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 & Shareholder Litigation practice and co-chair of the firm’s Public M&A / Corporate Governance practice. She specializes in securities litigation, including class action defense; SEC, regulatory and internal investigations; M&A-related litigation; stockholder disputes; fiduciary duty claims; and proxy contests. Ms. Birnbach’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.

Ms. Birnbach 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, Ms. Birnbach works with integrated deal teams on 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.

Ms. Birnbach conducts internal corporate investigations for audit committees and other board committees in financial accounting and corporate governance-related matters, including 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.

Ms. Birnbach served on the firm’s Executive Committee and currently serves on the firm’s Allocations Committee.

Experience

ERFAHRUNG

EXPÉRIENCE

工作经历

Ms. Birnbach’s representative matters include:

M&A Litigation and Representation 

  • 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.
  • 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 challeging Lionbridge's sale to H.I.G. Capital.
  • 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.
  • Lennar (2017). Represented Lennar in merger litigation brought by stockholders of WCI Communities, concerning its acquisition of WCI. Plaintiffs dropped their request for an injunction and voluntarily dismissed the case.
  • 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.
  • Imprivata (2016). Represented Imprivata and its board of directors in litigation challenging its acquisition 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 (2015). Represented Teva in merger litigation in Court of Chancery in Delaware, brought by stockholders of Auspex Pharmaceuticals, Inc. in Teva’s acquisition of Auspex. Plaintiffs dropped their request for an injunction and the transaction closed on time.
  • 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.
  • Courier Corporation (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 (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 (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 (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 (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 (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 (2012). Represented Ariba and its board of directors and obtained voluntary dismissal from plaintiffs of six putative class actions challenging its $4.3 billion merger with SAP 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 were dismissed and transaction closed on time.

Securities Class Action Cases

  • 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.
  • Ampio Pharmaceuticals (2016). Won dismissal of securities class action litigation against the life sciences company and certain 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.
  • Epocrates (2016). Won dismissal of First and Second Amended Complaints of Section 10(b) and Rule 10b-5 claims in shareholder class action against the healthcare 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 (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 (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 the educational services company, certain officers and directors and its underwriter in the U.S. District Court for the District of Massachusetts. This class action concerned an equity offering and challenged company disclosures concerning its turnaround efforts, trends and its business uncertainties at the time of the offering. 
  • MELA Sciences (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 it and three 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 obtaining FDA approval for its Melafind melanoma detection device.
  • athenahealth, Inc. (2011). Won complete dismissal of a putative class action alleging securities fraud and related claims against the company and certain 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. (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 the medical device company and certain 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

  • Esperion Therapeutics (2020): Won dismissal with prejudice of breach of fiduciary duty 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.
  • 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.
  • J.L. Hammett Company (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.

SEC Enforcement Actions

  • 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.

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 that 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 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 United States in commercial deals and contracts, M&A litigation: defense, M&A: middle market, and securities litigation: defense; as a litigation and enforcement Star by LMG Life Sciences; and by Best Lawyers in America for her Biotechnology and Life Sciences work. 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 Ms. Birnbach 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.

In The News

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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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