EDITORIAL REVIEW
One of the top antitrust litigators in the world has scored dozens of victories
and favorable settlements for client and frequent target Microsoft.
—2008 Lawdragon 500 Leading Lawyers in America
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For more than 35 years, David Tulchin has successfully navigated his clients’ most complex, high-stakes commercial
litigation matters through state and federal courts across the United States and before national and international
arbitration panels.
He is well known for his courtroom successes in protecting his clients’ most important products, markets, transactions and,
in many cases, their businesses. He has extensive first-chair experience and has tried more than 20 business cases to
verdict. Mr. Tulchin is equally as well-versed in appellate proceedings, and has argued dozens of appeals, both at the
state and federal levels. He is a Fellow of the American College of Trial Lawyers.
His practice encompasses all areas and intersections of the law, with a particular emphasis on complex antitrust, contract,
M&A, patent, trademark and securities matters. He has represented clients in nearly every industry, from consumer products
to natural resources to pharmaceuticals to software and technology.
Coupled with his substantial courtroom experience, his multi-specialist approach and broad expertise consequently have
helped foster long-standing relationships with many clients, including Anheuser-Busch InBev SA/NV, The Boeing Company, CA,
Inc. (n/k/a CA Technologies), Eisai Co., Ltd., Microsoft Corporation and Regions Financial Corporation. He has served for
the past 10 years as Microsoft’s lead national counsel in defense of dozens of private antitrust actions brought both by
consumers and competitors in the wake of the U.S. government’s antitrust investigation. During this period, Mr. Tulchin has
won dismissals with prejudice for Microsoft in 20 of the major component actions, prevailed in seven appeals to the U.S.
Courts of Appeal and argued and won appeals for the Company before the Supreme Courts of five states. Today, he continues
to represent Microsoft in a civil antitrust suit brought by Novell—the one remaining related antitrust litigation—that
seeks damages of more than $7 billion. Some of his other notable representations, on a variety of matters, are described
below.
Selected Recent Litigation and Arbitration Victories
- On August 23, 2011, the U.S. Court of Appeals for the Second Circuit unanimously affirmed the dismissal with prejudice
of a class action complaint brought against client Regions Financial under Sections 11, 12 and 15 of the Securities
Act of 1933. Plaintiffs asserted that the registration statement and prospectus for an April 2008 bond offering by a
Regions subsidiary were false and misleading because they allegedly understated loan loss reserves and overstated goodwill
related to Regions’ 2006 $10 billion acquisition of AmSouth Corporation. The Second Circuit upheld the Southern District of
New York’s May 2010 decision that Regions’ statements of goodwill and loan loss reserves were matters of opinion and
estimation, not misstatements of material fact, and therefore were not actionable. In so doing, the Second Circuit adopted
the argument that S&C had made from the beginning—that opinions or predictions are not actionable under the 1933 Securities
Act unless the opinions or predictions were not honestly held at the time they were expressed.
- IIn March 2011, the Northern District of Illinois granted S&C client Boeing’s motion for reconsideration and
dismissed with prejudice a securities class action brought by a putative class of Boeing shareholders related to the first
flight of Boeing’s much anticipated aircraft, the 787 Dreamliner. Having been retained after the court denied Boeing’s
motion to dismiss, Mr. Tulchin orchestrated a stunning reversal, moving for reconsideration of the court’s decision in
light of a deposition of plaintiffs’ confidential source.
- In July 2010, an UNCITRAL panel of three arbitrators issued a decision rejecting entirely the claims brought by Grupo
Modelo and certain of its affiliates in an arbitration against S&C clients Anheuser-Busch Companies, Inc. and two of its
affiliates, in which Grupo Modelo sought more than $2.5 billion in damages. The panel dismissed all claims and also
awarded Anheuser-Busch its attorney fees and costs. The decision was a complete victory for Anheuser-Busch.
- In 2009, S&C client CA, Inc. obtained a highly favorable settlement in an action in the Eastern District of New
York in which CA alleged that a competing software company (Rocket Software, Inc.) had in part been able to develop certain
software products as a result of its theft of computer source code from CA. In addition to the claim of trade secret
misappropriation, CA made a claim for copyright infringement and permanent injunctive relief. The matter was resolved one
business day before trial was scheduled to begin.
Other Selected Experience: Appellate
- In 2009, the U.S. Court of Appeals for the Second Circuit affirmed a decision denying motions made by certain
shareholders of S&C client CA, Inc. under Rule 60(b) of the Federal Rules of Civil Procedure seeking to overturn
certain releases. The Court held that the movants lacked standing to bring a Rule 60(b) motion because, among other things,
they had been absent class members who had not appeared in the underlying class action or objected in a timely way to the
settlement.
- In October 2006, the Delaware Supreme Court, in Stone v. Ritter, issued a precedent-setting decision affirming
the dismissal with prejudice of a shareholder derivative action alleging that S&C’s client, the directors of AmSouth
Bancorporation, violated their fiduciary duties by failing to ensure AmSouth’s compliance with the Bank Secrecy Act.
The decision sets high hurdles for plaintiffs attempting to assign blame to corporate directors. Mr. Tulchin obtained the
dismissal from the Delaware Chancery Court and argued the appeal before the Delaware Supreme Court.
Other Selected Experience: General Commercial Litigation
- In July 2010, after three days of trial in the Eastern District of Pennsylvania, S&C clients Mark Gorton, Tower
Research Capital LLC, Tower Research Capital Investments LLC and seven investment funds that were owned and controlled by
Mark Gorton signed a settlement agreement with PJM Interconnection, L.L.C., resolving all claims between the parties.
The dispute arose as a result of the $51.7 million default on PJM’s markets by Power Edge LLC, one of the hedge funds
controlled by Mr. Gorton. PJM sought to collect this amount from defendants by “piercing the corporate veil” of Power Edge
LLC and also sought treble damages under RICO, but ultimately settled on terms very favorable to S&C’s clients.
- In 2008, a Minnesota state trial court rejected a motion seeking to enjoin a tender offer made by S&C client Eisai
Co., Ltd. for all the shares of MGI Pharma, Inc., in a transaction valued at approximately $3.9 billion. Plaintiff had
asserted breach of fiduciary duty claims against the directors of MGI Pharma and aiding and abetting breach of fiduciary
duty claims against Eisai. The court adopted Mr. Tulchin’s arguments and ruled entirely in Eisai’s favor, thereby allowing
the tender offer to proceed.
- In 2008, the Northern District of Alabama dismissed two derivative actions under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, Rule 10b-5 and certain state laws against S&C client Regions Financial. The Court
rejected claims against directors and officers of Regions alleging that the directors wrongly decided to sell, at a loss, a
mortgage lending unit and other assets, that the directors issued misleading public statements about Regions’ exposure to
the subprime market, and that they improperly authorized a stock buy-back program.
Other Selected Experience: Antitrust Litigation
- Johnson v. Microsoft Corp., 834 N.E.2d 791 (Ohio): Ohio Supreme Court affirmed the dismissal with prejudice of
this antitrust action against Microsoft. (Mr. Tulchin was lead counsel for Microsoft in this action, as in all the others.)
Recent Trial Court Decisions and Arbitration Decisions
- In Re Municipal Derivatives Antitrust Litigation, dismissed a
purported antitrust class action claim, with leave to replead, against S&C client Wachovia Bank, N.A. and other
defendants, finding that plaintiffs failed, under the test laid out in Bell Atlantic v. Twombly, to set forth
sufficient factual allegations to state a claim against Wachovia and certain of the other defendants.
- In 2008, the Eastern District of Missouri dismissed a motion seeking to enjoin preliminarily S&C client InBev’s
acquisition of Anheuser-Busch by 10 consumers of Anheuser-Busch beer. Plaintiffs argued that InBev’s acquisition of
Anheuser-Busch would violate antitrust laws because it would remove InBev as a “potential entrant” to the U.S. beer market
and lead to higher prices for beer. The court rejected the plaintiffs’ assertions and adopted each of the arguments
advanced in opposition to the motion in concluding that the plaintiffs had failed to establish even one of four
prerequisites for a preliminary injunction.
Other Selected Experience: Intellectual Property Litigation
- In 2009, S&C obtained for client Novo Nordisk a claims construction ruling from the District of New Jersey that
established that SoloStar, Novo’s competitor Sanofi-Aventis’ disposable insulin injection pen, infringed one of Novo’s
patents. In ruling in Novo’s favor, the Court adopted every argument S&C had made.
- In 2007, S&C obtained a victory for client Eisai in a patent infringement action to protect Eisai’s patent on
the drug rabeprazole (marketed in the U.S. as AcipHex®, which has U.S. sales of around $1 billion per year) against a
generic manufacturer. Following a bench trial, the judge in the Southern District of New York entered judgment for Eisai on
validity and infringement.
- In 2006, the District of New Jersey denied a preliminary injunction motion made by S&C client Novo Nordisk’s
competitor Sanofi-Aventis. If granted, the motion would have blocked the launch of Novo’s diabetes drug Levemir. The motion
was based on Sanofi-Aventis’ claims of false statements under the Lanham Act, but the Court rejected every claim, finding
no “reasonable likelihood of success on the merits” of the claims against Novo.
Mr. Tulchin speaks frequently on various legal topics. He has also testified before the U.S. Antitrust Modernization
Commission on issues surrounding state indirect purchaser actions in the U.S. antitrust enforcement system. He consistently
is recognized for his prowess as a commercial litigator by numerous industry publications, including
The Legal 500,
Benchmark Litigation and
The Best Lawyers in America.
Rankings and Recognitions
- Fellow, American College of Trial Lawyers
- Euromoney's Benchmark: America’s Leading Litigation Firms and Attorneys – recognized as a Star in Antitrust
Litigation (2008-2011)
- The Best Lawyers in America – recognized as a leading lawyer in Commercial Litigation and Business
Litigation(2005-2011)
- Euromoney’s Guide to the World’s Leading United States Litigation Lawyers – rrecognized as a leading lawyer in
Commercial Litigation (2005)
- The International Who’s Who of Commercial Litigation Lawyers (2006, 2008, 2009)
- Lawdragon 500: Leading Lawyers in America (2009-2010)
- The Legal 500, United States – recognized as a leading lawyer in Antitrust Litigation (2007, 2009)
- New York Super Lawyers (2006-2010)
Practices
Education
Bar Admissions
Clerkships
- The Honorable Frederick V.P. Bryan, United States District Court S.D., N.Y., 1973 - 1975
See Library Tab for articles, publications and presentations
by David Tulchin
