Deborah Birnbach is Co-Chair of Goodwin’s Public M&A / Corporate Governance practice and a member of the firm’s Life Sciences Disputes and Complex Litigation & Dispute Resolution practices. She specializes in securities litigation, including class action defense; SEC and internal investigations; M&A-related litigation; stockholder disputes; fiduciary duty claims; and proxy contests. Deborah’s practice is national in scope and clients include public and private companies in healthcare, life sciences and technology, their boards and officers, and private equity firms and their partners.
Deborah represents issuers and their directors and officers in securities and shareholder litigation and corporate governance matters including defending allegations of insider trading, misleading disclosures, M&A transactions, insufficient deal consideration, improper revenue recognition and other alleged accounting irregularities, self-dealing and breach of fiduciary duty, among other issues. With colleagues in the Public M&A / Corporate Governance practice, Deborah works with integrated deal teams on public M&A transactions, representing targets, acquirers and their financial advisers. She also counsels on litigation avoidance, including arbitration, mediation and other alternative dispute resolution methods.
Deborah conducts internal corporate investigations for audit committees and other board committees in financial accounting and corporate governance-related matters, including derivative demands and litigation and whistleblower matters under the Sarbanes-Oxley and Dodd-Frank Acts. She also represents clients in FINRA inquiries and in regulatory proceedings brought by the SEC and others in possible accounting irregularities, corporate disclosures to investors and insider trading, among other matters.
Deborah served on the firm’s Executive Committee and was formerly co-chair of Women@Goodwin as well as Goodwin’s Complex Litigation & Dispute Resolution practice. She currently serves on the firm’s Allocations Committee.
Representative Matters
Deborah’s representative matters include:
- Qualtrics International Inc. (2023). Representing former directors of Qualtrics in Delaware Court of Chancery litigation alleging breach of fiduciary duty claims arising out of Silver Lake's $12.5 billion acquisition of Qualtrics from SAP
- Citrix Systems (2023). Obtained voluntary dismissal of merger litigation in federal court and in Delaware surrounding the $16.5 billion sale of Citrix to Vista Equity Partners and Evergreen Coast Capital
- Mimecast Limited (2022). Obtained voluntary dismissal of securities litigation under Section 14(a) of the Securities Exchange Act of 1934 against the board of directors in connection with the $5.8 billion sale of Mimecast to Permira
- Trillium Therapeutics (2021). Obtained voluntary dismissal of securities litigation under Section 14(a) of the Securities Exchange Act of 1934 against the board of directors of Trillium in connection with its $2.3 billion sale to Pfizer
- Lionbridge Technologies (2020). Won summary judgment dismissal for former board of directors in class action lawsuits alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 challenging Lionbridge's sale to H.I.G. Capital. The dismissal was upheld by the Court of Appeals for the Third Circuit.
- Chrysalis Ventures (2020). Won motion to dismiss fiduciary duty claims against alleged controlling stockholder and director in Court of Chancery in Delaware in connection with take private of portfolio technology company
- Medidata Solutions (2019). Obtained voluntary dismissal for Medidata and its board in class actions alleging claims under Section 14(a) of the Securities Exchange Act of 1934 concerning the $5.8 billion acquisition of Medidata by Dassault Systèmes
- NeuStar Inc (2019). Obtained dismissal with prejudice of class action litigation against the company and its former board of directors in connection with its acquisition by affiliates of Golden Gate Private Equity in a transaction valued at $2.9 billion, including debt. Plaintiffs brought claims under Section 14(a) of the Securities Exchange Act of 1934, alleging omissions from the transaction disclosures, and the U.S. District Court for the Eastern District of Virginia dismissed all claims
- Spark Therapeutics (2019). Obtained voluntary dismissal of class action litigation against the company and its board of directors in connection with the $4.8 billion sale of Spark to Roche
- Sprint Corporation (2018). With colleagues in the Public M&A / Corporate Governance Practice, represented Sprint’s transaction committee in its $59 billion all-stock merger with T-Mobile
- LaSalle Hotel Properties (2018). Defended the company and its board of trustees in Maryland state court in fiduciary duty litigation challenging a merger transaction. Plaintiffs voluntarily dismissed the litigation and the $5.2 billion deal closed on time
- Foundation Medicine (2018). Obtained voluntary dismissal of class action complaints alleging violations under the Securities Exchange Act of 1934 against the company and its board in connection with tender offer by Roche for the approximately 45% it did not already own in a $2.4 billion transaction. Deal closed on time
- PAREXEL International (2017). Represented the company and its board of directors in class action lawsuits alleging claims under Section 14(a) of the Securities Exchange Act of 1934 in federal court in Massachusetts challenging the $5 billion merger with Pamplona Capital Management. Deal closed on time after voluntary dismissal by plaintiffs of three lawsuits challenging disclosures
- Trulia/Zillow (2016). Represented Trulia and its board of directors, in class action lawsuits in Superior Court for San Francisco County, California, and the Delaware Court of Chancery challenging the $3.5 billion all-stock merger with Zillow Inc. Deal closed on time after negotiation of favorable settlement. Successfully obtained dismissal of litigation after a highly publicized settlement approval process, and obtained a ground-breaking ruling in 2016 from the Delaware Court of Chancery severely limiting pre-merger disclosure challenges and settlements based on immaterial disclosures
- Life Sciences Public Company (2015). Represented public life sciences client in threatened class action merger litigation by stockholder concerning its acquisition by a global pharmaceutical company in a $1 billion strategic transaction. Convinced stockholder to drop its threatened claims before filing and transaction closed on time
- Onyx Pharmaceuticals, Inc. (2013). Represented board of directors in shareholder class action litigation in Superior Court for San Mateo County, California and Delaware Court of Chancery, challenging its $10.4 billion merger with Amgen. Successfully defeated plaintiffs’ efforts to disrupt tender offer and transaction closed on time
- Fulcrum Therapeutics (2024). Representing defendants in a securities fraud class action arising out of a clinical hold from FDA on this clinical-stage biopharmaceutical company’s drug candidate for sickle-cell disease
- Aldeyra Therapeutics (2024). Representing defendants in a securities fraud class action arising out of receipt by this biopharmaceutical company of a Complete Response Letter from FDA
- Citrix Systems (2023). Won dismissal with prejudice of securities fraud class action in the Southern District of Florida against Citrix and its officers in connection with the company’s business model transformation; defeated motion for reconsideration
- Plug Power (2023). Won dismissal with prejudice of Section 10(b) claims against hydrogen fuel cell company Plug Power and certain of its officers in the Southern District of New York in connection with a financial restatement
- bluebird bio (2022). Won dismissal with prejudice of securities class action in the District of Massachusetts alleging claims against bluebird bio and certain of its officers in connection with a delay in filing a BLA with FDA for a gene therapy for sickle cell disease due to a new manufacturing process, including claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
- Alkermes (2021). Won dismissal with prejudice of securities class action in the Eastern District of New York alleging that Alkermes and certain of its officers violated Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 in connection with disclosures surrounding the FDA approval process for an innovative drug for MDD
- Cancer Genetics (2020). Won dismissal with prejudice of securities class action in the District of New Jersey alleging claims that Cancer Genetics and certain current and former officers alleging violations of Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 in connection with the acquisition and integration of a subsidiary
- Gagnon v. Alkermes plc (2019). Won complete dismissal with prejudice of securities class action in the Southern District of New York alleging claims against Alkermes, its CEO, and CFO under Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 premised upon allegedly misleading statements concerning Vivitrol, its FDA-approved treatment for preventing relapse to opioid dependence following detoxification
- Esperion Therapeutics (2019). Won dismissal with prejudice of securities class action under Section 10(b) and Rule 10b-5 against clinical stage company focused on developing non-statin LDL-C lowering therapies and certain officers and directors. In the U.S. District Court of the Eastern District of Michigan, plaintiffs alleged false and misleading statements in clinical trials for the company’s lead product candidate
- Foundation Medicine (2018). Won dismissal with prejudice in the U.S. District Court for the District of Massachusetts of securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against the company and certain officers and directors arising out of alleged misstatements and omissions concerning reimbursement and clinical test metrics
- Inotek Pharmaceuticals (2018). Won dismissal with prejudice of class action alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against the company and its executive officers. The securities fraud case in the U.S. District of Massachusetts alleged claims based on alleged misstatements and omissions concerning clinical trial data
- Zafgen (2017). Won affirmance by the U.S. Court of Appeals for the First Circuit of dismissal with prejudice of securities class action litigation against the company and its CEO concerning allegations of securities fraud in clinical trial disclosures
- Imprivata (2017). Won dismissal with prejudice for health care SaaS company, its CEO and CFO of securities fraud class action in the U.S. District Court for the District of Massachusetts. Plaintiffs alleged false and misleading statements and omissions under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with missing quarterly revenue guidance
- Zafgen (2016). Won dismissal with prejudice of securities class action litigation under Section 10(b) and Rule 10b-5 against life sciences company and its CEO arising out of adverse events in clinical trial for lead product candidate in the U.S. District Court for the District of Massachusetts
- Esperion Therapeutics (2020): Won dismissal with prejudice of breach of fiduciary duty Caremark claims in Delaware Court of Chancery against current and former directors and officers of Esperion Therapeutics in connection with oversight duties and allegedly misleading disclosures regarding interactions with FDA during the regulatory approval process for Esperion’s LDL-C lowering therapy. The Delaware Supreme Court subsequently upheld the dismissal on appeal
- Metabolix, Inc. (2014): Won complete dismissal with prejudice of breach of fiduciary duty case in Massachusetts Business Litigation court against directors for, among other reasons, plaintiffs’ failure to plead that making a demand on the board would have been futile
- SaaS Company (2023) SEC investigation into revenue recognition issues resolved with no SEC enforcement action
- Financial Services Company (2023) SEC investigation into whistleblower claim resolved with SEC bringing no enforcement action
- Technology Company (2022) SEC investigation into disclosures surrounding strategic transaction resolved with SEC bringing no enforcement action
- Global Life Sciences Company (2021) SEC investigation surrounding trading in connection with drug development timeline resolved with SEC bringing no enforcement action
- Global Life Sciences Company (2021) SEC investigation into accounting practices following short report resolved with SEC declining to bring enforcement action
- Global Technology Company (2020) SEC investigation into accounting and disclosure issues arising out of short report resolved with SEC bringing no enforcement action
- Global Life Sciences Company (2020) SEC investigation into trading surrounding collaboration agreement resolved with SEC declining to bring enforcement action
- Life Sciences Company (2019) in SEC Investigation of revenue restatement. Resolved favorably with SEC declining to bring enforcement action
- Technology Company (2017) in SEC Investigation of accounting issues for various revenue reserves. Resolved favorably with SEC declining to bring any enforcement action
- HCIT Company (2016) in SEC Investigation of potential insider trading issues preceding missed guidance. Resolved favorably with no SEC action
- Technology Company (2016) in SEC Investigation concerning disclosures about deferred revenue and corresponding disclosures. Resolved favorably for client with no SEC action
- Private Equity Fund (2016) in SEC Investigation of its registered investment adviser concerning fiduciary duty issues with allocation of expenses between adviser and funds, and disclosures to investors. Resolved favorably for client with no SEC action
- Software Company (2016) in SEC Investigation concerning revenue recognition issues. Resolved favorably for client with no SEC action
- Registered Investment Adviser (2015) in SEC Investigation concerning supervision of an investment management employee under the Advisers Act. Resolved favorably for client with no SEC action
- Relmada Therapeutics (2016). Won temporary restraining order and preliminary injunction in the U.S. District Court for the District of Nevada against activist stockholder seeking board seats. The court enjoined activist from soliciting proxies using false and misleading statements in violation of Section 14(a) of the Securities Exchange Act of 1934. Relmada’s nominees defeated the activist’s efforts in the proxy contest following the injunction that we obtained in favor of the company.
Professional Activities
Deborah has been an officer, a member of the council and co-chair of the Litigation Section and of the Business Litigation Committee of the Boston Bar Association. She has served on the Joint Bar Committee on Judicial Nominations, which reviews, evaluates and makes recommendations on the qualifications of individuals under consideration for judicial appointments in Massachusetts, and on the Merit Selection Committee, which reviews and makes recommendations on the qualifications of candidates for judicial appointments in the U.S. Bankruptcy Court in the District of Massachusetts.
Credentials
Education
JD1992
Columbia Law School
BA1986
Wellesley College
(cum laude)
Admissions
Bars
- New York
- Massachusetts
Courts
- U.S. Court of Appeals for the First Circuit
- U.S. Court of Appeals for the Second Circuit
- U.S. Court of Appeals for the Third Circuit
- U.S. Court of Appeals for the Sixth Circuit
- U.S. Court of Appeals for the Eighth Circuit
- U.S. Court of Appeals for the Ninth Circuit
- U.S. Court of Appeals for the Eleventh Circuit
- U.S. District Court for the Southern District of New York
- U.S. District Court for the Eastern District of New York
- U.S. District Court for the Northern District of New York
- U.S. District Court for the District of Massachusetts
- U.S. District Court for the District of Colorado
- U.S. District Court for the Eastern District of Michigan
Recognition & Awards
Deborah has been recognized by The Best Lawyers in America Best Lawyers for her work in Arbitration, Biotechnology and Life Sciences Practice, Litigation - Regulatory Enforcement (SEC, Telecom, Energy) and Litigation - Securities 2019-2024.
Deborah is recognized by Chambers USA for her securities litigation work. Chambers notes that “she is known for excellent judgement and is a great communicator” and is a "terrific advocate who takes a very strategic approach to things." She is also recognized by The Legal 500 US in commercial deals and contracts, M&A litigation: defense, M&A: middle market, securities litigation: defense and shareholder activism: advice to boards; as a litigation, investigations and enforcement Star by LMG Life Sciences; and by Benchmark Litigation as a Litigation Star, Securities. She was recognized by Boston magazine as one of the Top 50 Women Lawyers in Massachusetts, and consecutively selected as a “Massachusetts Super Lawyer” in Securities Litigation by the same publication, and in the Mergers & Acquisitions category. The National Law Journal named Deborah a Mergers & Acquisitions and Antitrust Trailblazer, an award that recognizes 48 attorneys nationwide who have changed their field of law through cutting-edge, innovative work.
Publications
Deborah publishes and lectures on securities litigation, corporate governance, mergers and acquisitions and SEC Enforcement issues. Her recent publications include:
- Co-Author, “McDonald’s Part Two: Delaware Court of Chancery Dismisses Caremark Claims Against Directors Arising From Sexual Harassment Issues,” Goodwin Client Alert, March 7, 2023
- Co-Author, “2022 Year in Review: Securities Litigation Against Life Sciences Companies,” Goodwin Insights, March 2, 2023
- Co-Author, “Delaware Court of Chancery Finds for the First Time That Officers’ Fiduciary Duties Include Caremark Duty of Oversight, and That Sexual Harassment Is a Breach of the Duty of Loyalty,” Goodwin Client Alert, January 30, 2023
- Co-Author, “SEC Adopts Amendments to Rules Governing Rule 10b5-1 Trading Plans,” Goodwin Client Alert, December 16, 2022
- Co-Author, “SEC Enforcement Against Cheetah Mobile Execs Reflects Heightened Scrutiny of 10b5-1 Plans,” Goodwin Client Alert, September 29, 2022
- Co-Author, “2021 Year in Review: Securities Litigation Against Life Sciences Companies,” Goodwin Insights, February 16, 2022
- Co-Author, “SEC Proposes Amendments to Rule 10b5-1 Trading Plans,” Goodwin Client Alert, December 15, 2021
- Co-Author, “United Food's “New” Delaware Demand Futility Test: The More Things Change, the More They Stay the Same,” Goodwin Client Alert, September 28, 2021
- Author, “The Securities Law Questions Raised by #MeToo,” Law360, February 28th, 2018