Brian E. Pastuszenski

Brian E. Pastuszenski

Partner Co-Chair, Securities Litigation + SEC Enforcement
Brian E. Pastuszenski

Brian Pastuszenski, senior partner and co-chair of Goodwin’s Securities Litigation + SEC Enforcement Practice, is nationally recognized as one of the premier securities litigation defense lawyers in the United States.

With more than 30 years of experience, Mr. Pastuszenski has represented leading investment banks and other major financial institutions, public-traded operating companies, boards of directors, and senior corporate officers in some of the nation’s largest and most complex securities class actions and shareholder litigations.  

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 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 alleging misstatements in the public offerings of more than $360 billion in mortgage-backed securities.
  • 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 dismissal of the case and what commentators have described as a “groundbreaking” decision from the Supreme Court concerning the standing of shareholders to bring derivative claims after a corporate merger.
  • A multi-district litigation (“MDL”) 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.

His work includes not only defending securities class action and shareholder derivative suits, but also proceedings brought by the SEC and other regulators, the indemnification and insurance issues these matters involve, and advising on compliance and corporate governance matters.

As reported in leading lawyer ranking publications, “marquee clients” who have worked with Mr. Pastuszenski consider him a “go-to lawyer.” One publication says of Mr. Pastuszenski that he “enjoys a national reputation as one of the top US attorneys for his areas of expertise,” noting that “[s]everal of his victories have been considered ‘groundbreaking’ or otherwise innovative.” Mr. Pastuszenski is praised by clients as:

  • The most levelheaded, clear-eyed securities litigator I have ever encountered.
  • A lawyer who has “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 “phenomenal” and “a really intelligent lawyer” who is “tireless, responsive and experienced.
  • A litigator who has “an impeccable work ethic and fantastic way of dealing with senior business executives.

Mr. Pastuszenski has been recognized as one the top six securities litigators in the United States (Law360), one of the 500 leading lawyers in the United States for nearly a decade (Lawdragon 500) as well as the top securities litigator in Boston (U.S. News-Best Lawyers). Year over year, he is uniformly ranked as a “star” or “leader” in his field nationally by all the major peer-review ranking publications, including Chambers, Benchmark Litigation, Legal 500, and US News-Best Lawyers.

Professional Activities

Mr. Pastuszenski is a member of the Securities Litigation Committee of the New York City Bar Association. He is past chair of the Business Litigation Committee of the Boston Bar Association.

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) and U.S. News-Best Lawyers in America (national leader, securities litigation and corporate governance).
  • 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,” and “an impeccable work ethic and fantastic way of dealing with senior business executives.”
  • Annually recognized as one of the top 500 lawyers in the country by the peer-review-based LawDragon 500 Leading Lawyers in America, since 2011.
  • Selected as the single best securities litigation defense attorney in Boston 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

ERFAHRUNG

工作经历

Mr. Pastuszenski’s matters include some of the largest, most complex securities class actions ever filed in the United States, including class action litigation challenging disclosures made in 430 mortgage-backed securities (MBS) 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 1000 class action complaints filed against three hundred public companies and their IPO underwriters and challenged disclosures relating to how shares in “hot” IPOs were allocated to investors. Mr. Pastuszenski was appointed to a six-member committee that served as the liaison between the issuer defendants and the court, 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 the past several years, Mr. Pastuszenski has served as lead defense counsel for Countrywide Financial Corporation, formerly an S&P 100 corporation and the country’s largest mortgage lender before its acquisition in 2008 by Bank of America Corporation. The matters Mr. Pastuszenski has been defending have included a multidistrict litigation proceeding pending in federal district court in Los Angeles in which nearly 50 class action and individual investor suits have been 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, particularly in regard to claims by investors that bought asset-backed securities prior to the collapse of the housing and capital markets in 2007. Many of these matters have involved claims by federal agencies in their capacity as conservator or receiver of failed banks or other financial institutions (including the Federal Housing Finance Agency as conservator for Fannie Mae and Freddie Mac) and the complex standing, statute of limitations and other issues such suits involve.

Mr. Pastuszenski’s other matters include representation of financial institutions (including mutual funds, insurance companies, and banks) and publicly-traded operating companies (including biotechnology and high-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.

He is also currently representing the board of directors of a market-leading mobile access technology company in a shareholder derivative lawsuit in Delaware Chancery Court that challenges the fairness of compensation awarded to the company’s outside directors.

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. For example, he has led several internal investigations relating to financial accounting for stock option grants, including an investigation for the audit committee of the board of a Fortune 500 technology company.

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 represents his clients tenaciously, and prides himself on the results he has achieved for them. Representative litigation matters include:

Representative Matters

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代表事项

Representative Class Actions Challenging Public Offerings of Securities
  • ARIAD Pharmaceuticals Securities Class Action: Won dismissal with prejudice of all claims against our clients, a syndicate of seven investment banks that underwrote a $310 million dollar secondary offering of common stock issued by bio-technology company ARIAD Pharmaceuticals, Inc., which manufactures and markets a cutting-edge leukemia drug. The named plaintiffs in this putative class action allege that the offering materials violated the federal 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 in Boston, which agreed in a groundbreaking decision that 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 have been held to historically.
  • Luther v. Countrywide Financial Corporation: Defeated plaintiffs’ attempt to remand to state court this putative mortgage-backed securities class action brought under the federal Securities Act of 1933 involving approximately430 MBS offerings 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 Appeal 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 US 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 $500 million 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: 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 on-line sports lottery services, obtaining the dismissal with prejudice of all claims against the underwriter defendants. Along with 500.com, the underwriters have been 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 on-line sports lottery services. 
  • MoneyGram Securities Class Action: Currently representing 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 have been 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. The suit is pending in federal court in Delaware. Defeated plaintiffs’ motion to remand this putative 1933 Act class action litigation from federal district court in Delaware to Delaware state court where it was originally filed. Lead plaintiff has now voluntarily dismissed this class action suit.
  • Putnam Bank v. Countrywide Financial Corporation: 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 MBS 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): 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 MBS 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 MBS purchasers only if the plaintiffs purchased the same tranche of security those other investors did (each MBS 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 MBS tranche for which the named plaintiffs lacks standing to sue.
  • Maine State Retirement System v. Countrywide Financial Corporation (I): 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 MBS 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. In comments released to the media, Bank of America (which had acquired Countrywide in 2008) said it “expects that the Court’s ruling will result in a substantial reduction in the number of offerings at issue in the Maine State case, from 427 offerings (which had a total notional amount at issuance of approximately $352 billion) to no more than approximately 22 offerings (which had a total notional amount at issuance of approximately $31 billion).”
  • Argent Classic Arbitrage Fund v. Countrywide Financial Corporation: 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 Financial Corporation. 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) 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.
  • 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 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. 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: Currently defending the syndicate of investment banks that served as underwriters of the $172.5 million initial public offering of NovoCure Limited, a Bailiwick of Jersey-based biotechnology company that markets an FDA-approved device which uses electric fields tuned to specific frequencies to disrupt solid tumor cancer cell division. Along with NovoCure, the underwriters have been 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.
  • American Renal Associates Securities Class Action Litigation: Currently defending the syndicate of investment banks that served as underwriters of the $189.75 million initial public offering of American Renal Holdings, Inc., which operates dialysis centers across the country. Along with American Renal Associates Holdings, Inc., the underwriters have been sued in federal court in Boston, Massachusetts under the Securities Act of 1933 concerning alleged misstatements in the issuer’s offering documents regarding alleged non-disclosure of claimed trends and uncertainties relating to insurance premium assistance provided to dialysis patients by the American Kidney Fund.
  • BioAmber Securities Class Action Litigation: Currently defending 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 the disclosures made by BioAmber in a secondary public offering prospectus and registration statement.
Representative Class Actions Challenging Financial Statement and Other Secondary Market Disclosures
  • Cognizant Technology Solutions Securities Class Action Litigation: Currently defending Cognizant Technology Solutions, Inc., a leading global provider of information technology, consulting, and business process services, and certain of its officials in securities class action litigation pending in federal district court in New Jersey arising out of Cognizant's announcement that it has begun an internal investigation into whether certain payments relating to facilities in India were made in possible violation of the U.S. Foreign Corrupt Practices Act.
  • Rockwell Medical, Inc. Securities Class Action Litigation: Currently representing this biotechnology company in securities class action litigation in federal court in New York City challenging disclosures relating to the marketing of Rockwell’s FDA-approved iron replacement drug product for hemodialysis patients.
  • PTC Inc. Securities Class Action Litigation: Currently representing this global high-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. 
  • 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 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 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 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.  
Representative Shareholder Derivative Litigation Matters
  • 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 2013 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 following Countrywide’s acquisition by Bank of America in 2008 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 Securities Class Action Litigation: Currently defending Cognizant Technology Solutions, Inc., a leading global provider of information technology, consulting, and business process services, in putative shareholder derivative litigation in state court in New Jersey arising out of Cognizant's announcement that it has begun an internal investigation into whether certain payments relating to facilities in India were made in possible violation of the U.S. Foreign Corrupt Practices Act.
  • 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 by Bank of America. 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: Currently representing 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.
Other Representative Matters, Including Institutional Investor (Non-Class) Securities Cases
  • 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.
  • Midland Loan Services v. Bank of America, N.A., as Successor by Merger to LaSalle Bank National Association: Represented Bank of America in federal court in Chicago in suit brought by servicer of loans that were pooled into a commercial mortgage-backed securities offering issued by LaSalle Bank. Suit alleged breaches of representations and warranties concerning LaSalle’s loan origination and appraisal practices and sought repurchase of approximately $300 million in loans.
  • 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 owns National Amusements, Inc., which in turn owns 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 federal 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.
  • Principal Life Ins. Co. v. Bank of America Corporation: Won dismissal with prejudice of the vast majority of the plaintiffs’ claims in this suit pending in federal district court in Los Angeles challenging disclosures made in connection with the public offering and sale of MBS. Also defeated the insurance-company plaintiffs’ motion to seek immediate appeal or certification to the Iowa Supreme Court of legal rulings made by the district court concerning the interpretation of Iowa law regarding the statute of limitations applicable to plaintiffs’ state law claims.
  • 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 MBS 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 MBS 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 with Bank of America. 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 MBS issued by subsidiaries of Countrywide.
  • 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 MBS issued by subsidiaries of Countrywide. 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 Financial Corporation. 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 MBS 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 were aware of information about Countrywide’s loan origination practices that allegedly had been concealed from them. The case settled after this ruling.

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 United States 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.

In The News

MELDUNGEN

在新闻中

Credentials

WERDEGANG

专业资格

Education

J.D., 1981
Cornell Law School

(magna cum laude, Order of the Coif)

B.A., 1978
Dartmouth College
(summa cum laude)

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

Clerkships

1981 to 1982 U.S. District Court of Rhode Island, Honorable Raymond Pettine

Admissions

Bar

Massachusetts
New York

Courts

U.S. 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 Ninth Circuit
U.S. District Court for the District of Massachusetts
U.S. District Court for the District of Colorado
U.S. District Court for the Eastern District of Michigan
U.S. Bankruptcy Court of Massachusetts
U.S. District Court for the Southern District of New York
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