Brian E. Pastuszenski

Retired Partner

New York

+1 212 459 7279

Brian Pastuszenski is a retired partner who previously served as a co-chair of Goodwin’s Securities Litigation and SEC Enforcement practice. Mr. Pastuszenski represents leading investment banks, global financial institutions, publicly traded operating companies, boards of directors and senior corporate officers in some of the nation’s largest and most complex securities class actions, shareholder litigations and regulatory enforcement proceedings. With more than 35 years of experience, he has built a reputation for managing crises and developing winning defense strategies. Mr. Pastuszenski regularly defends clients in federal, state and appellate courts across the country, and his practice spans numerous industries including banking, financial services, technology and bio-pharmaceuticals, among others.

Year in and year out, Mr. Pastuszenski is recognized as a “star” or “leader” in his field both in New York City and nationally by the leading peer-reviewed lawyer ranking publications, including Chambers USA, Legal 500 and Benchmark Litigation. These publications quote clients as describing Mr. Pastuszenski as “a superstar,” “phenomenal,” “a go-to lawyer” for “marquee clients”, “the most levelheaded, clear-eyed securities litigator,” and “a really intelligent lawyer” who is “tireless, responsive and experienced” and has “an impeccable work ethic and fantastic way of dealing with senior business executives,” “such a depth of experience across securities cases [that] he’s seen everything before and knows how to take something that worked somewhere else, and try and make it work in a different context,” “a national reputation as one of the top U.S. attorneys for his areas of expertise.” Chambers also notes that “[s]everal of his victories have been considered ‘groundbreaking’ or otherwise innovative,” and that he is “extraordinarily talented, very diligent and very difficult to litigate against — he covers every corner of the earth and pushes the case right to the end.” And for roughly a decade Mr. Pastuszenski has been selected each year as one of the 500 leading lawyers in the U.S. (LawDragon 500 Leading Lawyers in America).

Recognition

Lawyer Ranking Publications

Mr. Pastuszenski is consistently recognized as a leader in his field by preeminent, peer-reviewed publications including Chambers USA: America’s Leading Lawyers for Business, U.S. News-Best Lawyers, The Legal 500 U.S., The Lawdragon 500 Leading Lawyers in America, and Benchmark Litigation Guide to America’s Leading Litigation Firms & Attorneys.

Uniformly ranked as a “Star” or national leader in his field: Chambers (Star ranking), Benchmark Litigation (Star ranking), U.S. News-Best Lawyers in America (national leader, securities litigation and corporate governance) and Legal500 (recommended lawyer, securities litigation and financial services litigation).
Client descriptions of Mr. Pastuszenski in Chambers have included “the most levelheaded, clear-eyed securities litigator I have ever encountered,” a “phenomenal” and “a really intelligent lawyer” who is “tireless, responsive and experienced,” an “impeccable work ethic and fantastic way of dealing with senior business executives,” and an “extraordinarily talented, very diligent and very difficult to litigate against - he covers every corner of the earth and pushes the case right to the end.”
Every year since 2009 recognized as one of the top 500 lawyers in the country by the peer-review-based LawDragon 500 Leading Lawyers in America.
Selected as the single best securities litigation defense attorney in major metropolitan area by U.S. News-Best Lawyers in America (2015).
Selected as a Securities Litigation MVP by Law360, one of only six securities litigation attorneys nationally to be selected on the basis of their work from among the premier lawyers at the top law firms in the country.

Peer Recognition

Mr. Pastuszenski is highly respected by his competitors and peers. Asked by a media publication to name a litigator he feared going up against, the global chairman of a top national law firm’s litigation department and securities litigation and enforcement practice named Mr. Pastuszenski, saying:

“A litigator I have come to admire while being in the trenches with him is Brian Pastuszenski of Goodwin Procter. Brian has been deeply involved in the mortgage-backed securities litigation involving Countrywide. Having seen Brian argue countless motions and appellate arguments, I can say he possesses a top-notch legal mind and is a compelling advocate for his client. Needless to say, I’m glad he’s on my side.”

Similarly, when asked to name the one lawyer outside his firm who had impressed him, the chair of the securities litigation practice at another leading national law firm said:

“I’ve always admired Brian Pastuszenski of Goodwin Procter LLP. He is smart, meticulous, driven and has probably the coolest head I’ve seen when the bombs are dropping.”

Experience

Mr. Pastuszenski’s matters include some of the largest, most complex securities class actions ever filed in the U.S., including class action litigation challenging disclosures made in 430 mortgage-backed securities offerings issued by the country’s largest mortgage lender involving more than $350 billion dollars of securities offered. Mr. Pastuszenski also represented numerous public technology companies that were sued in the Initial Public Offering Allocation Class Action litigation in federal court in New York City, which involved over 1,000 class action complaints filed against 300 public companies and their initial public offering underwriters and challenged disclosures relating to how shares in “hot” initial public offerings were allocated to investors. Mr. Pastuszenski was a member of the issuer defendants liaison committee in the litigation, and also was one of the principal authors of the consolidated motion to dismiss briefs that resulted in dismissal of the securities fraud claims against a significant number of the hundreds of public companies that had been sued in these cases.

For roughly a decade, Mr. Pastuszenski served as lead defense counsel for Countrywide Home Loans and its parent Countrywide Financial Corporation, formerly an S&P 100 corporation and the country’s largest mortgage lender, in scores of securities class actions, shareholder derivative suits, and related institutional investor suits stemming from the credit crisis. In 2008 Countrywide was acquired by Bank of America Corporation. The matters Mr. Pastuszenski defended for Countrywide included a multidistrict litigation proceeding in federal district court in Los Angeles in which nearly 50 class action and individual institutional investor suits were centralized, numerous appeals to the Courts of Appeals for the Ninth and Second Circuits, the Delaware Supreme Court and California state appellate courts, and numerous other federal and state courts across the country. The rulings obtained in these matters have helped shape the development of the law in the United States in several areas, particularly in regard to standing, tolling of statutes of limitations and repose, and subject matter jurisdiction. Many of these matters have involved claims by federal agencies in their capacity as conservator or receiver of failed banks or other financial institutions that had purchased asset-backed securities prior to the collapse of the housing and capital markets in 2007 (including the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Federal Housing Finance Agency as conservator for Fannie Mae and Freddie Mac)

Mr. Pastuszenski’s other matters include representation of financial institutions (including banks, mutual funds, and insurance companies) and publicly-traded operating companies (including biotechnology and other technology companies) in securities and shareholder derivative matters in cases filed in federal and state courts across the country, including federal securities class action litigation in New Jersey federal court against a Fortune 100 financial services and insurance company and its board of directors challenging a nearly billion dollar secondary offering of debt securities in which plaintiffs attacked the company’s disclosure of regulatory investigations and its financial accounting for asset-backed securities held for investment on the company’s balance sheet. Mr. Pastuszenski regularly represents syndicates of investment banks when sued in securities class action cases concerning their underwriting of both equity and debt securities offerings by publicly-traded companies.

Over the years Mr. Pastuszenski also has led numerous internal corporate investigations for audit committees and other special board committees into financial accounting, insider trading and corporate governance-related matters.

He also has represented numerous clients in connection with regulatory proceedings brought by the SEC and other regulators relating to possible accounting irregularities, the accuracy and completeness of corporate disclosures to investors (including financial guidance), and securities trading by corporate officers and directors, among other matters. For example, he recently was involved in a several-year-long SEC investigation of a major mutual fund organization arising out of certain equity trading desk practices.

In addition to defending securities and shareholder litigation matters across the country, Mr. Pastuszenski spends a significant amount of his time advising senior management and boards of directors on how to minimize securities and shareholder liability risks, and how best to manage crises when they occur.

Mr. Pastuszenski’s securities and shareholder litigation matters have involved allegations of insider trading, market manipulation, improper revenue recognition and other alleged accounting irregularities, self-dealing and breach of fiduciary duty, and inaccurate earnings and revenue projections, among other issues. His securities and shareholder litigation practice is national in scope. He has represented both U.S. and foreign-based issuers and their directors and officers in securities and corporate governance matters across the country, including matters in Arizona, California, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New York, Ohio, Pennsylvania, Texas, Virginia, West Virginia, Washington State and Washington, D.C., among others.

Mr. Pastuszenski represents his clients tenaciously and prides himself on the results he has achieved for them. Mr. Pastuszenski’s recent matters and the outstanding results he has obtained include:

Affirmance by federal court of appeals of dismissal with prejudice of a securities class action against a syndicate of investment banks that underwrote a $310 million secondary offering of securities by a leading pharmaceutical company. The syndicate was sued after the issuer’s stock price had declined by more than 80%. Adopting the argument made by Mr. Pastuszenski, the court of appeals issued a groundbreaking decision that imposed stricter standing requirements on securities plaintiffs seeking to challenge statements made in connection with public securities offerings.
Successfully resolved for less than 1% of claimed damages securities class action litigation filed in both state and federal court in California alleging misstatements in the public offerings of more than $350 billion in mortgage-backed securities.
Obtained dismissal of shareholder derivative litigation claiming $2 billion in damages brought by institutional shareholders in the country’s largest mortgage lender in which Mr. Pastuszenski presented argument to the Delaware Supreme Court that led to termination of the case with prejudice and what commentators have described as a “groundbreaking” decision from the Delaware Supreme Court concerning the standing of shareholders to bring derivative claims after a corporate merger.
A multi-district litigation proceeding in federal court in California involving nearly 50 class and individual institutional investor suits claiming misstatements made in connection with investors’ purchase of tens of billions of dollars of mortgage-backed securities.
Successfully defended one of the country’s largest financial services companies in a securities class action suit in federal court in New Jersey alleging misstatements in connection with an approximately $1 billion secondary offering of corporate debt securities.
Dismissal with prejudice of a securities class action suit filed against a leading biotechnology company in federal court in Massachusetts involving a nearly $1 billion secondary offering of equity securities.

Mr. Pastuszenski’s representative litigation matters include the following:

Representative Matters

Cognizant Technology Solutions Securities Class Action Litigation: Currently defending Cognizant Technology Solutions Corporation, a leading global provider of information technology, consulting and business process services with over 250,000 employees worldwide, and certain of its senior officials in putative securities class action litigation pending in federal district court in New Jersey arising out of Cognizant’s announcement that it had certain potentially improper payments relating to facilities in India were made in possible violation of the Foreign Corrupt Practices Act. After the Court granted dismissal of all claims against the two current Cognizant senior executives named in the litigation and pared back plaintiffs’ remaining allegations against Cognizant, the Court granted Cognizant’s motion for certification of an immediate interlocutory appeal to the Third Circuit Court of Appeals under 28 U.S.C. § 1292(b) of a controlling and potentially case-dispositive legal standing issue and stayed all proceedings pending completion of the appeal process. Second round motions to dismiss are currently pending in the district court.
Rockwell Medical, Inc. Securities Class Action Litigation: Won dismissal with prejudice of all claims against this Michigan-based pharmaceutical company in securities class action litigation filed in federal court in New York City (S.D.N.Y.) challenging disclosures relating to the marketing of Rockwell’s FDA-approved iron replacement drug product for hemodialysis patients.
PTC Inc. Securities Class Action Litigation: Successfully defended this global technology company in securities class action litigation in federal court in Boston, Massachusetts challenging disclosures relating to certain government investigations into alleged violations of the Foreign Corrupt Practices Act. After moving to dismiss all claims for failure to allege any actionable violation of the securities laws, the case settled on favorable terms.
Medicis Pharmaceutical Corporation Securities Class Action Litigation: Won dismissal of securities class action claims filed in federal district court in Arizona arising out of the restatement of certain financial statements by this leading manufacturer of dermatological and aesthetic pharmaceutical products (later acquired by Valeant Pharmaceutical). The case concerned the company’s financial accounting for returns of expired and short-dated product. After dismissal of the initial class action complaint in its entirety (with leave to amend), the case later settled on favorable terms.
Alkermes, Inc. Securities Class Action Litigation: Won dismissal with prejudice of securities class action litigation filed in federal court in Boston against this leading life sciences company. The litigation related to the timing of FDA approval of Risperdal Consta, an injectable, sustained-release version of the best-selling oral antischizophrenia drug Risperdal (risperidone).
Peregrine Systems Securities Class Action Litigation: Obtained dismissal of all securities fraud class action claims filed in federal court in San Diego against three former outside directors and members of the audit committee of Peregrine Systems, Inc., a San Diego-based leading maker of enterprise software, stemming from Peregrine’s restatement of over a half-billion dollars of revenues recorded over a three-year period, its understatement of roughly $2 billion of losses and its later bankruptcy filing.
AOL-Time Warner Securities Class Action Litigation: Won dismissal of securities fraud and related class action claims filed in state courts in California and Ohio against the former Chief Technology Officer of AOL.
Presstek, Inc. Securities Class Action Litigation: Won dismissal with prejudice of securities class action litigation filed in federal court in New Hampshire against this world leader in digital printing technology.
RICO Class Action Litigation Against Leading Mutual Fund Organization: Won dismissal of class action litigation filed in federal court in Nashville against one of the world’s largest mutual fund organizations and two of its senior officials. The lawsuit alleged violations of the federal Racketeer Influenced and Corrupt Organizations statute, as well as Tennessee state law, arising out of the alleged marketing activities of a public company in which the mutual fund organization had invested.
Lycos, Inc. Securities Class Action Litigation: Very favorably settled this securities class action litigation against web portal Lycos, Inc. (which arose out of Lycos’ announcement of a proposed multibillion-dollar merger with USA Networks) for a small fraction of the damages plaintiffs sought on their claims.
Sipex Corp. Securities Class Action Litigation: Obtained dismissal of securities class action litigation against this leading maker of analog semiconductor devices that alleged improper revenue recognition on sales to distributors.
ACT Manufacturing, Inc. Securities Class Action Litigation: U.S. Court of Appeals affirmed dismissal with prejudice of securities fraud class action litigation against one of the 10 largest electronics contract manufacturers in the world which alleged improper recognition of revenue and other accounting irregularities stemming from a $16 million inventory shortfall.
Telebit Corp. Merger Class Action Litigation: State appellate court affirmed dismissal of shareholder class action litigation challenging $350 million merger of network products manufacturer Telebit Corp. into Cisco Systems.
Cognos Incorporated Securities Class Action Litigation: Convinced plaintiffs’ attorneys to drop their securities class action against Ottawa, Canada-based Cognos, a leading supplier of business intelligence software tools (now part of IBM Corporation). No settlement monies were paid.
ParcPlace Software Securities Class Action Litigation: Convinced the plaintiffs’ attorneys to drop their class action claims after threatening to seek monetary fines for filing frivolous claims against certain venture capital fund clients that had invested in this publicly-traded software company. No settlement monies were paid.
Copley Pharmaceutical Securities Class Action Litigation: After convincing the federal district court to dismiss 28 of 29 alleged misrepresentations in this securities class action (which claimed concealment of alleged problems in the manufacture of the two best-selling products of this leading generic drug company), settled all claims for a small fraction of the potential damages had plaintiffs prevailed on their claims.

Pitney Bowes Debt Securities Class Action Litigation: Obtained dismissal with prejudice of all claims against the syndicate of twelve investment banks that underwrote a $700 million initial public offering of two series of debt securities by this leading provider of e-commerce, shipping and mailing equipment, supplies and software products and services. This putative securities class action alleged that the debt offering materials violated the Securities Act of 1933 and Item 303 of SEC Regulation S-K by allegedly failing to disclose supposedly known trends and uncertainties in certain aspects of Pitney Bowes’ business operations. In addition to dismissing the case, the Connecticut Superior Court agreed that the automatic stay of discovery enacted as part of the federal Private Securities Litigation Reform Act applies to 1933 Act cases filed in state court, one of the few cases to address this issue since the U.S. Supreme Court recently ruled that state courts continue to have concurrent jurisdiction over such cases.
ARIAD Pharmaceuticals Securities Class Action Litigation: Won dismissal with prejudice of all securities claims on behalf of a syndicate of seven investment banks that underwrote a $310 million dollar secondary offering of common stock issued by life sciences company ARIAD Pharmaceuticals, Inc., which manufactures and markets a cutting-edge leukemia drug. (ARIAD is now a subsidiary of Takeda Pharmaceuticals Company Limited.) This putative securities class action alleged that the offering materials violated the Securities Act of 1933 by not disclosing information about allegedly increasing adverse health effects supposedly caused by the drug. Dismissal was affirmed on appeal by the federal Court of Appeals for the First Circuit, which agreed in a groundbreaking decision that the plaintiffs lacked statutory standing to sue under the 1933 Act and that recent U.S. Supreme Court decisions require that plaintiffs seeking to allege statutory standing must satisfy stricter pleading requirements than they had been held to historically.
Luther v. Countrywide Financial Corporation Mortgage-Backed Securities Class Action Litigation: Defeated plaintiffs’ attempt to remand to state court this putative mortgage-backed securities class action brought under the federal Securities Act of 1933 involving approximately 430 mortgage-backed securities offerings over a five-year period in which more than $350 billion dollars of securities were offered. This litigation was originally filed in California state court, removed in 2007 to federal court, but later remanded after an appeal to the U.S. Court of Appeals for the Ninth Circuit. After remand, Mr. Pastuszenski in January 2010 won dismissal of the case on the grounds that state courts no longer have jurisdiction to hear 1933 Act class action suits. After that ruling was reversed on appeal to the California Court of Appeals and both the California and U.S. Supreme Courts declined to review the reversal, Mr. Pastuszenski removed this litigation a second time in June 2012 on a different legal basis (the existence of federal removal jurisdiction under the U.S. bankruptcy laws due to the bankruptcy filing in mid-2012 by certain third-party lenders that had originated loans backing the securities offerings in question). Within a few months of its removal, this matter was resolved in a highly favorable settlement (along with the related Maine State and Western Teamsters class actions) that was approved by the federal district court in Los Angeles in December 2013.
500.com Securities Class Action Litigation: Successfully defended the syndicate of investment banks that served as underwriters of the $86.5 million initial public offering of 500.com Ltd., a China-based provider of online sports lottery services, obtaining the dismissal with prejudice of all claims against the underwriter defendants. Along with 500.com, the underwriters were sued in federal court in Los Angeles, California under the Securities Act of 1933 over alleged misstatements in the issuer’s offering documents regarding the status of its approval by Chinese governmental authorities to engage in online sports lottery services. After a motion to dismiss all claims against the underwriters was filed, plaintiffs’ counsel voluntarily dismissed the claims, resulting in dismissal of the underwriter defendants from the litigation.
MoneyGram Securities Class Action Litigation: Defended the syndicate of investment banks that served as underwriters of a $151.8 million secondary public offering of equity securities by MoneyGram International, Inc., a leading provider of global money transfer services. Along with MoneyGram, the underwriters were sued under the Securities Act of 1933 over alleged omissions and misstatements in the issuer’s offering documents concerning the imminent launch by one of MoneyGram’s principal retail customers of its own competing money transfer service. After defeating plaintiffs’ motion to remand this class action litigation from federal district court in Delaware to Delaware state court where it originally was filed, the lead plaintiff voluntarily dismissed the case.
Putnam Bank v. Countrywide Financial Corporation Mortgage-Backed Securities Class Action Litigation: Won dismissal with prejudice of this putative securities class action lawsuit alleging claims under the Securities Exchange Act of 1934 and Securities Act of 1933 and Connecticut statutory securities law concerning mortgage-backed securities issued by subsidiaries of Countrywide. The case was dismissed in its entirety by the federal district court in Los Angeles on statute of limitations and repose grounds.
Maine State Retirement System v. Countrywide Financial Corporation (II) Mortgage-Backed Securities Class Action Litigation: Won dismissal of the vast bulk of this class action lawsuit brought in federal court in Los Angeles, which originally asserted claims under the Securities Act of 1933 relating to hundreds of public offerings of mortgage-backed securities issued from 2005 to 2007 by subsidiaries of Countrywide. In a ruling of national significance, the court agreed that class action plaintiffs have standing to represent other mortgage-backed securities purchasers only if the plaintiffs purchased the same tranche of security those other investors did (each mortgage-backed securities offering typically has multiple tranches, each a separate security). In addition, the court agreed that limitations periods continue to run despite the filing of a class action complaint as to any mortgage-backed securities tranche for which the named plaintiffs lack standing to sue.
Maine State Retirement System v. Countrywide Financial Corporation (I) Mortgage-Backed Securities Class Action Litigation: Won dismissal of putative class action lawsuit brought in federal court in Los Angeles asserting claims under the Securities Act of 1933 relating to hundreds of public offerings of mortgage-backed securities issued from 2005 to 2007 by subsidiaries of Countrywide. The complaint was dismissed in its entirety (with leave to amend), the court ruling that a class action plaintiff has standing to sue only as to those securities offerings in which it and the class members it seeks to represent both purchased.
Argent Classic Convertible Arbitrage Fund Debt Securities Class Action Litigation: Defeated class certification of lawsuit brought in federal district court in Los Angeles on behalf of a putative class of institutional buyers of $4 billion of corporate debentures issued by Countrywide. The suit was voluntarily dismissed after this ruling.
Fortune 100 Financial Conglomerate Secondary Debt Offering Class Action Litigation: After obtaining partial dismissal of securities class action litigation arising out of a nearly $1 billion secondary debt offering by this Fortune 100 company, favorably resolved this suit filed in federal district court in New Jersey challenging, among other things, alleged non-disclosure of regulatory investigations and alleged misstatement of asset impairment charges.
Inverness Medical Innovations, Inc. Securities Class Action Litigation: Won dismissal with prejudice of securities class action litigation brought under the Securities Act of 1933 against this leading medical diagnostic products company (now known as Alere, Inc.) and its board of directors and senior management. This class action concerned a $737 million secondary offering of equity securities and challenged the company’s disclosures concerning the costs associated with its integration of acquired companies.
Arbinet-thexchange, Inc. Securities Class Action Litigation: Won dismissal with prejudice of securities class action litigation filed in federal district court in New Jersey under the Securities Act of 1933 relating to the initial public offering of the world’s leading electronic market for the trading of telephone call and data communications capacity.
Initial Public Offering Allocation Securities Class Action Litigation: Represented numerous public companies (including On Semiconductor and AsiaInfo Holdings) in federal district court in New York (S.D.N.Y.) as defendants in the Initial Public Offering Allocation Securities Class Action Litigation cases, among the largest securities class action litigations ever filed challenging how underwriters allocated shares in “hot” initial public offerings to their customers. Mr. Pastuszenski also served on the Issuer Defendants Liaison Committee appointed by the Court.
Individual, Inc. Securities Class Action Litigation: U.S. Court of Appeals affirmed dismissal with prejudice of securities class action litigation against this online news service provider which challenged its failure to disclose an alleged rift between the CEO and the board of directors in its initial public offering prospectus. The opinion issued by the court of appeals in this case clarified the law in the First Circuit on the liability of public companies under the Securities Act of 1933 for disclosures made in connection with the public offering of securities, and to this day remains one of the leading opinions nationally on this issue.
Xoom Corporation Securities Class Action Litigation: Won dismissal of amended putative securities class action complaint against this leading online international money transfer service and its senior management alleging violations of the Securities Act of 1933 in connection with the company’s initial public offering. (Xoom was later acquired by PayPal.) The suit relates to the company’s disclosure that it was the victim of a criminal business email compromise scheme.
NovoCure Limited Securities Class Action Litigation: Won dismissal on personal jurisdiction grounds of securities class action litigation filed against the syndicate of investment banks that underwrote the roughly $175 million initial public offering of NovoCure Limited, a Bailiwick of Jersey-based biotechnology company that markets an FDA-approved device which targets solid cancers of the brain using electromagnetic energy. Along with NovoCure, the underwriters were sued in state court in New Hampshire under the Securities Act of 1933 concerning alleged misstatements in the issuer’s offering documents regarding its development of a new generation device and prospects for market acceptance of its product.
American Renal Associates Securities Class Action Litigation: Successfully defended the syndicate of investment banks that underwrote a roughly $190 million initial public offering of American Renal Associates Holdings, Inc., which operates dialysis centers across the country. Along with American Renal, the underwriters were sued in federal court in Massachusetts under the Securities Act of 1933 concerning alleged misstatements in the issuer’s offering documents regarding alleged non-disclosure of claimed trends, uncertainties and significant risks relating to its practice of making charitable contributions to the American Kidney Fund, which in turn allegedly provided commercial insurance premium assistance to the issuer’s dialysis patients. After motions to dismiss were filed but before ruling by the Court, plaintiffs agreed to a favorable global settlement that included all claims against the underwriters as well as all securities fraud claims against the Issuer. The underwriters were not required to pay any portion of the settlement amount.
BioAmber Securities Class Action Litigation: Currently defending putative securities class action litigation against BioAmber Inc., a Montreal, Canada-based biotechnology company that uses a proprietary technology platform to convert bio-based feedstocks into renewable-chemical replacements for petroleum-derived chemicals used in plastics, resins, paints, food additives and personal care products. The suit (filed in federal court in Brooklyn, New York) concerns statements regarding expected quarterly revenues made by BioAmber. A settlement of the litigation is currently pending court approval.
Fenix Parts Securities Class Action Litigation: Won dismissal in federal district court in Chicago (N.D. Illinois) on statute of limitations grounds of securities class action litigation filed against the syndicate of investment banks that underwrote the roughly $100 million initial public offering of Fenix Parts, Inc., which refurbishes and resells used automotive parts. Along with Fenix, the underwriters were sued under the Securities Act of 1933 concerning alleged misstatements in the issuer’s offering documents regarding valuation of acquired assets and goodwill and expansion of operations through additional acquisitions. The opinion dismissing the case is nationally significant in holding that the U.S. Supreme Court’s 2010 Merck decision (which ruled that the statute of limitations for a securities fraud claim under Section 10(b) of the 1934 Act does not begin running until a reasonably diligent plaintiff would have discovered facts sufficient to allege each element of that claim) does not apply to non-scienter-based claims under the 1933 Act.
J.Jill, Inc. Securities Class Action Litigation: Won dismissal with prejudice of securities class action litigation brought against the syndicate of investment banks that underwrote the roughly $165 million initial public offering of J.Jill, Inc., a leading national retailer of premium women’s apparel. Along with J. Jill, Inc., the underwriters were sued in federal court in Boston under the Securities Act of 1933 and Items 303 and 503 of SEC Regulation S-K concerning alleged misstatements and omissions in the issuer’s offering documents regarding its business operations and financial prospects.
LogMeIn, Inc. Securities Class Action – Currently representing global technology company Citrix Systems, Inc. and several of its directors in securities class action litigation pending in state court in Florida arising out of a corporate transaction in which Citrix spun off its GoToMeeting online conferencing business segment, which then was merged into a subsidiary of LogMeIn, Inc. in exchange for the issuance to Citrix shareholders of LogMeIn common stock. The suit alleges (among other claims) secondary violations of the Securities Act of 1933 by Citrix in connection with the prospectus and registration statement filed with the SEC by LogMeIn through which those shares were issued. The case is now in the motion to dismiss phase.

Arkansas Teacher Retirement System v. Countrywide Financial Corporation Shareholder Derivative Litigation (Delaware Supreme Court): After presenting oral argument to the Delaware Supreme Court sitting en banc, won ruling that upon consummation of a corporate merger, shareholders of the acquired corporation lose standing under Delaware law to prosecute claims on behalf of the corporation. This ruling from the Delaware Supreme Court ended six years of shareholder derivative litigation originally filed in federal district court in Los Angeles against Countrywide challenging the accuracy of its public disclosures and its $2 billion repurchase of Countrywide stock, among other allegations. The district court’s ruling dismissing the case for lack of standing was appealed to the U.S. Court of Appeals for the Ninth Circuit, which then certified the question of standing under Delaware law to the Delaware Supreme Court. The American Lawyer called the ruling from the Delaware Supreme Court “groundbreaking.”
Cognizant Technology Solutions Shareholder Derivative Litigation: Currently defending Cognizant Technology Solutions Corporation, a leading global provider of information technology, consulting, and business process services, and certain of its current and former officers and directors in consolidated putative shareholder derivative litigation in New Jersey arising out of Cognizant's announcement that it had begun an internal investigation into whether certain payments relating to facilities in India were made in possible violation of the Foreign Corrupt Practices Act.
Renren Putative Shareholder Derivative Litigation: Currently defending former outside director of Renren Inc., once known as the “Facebook of China,” as well as certain institutional investors in Renren in putative shareholder derivative litigation brought in New York state Supreme Court alleging violations of Cayman Islands law. Brought by alleged shareholders of Renren, this litigation challenges a spin-out transaction by Renren in which certain Renren investment interests in other technology companies were spun out into a subsidiary corporation. Motions to dismiss on threshold standing and personal jurisdiction grounds are currently pending.
Countrywide Financial Corporation Shareholder Derivative Litigation (Federal District Court Delaware): Won dismissal of shareholder derivative litigation filed in Delaware federal district court against Countrywide Financial Corporation and its board of directors on the grounds that the plaintiff shareholders no longer had the right to pursue the case when they ceased being Countrywide shareholders after its acquisition. Claiming damages exceeding $2 billion, plaintiffs alleged breach of fiduciary duty by the company’s board of directors in connection with the board’s decision to repurchase shares of Countrywide common stock in late 2006 and early 2007 at then-market prices. The court’s dismissal ruling is significant in addressing and resolving an inconsistency between opinions from the Delaware Supreme Court and the federal Court of Appeals for the Third Circuit regarding the effect of a stock-for-stock merger on the ability of a shareholder of a Delaware corporation to pursue a derivative case.
Alkermes, Inc. Shareholder Derivative Litigation: Won dismissal with prejudice of shareholder derivative litigation relating to accounting for employee stock option grants against this leading life sciences company, which provides the drug industry with various technology platforms for the controlled, sustained-release delivery of drug products.
Citrix Systems, Inc. Shareholder Derivative Litigation: Successfully represented board of directors of market-leading mobile access technology company Citrix Systems, Inc. in shareholder derivative litigation in Delaware Chancery Court challenging compensation awarded to non-employee board members.
ARIAD Pharmaceuticals Inc. Shareholder Derivative Litigation: Successfully represented members of board of directors of ARIAD Pharmaceuticals in shareholder derivative litigation in Delaware Chancery Court challenging board’s decision to acquire remaining minority interest in technology subsidiary. After oral argument, the Chancery Court dismissed the case.

Midland Loan Services v. Bank of America N.A. (As Successor to LaSalle Bank National Association): Successfully represented Bank of America N.A. (as successor in interest to Chicago-based LaSalle Bank) in this suit brought by a division of PNC Bank in federal district court in Chicago (N.D. Illinois) alleging breaches of representations and warranties in connection with loans pooled into certain commercial mortgage-backed securities.
Anicom Securities Litigation: Represented former president of Anicom, a Chicago-based wire and cable distributor, in securities class action litigation and related criminal proceedings filed in federal district court in Chicago (N.D. Illinois).
Apropos Technology Securities Litigation: Represented Apropos Technology, a Chicago-based customer call center software developer, and its then CEO in securities class action litigation filed in federal district court in Chicago (N.D. Illinois). After the Court granted in part defendants’ motions to dismiss, the case ultimately settled on favorable terms.
IKB Deutsche Industriebank AG v. Countrywide Financial Corporation: Won summary judgment on all claims after completion of discovery, resulting in the dismissal with prejudice of this securities fraud suit in which German bank IKB Deutsche Industriebank AG and one of its subsidiaries sued over approximately $200 million in mortgage-backed securities issued by subsidiaries of Countrywide. In granting summary judgment, the court agreed that the evidence in the record showed that the plaintiffs would be unable to prove either actual or reasonable reliance on the claimed misstatements, both of which were required elements of their claims.
Philippe Dauman et al. v. Sumner Redstone et al.: Representing the two new independent trustees of the Sumner Redstone National Amusements Trust who were appointed to replace Philippe Dauman, the former CEO of Viacom. Inc., and George Abrams, a former Viacom director, in litigation brought by them challenging the validity of their removal as trustees. The trust owned National Amusements, Inc., which in turn owned the majority of the voting shares of Viacom and CBS Corp.
FDIC as Receiver for Guaranty Bank v. Countrywide Financial Corporation: Won dismissal with prejudice of this securities suit brought by the FDIC in its capacity as receiver for a failed bank that had purchased $1.5 billion in mortgage-backed securities issued by subsidiaries of Countrywide. In dismissing the case as untimely, the court agreed that the FDIC statute of limitations extender statute enacted as part of the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”) did not displace the state law statute of repose applicable to the Texas “blue sky” securities claims that the FDIC had asserted (which terminates the claim upon expiration of the period), holding that there is no evidence of the required “clear and manifest” congressional intent to preempt state law.
FDIC as Receiver for Strategic Capital Bank v. Countrywide Financial Corporation: Won dismissal with prejudice of this suit brought by the FDIC in its capacity as receiver for a failed bank that had purchased mortgage-back securities issued by subsidiaries of Countrywide alleging claims under the Securities Act of 1933. In dismissing this case, the court ruled that the filing of class action litigation in state court (as opposed to federal court) does not toll the running of applicable statutes of limitation and repose under the U.S. Supreme Court’s American Pipe class action tolling rule.
Western & Southern Group of Insurance Companies v. Countrywide Financial Corporation: Won dismissal with prejudice of this suit brought by Western & Southern Life Insurance Company and several affiliates asserting claims under the Securities Exchange Act of 1934 and Securities Act of 1933 as well as Ohio state statutory and common law claims relating to public offerings of mortgage-backed securities by subsidiaries of Countrywide. The case was dismissed in its entirety by the federal district court in Los Angeles on statute of limitations and repose grounds and for failure to allege an actionable misstatement, among other grounds.
American Fidelity Assurance Company v. Countrywide Financial Corporation: Won dismissal with prejudice of this suit by an institutional purchaser of mortgage-backed securities issued by subsidiaries of Countrywide alleging claims under the Securities Exchange Act of 1934 and Securities Act of 1933. The case was dismissed in its entirety by the federal district court in Los Angeles on statute of limitations and repose grounds.
SRM Global Fund Limited Partnership v. Countrywide Financial Corporation: Successfully argued and won appeal in U.S. Court of Appeals for the Second Circuit in New York City filed by SRM Global, a multibillion-dollar offshore hedge fund that sued Countrywide for allegedly not disclosing its true financial condition to shareholders prior to its $4 billion merger. The court of appeals agreed that SRM had not adequately alleged facts showing (among other things) that any misstatements had been made, affirming the federal district court’s dismissal of the complaint. SRM alleged that it lost nearly $700 million on its purchases of Countrywide common stock when the share price dropped in the wake of the capital markets crisis that began in the third quarter of 2007.
United Financial Casualty Co. v. Countrywide Financial Corporation: Won dismissal with prejudice of this suit brought by Progressive Insurance and affiliates in federal court in Los Angeles asserting securities fraud claims under the Securities Act of 1934 and state law relating to public offerings of mortgage-backed securities issued by subsidiaries of Countrywide.
Allstate Insurance Co. v. Countrywide Financial Corporation: Won dismissal in substantial part of this suit originally filed in federal court in New York City by Allstate Insurance and affiliates asserting securities fraud claims under the Securities Act of 1934, non-fraud claims under the Securities Act of 1933 and various state law claims relating to public offerings of mortgage-backed securities issued by subsidiaries of Countrywide Financial Corporation.
Stichting Pensioenfonds ABP v. Countrywide Financial Corporation: Won dismissal with prejudice of this suit brought by Stichting Pensioenfonds ABP, one of the largest public pension funds in the world, asserting securities fraud claims under the Securities Act of 1934, non-fraud claims under the Securities Act of 1933 and California state law claims relating to public offerings of mortgage-backed securities issued by subsidiaries of Countrywide Financial Corporation. The case originally was filed in state court, and then successfully removed to federal court in Los Angeles.
Centaur Classic Arbitrage Fund v. Countrywide Financial Corporation: Won dismissal of securities suit brought in federal court in Los Angeles by 46 hedge funds concerning the offering of $4 billion in debentures by Countrywide. Plaintiffs’ state law securities claims were dismissed with prejudice as untimely under the applicable statutes of limitations, and the federal law claims were dismissed in part for failure to allege the details of their alleged purchases, the statements on which they allegedly relied and the basis for their alleged losses with the requisite factual particularity.
Federal Housing Finance Agency, as Conservator for Fannie Mac and Freddie Mac v. Countrywide Financial Corporation: Represented Countrywide in this suit involving approximately $26 billion in mortgage-backed securities issued by affiliates of Countrywide that were purchased by Fannie Mae and Freddie Mac. Won important ruling requiring production of documents from Fannie and Freddie bearing on whether they had been aware of information about Countrywide’s loan origination practices that allegedly had been concealed from them. The case settled after this ruling.

Credentials

Education

JD1981

Cornell Law School

(magna cum laude, Order of the Coif)

BA1978

Dartmouth College

(summa cum laude)

While attending law school, Mr. Pastuszenski was the Note & Comment Editor of the Cornell Law Review.

Clerkships

U.S. District Court of Rhode Island, Honorable Raymond Pettine, Chief Judge

Admissions

Bars

Massachusetts
New York

Courts

U.S. Supreme Court
Delaware Supreme Court
U.S. Tax Court
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 Ninth Circuit
U.S. District Court for the District of Massachusetts
U.S. District Court for the District of Colorado
U.S. District Court of Delaware
U.S. District Court of New Hampshire
U.S. District Court for the District of New Jersey
U.S. District Court for the Eastern District of Michigan
U.S. District Court for the Southern District of New York
U.S. District Court for the Northern District of Illinois
U.S. District Court for the Central District of California
U.S. District Court for the Northern District of California
U.S. District Court for the Southern District of California
U.S. District Court for the Middle District of Florida
U.S. District Court for the Southern District of Florida
U.S. District Court of Rhode Island
U.S. Bankruptcy Court of Massachusetts
Massachusetts Appeals Court
California Appeals Court
Delaware Court of Chancery
U.S. District Court for the Eastern District of New York

Recognition & Awards

Mr. Pastuszenski has been recognized by The Best Lawyers in America Best Lawyers for his work in Corporate Governance Law, Litigation - Securities and Securities Regulation 2022.

Legal 500 2021 and 2022 recognizes Mr. Pastuszenski as a Leading Lawyer. Chambers USA 2021 and 2022 recognizes Mr. Pastuszenski for his work in Litigation: Securities. Mr. Pastuszenski is also recognized by Benchmark Litigation as a 2021 Litigation Star in New York for his work in Commercial, Securities & White Collar Crime.

Publications

Mr. Pastuszenski writes and speaks nationally to the business community on securities and shareholder litigation, corporate governance and compliance, and related insurance matters. Mr. Pastuszenski is also regularly quoted on these matters in national newspapers and business publications.

Among his numerous other speaking engagements, Mr. Pastuszenski chaired the annual Securities and Shareholder Litigation: Cutting-Edge Developments, Planning and Strategy conference in New York City sponsored by the American Law Institute for several years.

Mr. Pastuszenski for several years has been one of the featured speakers on securities class action developments at the annual Securities Litigation & Enforcement Institute sponsored by the New York City Bar Association.

Mr. Pastuszenski’s interviews with Lawdragon (upon being selected one of the 500 leading lawyers in the U.S.) and with Securities Law360 (upon being selected a Securities Litigation MVP) can be accessed here.

Brian E. Pastuszenski

Recognition

Experience

Representative Matters

Credentials

Education

JD1981

BA1978

Clerkships

Admissions

Bars

Courts

Recognition & Awards

Publications

Related Content

The Supreme Court Provides Guidance on the Standard for Deciding Price Impact at Class Certification in Securities Fraud Cases

Delaware Supreme Court Finds Federal Forum Provisions Facially Valid

Supreme Court Limits Reach of Tolling Rule, Barring Successive Class Actions After Limitations Period

U.S. Supreme Court Holds That SLUSA Did Not Eliminate State Court Jurisdiction Over 1933 Act Class Actions or Permit Their Removal to Federal Court

Delaware Supreme Court Increases Risk for Boards in Making Discretionary Director Compensation Awards

Supreme Court to Hear Challenge to State Court Jurisdiction Over 1933 Act Class Actions

Supreme Court Upholds Strict Time Limit for Securities Actions

Brian Pastuszenki Law Dragon Interview

Legal 500 United States 2022 Recognizes Goodwin Lawyers and Practices for Client-Centric Focus

Chambers USA 2022 Recognizes a Record Number of Goodwin Lawyers and Practices

Benchmark Litigation Names 25 Goodwin Partners 2022 Litigation Stars

The Best Lawyers in America Recognizes 186 Goodwin Lawyers Across 58 Practice Areas

The Legal 500 United States 2021 Recognizes Goodwin as the Top Firm for Innovators and Investors

Goodwin Achieves Record Growth in Chambers USA 2021

Benchmark Litigation Honors 25 Goodwin Lawyers as Litigation Stars

The Best Lawyers in America 2021 Awards Goodwin 140 Best Lawyers, 37 Ones to Watch and 6 Lawyers of the Year

Brian E. Pastuszenski

Recognition

Experience

Representative Matters

Representative Class Actions Challenging Financial Statement and Other Secondary Market Disclosures

Representative Class Actions Challenging Public Offerings of Securities

Representative Shareholder Derivative Litigation Matters

Other Representative Matters, Including Credit-Crisis-Related Institutional Investor (Non-Class) Securities Cases

Credentials

Education

JD1981

BA1978

Clerkships

Admissions

Bars

Courts

Recognition & Awards

Publications

Related Content

The Supreme Court Provides Guidance on the Standard for Deciding Price Impact at Class Certification in Securities Fraud Cases

Delaware Supreme Court Finds Federal Forum Provisions Facially Valid

Supreme Court Limits Reach of Tolling Rule, Barring Successive Class Actions After Limitations Period

U.S. Supreme Court Holds That SLUSA Did Not Eliminate State Court Jurisdiction Over 1933 Act Class Actions or Permit Their Removal to Federal Court

Delaware Supreme Court Increases Risk for Boards in Making Discretionary Director Compensation Awards

Supreme Court to Hear Challenge to State Court Jurisdiction Over 1933 Act Class Actions

Supreme Court Upholds Strict Time Limit for Securities Actions

Brian Pastuszenki Law Dragon Interview