Photo by Laura Barisonzi.
Emma Gilmore, a partner at Pomerantz, has a practice centered on high-profile class action litigations, including a lead role in the landmark $3B securities settlement against Brazil oil giant Petrobras. In addition to her Lawdragon recognition, she was honored by Law360 as an MVP in Securities Litigation, which is bestowed on no more than six attorneys nationwide. Gilmore is the first woman plaintiffs’ attorney to receive this prestigious award since it was initiated in 2011. She is a graduate of Brooklyn Law School.
Lawdragon: Will you talk a bit about your work in the securities class action against Petrobras?
Emma Gilmore: I recently played a leading role in the firm’s class action case in the Southern District of New York against Brazil’s largest oil company, Petrobras. In a significant victory for investors, Pomerantz achieved a historic $3B settlement. This is not only the largest securities class action settlement in a decade, it is also the largest settlement ever in a class action involving a foreign issuer, the fifth-largest class action settlement ever achieved in the United States, and the largest settlement achieved by a foreign lead plaintiff.
In preparing for the litigation, I traveled to Brazil several times, where I met with the Brazilian federal police and members of the press, gathering evidence against defendants. Back in New York, I drafted a compelling complaint against Petrobras. I deposed several key witnesses, including the former CEO of Petrobras, the whistleblower, and the chief accountant. Deposing the whistleblower was particularly rewarding, as it gave the witness, who was a former executive at Petrobras, a platform to tell her story, including how she was threatened at gun point if she dared to expose the fraud. Witnessing this woman’s bravery inspired me even more to do my utmost to bring justice.
I also successfully obtained sanctions against a professional objector who challenged the integrity of the settlement, both in the District Court and in the Court of Appeals for the 2nd Circuit.
LD: What were some of the challenges you faced in successfully representing the plaintiffs in this case?
EG: We were up against some of the brightest and most deep-pocketed attorneys from some of the best defense firms. We overcame a formidable defense strategy to reach this blockbuster settlement. Petrobras painted itself as the “victim” of the fraud perpetrated by corrupt executives and politicians. Petrobras’ victimhood argument was widely successful in Brazil with the Brazilian courts and the prosecutors. As a result, in Brazil Petrobras was able to recover hundreds of millions of dollars from companies and individuals that supposedly harmed it.
LD: Was there a larger impact on the industry from this matter?
EG: Class certification is a critical stage in class action litigation, and defendants appealed the district court’s decision certifying the class. We scored an important victory for investors at the 2nd Circuit Court of Appeals, when the court rejected the heightened ascertainability requirement for obtaining class certification that had been imposed by other circuit courts. As a result, we paved an easier road for defrauded investors to see their claims aggregated and certified in future class actions.
LD: Will you walk us through another recent case of particular interest?
EG: All my cases are interesting, and each brings its own challenges and rewards. But another one high on the list is our securities class action against Yahoo! Inc., in which Pomerantz, as lead counsel, achieved an $80M settlement for the class. I led the litigation with managing partner Jeremy Lieberman. We alleged that Yahoo intentionally misled investors about its cybersecurity practices in the wake of massive data breaches in 2013 and 2014 that compromised the personal information of all three billion Yahoo customers. We further alleged that Yahoo violated federal securities laws by failing to disclose the breaches, which caused a subsequent stock price dive. Litigation related to security breaches was still very new when we filed in 2017, and Pomerantz notably achieved the first significant settlement to date of a securities fraud class action filed in response to a data breach.
As part of due diligence, we located critical evidence showing that Yahoo’s management had concurrent knowledge of at least one of the data breaches. Importantly, these records showed that Yahoo’s Board of Directors, including defendant CEO Marissa Mayer, had knowledge of and received repeated updates regarding the breach. In its public filings, Yahoo denied that the CEO knew about the breach, and the CEO’s knowledge was a key issue in the case.
After receiving plaintiffs’ opposition to the motion to dismiss, but before the federal district court ruled on the motion, the case settled for $80M. This early and large settlement reflects the strength of our allegations.
LD: Why did you pursue a career in the law in the first place?
EG: My story is not run-of-the-mill. I was born in Romania and moved to the United States before the revolution in 1989. I learned English while enrolled at a high school in Arizona, which, as you can imagine, was not an easy task. I had a fascination towards the law ever since I was a little girl, watching my grandfather who was a judge put his robe on and often imitating him by dressing up as a judge around the house. In memory of my grandfather, I decided to pursue a federal clerkship. I was fortunate to clerk for Judge Thomas Platt, former Chief Judge for the Eastern District of New York. Clerking was one of the most rewarding parts of my career, and I will cherish that time for the rest of my life. I started my career at Skadden Arps, in their New York office, before clerking, and eventually joined the plaintiffs’ bar.
LD: I understand you devote time to pro bono work. Of what are you particularly proud?
EG: I am proud to have been instrumental in securing a unanimous ruling by the Arkansas Supreme Court striking down as unconstitutional a state law banning cohabiting individuals from adopting children or serving as foster parents. The ruling was a relief for the 1,600-plus children in the state of Arkansas who needed a permanent family. It was a rewarding outcome, and generated significant publicity, including coverage by the Arkansas Times, the Wall Street Journal, and the New York Times.
LD: What keeps you engaged in your law practice now?
EG: As I mentioned, each case presents new challenges and I enjoy thinking outside the box to find the solutions. As exemplified by the Yahoo litigation, it is interesting to puzzle how to apply the securities laws to our ever-evolving commercial and social landscape. Also, I recently began a three-year term serving on the New York City Bar Association’s Securities Litigation Committee. In that capacity, I will have the opportunity to help shape law and public policy by, among other things, drafting reports and commenting on legislation. I also counsel institutional investors around the world on how to maximize recoveries on their investments. So there is really never a dull moment.