Jonathan Rosenberg

Partner

Jonathan Rosenberg is a partner in O’Melveny’s New York office, a member of the Firm’s Policy Committee, and a member of the Securities Litigation Practice and White Collar Defense and Corporate Investigations Practice. He focuses on securities, M&A, and breach of fiduciary duty litigation, internal investigations, and white collar criminal defense. Prior to joining the Firm, Jonathan was an Assistant U.S. Attorney in the Southern District of New York for six years, where he spent two-and-a-half years in the Securities and Commodities Frauds Unit and served as Deputy Chief of the Criminal Division. Jonathan has tried more than twenty cases in government and private practice. Jonathan has also argued many times before federal and state appellate courts, including the United States Court of Appeals for the Second Circuit and the Delaware Supreme Court.

Jonathan has been recognized by Chambers USA - America’s Leading Lawyers for Business (2009-2012); by American Lawyer Litigation Daily as “Litigator of the Week” (February 9, 2012); by Law360 as “Most Valuable Player in Securities Litigation” (2011); and as a New York “Super Lawyer” for Securities Litigation, Criminal Defense: White Collar, Business Litigation in annual surveys conducted by Law & Politics Media Inc. (2008-2012).

Illustrative Professional Experience

• Obtained dismissal in April and October 2011 of successor-liability claims, alleging de facto merger and implied assumption of liability, and seeking to hold financial institution liable for billions of dollars in potential liability. Allstate Insurance Company et al v. Countrywide Financial Corp. et al, 11 - cv-05236 (C.D. Cal. 2012). Leads an O’Melveny team as national coordinating counsel for all successor-liability claims against the financial institution.
  
• Obtained dismissal in February 2011 of a putative class action alleging market manipulation and fraud in connection with sales of auction rate securities by a broker-dealer and underwriter. Leads an O’Melveny team as national coordinating counsel for all individual court and FINRA arbitration cases against the financial institution. In Re: Bank of America Corp. Auction Rate Securities (ARS) Marketing Litigation, MDL No. 09-2014 (JSW) (N.D. Cal. 2011).
  
• Obtained dismissal in February 2009 of a US$4 billion putative securities class action against a financial institution regarding alleged manipulation of a pharmaceutical company’s stock. The suit regards an alleged conspiracy among short-selling hedge funds and analysts to drive down the company’s share price. Previously obtained dismissal of a state court RICO action against the financial institution based on similar allegations. Del Giudice v. S.A.C. Capital Mgmt., LLC, et al., No. 2:06-CV-01413 (D.N.J. 2009).
  
• Obtained summary judgment in March 2012 dismissing litigation seeking more than $3 billion for alleged breaches of the credit agreement providing financing for the Fontainebleau Las Vegas hotel and resort development. In re Fontainebleau Las Vegas Contract Litigation, Case No. MDL-2106 (S.D. Fla. 2012).
  
• Obtained dismissal in March 2012 of a complaint asserting Securities Act claims against a financial institution and its underwriters.  Obtained follow-up ruling in February 2013 denying leave to amend as futile. NECA-IBEW Pension Trust Fund, et al. v. Bank of America Corporation, et al., No. 10 cv 00440 (LAK) (HBP) (S.D.N.Y.).
• Obtained a declaratory judgment in January 2013 that a broker-dealer’s former customer waived its right to arbitrate claims relating to its auction-rate securities purchases by serving as lead plaintiff in a federal putative class action against the broker-dealer relating to the same purchases. Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al. v. N.R. Hamm Quarry LLC, 3:12-cv-02127-JSW (N.D. Cal. 2013).
  
• Obtained dismissal in November 2008 of a complaint that sought to compel a public electronic games company to include in its proxy statement a shareholder proposal to adopt a by-law opting out of the federal proxy access framework. Bebchuk v. Electronic Arts, Incorporated, 1:08-cv-03716-AKH (S.D.N.Y.).
  
• Obtained district court dismissal in 2011, and Second Circuit affirmance in February 2013, of a complaint against an investment bank seeking treble damages under the Antiterrorism Act for engaging in financial transactions alleged to be tied to terrorism. See Rothstein, et al. v. UBS AG, 2013 WL 535770 (2d Cir. 2013).
• Obtained dismissal in January 2010 of claims against the directors of a financial services firm in a bondholder putative class action in the District of Delaware arising out of the company's debt exchange offers. Murchison v. GMAC LLC, et al., Civ. No. 09-169-SLR (D. Del. 2010).
  
• Represented the special committee of a public media company’s board of directors in a comprehensive internal investigation and resulting litigation in Delaware, Illinois, and Canada. The investigation and ensuing civil litigation resulted in ousting former senior management, the company obtaining nearly two hundred million dollars in recoveries, and criminal convictions of the company’s former senior management. See Hollinger International Inc. v. Black, et al., 844 A.2d 1022 (Del. Ch. 2004). 
  
• Co-tried in late 2007 the defense of eight-figure theft-of-corporate-opportunity and breach-of-fiduciary duty claims. Negotiated a settlement mid-trial resulting in client paying nothing.
  
• Lead trial counsel for the directors of a stock exchange in putative class action litigation challenging the exchange’s merger with another company as a breach of the directors’ fiduciary duties. The case settled during the late-2005 injunction hearing with no change in the merger consideration. In re New York Stock Exchange/Archipelago Merger Litig., Index No. 60146/05 (NY Sup. Ct., NY Cty.).
  
• Represented a financial institution in shareholder class action regarding its acquisition of a mortgage finance company. The case settled with no change in the merger consideration. Ark. Teacher Ret. Sys. v. Caiafa, 996 A.2d 321 (Del. 2010). Obtained dismissal of derivative claims relating to same acquisition and successfully defended the dismissal to California Court of Appeals. Villari v. Mozillo, et al., 2nd Civil No. B231432 (Cal. App.2d 2012).
  
• Obtained dismissal of breach of fiduciary duty and fraud claims against a hedge fund manager. Lazard Debt Recovery GP, LLC v. Weinstock, 864 A.2d 955 (Del. Ch. 2004).
  
• Obtained dismissal of securities fraud claims against an underwriter of mortgage-backed securities. Manufacturers Life Ins. Co. v. Donaldson Lufkin & Jenrette Securities Corp., 2000 Fed. Sec. L. Rep. (CCH) 90,987 (S.D.N.Y. May 31, 2000).
  
• Obtained dismissal of Section 10(b) claims against a member of the audit committee of a theatre production company in bankruptcy. In re Livent, Inc., Noteholders Sec. Litig., 174 F. Supp. 2d 144 (S.D.N.Y. 2001); In re Livent, Inc., Sec. Litig., 78 F. Supp. 2d 194 (S.D.N.Y. 1999).
  
• Obtained summary judgment dismissal for a public snack food and beverage manufacturer of a putative ERISA class action arising out of a change to the company's executive deferred compensation plan. Cram v. PepsiCo Exec. Income Deferral Comp. Prog., 08 Civ. 10627, Memorandum Decision and Order (S.D.N.Y. Sept. 27, 2012).
  
• Lead counsel for a private equity firm in a federal antitrust class action alleging that the firm and other leading private equity firms conspired to allocate the market for large leveraged buyout transactions. Klein et al v. Bain Capital Partners, LLC et al, 1:07-cv-12388-EFH (D. Mass.).
  
• Represented two underwriters in a putative class action lawsuit in the Southern District of New York alleging Section 11 violations in connection with the IPO registration statement of a medical device manufacturer. The case settled with the underwriters paying nothing. Levine v. AtriCure, Inc., No. 06 Civ. 14324 (S.D.N.Y.).
  
• Represented a maker and developer of online games in a putative securities fraud class action in the Southern District of New York arising out of the company’s initial public offering. The case settled with the company paying nothing. In re Giant Interactive Group, Inc. Securities Litigation, Master File No. 1:07-Cv-10588-PAE (S.D.N.Y.).
  
• Represented former President and Chairman and former Chief Operating Officer of ICG Communications, Inc. in a putative Rule 10b-5 class action, arising from the failure of a large telecommunications company. After prevailing on the vast bulk of a motion to dismiss the consolidated complaint, ultimately obtained favorable settlement. In re ICG Communications, Inc. Sec. Litig., No. 00-RB-1864 (D. Colo.).
  
• Represented former officer of a telecommunications company in securities class actions asserting claims under both the Securities Act of 1933 and the Securities Exchange Act of 1934. Obtained favorable settlement. In re Global Crossing Inc. Sec. Litig., Case No. MDL-1630 (S.D.N.Y.).
  
• Represented founder and former CEO of an internet-based e-mail services company in a putative class action asserting claims under the Securities Act of 1933. Obtained favorable settlement. In re Crayfish Co. Sec. Litig. Master File No. 00 Civ. 6766 (DAB) (S.D.N.Y.).

In addition to successfully handling numerous significant securities and other complex commercial cases in state courts, federal courts, and in arbitration, Jonathan’s white collar criminal and regulatory experience is similarly deep and varied. He has represented more than seventy individuals and entities in various federal and state criminal, and SEC and SRO enforcement matters. Jonathan also regularly advises companies, boards of directors, and special committees regarding regulatory and corporate governance matters, internal investigations, and M&A litigation matters.

Among his more significant public criminal matters are the following:

• Senior member of the defense trial team that obtained the 1997 acquittal of a manufacturer of thermal fax paper in a criminal price-fixing trial.
  
• Obtained probation, and then the early termination of probation, for a record company executive in the largest payola case the US Department of Justice has ever filed.
  
• Represented five employees of a bankrupt cable company in the SEC’s and the Southern District of New York US Attorney’s office investigation.
  
• As a prosecutor, proved after a two-week evidentiary hearing that the former CEO of a finance company, who had pleaded guilty to orchestrating a US$400 million ponzi scheme, violated his cooperation agreement, resulting in a twenty-year sentence.
  
• Tried and convicted a former Wall Street high yield bond research analyst for participating in a kickback scheme involving the firm’s bond trader.
  
• Obtained the conviction of the former chief of staff to a New Jersey governor for participating in a kickback scheme involving a municipal securities offering.

Professional Activities

Assistant US Attorney, US Attorney’s Office in the Southern District of New York, including two-and-a-half years in the Securities and Commodities Frauds Task Force
Deputy Chief, Criminal Division, US Attorney’s Office
Law Clerk,  Honorable David N. Edelstein, US District Court, Southern District of New York
Articles, “Loose Lips Sink Ships: The Importance of Director Confidentiality Programs,” Corporate Counsel Quarterly (September 2009); “Making Sense of New York’s Corporate Opportunity Doctrine,” New York State Bar Journal (June 2008); “The Truck Stops Here: Closing the Loopholes in Loosely Written Public Company Advancement and Indemnification Bylaws,” Corporate Counsel Quarterly (July 2006); “New York Securities Litigation Landscape Affected by Subtle Changes,” New York Law Journal (December 16, 2002); “Reviewing Standards for Judicial Relief in ADR,” New York Law Journal (January 16, 2002); “Recantation Defense in Federal Perjury Prosecutions,” New York Law Journal (March 23, 1998); “Criminal Liability of Private Citizens for Extortion Under Color of Official Right,” New York Law Journal (December 21, 1995)
Admitted to Practice,  US District Court, Southern and Eastern and Northern Districts of New York; US Court of Appeals, Eleventh, Ninth and Second Circuits; US Supreme Court