Brower Piven

A Professional Corporation

David A.P. Brower

Mr. Brower has over 30 years of complex litigation experience.  Mr. Brower has successfully represented plaintiffs in class action securities, consumer protection, environmental, antitrust and RICO actions, and representative shareholder derivative and take-over litigation.  Mr. Brower, a member of the Bar of the State of New York, is also admitted to practice before the United States Supreme Court, the United States Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits, innumerable federal and state trial and appellate courts.  Mr. Brower has participated in the prosecution as lead or co-lead counsel in successful federal securities law class actions against, among others: E*TRADE Financial Corporation, The Blackstone Group, PowerSecure International, Cell Therapeutics, Spectranetics Corporation, Nvidia Corporation, Smart Online, Municipal Mortgage & Equity, LLC, Barrick Gold Corporation, K-V Pharmaceuticals, Bidz.com, Research-in-Motion/Blackberry, Ltd., Crocs, Inyx, Gaming Partners, Interlink Electronics, Arotech Corporation, Patriot Coal Corporation, Sonar Capital Management, LLC, First Trust Advisors, LP,  Imperial Chemical Industries, Ltd., Fifth Third Bancorp, Southmark Corporation, Ideal Basic Industries, Bristol-Myers Squibb, Tower Semiconductor, Gibson Greetings, Arakis Energy Corporation, Scoreboard, Coastal Healthcare, Everest & Jennings International, B.T. Office Products, Profit Recovery, Enstar Corporation, Jenifer Convertibles, Warner Communications, Sambos Restaurants, Sunrise Savings & Loan,  Phillip Morris Companies, Bausch & Lomb, Nanophase Technologies,  Ramada Inns, Michael Stores, Consumers Power Co., Broadwing/Cincinnati Bell, Compaq Computer Corporation and Computer Associates.  Mr. Brower has also participated in the prosecution as lead or co-lead counsel in merger litigation on behalf of, among others, public shareholders of  Cole Real Estate Investments, PHC, Inc., American Realty Capital Properties, Laureate Education, XTO Energy, Merrill Lynch/Bank of America, Force Protection, Inc., Sheller Globe Corporation, Petro-Lewis Corporation, Floating Point Systems, Holnam Corporation, Wometco Enterprises, Great Bay Casinos Corporation, Home Shopping Networks, MCA, Holly Sugar Company and ARM Financial Group; and shareholder derivative actions on behalf of shareholders of Citigroup, Inc., Merrill Lynch, Inc., Under Armour, Banner Industries, Marsh & McLennan Companies and Merrill Lynch, Pierce, Fenner & Smith.


Since 2004, Mr. Brower has been one of the lead attorneys with day-to-day responsibility for the prosecution of the securities fraud claims in In re Merck & Co, Securities, Derivative & ERISA Litigation, MDL  1658,  2:05-CV-02367 (D. N.J.), one of the largest, most complex and longest running cases in the history of federal securities class action litigation. Mr. Brower was also one of the lead attorneys responsible for the day-to-day prosecution of the Securities Exchange Act of 1934 action, Freudenberg v. E*TRADE Financial Corporation, 07 Civ. 8538 (S.D.N.Y.), where the class recovered $79 million, and the Securities Act of 1933 action Landmen Partners, Inc. v. The Blackstone Group, LP., 09-4426-cv (S.D.N.Y.), which settled shortly before trial for $85 million. Mr. Brower also served as liaison counsel inIn re Sotheby’s Holding, Inc. Securities Litigation, 00 Civ. 1041 (S.D.N.Y.), which resulted in a recovery of over $75 million for Sotheby’s investors.


In the appellate arena, among other cases, Mr. Brower also successfully argued before the United States Court of Appeals for the Second Circuit in Litwin v. The Blackstone Group, LP., 634 F.3d 706 (2d Cir. 2011), in which the Second Circuit established that a violation of SEC Item 303 of Regulation S-K can create federal securities law liability to investors; argued the expedited appeal before an en banc panel of the Supreme Court of Delaware in Lembrecht v. O’Neal, 3 A.3d 277(Del. 2009), where the Court unanimously determined the availability of the double derivative action for shareholders of an acquired company who continue to be shareholders of a Delaware acquiring company to continue to pursue pre-merger claims against the acquired company’s former officers and directors; and argued before the Maryland Court of Appeals in Shenker v. Laureate Education, Inc., 983 A.2d 408 (Md. 2009), where Maryland’s highest court unanimously determined that directors of Maryland corporations owe a duty to maximize shareholder value and make full disclosure to shareholders in a takeover of a Maryland corporation that cashes-out shareholders.  Additionally, while at his former firm, Mr. Brower was one of the attorneys with primary responsibility for class certification issues, including successfully arguing the class certification motion before the trial court, in In re Initial Public Offering Securities Litigation, 21 MC 92 (S.D.N.Y.), among the largest securities litigations ever prosecuted, encompassing approximately 309 consolidated class action cases alleging market manipulation claims in connection with the initial public offering of securities by over 55 defendant underwriters.


Mr. Brower has also served as lead or co-lead counsel in consumer fraud actions against Aventis CropScience, Compaq Computer Corporation, Jefferson-Pilot Life Insurance Company, Sprint PCS Wireless,  Metropolitan Life Insurance, Harvard Pilgrim Healthcare, and CVS Corporation.


In the antitrust field, Mr. Brower acted as lead counsel in litigation against Monsanto Company, E. I. du Pont de Nemours & Co. and Pioneer Hybrid International, Inc. (4:05-CV-01108-ERW (E.D. Mo.), on behalf of genetically modified seed purchasers, and participated in the In re Initial Public Offering Antitrust Litigation,  01 CIV 2014 (WHP) (S.D.N.Y.).


In the area of environmental law, Mr. Brower served as one of the lead attorneys in pollution actions on behalf of Oklahoma landowners against chicken producers, including Tyson Foods, Inc.; and as counsel for Missouri landowners in pork producer nuisance actions against Contigroup Companies, Inc. (formerly Continental Grain) and Premium Standard Farms, which resulted in verdicts in favor of neighboring farmers.


Before joining Brower Piven, Mr. Brower also represented a nationwide class of hospitals in RICO litigation against Tenet Healthcare Corporation based on claims that its conduct caused class member hospitals to receive reduced “Outlier” reimbursements from Medicare.

 

Mr. Brower has also represented: directors and officers of public companies in securities class actions, including the directors of Heritage Hospitals; represented a former multi-state hospital developer; advised boards of directors of public companies regarding their fiduciary responsibilities; provided opinions as special counsel under Delaware law to public companies, including MGM/UA; represented insurance and reinsurance companies in coverage litigation, including matters involving Johns Manville, PepsiCo and Hilton Hotels; represented commodities dealers and brokers in connection with Commodities Futures Trading Commission reparations actions; represented foreign corporations in United States litigation, including one of Japan’s largest electronics and international hotel and resort companies in litigation against its American counsel and financial advisors; represented a Brazilian trust holding claims for one of Brazil’s largest telecommunications companies; and defended a large, Florida-based, national mortgage brokerage company, Foundation Funding, in class action litigation brought under the Truth In Lending Act.

 

Mr. Brower, is a graduate of Columbia College of Columbia University (A.B. 1979), and the Georgetown University Law Center (J.D. 1982), and he attended King’s College, University of London (1980), where he studied comparative, international and European Community transactional law.  Mr. Brower regularly lectures before professional organizations and at CLE-accredited conferences on class action procedures, the securities laws and shareholder and investor rights, including the American Law Institute/American Bar Association Advanced Course of Study Program, the Practicing Law Institute, and the New York State Bar Association.  Mr. Brower regularly writes on class action procedures and new issues in class action jurisprudence.  Mr. Brower is a long-time member of the New York State Bar Association Subcommittee on Class Actions, has participated as a member of the Executive Committee of the National Association of Securities and Consumer Law Attorneys, and actively participated in legislative and committee initiatives relating to the Private Securities Litigation Reform Act of 1995, the 2003 amendments to Federal Rule of Civil Procedure 23, the Class Action Fairness Act of 2005, and commentary on Fed. R. Civ. P. 23 in the Manual For Complex Litigation (Fourth).