Brower Piven

A Professional Corporation

Brower Piven is a leader in ensuring that the shareholders of companies that are being taken over are fully informed and treated fairly, frequently representing clients in cases in federal and state courts throughout the country, including the Delaware Chancery Court. Brower Piven has enhanced countless transactions by obtaining more money for shareholders and/or by obtaining additional, material information relating to the transaction, giving shareholders the information needed to resist an otherwise undesirable transaction. Our attorneys have also successfully negotiated the removal of onerous deal-protection devices, created by management, that serve only to dissuade potential suitors from offering competing bids.

 

Brower Piven is counsel in a number of shareholder litigations that are currently pending, and has successfully represented shareholders as lead or co-lead counsel in countless other merger-related class actions. Some of our significant representations, both current and past, include:

 

In re Under Armour S’holder Litig., 24-C-15-003240 (Cir. Ct., Balt. City). In this shareholder class action, plaintiffs alleged that Defendants breached their fiduciary duties in formulating and/or approving the issuance of a new class of non-voting common stock (“Class C Stock”) and certain amendments to the Company’s Charter in connection therewith, which Plaintiffs alleged were intended to and did entrench in power Under Armour’s founder, Chairman, Chief Executive Officer and controlling stockholder Kevin A. Plank (“Plank”). Plaintiffs obtained a settlement that provides that Under Armour will issue an Adjustment Payment of $59 million to compensate Class C shareholders for any potential loss of value of their holdings, as well as corporate governance reforms, including changes to Plank’s noncompete agreement and conditions on future transactions.

 

Shona Investments v. Callisto Pharm., Inc., 652783/2012 (N.Y. Sup. Ct. County of N.Y.). Plaintiffs’ prosecution of the action provided Callisto’s stockholders with additional consideration in the form of both Synergy shares and cash. Specifically, as a result of Plaintiffs’ efforts, Defendants increased the exchange ratio from 0.1700 to 0.1799 shares of Synergy stock, which represented approximately $8,681,768 of increased consideration, and agreed to pay Callisto’s former stockholders $2.5 million in cash to stockholders. The combined value of the settlement was in excess of $11 million and represented a more than 6% in increase in the overall merger consideration.

 

Underwood v. Reich, 500690 (N.Y. Sup. Ct. County of Kings).  On August 17, 2011, Investors Bancorp agreed to purchase all of the outstanding shares of Brooklyn Federal Bancorp. After filing suit on behalf of Brooklyn Federal Bancorp shareholders, Brower Piven obtained an increase of 8.75% from the initial offer.

 

Craftmade International, Inc. S’holder Litig., C.A. No. 6950-VCL (Del. Ch. 2011). As co-lead counsel, prevailed at a preliminary injunction hearing that required Craftmade to make a number of additional proxy disclosures and to issue a “Fort Howard” press release that invited potential bidders to make superior offers.

 

In re XTO Energy S’holder Class Action Litig., 352-242403-09 (Tex. Dist. Ct. Tarrant County).  On December 14, 2009, ExxonMobil announced that it was acquiring all of the outstanding shares of XTO Energy in an all-stock deal. At the time of the announcement, the deal was valued at $41 billion. Brower Piven, co-lead counsel in the case, challenged the $41 billion merger between XTO Energy, Inc. and ExxonMobil Corporation, one of the largest mergers in U.S. history, alleging that the XTO Board of Directors breached its fiduciary duties to the class; failed to maximize XTO shareholder value; and failed to make full and fair disclosure to XTO’s shareholders.  As a result of the litigation, in addition to requiring the financial advisor to the company to perform additional analysis and inform the board of directors whether such analysis altered its fairness opinion, XTO was required to disclose the revised opinion to shareholders, which is almost unprecedented, and XTO also made other disclosures that provided shareholders additional, highly-material information concerning the merger.

 

In re Equity Office Properties Trust Transaction Litig., 24-C-06-010525 (Md. Cir. Ct. Baltimore City).  On November 19, 2006, Equity Office Properties Trust announced that it had entered into a merger agreement with affiliates of the Blackstone Group, L.P. Under the terms of the merger agreement, valued at more than $38 billion, Equity Office shareholders would receive $48.50 per share, in cash. After Brower Piven filed suit on behalf of Equity Office shareholders, Equity Office received competing bids, and the company’s shareholders ultimately received $55.50 per share, in cash, for their shares. The Blackstone Group also agreed to disclose additional material information to the shareholders.

 

Other Representations:

  • In re Adolor Corp. S’holders Litig., 6997-VCN (Del. Ch.)
  • In re Allied Capital Corp. S’holder Litig., 322639-V (Md. Cir. Ct. Montgomery Co.)
  • In re Am. Realty Capital Tr., Inc. S’holder Litig., 24-C-12-005306 (Md. Cir. Ct. Balt. City) 
  • In re Atheros Comm’ns, Inc. S’holder Litig., 1-11-CV-191146 (Cal. Super. Ct. Santa Clara Co.)
  • In re Beach Bus. Bank S’holder Litig., BC470648 (Super. Ct. Cal. Los Angeles Co.)
  • Blaz v. Pan Pacific Retail Props., Inc., 03-C-06-008085 (Md. Cir. Ct. Balt. Co.)
  • Braun v. Chaus, 652663/2011 (N.Y. Sup. Ct. N.Y. Co.)
  • In re Bronco Drilling Co., Inc. S’holders Litig., 6398-VCP (Del. Ch.)
  • In re Constellation Energy Group, Inc. S’holder Litig., 24-C-11-003015 (Md. Cir. Ct. Baltimore City)
  • Cournoyer v. Warner Music Grp. Corp., 651367/2011 (N.Y. Sup. Ct. N.Y. Co.)
  • In re Fairchild Corp. S’holders Litig. (Del. Ch.)
  • Galdi v. Optelecom-NFK, Inc., 341448-V (Md. Cir. Ct. Montgomery Co.)
  • In re Herald National Bank S’holder Litig., 651629/2011 (N.Y.  Sup. Ct.)
  • In re Hughes Comm’ns, Inc. S’holder Litig., 344070-V (Md. Cir. Ct. Montgomery Co.)
  • In re Inspire Pharm’ls, Inc. S’holders Litig., 6378-VCP (Del. Ch.)
  • In re Integral Systems S’holder & Deriv. Litig., 13-C-11-08692 (Md. Cir. Ct. Howard Co.)
  • In re Medarex, Inc. S’holder Litig., C-71-09 (N.J. Super. Ct. Ch. Div. Mercer Co.)
  • In re Medco / Express Scripts Merger Litig., 11-cv-4211 (D.N.J.)
  • Nasuti v. Colson, C-20103872 (La. Dist. Ct. for Lafayette Parish)
  • In re Nationwide Health Props. Inc. S’holder Litig., 24-C-11- 001476 (Md. Cir. Ct. Balt. City)
  • In re Ness Tech., Inc. S’holder Litig., 6569-VCN (Del. Ch.)
  • In re PHC, Inc. S’holder Litig., C.A. No. 11-11049-PBS (D. Mass)
  • In re PHH Corp. Trans. Litig., 03-C-07-002982 (Md. Cir. Ct. Balt. Co.)
  • In re Progress Energy S’holder Litig., 11CV000640 (N.C. Super. Ct. Wake Co.)
  • In re Reckson Assoc. Realty Corp. S’holders Litig., 06-12871 (N.Y. Sup. Ct. Nassau Co.)
  • In re Savvis, Inc. S’holders Litig., 6438-VCN (Del. Ch.)
  • In re Schering-Plough / Merck Merger Litig., 09-1099 (DMC)(MF) (D.N.J.)
  • Schwartz v. Pasternak, C-6-11 (N.J. Super. Ct. Ch. Div. Hudson Co.)
  • Shifrin v. Edgar Online, Inc., 36344 (Md. Cir. Ct. for Montgomery Co.)
  • In re Smart Modular Tech. S’holder Litig., RG11574156 (Cal. Super. Ct. Alameda Co.)
  • Smith v. Green Bankshares, Inc., 11-625-III (Tenn. Ch.)
  • In re SuccessFactors, Inc. S’holder Litig., CIV 510279 (Super. Ct Cal. San Mateo Co.)
  • Zilberberg v. Abbe, 12623460 (Cal. Super. Ct. Alameda Co.)