Looking back at another challenging year, my heart swells at all the good we’ve accomplished together—more proof that our people give their best when our clients and communities need us most. From momentous litigation victories and transformative transactions to concrete advances in the fight for social and racial justice, our hard work and collaborative spirit made a meaningful difference. The successes we’ve had bode well for 2022 and years to come.Read More
Banking and Financial Services
Colleges & Universities
Consumer and Retail Products
Energy, Natural Resources, and Utilities
Entertainment and Media
Industrials and Manufacturing
Banking and Financial Services
Secured a defense verdict following a five-day bench trial in the Western District of North Carolina. The court rejected claims by the plaintiff, a participant in the Lowe’s 401(k) plan, who contended that Aon had breached fiduciary duties of loyalty and prudence to the plan in violation of ERISA by causing Lowe’s to delegate fiduciary responsibility for selecting certain of the plan’s investment options to Aon and then using the delegated authority to select an Aon investment vehicle known as the Aon Growth Fund as a plan investment option. The district court held that Aon did not act as a fiduciary when selling its delegated fiduciary services and that Aon’s investment consultants did not render advice to Lowe’s as to whether to retain a delegated fiduciary or whom to retain for that role. The district court also found that Aon acted loyally and prudently in selecting and maintaining the proprietary Aon Growth Fund strategy for the plan.
Secured an important and precedent-setting First Circuit ruling on the scope of fiduciary status under ERISA. The suit, filed in the district of Massachusetts, challenged an “infrastructure fee” Fidelity negotiated with mutual fund providers for fees for the services Fidelity performs to make those companies’ funds available to investors, including 401(k) retirement plans. The plaintiffs filed a putative class action arguing that Fidelity was a fiduciary under ERISA when negotiating and collecting those fees, with potentially significant financial and legal implications. O’Melveny successfully persuaded the district court to dismiss the suit in its entirety and defended the decision before the First Circuit, which ruled in March 2021 to uphold our victory for Fidelity.
Secured dismissal of the underwriters in putative class actions filed in California Superior Court alleging misrepresentations and omissions in the IPO offering materials for e-commerce platform Pinduoduo. The court granted O’Melveny motion to quash for lack of personal jurisdiction, finding that plaintiffs failed to present any evidence that the specially appearing defendants were subject to general jurisdiction in California, nor did they show that the offering was targeted to California. Underwriters should be able to use this favorable decision in future cases in California state courts.
Counseled Mercatus, a digital investment data platform, in its sale to State Street. Mercatus—which manages more than US$1 trillion across a global client base of private market investors in real estate, infrastructure, private equity, and private debt—enables fund managers to integrate various software services onto a single platform. It allows organizations to run risk scenario testing for their portfolio companies and facilitates smoother reporting from funds.
Defended the bank against a putative class action asserting claims that the bank improperly charged multiple non-sufficient funds fees (NSF Fees) on individual payment transactions. The plaintiffs were checking-account customers who initiated electronic payment transfers from their personal checking accounts to pay for transactions involving third parties. The plaintiffs had insufficient funds in their respective accounts for these transfers and the bank subsequently rejected the payments for lack of funds. These payment requests were subsequently re-submitted against the plaintiffs’ checking accounts and the bank assessed an NSF Fee for each payment request, per the plaintiffs’ deposit agreements, a practice that the plaintiffs challenged. O’Melveny secured a significant motion-to-dismiss victory, resulting in the dismissal of all consumer-protection claims and leaving the plaintiffs’ breach-of-contact claim as the only surviving cause of action. O’Melveny subsequently negotiated a settlement with the plaintiffs to end the litigation.
Represented Wells Fargo Bank, N.A., Wells Fargo Securities, and Wells Fargo & Co. in several securities-related antitrust cases in the Middle District of Louisiana, including City of Baton Rouge/East Baton Rouge Parish v. Bank of America, N.A., Louisiana Asset Management Pool v. Bank of America, and City of New Orleans v. Bank of America. The actions were based on alleged price-fixing of bonds issued by government-sponsored enterprises. In March 2021, the court granted Wells Fargo’s motion to dismiss with prejudice the Baton Rouge complaint. In April 2021, the parties reached an agreement to settle all claims against all defendants, including Wells Fargo, and in June 2021, the court granted the parties’ stipulated orders dismissing all the cases.
Colleges & Universities
Hired by Cal State’s Board of Trustees to help negotiate a resolution to a concurrent Title IX investigation by the DOJ Civil Rights Division and US Attorney’s Office for Northern District. The investigation related to allegations of sexual misconduct committed by San Jose State’s former director of sports medicine and head athletic trainer. To resolve the matter, San Jose State agreed to pay US$1.6 million to individuals who were sexually harassed and to implement improved policies and procedures for responding to future complaints of sexual harassment. O’Melveny also represents CSU in concurrent civil litigation and related matters.
Achieved dismissal of a proposed class action seeking refunds for classes forced online by COVID-19. In tossing the suit, the District of Massachusetts ruled that students could not have reasonably expected that the school would guarantee in-person learning even during a global pandemic. The court noted that promotional materials touting the benefits of the Cambridge, Massachusetts campus, hands-on learning, networking opportunities, and other perks of attending the renowned Ivy League school did not amount to a binding contract to offer these services regardless of the circumstances.
Represented NSHE’s Board of Regents in an investigation into alleged misconduct between a Regent and a senior board staff member during public board meetings. Our investigation included interviewing all board members and other witnesses as well as a document review. We presented our findings to the Board along with recommendations for addressing the issues presented.
Conducted an internal investigation into allegations of a pattern of inappropriate behavior by Quentin Hillsman, former head coach of the women’s basketball program. The alleged misconduct ranged from unwanted physical contact and threats and other forms of bullying of players. The investigation included witness interviews with more than 55 students, coaches, and school administrators, as well as a targeted document review. At its conclusion, O’Melveny issued a report with recommendations for improving the processes and procedures for identifying, escalating, or addressing future concerns from student athletes. In a statement released to the media, Syracuse athletic director John Wildhack thanked the O’Melveny team “for the thoroughness of their work.” Hillsman resigned from his position.
Advised syndicates of underwriters on the issuance of US$277,425,000 of revenue bonds to fund a student housing project for the University of California, Davis and US$191,250,000 of revenue bonds to fund a separate student housing project for the University of California, Irvine. In addition to the underwriters and The Regents, each of the transactions utilized a public-private delivery process and involved a non-profit borrower, a private developer/manager, and a conduit issuer for the bonds. The UC Davis project will include approximately 613 new student housing units, comprised of over 1,250 student beds and 125 family apartments, and is intended primarily for students with families and single graduate students on the Davis campus. The UC Irvine project will provide approximately 295 new student housing units, consisting of over 1,000 student beds, and is intended primarily for undergraduate (non-freshman) students on the Irvine campus. O’Melveny advised on structuring and disclosure matters related to both transactions.
Consumer and Retail Products
Represented an ad hoc group of holders in the restructuring of Belk, the largest privately owned department store chain in the United States. The company emerged from bankruptcy less than 24 hours after filing, one of the fastest chapter 11 cases in US history. Under the Belk prepackaged chapter 11 plan, which received near unanimous support from first and second lien lenders and the Belk’s equity sponsor (Sycamore Partners), members of the ad hoc first lien group received new first lien debt and equity in the reorganized company and the right to participate in a new capital raise that will provide Belk with the liquidity to execute on its business plan and weather the effects of the COVID 19 pandemic. As a result of the consensus achieved among first and second lien lenders and Sycamore, unsecured claims were unpaired and received a 100% recovery under the plan.
Counseled women’s fashion boutique Francesca’s on its successful sale and asset liquidation through a fully consensual bankruptcy plan. In December 2020, Francesca’s and three affiliates sought chapter 11 protection, with over US$290 million in debt, citing pandemic-weakened sales. The buyers of Francesca’s remaining specialty retail business will keep at least 275 of its boutiques open and retain the management team and nearly all other employees. The extraordinarily successful restructuring was lauded by the judge overseeing the case: “This is a frankly very, very welcome result,” Judge Shannon said during a hearing held by video. “This is an extraordinarily challenging environment and to come up with competing, going concern sales and the opportunity for a robust auction, that would not have been anyone’s likely prediction at the outset of this process.”
Counseled the global lifestyle brand on a complex transaction involving the transfer of intellectual property rights from certain US entities to a wholly owned Swiss subsidiary, more closely aligning the company’s IP rights with its business operations. A multi-office, interdisciplinary team of O’Melveny corporate, IP, tax, and finance attorneys completed the transaction from start to finish in less than 30 days.
Scored two significant victories for longtime client Skechers in 2021. Initially, in a putative class action pending before Chief US District Judge Sara Darrow in the Central District of Illinois, O’Melveny obtained a dismissal with prejudice on the pleadings (and prior to any discovery taking place) of all consumer protection, negligence, and warranty claims relating to a claimed failure to disclose alleged defects in the battery systems for Skechers’ immensely popular light-up children’s shoes. In addition, Skechers retained O’Melveny shortly before trial to serve as lead trial counsel to defend the company against claims from a rival shoe company that Skechers’ “Commute Time” shoes infringed the name “Traveltime” trademark for a similar style of shoe. After a two-week bench trial, US District Judge Jed S. Rakoff of the Southern District of New York rejected the plaintiff’s claims and entered judgment for Skechers. Among other findings, the court ruled that there was no actual or likelihood of confusion in the marketplace between the use of the two names.
Represented ThreeSixty, the owner and licensor of the Sharper Image® trademarks, in a licensing dispute with Southern Telecom, one of its licensees. Southern Telecom initiated the litigation seeking over US$20 million in damages. On behalf of ThreeSixty, we launched an aggressive counter-strategy, including sizable offensive claims, immediate depositions of Southern Telecom’s chief executives, and an unexpected Rule 12 motion to dismiss. The federal court in SDNY granted ThreeSixty’s motion to dismiss, leaving Southern Telecom with only a single cause of action. The case settled on favorable terms shortly thereafter.
Energy, Natural Resources, and Utilities
Advised several bitcoin industry companies on energy deals including:
- Counseling Cormint Data Systems in the acquisition of a wind farm in Texas (and related agreements, including land use and interconnection/facilities agreements) for the purpose of using the farms’ electrical infrastructure to power bitcoin mining operations.
- Advising Bitmain in securing energy supply arrangements for bitcoin mining operations in Texas.
- Representing clean computing data center developer Lancium in structuring energy supply agreements, project development, and qualifying for participation in ERCOT ancillary service markets to power bitcoin mining operations.
Representing Brazos—the largest and oldest electric transmission cooperative in Texas—as debtor in its chapter 11 case. In March 2021, Brazos filed for bankruptcy protection as a result of losses arising from the historic winter snow storm in Texas in February 2021, and in an effort to protect its member cooperatives and consumers from liability for invoices totaling over US$2.1 billion. The outcome of this case will have far-reaching implications on the interplay between state laws and their governing authority with respect to electric cooperatives.
Advised Farallon and certain of its affiliates on their investment in senior secured notes, the proceeds of which were used to finance Mubadala Investment Co.’s US$1.65 billion acquisition of the Landulpho Alves Refinery, Brazil’s oldest and one of its largest oil refineries, from Petróleo Brasileiro S.A.–Petrobras. The transaction involved US, Canadian, English, Brazilian, and Cayman Island law matters to optimally structure the investment and acquisition.
Advised the financial institution on its tax equity financing of seven wind, solar, and energy storage projects being developed by NextEra Energy. The portfolio is spread across the US—with projects in California, Oregon, New Mexico, Colorado, Iowa, Wisconsin, and Maine—with a total FMV of over US$1.1 billion, including an expected investment by the financial institution of nearly US$600 million.
Represented SoCalGas and its parent, Sempra Energy, in resolving nearly six years of litigation by reaching a comprehensive settlement of claims filed by more than 36,000 individuals who claimed personal injury and/or property damage stemming from the 2015 Aliso Canyon gas leak.
Advised syndicates and other investors impacted by the turmoil in the Texas energy market in February 2021 following severe cold weather. O’Melveny helped structure a variety of workouts to avoid hedge providers and other parties from exercising default remedies, including foreclosure on the projects. These workouts have featured large capital contributions from the sponsors and/or tax equity investors, large operating capital loans, and in one case, the structured foreclosure on the sponsor’s interest by the back-leverage lender followed immediately by sale of the sponsor interests to the tax equity investor, which would then own 100% of the project.
Entertainment and Media
Prevailed when a California appellate court affirmed a permanent injunction that O’Melveny won in the trial court barring Netflix from poaching Fox employees with fixed-term employment contracts. The streaming giant and Fox have been in a legal battle since 2016 when Fox sued Netflix after two of its executives under contract were poached by Netflix. The decision ensures that the rights and choices of employees will remain protected.
Counseled CIT as sole lead arranger and administrative agent on up to US$95 million in financing toward the relaunch of noted Hollywood film production company Castle Rock Entertainment, headed by Academy Award-nominated director Rob Reiner. Castle Rock is behind some of the most indelible films in the American canon, including “When Harry Met Sally,” “A Few Good Men,” “In the Line of Fire,” “City Slickers,” “Miss Congeniality,” “The American President,” and “The Shawshank Redemption.” On the television side, Castle Rock produced “Seinfeld,” one of history’s most successful comedy series.
Counseled the South Korean conglomerate’s entertainment company, CJ ENM, on its acquisition of an 80% stake in Endeavor Content for an enterprise valuation of nearly US$850 million—the largest M&A deal for CJ ENM in its 26-year history. CJ ENM is a fast-rising company in South Korea’s expanding entertainment sector, producing TV shows and movies, including Bong Joon-ho’s 2019 Oscar winner “Parasite.”
Scored a decisive victory for DirecTV when the Central District of California granted O’Melveny’s motion to compel arbitration in a class action suit accusing DirecTV and the NFL of monopolizing Sunday out-of-market NFL football broadcasts. The decision further validates DirecTV’s arbitration agreements over objections that they should give way to class actions.
Won important victories for Grammy-nominated singer/songwriter Kesha Sebert in ongoing litigation filed by her former record producer, Lukasz Gottwald (known as Dr. Luke), alleging she breached an exclusive recording agreement and defamed him by accusing him of sexual abuse. In June 2021, the trial court granted Kesha’s motion to assert a counterclaim against Dr. Luke under New York’s new law prohibiting “strategic lawsuits against public participation” or “SLAPP.” Filing an anti-SLAPP motion allows Kesha to assert a counterclaim seeking to recover her fees, costs, compensatory damages for her emotional harm, and punitive damages resulting from the producer’s suit against her. And in July 2021, a New York appellate court certified an appeal to the state’s highest court—the Court of Appeals—raising certain legal questions, including whether a privilege applies to protect Kesha from liability for statements made in litigation documents.
Counseled Lionsgate on its sale of a controlling interest in Pantaya, a US Hispanic subscription video streaming service, to Hemisphere Media Group. Pantaya was launched in 2017, through a joint venture between Hemisphere and Lionsgate. Under the agreement, Hemisphere will maintain a strategic content relationship with Lionsgate and Starzplay, the international premium subscription service of Lionsgate’s Starz, that encompasses Spanish-language movie and television co-productions. In addition, Pantaya will continue licensing Spanish-language content from Lionsgate’s 17,000-title film and television library.
Secured dismissal of a US$2.85 billion defamation suit filed in Tennessee state court by SmileDirectClub (SDC). The teledentistry company claimed the network made false and misleading statements in a February 2020 broadcast of “NBC Nightly News With Lester Holt.” NBCUniversal contended the reports were fair and accurate and sought dismissal of the case pursuant to a motion to strike the complaint under the Tennessee Public Participation Act. The court granted NBCUniversal’s motion and dismissed the suit with prejudice in November 2021.
Defending Penguin Random House in a suit filed by the US Department of Justice to block its proposed US$2.2 billion acquisition of Simon & Schuster—the first major antitrust suit brought by the Biden Administration. Unable to demonstrate that the transaction will reduce competition in book sales or otherwise harm consumers, the DOJ maintains the combination will harm “authors of anticipated top-selling books” by diminishing their compensation. The companies contend there is no merit to the DOJ’s position, that the transaction will not lead to lower compensation to authors, and that it is procompetitive in all respects.
Obtained the latest in a series of critical, precedential victories for Sirius XM on one of the most important legal issues to face the music industry in recent history: whether Sirius XM and others who play music for the public must contract with and pay record companies for recordings created before 1972. O’Melveny secured its latest win in August 2021, when the Ninth Circuit Court of Appeals reversed the district court’s grant of partial summary judgment in favor of Flo & Eddie, which had alleged that California law grants pre-1972 recording owners “exclusive ownership” in pre-1972 recordings, including a right to demand a license and compensation whenever those recordings are performed publicly. The Ninth Circuit held that no such public performance right exists, under California common law or statutory law, and remanded for entry of judgment.
Represented Disney in a number of high-profile matters, including:
- Securing summary judgment in a suit over the Disney animated hit film “Zootopia,” ending more than four years of intellectual property litigation with a Hollywood screenwriter. In dismissing the suit, the court accepted—nearly verbatim—each of O’Melveny’s and Disney’s arguments and emphatically rejected the plaintiff’s claims.
- Resolving a dispute with actress Scarlett Johansson over the simultaneous distribution of the motion picture “Black Widow” in theaters and through the Premiere Access on Disney+ consumer service. The litigation was widely reported in the media, with The Wall Street Journal asserting that it “is indicative of growing tensions between the creative community… and major media conglomerates.” The Los Angeles Times reported that the litigation “is the latest and most high-profile example of a debate that’s been boiling under the surface in the entertainment industry.”
- Resolving a copyright infringement suit filed against Searchlight Pictures, Guillermo del Toro, and two other defendants over “The Shape of Water,” the winner of the Academy Award for Best Picture in 2018. Plaintiff David Zindel alleged that the film infringed “Let Me Hear You Whisper,” a play that his father authored.
- Resolving a suit brought by the screenwriters of the 1987 hit action film “Predator” over the validity of copyright termination notices. At issue was the application of the timing of the window to serve termination notices for grants that cover the right to publication of the underlying work.
- Representing Disney subsidiary Marvel in several copyright suits brought against former writers, illustrators, and their heirs to secure judicial declarations that the works at issue, involving characters such as Iron Man, Spider Man, and Daredevil, are works made for hire that are owned by Marvel. In covering the case, the New York Times noted that “rights issues have become a point of vulnerability in a film industry that is increasingly dependent on ‘branded entertainment.’”
Serving as the rap star’s lead counsel in over 120 lawsuits filed in Texas following the November 5 Astroworld concert in which 10 people died and hundreds of others have claimed injuries. Scott is one of a number of defendants, and the numerous cases are in the process of being coordinated for litigation under Texas law.
Achieved a closely watched victory in the first antitrust case involving cryptocurrency and blockchain when the US District Court for the Southern District of Florida dismissed with prejudice a complaint alleging that our clients—digital wallet and mining pool operator Bitcoin.com, cryptocurrency pioneer Roger Ver, and individual cryptocurrency software developers—conspired to “hijack” bitcoin by conspiring to adopt a technological upgrade, thereby causing a split or “fork” in the Bitcoin blockchain. The plaintiff alleged the value of its prong on the “fork” was diminished by virtue of the conspiracy. The plaintiff declined to appeal the dismissal. The published opinion—United American Corp. v. Bitmain, Inc., 530 F.Supp.3d 1241 (S.D. Fla. 2021)—establishes new law on the application of the Sherman Act to the cryptocurrency industry and other emerging markets, particularly with respect to collaborations by competitors and vertically related firms.
Defending Canaan, one of the world’s largest manufacturer of crypto mining machines, and its directors and officers in federal securities class actions pending in federal and state court in New York. The plaintiffs, investors in the IPO, relying upon a report issued by an anonymous short seller, accused Canaan of inflating the number of customers it purported to have, overstating its financial prospects, and failing to disclose certain transactions allegedly involving its executives or major shareholders. We successfully moved to transfer the federal case from the District of Oregon, where it was filed, to the Southern District of New York, which subsequently granted our motion to dismiss. Plaintiffs are currently seeking leave to file an amended complaint. In the state court case, we successfully moved to stay the case pending resolution of the federal action.
Defeated a plaintiff’s request for a temporary restraining order and preliminary injunction that sought to halt the use of the “Casper” name, including its use in a March 2021 launch of a cryptocurrency under the name “Casper” and mainnet launch of the Casper Network. CasperLabs is an investor-backed company that developed software, architecture, and codebase for the Casper Network, an open-source blockchain optimized for enterprise. Ethereum Foundation researcher Vlad Zamfir, who previously worked for CasperLabs as a researcher, filed a complaint against the company alleging a trademark violation. He claimed he had been using the name “Casper” for six years to refer to himself and his research. O’Melveny successfully argued that CasperLabs already exclusively possess the federally registered trademark for “CASPER” in connection with digital currency and that when Zamfir learned in 2019 that the company planned to call the token and the network as “Casper,” he did not raise any concerns. The case remains pending in federal court.
Counseled the cryptocurrency exchange on its acquisition of FairX, a CFTC-regulated derivatives exchange or Designated Contract Market. Through this acquisition, Coinbase plans to bring regulated crypto derivatives to market, initially through FairX’s existing partner ecosystem. Over time, Coinbase plans to leverage FairX’s infrastructure to offer crypto derivatives to all Coinbase customers in the US, making the derivatives market more approachable for millions of retail customers.
Advised Forte on two financing rounds in 2021, catapulting the blockchain gaming platform to unicorn status with a valuation north of US$1 billion. The San Francisco-based company provides the blockchain infrastructure for video games such as cryptocurrency wallets and a range of non-fungible tokens (NFTs).
Counseled the underwriters of UP Fintech, a Chinese online brokerage service, on a US$183 million follow-on offering. It was the first follow-on offering of shares since UP Fintech’s 2019 IPO, which O’Melveny also had advised on. UP Fintech (aka Tiger Brokers) offers customers comprehensive brokerage services, including trade order placement and execution, margin financing, IPO subscription, ESOP management, investor education, community discussion, and customer support.
Representing CHSRA, the state agency overseeing the development of high-speed intercity rail service in California, in negotiations over various master agreements and rail improvement matters to facilitate the development and operation of California’s high-speed rail service.
Serving as counsel in the restructuring of Long Beach City—one of most distressed municipalities in New York State with approximately US$500 million in legacy debts. The city council cited O’Melveny’s “deep experience in financial restructuring” in their unanimous decision to retain our team in April 2021.
Served as lead counsel for all Puerto Rico governmental agencies and instrumentalities in Puerto Rico’s US$120 billion restructuring—the largest and most complex municipal restructuring in US history. Puerto Rico’s bankruptcy followed unprecedented challenges endured by its people, including two devastating hurricanes, the resignation of their governor, multiple earthquakes, and the COVID-19 pandemic. Over the past five years, a firmwide, cross-practice team engaged in unprecedented efforts at fiscal and economic reforms impacting all areas of government. Among the highlights, O’Melveny:
- Negotiated and consummated consensual restructurings of over US$72 billion in debt.
- Successfully navigated a unique power-sharing arrangement between the Puerto Rico Government and a Congressionally established Oversight Board.
- Led the Government’s multi-year effort to rebuff the Oversight Board’s plan to cut pensions. These efforts resulted in maintaining existing pension benefits as part of the Commonwealth’s historic plan of debt adjustment.
- Represented the Government Development Bank for Puerto Rico (GDB) to restructure more than US$5 billion of debt under Title VI of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA)—a first-of-its-kind transaction.
- Represented the Puerto Rico Sales Tax Financing Corporation (COFINA) in connection with its plan of adjustment, which allowed COFINA to restructure over US$17 billion of debt and avoid costly and protracted litigation.
On January 18, 2022, US District Court Judge Laura Taylor Swain approved a comprehensive debt adjustment agreement for the Commonwealth of Puerto Rico, the Puerto Rico Public Buildings Authority, and the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, paving the way for Puerto Rico to put this difficult economic chapter behind it.
Secured a preliminary injunction in a trade secrets case filed by CareCentrix, a provider of benefit management services to health plans, including its prized offerings for coordinating post-acute care (PAC)––i.e., a patient’s transition from the hospital to the home. The suit alleges the former general manager of its PAC program sent confidential documents to a competitor, Signify Health, before leaving CareCentrix to join the competitor. In December 2021, the District of Delaware issued the injunction barring the former CareCentrix executive from working for his new employer until the expiration of his non compete agreements with CareCentrix.
Represented CareTrust in a US$400 million private offering of 3.875% senior notes and related redemption of US$300 million 5.25% senior notes. KeyBancCapital Markets, BMO Capital Markets, and Barclays served as the lead initial purchasers in the debt offering. O’Melveny has represented CareTrust in a series of capital markets and other financing transactions over the years in addition to handling SEC regulatory matters. CareTrust owns, acquires, develops, and leases skilled nursing, seniors housing, and other healthcare-related properties.
Secured dismissal of an appeal in a California state court action alleging that the 2019 merger between health and employee benefit plan administrators WageWorks and HealthEquity was the result of an “inseparable fraud” under Delaware law. The litigation stems from a restatement of WageWorks’ 2016–2017 financials that, in addition to the state court action, resulted in a securities class action against WageWorks and the directors in the Northern District of California. The federal securities class action settled and the Superior Court case was dismissed leading to the unsuccessful appeal.
Defended Humana in a two-year arbitration initiated by a major hospital system alleging underpayments associated with federal Medicare payment reductions, out-of-network emergency services, and referral obligations. The case was favorably settled after aggressive discovery and dispositive motions eviscerated the hospital system’s potential damages.
Representing Kaiser Permanente in six consolidated False Claims Act qui tam actions in the Northern District of California. The US Department of Justice (DOJ) partially intervened in those actions in October 2021. DOJ’s complaint relates to risk-adjusted payments based on diagnoses that DOJ alleges Kaiser Permanente added improperly via addenda to medical records.
Serving as lead counsel to a managed care organization and its subsidiary, the largest home care company in the US, on various legal concerns arising from the COVID-19 pandemic. The range of advice covers crisis management issues, litigation, employment, and regulatory matters.
Represented UnitedHealth in the following matters in 2021:
- Eight lawsuits filed by out-of-network provider groups affiliated with TeamHealth, one of the largest physician staffing and management companies in the US. TeamHealth staffs hospital emergency departments, often on an exclusive basis, so patients have no choice but to be treated by a TeamHealth physician when they go to the ER. The lawsuits involve RICO allegations and disputes over the proper out-of-network reimbursement for the services of hospital emergency department physicians or of hospital-based anesthesiologists. These cases are part of a larger trend of disputes between health insurers and health care providers over reimbursement rates and costs associated with the delivery of medical care.
- Scott v. UnitedHealth Group, a putative class action filed by plaintiff-participants challenging UnitedHealth’s process to recover overpayments to health care providers by alleging that the process violated ERISA’s fiduciary duty of loyalty and constituted a prohibited transaction, among other claims. O’Melveny convinced a federal judge to dismiss all claims against UnitedHealth by drawing comparisons between the plaintiff-participants’ allegations and the recent (and still barely tested) Supreme Court decision in Thole v. U.S. Bank N.A., 140 S. Ct. 1615 (2020). In its ruling, the court held that the plaintiff-participants in the ERISA-governed, employer-sponsored health plans lacked standing to challenge UnitedHealth’s process because they were not denied any benefits and have not been individually injured.
- Gozdenovich v. AARP and Nichols v. AARP, parallel putative class actions filed in New Jersey and California, respectively, by plaintiffs seeking to challenge UnitedHealth’s licensing arrangement with AARP in connection with United’s AARP-branded Medigap insurance. The complaints allege that UnitedHealth’s payment of a royalty to AARP for use of its intellectual property is actually an unlawful commission, paid for AARP’s unlicensed insurance solicitation activities. On summary judgment motions, district courts tossed both suits, holding that the claims—which essentially seek to discount his legally mandated Medigap insurance premiums—are barred by the filed-rate doctrine, which precludes challenges to rates approved by governing regulatory agencies in judicial proceedings. Plaintiffs initially filed appeals but later withdrew them. O’Melveny has helped UnitedHealth defeat numerous such challenges over the past few years, allowing UnitedHealth to maintain its 20-year relationship with AARP and continue offering high-quality, low-cost Medigap insurance to AARP members.
Industrials and Manufacturing
Provided due diligence and analysis of environmental, health, and safety issues in a number of deals, including:
- Apollo’s US $433 million purchase of a 67% stake in Reno De Medici, a European producer of recycled cardboard with plants in Italy, Spain, Germany, and France. The purchase is the inaugural investment of Apollo’s new Impact Fund, focused on investments with positive social and environmental impacts.
- Apollo’s acquisition of Kem One Group, which operates eight industrial sites across France and Spain and is a leading European producer of PVC, caustic soda, and chlorinated derivatives.
Advised South Korea-based DL Chemical, the world’s largest producer of polybutene, on its US$2.5 billion acquisition of Texas-based specialty chemical manufacturer Kraton. We also advised on US$1.85 billion of financing commitments for the acquisition, including a US$950 million term loan, US$300 million ABL revolver, and US$500 million of unsecured notes. The deal, a rare Korean acquisition of a US public company, enables DL Chemical’s foray into the US and European SBC markets, where Kraton holds the largest market share. SBC, short for styrene butadiene copolymer, is a plastic utilized as a raw material for hygiene adhesives, medical goods, automotive interior parts, and 5G cables.
Successfully concluded a long-running, multi-jurisdictional dispute that spanned two bankruptcies, litigation in several courts, and both judicial and non-judicial foreclosures. For more than four years, O’Melveny represented Hyundai in its pursuit of remedies following a debtor’s default on notes held by Hyundai, which culminated in 2021 with a sale under Section 363 of the US Bankruptcy Code of certain of debtor’s collateral. The sale proceeds were used to satisfy a substantial portion of the outstanding debt owed to Hyundai, and the parties concurrently agreed to drop all claims against one another.
Represented Mitsui & Co. (U.S.A.) in its sale of Mitsui Foods to Atalanta Corp. The deal marks the seventh O’Melveny has handled for Mitsui in the food sector, following its investments in Calysta Energy, Hampton Creek, Prime Deli, Salmones Multiexport SA, and Tastemade, and its joint venture with SLC Agricola for the production of soybeans and other crops in Latin America.
Conducted an investigation into claims that Toshiba’s top management colluded with senior Japanese governmental officials to block foreign investors from gaining board influence, in what one top shareholder reportedly called the world’s worst corporate scandal in a decade. Unlike a typical investigation initiated by a company’s management or board, O’Melveny was appointed by Toshiba shareholders. Our findings—issued in a 147-page report—led to the removal of several executives and board members. Shareholders subsequently ousted the company’s board chairman as well. The report is viewed as a breakthrough towards progress for better corporate governance and oversight in Japan.
Erased judgment exposing client to US$10 million in insurance liability for the costs of defending a host of lawsuits alleging that a hospital engaged in fraudulent billing practices. After a series of trial court rulings finding a duty to defend and ordering Allied World to immediately begin paying the hospital’s defense costs, O’Melveny’s team orchestrated a strategy to obtain immediate appellate review of the rulings, thereby protecting our client from being immediately subject to enforcement of the payment orders. And on appeal, O’Melveny persuaded the Kentucky Court of Appeals that a policy exclusion for previously reported losses eliminated any possibility of coverage for the hospital’s costs, thereby requiring reversal of the initial ruling finding a duty to defend.
Prevailed for Chubb on a number of fronts. Highlights include:
- Securing a Delaware Supreme Court ruling that Chubb is not obligated to defend Rite Aid Corp. against lawsuits that accuse Rite Aid of contributing to an opioid epidemic. A 2020 lower-court ruling found that certain Chubb subsidiaries had to defend Rite Aid against lawsuits brought by two Ohio counties. But since the counties are not seeking recovery for any residents’ personal injuries, but rather to offset the burden of higher demands for medical treatment and the impacts on their criminal justice systems, the Delaware High Court reasoned that “policies covering personal injury cases did not require Chubb to defend Rite Aid against lawsuits seeking only economic damages.”
- Achieving victory when the Ninth Circuit affirmed a lower court’s ruling that three insurers, including a Chubb affiliate, do not have a duty to defend or indemnify builders of the San Francisco 49ers’s football stadium in a suit alleging that the team’s home venue, Levi Stadium in Santa Clara, California, violated the Americans with Disabilities Act and the state’s Unruh Civil Rights Act because it contained physical barriers that hindered access for disabled people. In denying coverage, the appellate court agreed that the underlying claims in the suit did not meet the insurance policies’ threshold requirement that claims for bodily injury or property damage stem from an accidental “occurrence,” because the stadium’s construction was an intentional act.
- Persuading the Second Circuit to reverse a multimillion-dollar jury verdict against a Chubb affiliate in a reinsurance dispute with Utica Mutual Insurance Co.
- Convincing the Second Circuit that a Chubb affiliate had no duty to defend Dish Network in copy infringement suits against the television provider’s “Hopper” digital video recording (DVR) service, “finding that the policyholder fits within a media exclusion’s definition of broadcaster” and that Dish has to pay for its defense costs.
- Achieving another victory in the Second Circuit, which upheld a district court ruling that Global Reinsurance Corporation of America must pay a Chubb affiliate’s defense costs in asbestos litigation in excess of the liability limits of reinsurance certificates. The ruling found that the “Bellefonte rule,” which caps reinsurer’s liability, is no longer law in the circuit.
- Defeating a suit filed on behalf of the NBA’s Los Angeles Lakers seeking coverage for business losses incurred at the Crypto.com Arena (formerly Staples Center) because of the pandemic.
- Prevailing in a confidential reinsurance arbitration proceeding against Allianz and National Surety in which we secured a full recovery under two reinsurance contracts.
Successfully represented the Italian insurer in its application to the English High Court to enforce the terms of a €10 million settlement of a dispute with an Italian businessman and his Maltese company. The court made its ruling on the basis of witness evidence only and without a full trial.
Defending Amylin, an AstraZeneca subsidiary, against claims by more than 1,000 plaintiffs in a federal Multi-District Litigation and California Judicial Council Coordinated Proceeding. The claims allege major drugmakers failed to warn that certain prescription brand-name drugs used to treat type 2 diabetes, including Amylin’s Byetta, cause, or increase the risk of, pancreatic cancer. O’Melveny and co-defendants moved for summary judgment on both federal preemption and general causation grounds. The motions were heard jointly by the MDL and California judges and in March and April 2021, Amylin and co-defendants prevailed. The preemption ruling in these cases is one of the first to address certain aspects of the Supreme Court’s Albrecht v. Merck decision and will have far-reaching consequences for pharmaceutical product liability litigation. The win earned a “shout out” March 12 from AmLaw Litigation Daily.
Advised Edwards Lifesciences on the spinoff of its CardioCare business unit and joint venture with Abundant Venture Partners, a venture capital fund focusing on investments in the health care and life sciences industries. CardioCare manages patients with structural heart disease by using artificial intelligence to keep patients on track in their care journey, reduce diagnostic variability, and streamline clinical workflows. The joint venture entity, egnite, launched with the goal of leveraging advanced technologies and analytics to improve health outcomes for structural heart-disease patients.
Obtained victory for Endo in a long-running antitrust litigation against rival drug company Fresenius Kabi, when the District of New Jersey granted the firm’s motion for summary judgment in full for a second time following a partial remand from the Third Circuit. Fresenius elected not to appeal again, thus the ruling extinguishes each of its 11 causes of action, for which it was seeking hundreds of millions of dollars in treble damages. Fresenius’s action alleged that Endo subsidiary Par had monopolized the market for Vasopressin Injection—a life-saving injectable drug used to boost blood pressure in emergency settings—by entering into exclusive agreements with all suppliers of the active pharmaceutical ingredient (API) needed to manufacture the drug.
Advised iA, a portfolio company of Allomer Capital, in the sale of a majority interest in iA to Walgreens Boots Alliance for US$450 million. Allomer acquired a majority interest in iA in 2019, also advised by O’Melveny. Allomer remains a minority investor in iA, which automates the prescription fulfillment process. In addition to Walgreens, iA’s customers include the Veterans Administration, the US Air Force, and numerous other retail and mail order pharmacy providers.
Continuing to serve as lead litigation and national coordinating counsel for J&J and its Janssen subsidiary in thousands of suits accusing pharmaceutical companies of causing an opioid epidemic. With cases filed from coast to coast alleging novel theories of liability and seeking billions in damages, the opioids litigation is regarded as “the most complex constellation of cases that have ever been filed,” according to the judge overseeing the ongoing federal multi-district litigation in Ohio. We scored the first trial win for any pharmaceutical manufacturer in the opioid litigation when an Orange County Superior Court Judge issued a ruling finding J&J and other manufacturers not liable in a US$50 billion suit brought by some of California’s largest cities and counties. A week later, we persuaded the Oklahoma Supreme Court to overturn a US$465 million verdict from 2019, with the state high court concluding that the award rested on an improper expansion of state public nuisance law. And we simultaneously led the negotiation of a landmark, US$5 billion nationwide settlement that will resolve the vast majority of remaining opioids litigation against J&J. A few states have opted not to join the global settlement, and we are preparing for additional trials scheduled in 2022 in West Virginia, New Hampshire, and Washington. Our work in these matters lies directly at the intersection of law and public policy.
Advised Pharmaron, a contract research organization offering R&D services, in its acquisition of Aesica Pharmaceuticals. The deal expands Pharmaron’s chemistry and manufacturing services. O’Melveny also counseled on a Regulation S private offering of US$600 million of zero coupon convertible bonds due in 2026. Over a decade long relationship, O’Melveny has counseled Pharmaron on various corporate matters, including its HK IPO and a number of M&A deals.
Once again, Asia capital markets team led a slew of significant pharma and biotech listings in Hong Kong, including:
- Brii Biosciences. Counseled the biotech company on its US$318 million HK IPO. Brii will use the proceeds to support the development of programs for hepatitis B virus (HBV), HIV, drug-resistant infections, and other illnesses.
- Jacobio Pharmaceuticals Group. Advised Jacobio on its US$174 million HK IPO. Jacobio is a clinical-stage pharmaceutical company focusing on developing innovative oncology and other therapies.
- Keymed Biosciences. Counseled the clinical-stage biotech company on its US$398 million HK IPO. Founded in 2016, Keymed develops innovative biological therapies to treat cancer and autoimmune diseases. It currently has a pipeline of eight drug candidates, including five at the clinical stage. The Keymed IPO was one of 2021’s most subscribed.
- Yonghe Medical. Counseled China’s largest chain of hair transplant clinics on its US$192 million HK IPO. The company plans to use its IPO proceeds to upgrade and expand clinics and invest in technologies.
In what is the largest licensing transaction ever by a Chinese pharmaceutical company, counseled RemeGen on its exclusive worldwide license agreement with Seagen to develop and commercialize RemeGen’s disitamab vedotin, a novel HER2-targeted antibody drug conjugate (ADC). The HER2 protein is overexpressed in breast and other cancers. Prior to this deal, Seagen lacked an ADC that targeted HER2, a gap in its pipeline now filled through this agreement. The deal is valued at about US$2.6 billion. O’Melveny previously advised RemeGen on its US$588 million Hong Kong IPO—the largest biotech primary listing and IPO of 2020.
Real Estate and Homebuilding
Counseled Anchor Loans, a provider of financing to residential real estate investors and entrepreneurs, on its sale to investment management firm Pretium. Anchor has originated more than US$10 billion in debt, specializing in small loans to professional home flippers as well as rental landlords.
Secured victory for BrightSpire Capital (f/k/a Colony Credit Real Estate) and certain of its officers and directors when Central District Chief Judge Philip S. Gutierrez granted BrightSpire’s motion to dismiss a putative class action for securities fraud. The plaintiffs claimed that they were defrauded into acquiring BrightSpire stock because BrightSpire overestimated the value of a hotel property securing a small portion of its loans, allegedly rendering nearly all of BrightSpire’s public disclosures false or misleading. On the contrary, as BrightSpire gradually determined that the loans on the hotel might not be repaid, it followed Generally Accepted Accounting Principles and its own accounting policies to reduce the carrying value of those loans, taking impairments, and timely disclosing those changes to investors.
Counseled China VAST Industrial Urban Development Co. and its major shareholder, Profit East, in the sale of approximately US$191 million of shares (accounting for 29.9% of China VAST’s holdings) to China Jinmao Holdings Group. China VAST also issued 6% convertible bonds of US$123 million with a 36 month maturity date to China Jinmao. Together the two transactions are valued at US$314 million. China VAST is principally engaged in the planning, development and operation of large-scale industrial towns, property development, and property leasing in the PRC. Over the years, O’Melveny has advised China VAST on various financings and investments.
Thwarted a billion-dollar qui tam case against homebuilder Lennar after finding a California real estate developer’s name on a change-of-counsel form. The real estate developer was previously a creditor who agreed to waive all claims related to a bankrupt Lennar entity, LandSource Communities Development, after Lennar contributed nearly US$140 million to the bankrupt estate. Lennar suspected the developer was behind the qui tam case filed by an entity called Citizens Against Corporate Crime but had no proof ahead of discovery. But then an O’Melveny attorney noticed a lawyer substitution form filed by CACC had three signatures, including the developer’s. With that, a Delaware court blocked the lawsuit based on the release of bankruptcy claims, saving years of discovery and cutting short the litigation. The Third Circuit upheld the ruling and the US Supreme denied certiorari June 2021.
Counseled NLMC in the sale of its two-building, 146,510-square-foot medical office building complex located in Newport Beach, California. The sale represented the first time in over 30 years that the property has changed ownership. NLMC is positioned within one of the most desirable medical markets in the US, bordering the campus of the award winning 434-bed Hoag Hospital Newport Beach and with nine other hospitals totaling 1,374 beds within a 10-mile radius. The property includes 651 parking stalls through a surface level plaza and raised deck and a three-level subterranean parking structure, totaling a parking ratio of 4.44 per 1,000 rentable square feet, a rare amenity in this high-density submarket.
Advised The Irvine Co. on a US$130 million commercial mortgage-backed securities (CMBS) loan originated by Wells Fargo Bank. The loan is secured by two Silicon Valley office buildings that are part of a much larger office campus owned by the client. The loan represents the first CMBS loan obtained by The Irvine Co. in several years.
Represented a Tishman Speyer subsidiary in its purchase of the Mazza Gallerie shopping center in Washington, DC. The shopping center saw significant decline in 2020 due in large part to the effects of the COVID-19 pandemic on brick-and-mortar retail. Tishman Speyer plans to redevelop the shopping center as a mixed-used development, including retail and residential units. In connection with its purchase, Tishman Speyer also obtained a loan from EagleBank, a regional lending institution.
Advised the professional National Women’s Soccer League team in Los Angeles on novel multi-year sponsorship deals, including agreements with Heineken, DoorDash, Birdies, Sprouts, Cedars Sinai, and Jane Walker by Johnnie Walker, resulting in the most annual sponsorship revenue of any US professional women’s sports organization in history, with 10% of every sponsorship dollar the team receives allocated to local initiatives that support the community.
Represented the 2021 World Champion Atlanta Braves and SWB Investors in the sale of four Major League Baseball Professional Development League Clubs to Endeavor. The Braves deal involved the sale of three of its minor league affiliates—the Triple-A Gwinnett Stripers, the Double-A Mississippi Braves, and the High A Rome Braves. We advised SWB Investors on its sale of New York Yankees’ Triple-A affiliate, the Scranton/Wilkes-Barre RailRiders.
Advised the South Korean conglomerate’s food and beverage company, CJ CheilJedang, on its multi-year global marketing partnership with the National Basketball Association’s Los Angeles Lakers, including the official jersey patch rights for Bibigo®, the top brand of Korean cuisine in the US and globally, beginning with the 2021-22 NBA season
Advised the NYSE-listed sports data and technology company on various matters in 2021, including:
- Its US$200 million purchase of Second Spectrum, a video analytics platform that works with the NBA, Premier League, and Major League Soccer and uses cameras installed in an arena or stadium to track the movement of the ball and players.
- Its deal to become the exclusive official data provider for the National Football League, distributing real-time play-by-play stats and providing sports betting data feeds to media companies and sports betting firms domestically and internationally.
- Its strategic partnership with the Canadian Football League (CFL), the world’s second largest football league, to provide a range of technology and services that will help the CFL accelerate its growth plans and engage new audiences globally.
Advised on various stadium projects in different leagues and locations, including:
- Representing New York’s chief economic development agency, Empire State Development Corp., in negotiations to build a new US$1.4 billion stadium for the National Football League’s Buffalo Bills.
- Counseling the City of Miami in its negotiations with new Major League Soccer franchise Inter Miami CF to build a 25,000-seat soccer stadium and ancillary development.
- Advising the State of Hawaii on the redevelopment of Aloha Stadium, including a new stadium and upwards of four million square feet of mixed-use ancillary development adjacent to the stadium, featuring hotel, office, and commercial spaces.
- Representing KC NWSL, Kansas City’s professional women’s soccer team, in negotiations to bring a new US$15-million training facility to Riverside, Missouri. O’Melveny is also representing KC NWSL on its development of a new US$70 million, 11,000-seater stadium, which will be the first stadium developed primarily for a US women’s pro soccer team.
- Representing the Tampa Sports Authority in negotiations between Hillsborough County and Major League Baseball’s Tampa Bay Rays for a potential new ballpark along with up to four million square feet in mixed-use ancillary development, including commercial, office, multi-family residential, hospitality, and medical spaces.
- Counseling the NFL’s Washington Commanders on its efforts to build a new stadium and mixed-use complex. The proposed mixed-use complex would include restaurants, retail, hotels, a conference center and, eventually, residential units.
Counseled the investor in the joint purchase, alongside co-investor Mark Walter, of a 27% ownership stake in the National Basketball Association’s Los Angeles Lakers. Boehly, who will join the Lakers’ board, is a former Guggenheim executive who runs the investment firm Eldridge and owns stakes in Major League Baseball’s Los Angeles Dodgers, Women’s NBA franchise Los Angeles Sparks, electronic sports organization Cloud9 Esports, and sports wagering company DraftKings.
Counseled China’s Alibaba Group and its subsidiary, Lazada, a leading Southeast Asia e-commerce platform business, on their participation in the late-stage funding round of Singapore logistics startup Ninja Van. The transaction, which involved an aggregate of US$578-million from multiple investors (including existing investors), represents an important strategic investment for Alibaba and Lazada.
Advised the two venture capital firms as major shareholders in ESS in its agreement to become a publicly listed company through a merger with ACON S2 Acquisition Corp., a special-purpose acquisition company. The SPAC values the combined company at US$1.1 billion. ESS is a manufacturer of long-duration iron flow batteries for commercial and utility-scale energy storage applications.
Advised DigiLens, an innovator in head-worn holographic display and waveguide technology, on its Series D funding valuing the company north of US$500 million. Samsung Electronics led the funding round. With this additional funding, DigiLens takes a significant step toward being the core technology ingredient inside extended reality (XR) glasses and other XR hardware.
Representing Elasticsearch, a popular and powerful search and analytics engine, as plaintiff in a case asserting copyright claims against German company Floragunn GmbH. Based in Berlin, Floragunn makes a product called Search Guard, which is an Elasticsearch plugin that offers encryption, authentication, and authorization. Elasticsearch claims that Search Guard infringes Elasticsearch copyrights in its X-Pack and Kibana software products.
Google has turned to O’Melveny to handle a number of high-profile matters, including:
- Securing a sweeping jury verdict for Google after a week-long trial in the Western District of Texas. Texas-based Profectus Technology alleged Google’s Nest Hub and Nest Hub Max—which control smart-home functions, display pictures, and play music, among other things—infringe the Profectus patent for a mountable picture frame for displaying digital images. Google brought us into the case more than a year after the case began, when it became clear that the case would likely go to trial. Our team began to prepare for trial nearly immediately, working around the clock to get up to speed on the case. After a week-long trial, the jury deliberated barely more than an hour before finding that Google did not infringe the Profectus patent or induce others to infringe, while also finding the patent claims at issue invalid.
- Defending Google in multiple suits consolidated in the Northern District of California alleging the tech pioneer has monopolized the distribution of Android apps. The suits pit Google against a game developer, putative classes of consumers and app developers, and 36 state attorneys general. Plaintiffs accuse Google of illegally monopolizing the alleged market for the distribution of android apps by restricting the distribution of third-party app stores, deterring Android users from “sideloading” apps downloaded from the internet, and “tying” app distribution to developers’ use of Google Pay Billing. The complaints claim that Google makes it difficult to buy apps outside the Google Play Store, blocks competing app stores from its marketplace, and prevents those stores from advertising on Google properties. Google has lodged breach of contract and related counterclaims against Epic Games. A trial is expected to begin in 2022.
Defended the video equipment manufacturer against a proposed class action under the Illinois Biometric Information Privacy Act (BIPA) in the Northern District of Illinois. The suit alleged that the company’s cameras scanned the faces of shoppers at a retail store, and that the company should be held liable under BIPA even though it did not own or operate the devices in question. Our motion to dismiss was granted with prejudice, with the court holding that the plaintiff had failed to state a claim as to the defendant. Importantly, despite a dearth of caselaw directly on point, we successfully argued that the defendant was not liable under BIPA as a third-party purveyor of technology since it did not own or operate the disputed cameras.
Advised US-based HID on its acquisition of Technology Solutions (UK) Limited (TSL), a UK technology company that makes radio frequency identification (RFID) handheld readers to identify and track products and assets. The acquisition, one of several O’Melveny has advised on for HID in recent years, broadens its RFID components business.
Counseled semiconductor startup Inpria in multiple financing rounds over the years, culminating in 2021 with its US$514 million sale to JSR. Inpria develops metal oxide-based material that allows semiconductor companies to make smaller chips and features using the advanced manufacturing process of extreme ultraviolet lithography.
Counseled Palladium, one of the US’s oldest minority-owned private equity firms, on its investment in Envoy Global, an immigration services provider. Envoy seeks to streamline the immigration process for employers and foreign nationals. It is one of the only workforce management platforms that combines proprietary technology and expert legal representation to make it possible for companies to hire and manage an international workforce.
Won a precedential Federal Circuit ruling that helps draw an important boundary around the explosion of patent cases in the Western District of Texas. The plaintiff, just weeks before filing its complaints against Samsung and LG, assigned patent rights to a Texas entity in a brazen attempt to keep the cases in the Western District. Although the Western District signed off on this shady tactic and rejected our motions to transfer, the Federal Circuit was not fooled. In a unanimous decision, the appellate court found that the Texas presence of that plaintiff “is plainly recent, ephemeral, and artificial” and ordered that the cases be transferred to the Northern District of California.
Advised the Australian-listed recruitment company in various corporate matters, including:
- The sale of its controlling interest in Chinese recruitment website Zhaopin to a buyer consortium led by Primavera Capital in a transaction that valued the company at US$1.7 billion.
- Investments in Korean job search platform JobKorea, US augmented corporate training developer Talespin Labs, and corporate education platform Go1.
Defended TeamViewer US in a putative consumer class action lawsuit alleging violations of the California Consumer Privacy Act (CCPA) and Unfair Competition Law (UCL) relating to TeamViewer’s practice of automatically renewing customer subscriptions. Plaintiff alleged that TeamViewer violated the CCPA by providing his credit card information to its processor without his explicit consent when it renewed his subscription and also failed to comply with the terms of California laws regulating automatic renewal policies. O’Melveny moved to dismiss on the grounds that the plaintiff failed to allege any data breach as defined under the CCPA, a novel issue which had only briefly been addressed by one earlier court decision, and because judicially noticeable evidence showed that TeamViewer fully complied with all applicable regulations. The district court adopted those arguments in full and granted the initial motion to dismiss with prejudice. An appeal is currently pending before the Ninth Circuit.
Scored a victory when the Ninth Circuit affirmed a district court ruling refusing to find Israeli spyware company NSO Group immune from litigation over an alleged hack of Meta’s WhatsApp. A three-judge appellate panel shot down NSO’s argument that common law foreign sovereign immunity could be asserted by a private entity. The court subsequently denied NSO’s request for an en banc rehearing. According to public statements from WhatsApp, NSO’s spyware technology targeted at least 100 members of “civil society,” including human rights defenders, in an attack uncovered in May 2019. Attackers were able to install the spyware merely by calling victims’ WhatsApp accounts, even if users didn’t answer, WhatsApp has said.
Advised the flag carrier airline of Greenland on its debut US private placement, which raised approximately US$185 million (about DKK 1.1 billion). According to Citibank, who acted as placement agent, it is the only known unsecured transaction to an airline in the history of the US private placement market.
Secured summary judgment in a class action alleging pilots should have been paid regular wages while out on short-term military leave. In making their claims, the pilots argued that military leave is equivalent to jury duty or sick leave. But the Eastern District of Washington rejected that argument, holding that military leave was an entirely separate category and shouldn’t be held to the same standards. The case is one of three parallel actions the firm is handling, reflecting the rise in USERRA lawsuits over the past few years.
Represented American in a number of high-stakes matters in 2021. Highlights include:
- Securing a Second Circuit appellate victory for American in a dispute over certain pilots’ entitlement to seniority benefits after the airline’s 2011 bankruptcy. The appellate court affirmed dismissals by two New York federal courts—the district court and the bankruptcy court—in actions that claimed American and the Allied Pilots Association conspired to cost a group of former Trans World Airlines pilots their seniority perks during an arbitration stemming from American’s bankruptcy.
- Achieving a First Circuit victory for American in a dispute involving a grievance filed by a former chairman of a pilots’ union. The former union chairman alleged that, following a leave of absence to serve as a union leader, he was not allowed to complete required pilot training leader in retaliation for his hostile working relationship with the then-president of US Airways (which later merged with American). The appellate court affirmed the district court’s dismissal of the former chairman’s claim against American for breach of the collective bargaining agreement/wrongful termination.
- Defending American in an ERISA-related complaint filed in the Northern District of Texas. The action challenged the inclusion of deposits with the American Airlines Federal Credit Union as an investment option in American’s 401(k) plan. We secured summary judgment on behalf of American, a ruling subsequently affirmed by the Fifth Circuit.
- Counseling American and its financing team, led by Citigroup Global Markets, on the issuance of approximately US$150 million of special facility revenue bonds issued for the benefit of American by the New York Transportation Development Corp. The revenue bond proceeds are being used to finance the renovation and expansion of Terminal 8 at John F. Kennedy International Airport and to refinance certain project bonds issued to refinance the original construction of the terminal.
- Winning an arbitration that preserves American’s ability to have managers operate new technology that essentially runs the airline’s entire below-the-wing ground operation. The arbitration involved a number of consolidated grievances alleging that the company had violated the Fleet Service Joint Collective Bargaining Agreement by placing managers and not fleet service crew chiefs in certain newly created jobs. The arbitration was important to American because of the significant potential operational impact.