FacultyFaculty/Author Profile

David A. Kotler

Dechert LLP

Princeton, NJ, USA


David A. Kotler advises and represents clients in a wide range of complex corporate and commercial litigation matters involving the financial markets, with a particular focus on investment advisers, hedge funds, and other financial services firms both within and outside the mutual fund industry. Mr. Kotler also frequently counsels boards and senior management on a variety of litigation-related matters.

Described as “very smart” and "well regarded among the Bar," Mr. Kotler was recommended by Chambers USA, a referral guide to leading lawyers in the United States based on the opinions of their peers and clients for his commercial litigation practice in 2013 and 2014. The Legal 500 US 2014 noted his securities and shareholder litigation practice. He has also been recognized as a promising professional in the New Jersey legal community by the New Jersey Law Journal's "40 under 40" in 2008.

Mr. Kotler is also co-author of Mutual Fund Litigation and Insurance Guide (LexisNexis, 2013), a comprehensive book that examines the legal risks faced by the mutual fund industry, the legal bases for potential liability of mutual fund industry participants, the key precedents from important regulatory enforcement actions and civil litigation against the industry, and the critical insurance products and approaches that are available to mitigate these risks.

Significant Financial Services and Mutual Fund-Related Representations
- Representing Harbor International Fund in Section 36(b) “manager of managers” litigation.

- Representing Oppenheimer Funds and Oppenheimer Acquisition Corp. in more than a dozen class action and individual lawsuits brought in several courts arising out the Madoff Ponzi scheme.

- Representing the investment adviser, distributor and key officers of the Rydex Series Funds in a Section 11 class action brought by investors in an inverse mutual fund.

- Representing Oppenheimer Funds Distributors, Inc. and several related entities/persons in a derivative action brought on behalf of two mutual funds that challenge the 12b-1 payments made to broker-dealers.

- Representing a family of mutual funds for one of the world?s largest money managers in a multi-billion dollar Commodity Exchange Act class action arising out of the alleged manipulation of the U.S. Treasury futures market.

- Representing two mutual funds of one of the largest investment management companies in the U.S. in a precedent-setting Sarbanes-Oxley whistle-blowing matter before an administrative law judge.

- Representing a long-short hedge fund in a state law RICO action alleging an improper short-selling scheme.

Significant M&A Litigation Representations
- Representing Inhibitex, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company?s acquisition by Bristol-Myers Squibb for $2.5 billion.

- Representing One Equity Partners in expedited shareholder litigation following the announcement of the acquisition of ArthroCare Corp. by Smith & Nephew for $1.7 billion.

- Representing Buckeye Technologies, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company?s acquisition by Georgia Pacific for $1.4 billion.

- Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of M*Modal for $1.1 billion.

- Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of APAC Customer Services for $470 million.

- Representing Tufco Corp. and its board of directors in expedited shareholder litigation following the announcement of the company?s acquisition by Griffin Holdings.

- Heilman v. Baldino, Case No. MER-C-12808 (N.J. Ch. Div.). Represented the target company and its board of directors in shareholder litigation brought following a merger.

Significant Securities and Complex Commercial Litigation Representations
- Representing venture capital entrepreneur and investors in a series of federal and state court lawsuits arising out of private equity investment in a technology company.

- Representing international creditors of a Lehman affiliate in a $100 million bankruptcy adversary proceeding.

- Representing the investment arm of a foreign government in bankruptcy litigation in connection with its purchase of real estate assets for $1.5 billion.

- Representing one of New York?s largest commercial real estate developers in a series of complex litigation matters arising out of several transactions for the purchase of skilled nursing facilities.

- Representing Boehringer Ingelheim Pharmaceuticals in an arbitration arising out of a billion-dollar co- promotion agreement.

- Representing Baxter Healthcare Corp. in several arbitration proceedings arising out of joint ventures for the commercialization of biological products.

- The successful resolution of a multi-million dollar lawsuit brought against a publicly traded company arising out of its alleged breach of an asset purchase agreement.

- Representing the former controller of AIG in various direct and derivative securities fraud actions.

- Steiner v. MedQuist, Inc., Civil Action No. 04-5487 (D.N.J.). Represented a former CEO in Section 10(b)/Rule 10b-5 class action.

- In re IPO Securities Litigation, 21 MC 92 (S.D.N.Y.). Represented four issuers in Sec. 11 and Sec.
10(b)/Rule 10b-5 consolidated class action arising out of an IPO allocation process.

- Ball, et al. v. Golf Host Resorts, Inc., Case No. 99-7532-CI-15 (Fla. Cty. Ct.). Represented the issuer of an alleged investment contract.

- Ball v. Starwood Capital Group, L.L.C., et al., Case No. 01-8582-CI-15 (Fla. Cty. Ct.). Represented corporate and individual defendants in a veil piercing action arising out of an alleged breach of investment contract.

- Raintree Resorts International, Inc. v. Starwood Hotels & Resorts Worldwide Inc., et al., No. H-02-3878 (D. Tex.). Represented equity investor Starwood Capital Group and several of its principals (including Barry Sternlicht) in a breach of fiduciary duty/tortious interference action.

- H.I.G. Capital, L.L.C. v. Vestcom International, Inc., et al., Docket No. C-249-02 (N.J. Ch. Div.). Represented the successful bidder for a publicly traded company.

- Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2 (2d Cir. 1996). Represented the issuer, a closed-end fund, in Section 11 and Section 10(b)/Rule 10b-5 class action.

- Karpus v. Hyperion 1997 Term Trust, Inc., 1996 WL 668860 (S.D.N.Y. 1996). Represented the issuer, a closed-end fund, in Sec. 11 and Sec. 10(b)/Rule 10b-5 class action; motion to dismiss granted.

- The successful resolution of a multi-million dollar tortious interference and breach of fiduciary duty claim arising out of an Internet-based business.

- The successful application of an adult living community to expand its facility in the face of a challenge under an anti-eviction statute (a case of first impression in New Jersey).

- On a pro bono representation, obtaining a substantial federal jury verdict for sexual harassment in favor of a former New York Police Department employee.

Education
Cornell University, B.A., 1990
New York University School of Law, J.D., 1993, Staff Editor of the Annual Survey of American Law

Court Admissions
United States District Court for the District of New Jersey
United States District Court for the Southern District of New York United States District Court for the Eastern District of New York United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Third Circuit United States Court of Appeals for the Federal Circuit Supreme Court of the United States

Bar Admissions/Qualifications
New York New Jersey
Memberships and Professional Activities
Member, International Association of Defense Counsel

Speaking Engagements
- New York Has an Axa to Grind and Plaintiffs Try to Axe Fees — American Council of Life Insurers Compliance & Legal Sections Annual Meeting, Ft. Lauderdale, FL (July 28, 2014)

- Current Developments Affecting the Fund Industry — A Breakfast Briefing Presented by Dechert's Financial Services Group, Orlando, FL (March 18, 2014)

- Clinical Trial Disclosure: Keeping Ahead of the Wave — Presented by Dechert LLP and Hyman, Phelps & McNamara, P.C., Webinar (June 25, 2013)

- 2012 Policy Conference — Mutual Fund Directors Forum, Washington, DC (June 19, 2012)

- Developing Business 2012: Developing Networks and Client Relationships — Practising Law Institute, New York, NY (March 26, 2012)

- Emerging Trends in Merger & Acquisition Disputes — FTI Consulting, Inc., Webinar (October 6, 2011)

- The Matrixx Effect: Implications for Securities Fraud Claims in the Life Sciences Industry — Presented by Dechert LLP and Cornerstone Research, San Francisco, CA (July 28, 2011)

- Effective Trial Testimony — LSI?s Conference on Effective Development and Presentation on Expert Testimony, Chicago, IL (September 24, 2007)

- Understanding the Link Between Off-Label Sales/Promotion & Securities Fraud/Shareholder Derivative Suits
— Pharmaceutical & Medical Device Counsel?s Guide to Off-Label Communications, New York, NY (April 24, 2006)

Publications
- U.S. Fund Litigation Update: Where We are Now and Where We Could be Headed — DechertOnPoint: Financial Services Quarterly Report; reprinted in Law360 (March 24, 2014; April 25, 2014)

- Report: Life Sciences Securities Cases Increased in 2012 — The National Law Journal (March 21, 2013)

- Dechert Survey of Securities Fraud Class Actions Brought Against U.S. Life Sciences Companies —
Dechert LLP (March 20, 2013)

- Mutual Fund Litigation and Insurance Practice Guide — LexisNexis (September 27, 2012)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies — Dechert LLP
(March 20, 2012)

- Demonstrating Scienter in Market Manipulation Claims under the Commodity Exchange Act: A Checkered History and an Uncertain Future — Futures & Derivatives Law Report (March 1, 2012)

- Strike Three: Dismissal of the Third Section 47(b) Lawsuit Brought Against Mutual Fund Trustees and Distributor for the Alleged Failure of Broker-Dealers That Receive Rule 12b-1 Fees to Register as Investment Advisers — DechertOnPoint (June 14, 2011)

- EPJ Fund v. Halliburton: U.S. Supreme Court Rules that Rule 10b-5 Plaintiffs Need Not Prove Loss Causation for Class Certification, But Leaves Other Potential Class Certification Defenses Untouched — DechertOnPoint (June 13, 2011)

- Another Section 47(b) Claim Dismissed Against a Mutual Fund?s Distributor and Trustees for the Alleged Failure of Broker-Dealers that Receive Rule 12b-1 Fees to Register as Investment Advisers — DechertOnPoint (April 18, 2011)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies — Dechert LLP
(March 30, 2011)

- Why Funds? Risk Management Strategy Must Address Insurance — BoardIQ (March 29, 2011)

- “Statistically Significant” Standard Suffers an Adverse Event: Matrixx Initiatives, Inc. v. Siracusano —
DechertOnPoint (March 23, 2011)

- Amicus Curiae Brief, Matrixx Initiatives v. Siracusano — Supreme Court of the United States (August 27, 2010)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies — Dechert LLP
(March 30, 2010)

- Advocates Have to Account for Juror Cynicism — The National Law Journal (February 1, 2010)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies — Dechert LLP
(April 2009)

- Arbitration Clause and Post-Dispute Considerations for In-House Counsel — America Association of Corporate Counsel New Jersey Chapter (February 6, 2009)

- A Survey of Sanctions Awarded for E-Discovery Violations — Proof (January 2009)

- The Potential Impact of the FDA?s Issuance of a “Complete Response Letter” on Publicly-Traded Life Sciences Companies — The Journal of Biolaw & Business (November 2008)

- Life Sciences Companies Remain Firmly in the Crosshairs of the Plaintiffs? Securities Bar — The Journal of Biolaw & Business (August 2008)
 
- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies — Dechert LLP
(June 2008)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - October 2005
Dechert LLP (October 2005)

- Recent Case Summaries — Trial Evidence Journal (October 3, 2005)

- Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - August 2004
Dechert LLP (August 2004)

- Sarbanes-Oxley?s Impact on State Corporate Governance — Washington Legal Foundation (July 25, 2003)

- Court Invokes „Enron? as Basis for Reinstating Securities Fraud Suit — Washington Legal Foundation
(March 14, 2003)

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