Photo by Laura Barisonzi.
Matthew L. Tuccillo is a heavyweight in plaintiff-side securities litigation, leading individual lawsuits by dozens of large institutional investors seeking to recover investment losses from BP’s Deepwater Horizon oil spill and serving as lead counsel on class action cases regarding alleged deceptive marketing of financial products aimed at students, misreported production from Chinese precious metals mines, unauthorized banking transactions by a Canadian bank, and KaloBios Pharmaceuticals and its jailed CEO Martin Shkreli. An experienced litigator who thrives off the complexities of this ever-changing area of the law, Tuccillo graduated from Georgetown University Law Center and has been a partner at Pomerantz LLP since 2013.
Lawdragon: Can you describe for our readers the focus of your practice these days?
Matthew Tuccillo: At this stage of my career, in my 20th year of practice, I handle virtually 100% securities litigation on the plaintiff-side. Earlier in my career, I handled consumer, antitrust, wage and hour, employment, and personal injury litigation. I have been exclusively on the plaintiff-side since mid-way through my second year of practice.
LD: What first drew you to this type of practice?
MT: As a law student at Georgetown, I took a Mass Torts class, taught by Ken Feinberg, an adjunct professor, who later served as Special Master overseeing the 9/11 Victim Compensation Fund and the Deepwater Horizon Victim Compensation Fund, among other high-profile matters. I was hooked. I found the class action litigation device to be fascinating, innovative, impactful and challenging. It scratched every itch I had professionally – cerebral, hard-fought litigation, across the country, with far-ranging impacts on people’s lives. Over time, I became increasingly specialized in securities lawsuits, as a matter of professional evolution.
LD: You seem to have the same level of enthusiasm for this work as you did back in law school! What keeps you excited about it?
MT: No two cases are the same, and no two workdays are the same. I handle every aspect of the securities class actions I oversee – client consultation and retention, factual investigation and private investigator work, stock chart and insider trading analysis, consultation with economic and subject matter experts, complaint drafting, dispositive motion practice, courtroom argument, e-discovery, alternative dispute resolution, and settlement. My favorite parts are crafting arguments in briefs then going toe-to-toe with opposing counsel at oral argument.
LD: Can you talk a bit about the Deepwater Horizon litigation?
MT: I currently lead my firm’s litigation being pursued by pension funds and other large institutional investors seeking to recover investment losses related to BP’s Deepwater Horizon rig explosion and Gulf oil spill in 2010. Over the course of 7 years (and counting), I have handled briefing and/or oral argument to defeat three rounds of BP’s motions to dismiss, and other contested motions, involving a myriad of complex legal issues.
We convinced Judge Keith Ellison, a Texas federal judge, to retain jurisdiction over these lawsuits – brought by domestic and foreign institutions, pursuing foreign law claims, seeking to recover for losses in foreign-traded stock – the only instance where a U.S. court has done so after the U.S. Supreme Court’s 2010 decision in Morrison v. Nat’l Australia Bank, which barred application of the U.S. federal securities laws to foreign stock transactions. As a result, over 100 public and private pension funds, money management firms, banks, limited partnerships, and investment trusts from the U.S., Canada, the U.K., France, Germany, the Netherlands, Australia, and Singapore are pursuing English common law claims, seeking to recover losses in BP’s London-traded common stock, in Texas federal court.
I overcame BP’s attempts to extend the Securities Litigation Uniform Standards Act of 1998, which dismisses U.S. state law claims in deference to U.S. federal law claims under certain circumstances, to our English law claims. Such an extension, had it succeeded, would have dismissed all of the English common law claims from the litigation.
For some of the investor plaintiffs, I also succeeded in validating an English law “holder claim,” seeking to recover for losses in stock they continued to hold, rather than purchased anew, in reliance on the alleged fraud – another ruling of first impression. This, too, was significant, because the U.S. Supreme Court barred pursuit of “holder claims” under the U.S. federal securities laws in its 1975 decision in Blue Chip Stamps v. Manor Drug Stores.
The cases are now in discovery, with summary judgment motions expected in 2020. Regardless of the future outcomes, this litigation has been among the most interesting and precedent-setting I have had the privilege of handling. I have particularly enjoyed the multi-hour oral arguments in Judge Ellison’s packed courtroom, which have been closely watched by investors and financial and news media.
LD: You mentioned you have been practicing for 20 years now. Are you taking time to celebrate this landmark?
MT: While difficult to believe, the milestone is certainly a chance to pause and reflect on my career path, the firms at which I have worked, and the lawyers and judges who made impressions on me and helped influence my approach to the practice of law. But, only for a moment. I am hard-wired to always have a full plate, both professionally and personally!
LD: What trends you are seeing in plaintiff-side securities litigation these days?
MT: The past few years, I have had increasing success in pleading that a company’s reported financial results were materially false and misleading, in violation of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, for failure to disclose widespread underlying misconduct that fueled those results. In Perez v. Higher One Holdings, Inc., the court held that the reported results themselves were actionable, where the underlying misconduct consisted of misleading marketing and improper fees, in violation of U.S. federal banking laws, that affected 1.325 million students and resulted in significant fines that consumed the company’s entire class period net income. In In re Toronto-Dominion Bank Securities Litigation, which recently settled for $13.25 million, the court held that statements attributing a bank’s financial results to certain operating and performance factors were actionable where there was widespread underlying misconduct by personnel at all levels that targeted banking, lending, and wealth management customers in the bank’s flagship Canadian retail segment. In both cases, I alleged that nondisclosure of the underlying misconduct violated Regulation S-K, Item 303, 17 C.F.R. §229.303(a)(3)(i)-(ii) and (b)(2), which govern management’s discussion and analysis of a company’s financial condition and results of operations in annual and interim periods. These provisions require disclosure of events, transactions, or significant economic changes that materially affected reported income; trends or uncertainties that had or are reasonably expected to have material impacts on net sales, revenue or income; or material changes in the results of operations.
Another growing trend involves investor plaintiffs increasingly filing lawsuits in state courts to pursue claims under the federal Securities Act of 1933. Such filings began to increase even before the U.S. Supreme Court’s 2018 decision in Cyan, Inc. v. Beaver Cty. Employees’ Ret. Fund, which reaffirmed the right to bring them, and intensified afterward. Typically, these state court proceedings run parallel to a traditional federal court class action that combines the Securities Act claims with claims under the Securities Exchange Act of 1934 and that is governed by the Private Securities Litigation Reform Act of 1995, which imposes a lead plaintiff selection process and a stay of discovery until resolution of any motion to dismiss. Having multiple plaintiffs pursue Securities Act claims in multiple fora, before separate judges, subject to differing rules and standards, often at different procedural junctures, creates complex coordination, litigation, and settlement challenges.
LD: You recently handled an interesting case involving student loans. Can you walk us through the issues at hand there?
MT: You are referring to Perez v. Higher One Holdings, Inc., where the court granted final approval to the $7.5 million settlement in mid-2018 and permitted distribution of funds to class members in 2019. The lawsuit alleged a five-prong, multi-year fraud at a Connecticut-based company that processed student loans and offered student-focused banking products, but which engaged in widespread underlying misconduct, affecting over 1.3 million students, by deceptively marketing its products and charging improper fees. The misstatements concerned the company’s purported compliance with legal settlements and consent orders predating the class period, its purported product changes and reforms, its reported financial and operating results, and whether the termination of a bank partner relationship had been “mutual” or had been done by the bank out of undisclosed concerns over the company’s practices. While the alleged fraud was ongoing, the individual defendants and other insiders, including the company’s co-founders and highest-ranking executives, sold millions of dollars in company stock, before resigning from their roles in the company. At the end of the class period, the company was hit with tens of millions of dollars in fines, penalties, and restitution obligations, wiping out its class period earnings. It was later sold off in pieces.
LD: Did you encounter any major challenges in the case?
MT: The court initially dismissed our first amended complaint, in its entirety, for failure to surpass the high pleading standards for falsity and scienter that apply under the U.S. federal securities laws. I continued to work with our private investigators, who secured a helpful statement from the company’s former Chief Information Officer (CIO) conclusively establishing that the company’s bank partner had initiated the termination of their relationship over its undisclosed concerns – rather than the termination’s being mutual, as the company had publicly claimed. I persuaded the court to permit us to file a second amended complaint addressing its earlier concerns, in part through the CIO’s statements. The court then rejected, in full, defendants’ motion to dismiss, validating all five threads of the alleged fraud in a complete turnaround from the prior ruling. We were able to settle the case shortly into discovery.
LD: Your clients must have been happy.
MT: My clients, individual retail investors who served as representatives on behalf of the settlement class of company investors, were thrilled with the outcome. I was gratified as well. Being from Connecticut, it did not sit well with me that a company based in my home state was misleading students and defrauding investors.
LD: Was there a larger impact on the industry?
MT: The settlement likely sent a strong signal to education funding companies that firms like mine, acting as private attorneys general, will seek recovery of investment losses stemming from underlying misconduct in violation of consumer laws.
LD: Do you have any professional takeaways from the case?
MT: This case illustrated the advantages of pressing forward the factual investigation, even when dispositive motions are fully briefed and remain sub judice (being considered by a court). It also serves as an example of how later amendments to the pleadings, when tailored to the judge’s questions and concerns, coupled with legal briefs aligning them, can overcome earlier setbacks and even prior dismissals of the entire complaint.
LD: Let’s go back and talk about your education. Did any experience from your undergraduate work push you towards a career in the law?
MT: As an undergraduate at Wesleyan University, I enjoyed my courses of study as a Government major, with a focus in international politics, where I served as a Teaching Assistant. The reading, writing, analysis, discussions, and simulations were good precursors to law school and a career in law. I was also heavily involved in community service efforts as an undergraduate, for which I was recognized by the university. I oversaw a tutoring program at a local elementary school, ran a mentoring program at a youth shelter, and organized food and coat drives for area charities. These formative activities were a good launching pad for plaintiff-side legal work, which, generally speaking, is done for the betterment of people.
LD: What sort of work did you do through undergrad and law school?
MT: I have always worked, in a variety of settings, ever since I was 13 years old and got my first job, under the table, working as a busboy at a busy local diner. That was true throughout college and also the year after I graduated, when I took a planned yearlong break from academics. The summer immediately after graduation, I worked at Harvard Law School, in their Office of Public Interest Advising, which was the first summer I spent living in Boston – where I would later return for my 2L summer as a law student and for the first 10 years of my career.
That fall, I moved back home with my parents in Connecticut to permit me to apply to law school, work a variety of jobs unrelated to the field of law, and intersperse some travel. I worked as a bank teller, bartender, and waiter, and I also went scuba diving with sharks in the Bahamas, backpacked through southern Spain, did a month-long cross-country drive / camping trip from the East coast throughout the Western U.S., and attended the Olympics in Atlanta. When I arrived at Georgetown after that year, I found myself staring out the window a lot less often than my classmates who had gone directly from college to law school without any time off. It was a year very well spent.
LD: And what initially attracted you to a career in the law?
MT: A legal career always seemed a good fit based on my personality, competitiveness, work ethic, and drive to make a difference. Despite having no other lawyers in my immediate family, I recall it being floated as a potential path for me ever since I was quite young, when I apparently enjoyed talking my way into or out of situations. It stuck throughout my scholastic career and young adulthood, and I never came across anything more appealing. It suits me.
LD: Is there a specific reason why you chose Georgetown over another law school?
MT: My strategy was simple – apply to all the schools in Boston, New York, and Washington, D.C. and attend the best one that accepted me. That was Georgetown, which turned out to be an excellent fit. It had a top-ranked moot court program, and I both competed on and coached award-winning teams. Being in D.C. also afforded me excellent and unique opportunities – I liken studying law in D.C. to studying art history in Florence, Italy, which I did in college. I interned at the U.S. EPA, did an in-semester judicial internship, and regularly attended live U.S. Supreme Court oral arguments. Georgetown’s class size was also perfect for me – it is the largest U.S. law school by head count, which equates to a smaller college class size like the one I experienced as an undergrad. Georgetown also brought my wife and I together – we met as two first-year law students there – so I would say I got my money’s worth.
LD: And of course, you had the fascinating experience of being taught by Ken Feinberg!
MT: Without question, the professor and class that had the largest impact on me were Ken Feinberg and the Mass Torts class he taught as an adjunct professor.
One other particularly memorable experience arose from my participation in Georgetown’s top-ranked clinical program. I helped represent the Mattaponi tribe in Virginia, as a member of the Georgetown clinic called the Institute for Public Representation, in their effort to block a municipal dam project that had been slated to flood ancestral burial grounds. Working closely with the tribe at such an early stage of my legal education was an early illustration of the positive impact my legal work could have on others.
LD: Any advice for current law school students?
MT: I wish someone had told me before law school how valuable my classmates might one day become as professional connections. Instead of viewing them (as I did, to some extent) as competitors – for grades, internships, and jobs – it is far better to view them as potential lifelong professional contacts who might one day refer business or assist in a lateral job move.
LD: After law school, was there any early experience that helped shape the course of your professional life?
MT: One early formative experience as a young lawyer was when I won my first pro bono case as a first- or second-year lawyer. I represented a homeless veteran who struggled with various mental impairments and succeeded in securing him Social Security disability benefits via an appeal of an administrative law judge’s earlier denial determination. It was the first matter that I ever handled entirely on my own.
LD: Can you go into more detail on how your practice has changed since the early part of your career?
MT: I started my career at a full-service law firm with corporate clients, before jumping plaintiff-side in my second year of practice to predominantly sue corporate defendants. My early mix of plaintiff-side work included consumer, personal injury, employment, wage and hour, antitrust, and securities cases, both individual and class action. As I grew more senior, my practice focused increasingly on securities lawsuits, typically class actions, which now constitute nearly all of my professional time.
LD: Is there a particular opposing counsel whom you admire?
MT: I admire Richard Pepperman II at Sullivan & Cromwell, against whom I have litigated multiple matters over the past seven years. Rick is a skilled lawyer and effective advocate, while also managing to maintain an even-keeled demeanor and an excellent rapport with his opposing counsel.
LD: Is there a case in your career that stands out as a “favorite” for certain reasons?
MT: In re Silvercorp Metals, Inc. Securities Litigation, on which I served as lead counsel, was a favorite. Judge Jed Rakoff’s “rocket docket” approach meant a break-neck pace through pleadings, dispositive motion practice, and discovery. The lawsuit concerned a Canadian company, with NYSE-traded stock, that operated precious metals mines in China. Our case largely hinged on a single-page, Chinese-language mine report obtained by a short seller whose investigator was jailed by the Chinese government. Throughout the litigation, I worked with a mining expert to understand technical mining metrics, do conversion calculations, and compare standards in the U.S., Canada, and China to illustrate why the company’s SEC filings were false and misleading in light of the Chinese government report. I also relied on China-based investigators, Chinese language translators, and accounting, damages, and market efficiency experts. We mediated the case twice before securing a $14 million all-cash settlement fund.
LD: How would you describe your style as a lawyer?
MT: I would self-describe as diligent, hard-working, and intensely competitive. My calling cards are dense, well-researched, well-written briefs and a thorough approach to oral argument. I greatly prefer when courts give the parties generous page counts and a long leash at oral argument. I try to carry myself with integrity at all times.
LD: How do you think others see you?
MT: Others likely would agree as to my work ethic and diligence and would characterize me as either committed and attentive, if a client, or tenacious but professionally cordial, if an adversary. I try to maintain good relations with opposing counsel, asking about personal milestones in their family’s lives or nominating them for professional recognitions when the opportunity arises. So, my hope is that I am perceived as collegial, at least in the moments between hard-fought litigation.
LD: Can you describe your career path for our readers?
MT: My career path involved many early stops before landing in my current role at Pomerantz. I started at a large, multi-office, full-service firm in Boston, before jumping plaintiff-side during my second year of practice with a partner who formed the Boston office of a West Coast firm. A year later, when that office closed, I landed at a Boston boutique specializing in securities, consumer, and wage and hour litigation, where I worked for over seven years. In the meantime, my wife and I had our two children, but with no other family in the area, I began to look toward my native Connecticut. I joined a Hartford-based plaintiff-side firm for the next two years, before taking the plunge into New York City practice by joining Pomerantz, where I have been for the past nine years. I joined the firm in 2011 and was named a Partner in late 2013. My family and I moved to southern Connecticut, where we still live today.
LD: What do you like about Pomerantz?
MT: Pomerantz has felt like a professional home since day one. The firm is at the cutting edge of securities litigation, which is exciting. I have always received support to grow my practice, sign new clients, and take on increasing responsibility over time. At this stage of my career, I handle all aspects of our work. The firm has received accolades for its diversity and promotion of female attorneys, and many of my colleagues benefit from work-life accommodations to balance their professional lives with family commitments. I have a significant amount of professional autonomy, which I value, and though I work long hours, I enjoy some flexibility that permits me to attend important plays, recitals, sporting events, or ceremonies in my kids’ lives.
Our firm is also unique in that it has undergone a “youth movement” in the past decade or so, which correlates to a building momentum and some very significant successes. We are routinely recognized as the most active plaintiff-side securities litigation firm, and we have the client base and case portfolio to sustain that position going forward. It is an exciting time to be at Pomerantz.
LD: What are some challenges you face regarding the management aspect of being a partner?
MT: I am not involved in firm management, but do manage other attorneys and staff on my case load. Some challenges include maximizing the potential and output of others while still meeting my internal timelines and external deadlines and recognizing that not everyone fully shares my drive or my approach to accomplishing tasks. Another challenge is navigating relationships with co-counsel firms on our class action cases, given that all of us have a certain level of professional arrogance as to approach and our own styles of work product, and given that the work does not always split evenly.
LD: Is there any other work you’re doing on the more “administrative” side of the legal business?
MT: I am increasingly focused at this stage of my career on business development work, including signing additional institutional investor clients, positioning my clients where they have the opportunity to serve as lead plaintiffs in securities class actions, and identifying worthwhile cases to investigate, file, and pursue. These efforts occupy considerable time and bandwidth, so a challenge is juggling them against my existing caseload of actively litigated matters.
LD: What do you do for fun when you’re outside the office?
MT: I’m a husband and father first and foremost, and enjoy most of all my time with my family. We are fortunate to live close to my parents, aunt, uncle, and cousins, all of whom are a big part of our lives.
Otherwise, my many interests and hobbies might make me question the time commitments of the legal profession! My wife and I have always loved to travel, and our two daughters have become our favorite travel partners. I also enjoy photography, hiking, camping, fishing, skiing, sports, gardening, dining, and live music, and have particularly enjoyed sharing these interests with my daughters. We are fortunate to live on the southern Connecticut coast, which in addition to these activities, offers our family easy access to Long Island Sound, New York City, and the rest of New England.
LD: Are you involved in any pro bono or public interest activities?
I have been involved in Wesleyan’s pre-law programs ever since graduation, having worked as an on-campus Career Advisor as an undergraduate. I am currently the President of the Wesleyan Lawyers Association, an organization that I have served in some capacity for over a decade. We sponsor networking events, CLEs, and speakers, both on-campus and through regional presences around the country. I have enjoyed mentoring and fielding questions from undergraduates and young alumni.
My firm does investment portfolio monitoring for my hometown pension funds, at no cost. We review the funds’ accounts to determine if they can participate in securities settlements, whether achieved by our firm or others, and we process the claims paperwork for the funds. We also advise them, as warranted, when they have suffered losses arising from potential securities fraud.
I have run my daughters’ elementary school chess club the past five years, which sounds quaint, but in actuality means overseeing a 110+ kid program with its own budget that is among the most popular activities in their school. I teach a five-week beginners’ class, run three in-house tournaments, and oversee an annual head-to-head competition against another school in town. We compete at many external tournaments and won divisional or grade-level State Championships in 2018 and 2019. I launched a middle school program as a landing spot for our graduates and coached it to a 2018 State Championship as well. I also created an annual home-and-home cultural exchange with our sister school in the nearby city of Bridgeport, Connecticut, designed to spread the game to their community. For both sessions each year - one at their school and one at ours - I teach their kids a 60-minute chess lesson, followed by interactive game play with 40 of my more experienced players, who give pointers and encouragement. A charitable foundation funds chess sets for their kids and lunches for everyone, and local newspapers have covered these events, which have become a beloved tradition at both schools.
LD: Do you have a favorite movie or show about the justice system?
MT: I loved “A Few Good Men” when it came out. The courtroom scenes in particular were inspirational when I was deciding to become a lawyer. That said, at this age, I generally avoid law entertainment, getting more than my fill during my work hours. Instead, I prefer entertainment that is nothing like my day-to-day, for instance the show “Deadliest Catch,” which chronicles the lives of Alaskan crab fishermen on the Bering Sea – who basically lead opposite lives to mine.
LD: If you weren’t a lawyer, what would you be doing now?
MT: That is an excellent question. I am a creative person with some artistic abilities, so some career involving drawing, photography, or filmmaking would have held some appeal. I have a strong service orientation, so some kind of work in the political arena might be appealing. I am taking my first step in that direction by running for my town’s legislative body this fall. At this point, though, I am what I am to a large extent, so any thoughts of alternatives are more ones about a potential change of scenery during the twilight of my career, like potentially being a litigator for the NRDC or a similar pro-environment organization.