Deborah S. Birnbach

Deborah S. Birnbach

Partner Co-Chair, Public M&A / Corporate Governance
Deborah S. Birnbach

Deborah Birnbach is a partner in Goodwin’s Securities Litigation & White Collar Defense group and co-chair of the firm’s Public M&A / Corporate Governance practice. She concentrates in the areas of securities litigation, including class action defense; SEC, regulatory and internal investigations; M&A-related litigation; stockholder disputes; fiduciary duty claims; and proxy contests. Her securities and shareholder litigation practice is national in scope and involves representing issuers and their directors and officers in securities and corporate governance matters across the country. In addition to engaging in active litigation, Ms. Birnbach counsels companies and their boards in managing and avoiding litigation risk, including through arbitration, mediation and other alternative dispute resolution methods. Ms. Birnbach has served on the firm’s Executive Committee.

Ms. Birnbach’s clients include public and private healthcare and life sciences companies, technology companies, and financial services companies, their boards and officers, and private equity firms and their partners.

Ms. Birnbach has conducted numerous internal corporate investigations for audit committees and other special board committees into financial accounting and corporate governance-related matters, including whistleblower matters under Sarbanes-Oxley and Dodd-Frank.

Ms. Birnbach’s securities and shareholder litigation matters have involved allegations of insider trading, misleading disclosures, including in connection with M&A transactions, insufficient deal consideration, improper revenue recognition and other alleged accounting irregularities, self-dealing and breach of fiduciary duty, among other issues. She has also represented clients in FINRA inquiries and in regulatory proceedings brought by the SEC and other regulators relating to possible accounting irregularities, the accuracy and completeness of corporate disclosures to investors and securities trading by corporate officers and directors, among other matters.

Experience

ERFAHRUNG

EXPÉRIENCE

工作经历

Ms. Birnbach’s representative experience includes:

With colleagues in the Public M&A / Corporate Governance Practice, Ms. Birnbach works with integrated deal teams on M&A transactions, representing targets, acquirers and their financial advisers. For example, recently, a team of Goodwin lawyers represented the Sprint transaction committee in Sprint’s $59 billion all-stock merger with T-Mobile.

M&A Litigation

  • NeuStar Merger Litigation (2019): Obtained dismissal with prejudice of class action litigation against NeuStar, Inc. and its former board of directors in connection with the acquisition of NeuStar 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.
  • LaSalle Hotel Properties (2018): Defended LaSalle and its board of trustees in Maryland state court in fiduciary duty litigation challenging LaSalle’s merger transaction. Plaintiffs voluntarily dismissed the litigation and the $5.2 billion deal closed on time.
  • Foundation Medicine Merger Litigation (2018): Represented Foundation Medicine and its board of directors. Obtained voluntary dismissal of class action complaints alleging violations under the Securities Exchange Act of 1934 against Foundation Medicine and its Board in connection with tender offer by Roche for the approximately 45% of Foundation Medicine it did not already own in a $2.4 billion transaction. Deal closed on time.
  • Lionbridge Technologies Merger Litigation (2018): Representing former board of directors of Lionbridge in connection with class action lawsuits alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 challenging its sale to H.I.G. Capital. Won motion to dismiss the complaint in the U.S. District Court for the District of Delaware and continue to defend case after amendment.
  • PAREXEL International Merger Litigation (2017): Represented PAREXEL 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.
  • Lennar/WCI Merger Litigation (2017): Represented Lennar in merger litigation brought by stockholders of WCI Communities, in connection with Lennar’s acquisition of WCI. Plaintiffs dropped their request for an injunction and voluntarily dismissed the case.
  • Trulia/Zillow Merger Litigation (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.
  • Imprivata Merger Litigation (2016): Represented Imprivata and its board of directors in merger litigation challenging the acquisition of Imprivata by Thoma Bravo for $544 million. Deal closed on time after voluntary dismissal by plaintiffs of two lawsuits in the Delaware Court of Chancery.
  • Teva/Auspex Pharmaceuticals, Inc. Merger Litigation (2015): Representing Teva in merger litigation in Court of Chancery in Delaware, brought by stockholders of Auspex in connection with Teva’s acquisition of Auspex. Plaintiffs dropped their request for an injunction and the transaction closed on time on May 5, 2015.
  • Life Sciences Public Company (2015): Represented public life sciences client in connection with threatened class action merger litigation by stockholder in connection with acquisition of client by 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. Merger Litigation (2013): Representing board of directors of Onyx in connection with shareholder class action litigation in Superior Court for San Mateo County, California and Delaware Court of Chancery, challenging Onyx’s $10.4 billion merger with Amgen. Successfully defeated plaintiffs’ efforts to disrupt tender offer and transaction closed on time.
  • Courier Corporation Merger Litigation (2015): Represented board of directors of Courier Corporation in connection with shareholder class action breach of fiduciary duty litigation challenging acquisition of Courier. Plaintiffs voluntarily dismissed the complaint with no settlement.
  • Mac-Gray Merger Litigation (2014): Represented Mac-Gray and its board of directors in breach of fiduciary duty class action challenging acquisition of Mac-Gray by CSC ServiceWorks in January 2014. The case was settled favorably and the transaction closed on time.
  • Eloqua Merger Litigation (2013): Represented Eloqua, Inc., a provider of on-demand revenue performance management software and its board of directors in connection with shareholder class actions filed in the Eastern District of Virginia and in the Delaware Court of Chancery challenging Eloqua’s $930 million sale to Oracle Corporation. After initial discussions and negotiations with plaintiffs’ counsel, obtained voluntary dismissal of the litigation, and the transaction closed on time. 
  • athenahealth Merger Litigation (2013): Represented athenahealth, Inc. in its acquisition of Epocrates, Inc. and litigation brought by Epocrates’ shareholders challenging the $293 million transaction  in Superior Court for San Mateo County, California, including allegations that athenahealth aided and abetted the Epocrates board’s alleged breaches of fiduciary duty. Obtained a favorable settlement and the transaction closed on time.
  • ZOLL Merger Litigation (2013): Represented ZOLL Medical Corporation and its board of directors in connection with shareholder litigation challenging Asahi Kasei’s $2.2 billion acquisition of ZOLL in Massachusetts state court. The matter was settled favorably, and the transaction closed on time.
  • Veramark Merger Litigation (2013): Represented Veramark Technologies, Inc. and its board of directors and obtained voluntary dismissal from plaintiffs in class actions filed in New York Supreme Court and the Court of Chancery in Delaware challenging the sale of Veramark to subsidiaries of Clearlake Capital Partners. The tender offer and transaction closed on time.
  • Ariba Merger Litigation (2012): Represented Ariba and its board of directors and obtained voluntary dismissal from plaintiffs of six putative class actions challenging Ariba/SAP $4.3 billion merger in the Superior Court, Santa Clara County, California and in the Court of Chancery in Delaware. All breach of fiduciary duty and aiding and abetting claims dismissed and transaction closed on time.

Securities Class Action Cases

  • 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, Alkermes’ FDA-approved treatment for preventing relapse to opioid dependence following detoxification.
  • Esperion Therapeutics Securities Class Action (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 of its officers and directors. In the U.S. District Court of the Eastern District of Michigan, plaintiffs alleged false and misleading statements in connection with clinical trials for the company’s lead product candidate.
  • Foundation Medicine Securities Class Action (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 Foundation Medicine and certain of its officers and directors arising out of alleged misstatements and omissions concerning reimbursement and clinical test metrics. Foundation Medicine is a commercial stage molecular information company transforming cancer care with its suite of genomic tests that identify molecular alterations in a patient’s cancerous tumor for physicians to optimize treatment.
  • Inotek Securities Class Action (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 Inotek, a clinical-stage biopharmaceutical company focused on the development and commercialization of novel therapies for diseases of the eye, 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 Securities Class Action (2017): Won affirmance by the U.S. Court of Appeals for the First Circuit of dismissal with prejudice of securities class action litigation against Zafgen and its CEO concerning allegations of securities fraud in connection with clinical trial disclosures.
  • Imprivata Securities Class Action (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 Securities Class Action (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.
  • Ampio Securities Class Action (2016): Won dismissal of securities class action litigation against Ampio, a life sciences company, and certain of its executives brought under Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 and Section 11 of the Securities Act of 1933 in the U.S. District Court for the Central District of California. Plaintiffs alleged false and misleading statements and omissions in connection with conduct of the clinical trial for Ampion, the Company’s drug candidate.
  • Epocrates Securities Class Action (2016): Won dismissal of First and Second Amended Complaints of Section 10(b) and Rule 10b-5 claims in shareholder class action against Epocrates, a health care IT company, and its CEO and CFO in the U.S. District Court for the Northern District of California. Obtained favorable settlement funded entirely by insurance after Third Amended Complaint survived dismissal.
  • Metabolix Securities Class Action (2013): Won complete dismissal with prejudice of Section 10(b) and Rule 10b-5 claims in a shareholder class action against Metabolix, its CEO and CFO in the U.S. District Court for the District of Massachusetts. Plaintiffs alleged misrepresentations and omissions in connection with certain milestones in its biopolymer plastic manufacturing business.
  • The Princeton Review Securities Class Action Litigation (2012): Won dismissal with prejudice of securities class action litigation brought under Section 11, 12(a)(2) and 15 of the Securities Act of 1933 against this educational services company, certain of its current and former officers and directors and its underwriter in the U.S. District Court for the District of Massachusetts. This class action concerned a secondary offering of equity securities and challenged the company’s disclosures concerning its turnaround efforts and the trends and uncertainties in its business at the time of the offering. 
  • MELA Sciences Securities Class Action Litigation (2012): Won dismissal of securities fraud class action asserting violations of Section 10(b) and Rule 10b-5 under the Securities Exchange Act of 1934 against MELA Sciences and three of MELA’s officers and directors in the U.S. District Court for the Southern District of New York. The allegations concerned alleged false and misleading statements prior to MELA obtaining FDA approval for its Melafind device, designed to assist in the detection of melanoma.
  • athenahealth, Inc. Securities Class Action Litigation (2011): Won complete dismissal of a putative class action alleging securities fraud and related claims against this software as a service (SaaS) company and certain current and former senior executives arising out of a revenue restatement. The complaint alleged misstatements in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and sought damages for a class period of over two years. 
  • NeuroMetrix, Inc. Securities Class Action Litigation (2011): Won affirmance by the U.S. Court of Appeals for the First Circuit of dismissal with prejudice of a putative class action alleging securities fraud and related claims against this medical device company and certain of its current and former officers. The suit alleged that various statements made by the company relating to reimbursement for its product were false or misleading in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The U.S. District Court for the District of Massachusetts granted our motion to dismiss the case in its entirety and with prejudice. Also achieved a favorable settlement of a related shareholder derivative action that involved no payment of money by defendants. 

Derivative Litigation

  • Metabolix Derivative Action (2014): Won complete dismissal with prejudice of breach of fiduciary duty case in Massachusetts Business Litigation court against current and former directors for, among other reasons, plaintiffs’ failure to plead that making a demand on the board would have been futile.
  • J.L. Hammett Derivative Litigation (2010, 2013): Won summary judgment for defendants in Massachusetts Superior Court on breach of fiduciary duty claims concerning alleged excessive compensation in connection with sale transaction. The Massachusetts Court of Appeals affirmed the summary judgment ruling in 2013.

SEC Enforcement Actions

  • SEC Investigation Concerning Revenue Restatement (2019): Representation of life sciences company regarding revenue restatement. Resolved favorably with SEC declining to bring enforcement action.
  • SEC Investigation Concerning Revenue Reserves (2017): Representation of technology company regarding accounting issues for various reserves. Resolved favorably with SEC declining to bring any enforcement action.
  • SEC Investigation Concerning Missed Expectations and Trading Issues (2016): Representation of HCIT company in connection with potential insider trading issues preceding disappointing results. Resolved favorably with no SEC action.
  • SEC Investigation Concerning Revenue Disclosures (2016): Representation of technology company in connection with investigation concerning disclosures about deferred revenue and corresponding disclosures. Resolved favorably for client with no SEC action.
  • SEC Investigation Concerning Fiduciary Duty Advisers Act Issues (2015): Representation of private equity fund registered investment adviser concerning fiduciary duty issues in connection with allocation of expenses between adviser and funds, and disclosures to investors. Resolved favorably for client with no SEC action.
  • SEC Investigation Concerning Revenue Recognition Issues (2014): Representation of software client concerning revenue recognition issues. Resolved favorably for client with no SEC action.
  • SEC Investigation Concerning Advisers Act Issues (2013): Representation of registered investment adviser concerning supervision of investment management employee. Resolved favorably for client with no SEC action.

Proxy Contest Litigation

  • 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 we obtained in favor of the Company.
Professional Activities

Ms. Birnbach is on the board of trustees of Discovering Justice, a nonprofit organization that is a pioneer in civic and justice education. She 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.

Recognition

Ms. Birnbach is recognized by Chambers USA: America’s Leading Lawyers for Business and The Legal500 United States for her Securities Litigation work and by Best Lawyers in America for her Biotechnology and Life Sciences work. She was also recognized in 2016 and 2009 by Boston magazine as one of the Top 50 Women Lawyers in Massachusetts, and for nine consecutive years has been selected a “Massachusetts Super Lawyer” in Securities Litigation by the same publication, and in 2017 in the Mergers & Acquisitions category. The National Law Journal named Ms. Birnbach a 2016 Mergers & Acquisitions and Antitrust Trailblazer, an award that recognizes 48 attorneys nationwide who have changed their field of law through cutting-edge, innovative work.

In The News

MELDUNGEN

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Credentials

WERDEGANG

RÉFÉRENCES

专业资格

Education

J.D., 1992
Columbia Law School
B.A., 1986
Wellesley College

(cum laude)

Admissions

Bar

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 Sixth Circuit
U.S. Court of Appeals for the Eighth Circuit
U.S. Court of Appeals for the Ninth Circuit
U.S. District Court for the Eastern District of New York
U.S. District Court for the Southern District of New York
U.S. District Court for the District of Massachusetts
U.S. District Court for the Eastern District of Michigan
U.S. District Court for the Northern District of New York
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