean Partners and a stay of competing actions in multiple state courts, the case settled without any adjustment of the purchase price, and class notice has been issued. The transaction closed in July 2011.
• CompuCredit Corporation Securities Litigation (N.D. GA): Acted as lead counsel for CompuCredit and its directors is a securities class action alleging violations of the Securities Acts of 1933 and 1934. The shareholders alleged that CompuCredit failed to disclose alleged exposure to adverse state and federal regulatory enforcement actions regarding the Company’s subprime credit card business segment. The court granted the defendants’ motions to dismiss all claims.
• Calim Private Equity Litigation (Del. Ch. Ct.): Acted as lead counsel in two matters involving control of related Delaware limited liability company investment funds which hold $250 million in assets. In the separate matters, we have obtained injunctive relief placing shareholder governance in the hands of our client, a significant investor in the funds.
• Siemens Shareholder Litigation (NY Sup. Ct.): Lead the defense against derivative and related shareholder litigation in the United States brought against Siemens AG. This litigation arose from allegations that Siemens officials paid contracting bribes in numerous countries in which Siemens does business. The Court dismissed all claims.
• FLAG Securities Litigation (SDNY): Acted as lead counsel for Verizon in the successful defense of the Company in shareholder and bondholder actions arising from the bankruptcy of FLAG Telecom. The FLAG shareholders alleged that Verizon — which had a 35 percent stake in FLAG — had control person liability for purported FLAG violations of Section 15 of the Securities Act of 1933 and 10(b) of the Securities Act of 1934. The plaintiffs also alleged claims under Section 11 of the Securities Act. The court dismissed Verizon from both the shareholder and bondholder actions.
• Genuity Securities Litigation (SDNY) and ERISA Matter (U.S. Dept. of Labor): Led Verizon’s defense against Sections 10(b) and 20 of the Securities Act of 1934 claims arising out of the bankruptcy of a large internet service provider, Genuity. The Genuity shareholders alleged that Verizon — which spun Genuity off in an IPO contemporaneous with the GTE - Bell Atlantic merger — had undercapitalized Genuity at the IPO and controlled Genuity’s purported misleading statements regarding its financial condition post-IPO. The court dismissed the claims against Verizon. Relatedly, the U.S. Department of Labor investigated whether Verizon and its designees on the Genuity Board of Directors caused Genuity’s ERISA Plan to imprudently invest in Genuity stock. The DoL concluded the investigation without taking enforcement action against Verizon or its personnel.
• Verizon Dividend Litigation (SDNY): Acted as lead counsel in Verizon’s defense against former GTE shareholders’ claim that the GTE–Bell Atlantic Joint Proxy Statement and Prospectus made misleading disclosures about future dividend payments of Verizon (the combined company). Plaintiffs alleged that the merger Joint Proxy Statement and Prospectus violated Section 14 of the Securities Act of 1933.
• AOL–Time Warner Merger Litigation (Del. Ch. Ct. and NY Sup. Ct.): Led AOL’s defense against claims by both AOL and Time Warner shareholders that the Boards of Directors of both companies violated their fiduciary duty when they approved the $180 billion AOL–Time Warner merger. Both Delaware and New York courts dismissed the shareholders’ claims.
• GTE–Bell Atlantic Merger Litigation (NY Sup. Ct. and Del. Ch. Ct.): Led GTE’s defense against multiple shareholder challenges to the Corporation’s merger with Bell Atlantic, which was valued at $50 billion. The GTE shareholders challenging the transaction claimed members of the GTE Board of Directors breached their fiduciary duty in approving the merger. GTE defeated plaintiffs’ attempt to have the merger enjoined and the consolidated lawsuit was dismissed.
• First Data–Experian Merger Litigation (Del. Ch. Ct.): Led First Data’s defense of its merger with Experian in the face of a topping bid by a third party. The third party bidder, joined by First Data shareholders, asserted that the First Data Board of Directors breached fiduciary duties by failing to rescind acceptance of Experian’s offer in favor of the putatively higher third party bid. After an evidentiary hearing before Chancellor Chandler, the Court denied the motion to enjoin the merger.