Three lawyers sit atop the M&A plaintiffs' bar. They often work on cases together, but they're based in different cities and have followed different career paths.
Stuart Grant, 51, has spent his career in Wilmington, Del. After graduating from Brandeis University in 1982 and New York University School of Law in 1986, Grant clerked for Naomi Reice Buchwald of the U.S. District Court in Manhattan and then became an associate at Skadden, Arps, Slate, Meagher & Flom LLP in Wilmington. He practiced there with two of his current partners, Jay Eisenhofer and Megan McIntyre, as well as Leo E. Strine Jr., now the chancellor of the Delaware Court of Chancery, and Andre Bouchard, David Margules and Joel Friedlander, who opened their own litigation boutique in 1996 and also do occasional plaintiffs' work. In 1994, Grant opened the Wilmington office of Blank Rome LLP with Eisenhofer, and the two men struck out on their own two years later.
Grant & Eisenhofer PA now has 70 lawyers in Wilmington, New York and Washington, and Grant has been lead or co-lead counsel on a number of important Delaware cases in the past decade. Most recently, he represented shareholders of Delphi Financial Group Inc. who challenged the insurer's sale to Tokio Marine Holdings Inc. after Delphi controlling shareholder Robert Rosenkranz demanded a premium for his stake over what the public shareholders stood to receive. The defendants settled for $49 million, though Vice Chancellor Sam Glasscock III has yet to approve the settlement. Grant helped win a $69 million settlement for shareholders of Affiliated Computer Services Inc. in a similar case two years ago. Grant is also the vice chair of Delaware's Judicial Nominating Committee, which recommends possible replacements when there's a vacancy on one of the state's courts.
In Delphi, as in many other cases, Grant serves as co-counsel with Mark Lebovitch, 37, a partner and head of the corporate governance practice at New York's Bernstein Litowitz Berger & Grossmann LLP. After graduating from Binghamton University in 1996, Lebovitch went to NYU Law School, where he took a corporations course from former Delaware Chancellor William Allen. "I fell in love with what he was teaching and his whole construct of Delaware law," Lebovitch says. "I would listen to him tell the stories about these cases, and he wasn't as hung up on legal theory as on what was really going on between the characters involved in the case." Allen introduced Lebovitch to Delaware Vice Chancellor Stephen Lamb, who hired him as a clerk.
"Spending time in court and seeing the trials and arguments," Lebovitch says, "I realized I wanted to represent shareholders or hostile bidders in takeover cases. I sympathized with the arguments to push Delaware law toward giving shareholders a greater voice." To that end, Lebovitch became a litigation associate in Skadden's New York office after his clerkship because of the firm's orientation toward representing hostile bidders. But Lebovitch joined Skadden as the M&A boom of the '90s was cresting, and as a midlevel associate he found himself defending securities cases that, he says, "didn't bring the same joie de vivre for me as a lawyer" as did faster-paced M&A litigation.
Lebovitch wanted to do more trial work, and in 2004 he moved to Bernstein Litowitz. Lebovitch saw an opportunity to represent shareholders in M&A litigation, and Bernstein Litowitz name partner Max Berger told him he could try to seize that opportunity once he'd proved himself at the firm. "From my time clerking and what I saw with Stuart and Jay, I thought that the Delaware judges were yearning for someone to litigate on the plaintiffs' side the way people litigated on the defense side," Lebovitch says. "I thought if someone worked hard and took real risk, he'd be rewarded." Lebovitch started doing that in 2007, and his first significant win came alongside Grant in representing shareholders of Caremark Rx Inc., which had agreed to a $25 billion merger with CVS Corp. before receiving a hostile bid from Express Scripts Inc. CVS raised the cash portion of its bid by more than $3 billion to match Express Scripts' offer, and Caremark shareholders voted for the CVS deal.
Most recently, Lebovitch was lead counsel for El Paso Corp. shareholders who challenged the company's sale to Kinder Morgan Inc. and co-lead counsel on the Delphi and ACS deals. He also litigates outside of Delaware and won a $75 million settlement against the board of Pfizer Inc., plus an agreement to create a novel regulatory compliance board committee, in a case before U.S. District Judge Jed Rakoff. He also obtained a $40 million settlement with another $17 million in a contingency fund in Tennessee state court in a case where he represented shareholders of Dollar General Corp. The discount chain sold to Kohlberg Kravis Roberts & Co. LP for $6.9 billion in 2007.
Lebovitch worked on Dollar General with Randall Baron of Robbins Geller Rudman & Dowd LLP in San Diego, who frequently ends up as co-lead counsel with Lebovitch and Grant. A New Mexico native, Baron, 48, graduated from the University of Colorado in 1987 and the University of San Diego School of Law in 1990 before becoming a district attorney in Los Angeles. He started out by prosecuting street crimes, then joined a unit working on special investigations and prosecutions of public officials.
Baron enjoyed corruption trials, he says, which "were big, complex paper cases with defendants against whom it was hard to win a judgment." After his wife Kandace had a son in 1996, Baron began looking for law firm jobs. He interviewed with Candace Carroll, a prominent San Diego litigator, who didn't hire him but told him to call her husband Len Simon, the managing partner of Milberg, Weiss, Bershad, Hynes & Lerach LLP's San Diego office. He gave Baron a job, and Baron was soon working with Darren Robbins on M&A-related shareholder cases. Baron and Robbins initially brought their suits outside of Delaware because Milberg Weiss' New York office handled Chancery cases, a barrier that was removed in 2004 when Milberg Weiss split into East and West Coast branches.
Baron says his first major Chancery case came when he represented shareholders of WorldPort Communications Inc. before Strine. Baron had sued to challenge the deal in Illinois state court. Bouchard, Margules & Friedlander PA's Bouchard brought a separate case in Wilmington. Strine pushed the lawyers to join forces, and they settled in the middle of trial for $10 million.
Since then, Baron has been co-counsel on numerous Delaware cases, either with Grant and Lebovitch or with Bouchard or Friedlander. Lebovitch is often a co-counsel as well. "I'm willing to partner with them and don't have a solid argument why the court shouldn't appoint them as lead counsel," says Baron. "They're there, they litigate cases, and they do great work. And I don't think it's worth picking a fight with any of them. I'm assuming they have a similar view, that they don't want to pick that fight either."
Baron, a co-lead in Delphi, also continues to sue outside of Delaware. He's lead counsel for shareholders of Motorola Mobility Holdings Inc. challenging the company's sale to Google Inc. in the Circuit Court of Cook County in Illinois. -- D.M.