Michael E. Swartz, co-chair of the Litigation Group and head of the shareholder activism litigation practice, focuses on complex commercial litigation and antitrust, particularly as it relates to mergers and acquisitions. His litigation practice includes shareholder activist litigation, M&A litigation and other corporate control disputes, as well as securities litigation. Michael has particular expertise with litigation involving Sections 10(b), 13(d), 14(a), 16(b) and 20(a) of the Securities Exchange Act. Most recently, he represented Trian Fund Management LP in its proxy contest with Procter & Gamble, and achieved a series of victories on behalf of venBio Select Advisor LLC in its proxy campaign at Immunomedics Inc. Among other things, for venBio, he obtained a TRO blocking the closing of a global license agreement, which effectively would have amounted to a sale of the company. Michael’s other recent litigation experience includes activist litigation for Land & Buildings, Villere & Co. and others; representations of several boards and companies in M&A- and proxy-related litigation; and obtaining dismissal of several Section 16(b) actions brought against investment advisers and the funds they manage, seeking disgorgement of alleged short-swing trading profits. Michael served as trial counsel to the former Vivendi Universal CFO in a four-month securities class action jury trial. The jury returned a verdict of no liability for SRZ’s client for securities fraud. He also represented The Children’s Investment Fund in a trial involving proxy litigation commenced by CSX Corporation and served as trial counsel to the former chief legal officer of media giant Hollinger Inc. in a four-month criminal trial. Michael represented Cerberus Capital Management LP in its $9.2-billion acquisition of Safeway Inc. In addition, Michael analyzes transactions to determine whether they raise antitrust issues, develops strategies to address potential concerns and represents clients in front of the U.S. Department of Justice, the Federal Trade Commission, state attorneys general and others, and in litigation challenging transactions on antitrust grounds.
Michael has been recognized by his peers and clients in Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms and Attorneys, The Legal 500 US and New York Super Lawyers in the area of business litigation. His litigation victories have been featured in The Hedge Fund Journal (“Immunomedics Proxy Contest: SRZ Achieves Unprecedented Litigation Victories”), Hedge Fund Legal and Compliance Digest (“Schulte’s Michael Swartz Discusses Section 16(b) Litigation, Exemptions and Strategies for Hedge Fund Managers to Reduce Risks of Non-Compliance”) and, most recently, the Litigation Group, co-chaired by Michael, won Law360’s Asset Management Practice Group of the year for its representations of leading private investment funds. In addition, Michael’s recent publications include contributing to The Activist Investing Annual Review 2018 (Activist Insight, in association with SRZ) and co-authoring the “Information Sharing with Market Professionals” chapter in the Insider Trading Law and Compliance Answer Book 2018 (Practising Law Institute). He is currently the regional vice chair for the mid-Atlantic region of the Lawyers’ Committee for Civil Rights Under Law and is also a member of the ABA’s Litigation and Antitrust sections. Michael is a former law clerk to the Hon. Irving R. Kaufman, Circuit Judge for the U.S. Court of Appeals for the Second Circuit.
Class Action Litigation (Securities and M&A)
Representation of venBio Select Advisor LLC in proxy litigation victory securing majority control of the board of directors and unwinding major corporate transaction at Immunomedics Inc. Immunomedics Inc. v. venBio Select Advisor LLC et al (D. Del.).
Representation of Trian Fund Management LP in proxy contest securing the election of its CEO and founding partner Nelson Peltz to The Procter & Gamble Company's Board of Directors.
Representation of Cerberus Capital Management in M&A litigation involving 14 putative shareholder class actions seeking to enjoin Albertsons Companies' $9.2-billion acquisition of Safeway. In re Safeway Inc. Shareholder Litigation (Del. Ch.); and Groen v. Safeway Inc. (CA).
Trial counsel to former Vivendi Universal CFO in a four-month securities class action jury trial brought by a class of French shareholders and holders of American depository shares. The jury returned a verdict of no liability for SRZ’s client for securities fraud. In re Vivendi Universal, S.A. Securities Litigation (S.D.N.Y.). Reportedly, through year-end 2014, of the 4,435 class actions filed since the enactment of the Private Securities Litigation Reform Act in 1995, only 21 have gone to trial and only 15 of them reached a verdict or a judgment.
Representation of Marlin Equity Partners in shareholder class actions challenging Marlin’s acquisition of Tellabs. Lambert v. Tellabs, Inc., et al. (N.D. Ill.).
Representation of Aeroflex and its board of directors in shareholder class actions challenging Cobham’s $1.46-billion acquisition of Aeroflex. Ramon Acevedo v. Aeroflex Holding Corp. (Del. Ch.); and Tom Turberg v. Aeroflex Holding Corp. (N.Y. Sup. Ct.).
Representation of H&R Block in a shareholder class action regarding alleged proxy disclosure violations on “say-on-pay” and a derivative claim regarding the company’s equity incentive plan. Fisk v. H&R Block, Inc. (Mo.).
Representation of Morton’s Restaurant Group and its board of directors in class actions challenging Tilman Fertitta’s tender offer for all the outstanding shares of Morton’s. Myers v. Morton’s Restaurant Group, Inc. (Del. Ch.).
Representation of former chief legal officer of media giant Hollinger International in an SEC enforcement action and securities class action. In re Hollinger International, Inc. Securities Litigation (N.D. Ill.).
Proxy Contest Litigation
Representation of Land & Buildings regarding the validity of the nomination of directors for election to the board of The Macerich Company. Land & Buildings Capital Growth Fund, L.P. v. Coppola; The Macerich Company v. Land & Buildings Capital Growth Fund, L.P. (Md.).
Representation of Sandell Asset Management in challenging the validity of a bylaw amendment in a proxy contest regarding Bob Evans Farms. Sandell Asset Management Corp. v. Bob Evans Farms, Inc. (Del. Ch.).
Representation of TPG-Axon Partners in proxy contest litigation regarding the validity of a consent solicitation, TPG-Axon Partners, LP v. SandRidge Energy, Inc. (Del. Ch.), and litigation regarding proxy puts, Kallick v. SandRidge Energy (Del. Ch.).
Representation of Equal Energy in an expedited Section 13(d) and Section 14(a) action against a dissident shareholder group. Equal Energy swiftly obtained a broad standstill agreement preventing defendants from nominating directors or participating in a proxy contest. Equal Energy, Ltd. v. Alsaadi, et al. (S.D.N.Y.).
Trial counsel to a large U.K. hedge fund, The Children’s Investment Fund (“TCI”), in a bench trial involving proxy litigation commenced by CSX Corp. TCI’s slate was ultimately permitted to run for election to the CSX board. CSX v. The Children’s Investment Fund (S.D.N.Y.).
Counseling and litigation regarding Sherman and Clayton Act issues, including, among other things, Hart-Scott-Rodino clearance, joint ventures, information sharing, gun jumping, and interlocking directors and officers, as well as representation of clients before the Department of Justice, the Federal Trade Commission, and state attorneys general in connection with mergers, acquisitions and joint ventures.
Representation of supermarket operator Albertsons Companies before the FTC regarding its $9-billion acquisition of Safeway, creating a diversified network that includes 2,230 stores, 27 distribution facilities and 19 manufacturing plants with over 250,000 employees across 34 states and the District of Columbia.
Representation of supermarket operator Albertsons Companies before the FTC regarding its all-cash acquisition of Texas-based United Supermarkets, which operated 50 supermarkerts under the United Supermarkets, Market Street and Amigos banners.
Representation of National Westminster Bank in a multi-district class action litigation concerning allegations of collusion and other antitrust violations among brokers and providers of guaranteed investment contracts in the municipal derivatives industry. In re Municipal Derivatives Antitrust Litigation (S.D.N.Y.).
Representation of Chrysler LLC in connection with its strategic alliance with Fiat SpA, as well as in its prior strategic alliance discussions.
Representation of Credit Suisse First Boston in a DOJ Antitrust Division investigation of fixed-income and foreign exchange electronic trading platforms. DOJ Antitrust Division Investigation of Electronic Trading Platforms.
Section 16(b) Litigation
Counseling and representing clients in connection with pre-litigation claims and litigation regarding allegations of short-swing profits under Section 16(b) of the Securities Exchange Act.
Representation of Hudson Bay in a Section 16(b) short-swing profit case, Greenberg v. Hudson Bay Master Fund Ltd. (S.D.N.Y.).
Representation of TCI in a Section 16(b) short-swing profit case, Donoghue v. CSX (S.D.N.Y.).
Trial counsel to a former chief legal officer of Hollinger International in a four-month criminal trial. Client was acquitted on all counts. United States v. Black (N.D. Ill.).
Counsel to two Cayman Island investment funds in an SEC enforcement action brought in connection with an alleged multi-year Ponzi-like scheme involving hundreds of millions of dollars. SEC v. Illarramendi (D. Conn.).
Representation of The Royal Bank of Scotland N.V. (formerly known as ABN AMRO Bank N.V.) in a copyright infringement/breach of contract action by a former banking software vendor. Complex Systems, Inc. v. The Royal Bank of Scotland (S.D.N.Y.). The vendor alleged that ABN lost all previously licensed rights in and to the vendor’s software after ABN divested certain U.S.-based businesses to a third party.
Representation of a plaintiff who sued derivatively on behalf of Frank Brunckhorst Co., a New York LLC that owns and distributes the nationally-famous Boar’s Head Brand®, alleging management’s diversion, through related-party transactions, of hundreds of millions of dollars in profits to an affiliated entity. Bischoff v. Boars Head Provisions Co. (N.Y. Sup. Ct.).
Contributor, Shareholder Activism Insight (SRZ in association with Activist Insight and Okapi Partners), October 2018
Contributor, The Activist Investing Annual Review 2018 (Activist Insight in association with SRZ)
“Immunomedics Proxy Contest: Schulte Roth & Zabel Achieves Unprecedented Litigation Victories,” The Hedge Fund Journal, June 2017
“Schulte’s Michael Swartz Discusses Section 16(b) Litigation, Exemptions and Strategies for Hedge Fund Managers to Reduce Risks of Non-Compliance,” Hedge Fund Legal and Compliance Digest, April 6, 2017
Contributor, The Activist Investing Annual Review 2017 (Activist Insight in association with SRZ)
“Information Sharing with Market Professionals,” Insider Trading Law and Compliance Answer Book (Practising Law Institute), 2011-2017
“Activism and Passivity: HSR Act and Section 13(d) Developments for Investors,” SRZ Alert, July 28, 2016 (co-author); republished in Westlaw Journal – Derivatives, Aug. 11, 2016, Westlaw Journal – Securities Litigation & Regulation, Aug. 18, 2016, and The Hedge Fund Journal, September 2016
“Activist Investing Update: DOJ’s HSR Action Against ValueAct Highlights Uncertainties Regarding the ‘Investment-Only’ Exemption,” SRZ Alert, May 20, 2016 (co-author); republished in The Hedge Fund Journal, June 2016
Contributor, The Activist Investing Annual Review 2016 (Activist Insight in association with SRZ)
“Regulatory Change: 2015 Diagnosis, 2016 Prognosis — Schulte Roth & Zabel’s Leading Securities Litigation Practice,” The Hedge Fund Journal, November 2015 (profile)
“Hiring the Investment Banker – Common Sense Tips for Avoiding Problems in M&A Deals,” NYSE Governance Services, Oct. 30, 2015 (co-author)
“Hart-Scott-Rodino Filing Update: Recent Settlement Interprets ‘Investment-Only’ Exemption Narrowly,” SRZ Alert, Sept. 3, 2015 (co-author); republished in Bloomberg BNA – World Securities Law Report, Sept. 30, 2015
“Understanding ‘What’s Market,’” Private Equity International, June 2015 (co-author)
“Lessons for Directors Considering Partnerships with Activists,” NYSE Governance Services, March 27, 2015 (co-author)
Contributor, Shareholder Activism Insight (SRZ in association with Mergermarket), 2014
“Top 10 Considerations When Selling Your Company to a PE Firm,” Boardmember.com Insights, May 31, 2013 and Opalesque Private Equity Strategies, Aug. 26, 2013 (co-author)
“In What Circumstances May Hedge Fund Investors Bring Proceedings in the Name of the Fund for a Wrong Committed Against the Fund, When Those in Control of It Refuse to Do So?,” The Hedge Fund Law Report, Jan. 17, 2013 (co-author)
“Supreme Court Confines ‘Honest Services’ Statute in Case Involving SRZ Client,” SRZ Alert, June 24, 2010
“New Regulatory Scrutiny of Communications Among Hedge Fund Managers,” SRZ Alert, March 11, 2010 (co-author)
“Private Equity Groups Under Common Legal Control Constitute a Single Enterprise Under the Antitrust Laws,” NYU Journal of Law & Business, Winter 2007 (co-author)
“Buyer Beware: Consummating Non-HSR Reportable Transactions May Prove Costly in the End,” American Bar Association Antitrust Litigator, Winter 2007 (co-author)
“Private Equity Groups Under Common Legal Control Constitute a Single Enterprise Under the Antitrust Laws,” NYU Journal of Law & Business, Fall 2006 (co-author)
“Trial Participant Speech Restrictions: Gagging First Amendment Rights,” 90 Colum. L. Rev. 1411, 1990
Moderator, “Specialty Activism: REITs, Banking, Litigation and ’40 Act Funds,” SRZ 9th Annual Shareholder Activism Conference, New York, October 2018
“Investigating Contested Votes: Navigating the Snake Pit,” 13D Monitor 2018 Active-Passive Investor Summit, New York, April 2018
“Activist Litigation as a Tool in Proxy Fights: Breaking Down or Fortifying Board Defense?,” Skytop Strategies Shareholder Activism — Unlocking Shareholder Value, New York, January 2018
“Shareholder Activism,” SRZ 27th Annual Private Investment Funds Seminar, New York, January 2018
“Anatomy of a Proxy Contest: venBio Case Study,” SRZ 8th Annual Shareholder Activism Conference, New York, October 2017
Moderator, “Current Developments in Shareholder Activism,” SRZ 7th Annual Shareholder Activism Conference, New York, November 2016
“Exercising Statutory Appraisal Rights,” Bernstein Litowitz Berger & Grossmann LLP Seminar, New York, April 2016
“Doing M&A Deals: Strategies to Minimize Deal Risk,” NYSE Governance Services General Counsel Forum & Compliance Workshop, New York, November 2015
“M&A — The Legal Department’s Role in Due Diligence, Managing Risk and Getting the Deal Done,” NYSE Governance Services General Counsel Forum, New York, November 2014
“Current Developments in Shareholder Activism,” SRZ 5th Annual Shareholder Activism Conference, New York, October 2014
“Deal Trend: Focus on Retail,” SRZ 2nd Annual Private Equity Fund Conference, New York, June 2014
“Privilege, Waiver and Consequences: USA and Canada,” Cambridge Forums Cross-Border Litigation Forum, Cambridge, Ontario, February 2014
“Shareholder Activism,” SRZ 23rd Annual Private Investment Funds Seminar, New York, January 2014
“M&A — The Legal Department’s Role in Due Diligence, Managing Risk and Getting the Deal Done,” NYSE Board Member General Counsel Forum, New York, November 2013
“Current Developments in Shareholder Activism,” SRZ 4th Annual Shareholder Activism Conference, New York, October 2013
“The New Threat — Plaintiffs’ Bar Targeting ‘Say on Pay’ Proxy Disclosures to Enjoin Votes at Annual Meetings,” Corporate Board Member Live from the Exchange Webinar, May 2013
The George Washington University Center for Law, Economics & Finance Private Equity M&A Roundtable, New York, March 2013
“The New Threat — Plaintiffs’ Bar Targeting ‘Say on Pay’ Proxy Disclosures to Enjoin Annual Meetings,” SRZ Public Company Hot Topics, New York, February 2013
“The Barclays LIBOR Interest Rate Manipulation Scandal: In-Depth Analysis of the Case and Prediction on Possible Outcomes and Implications,” West LegalEdcenter Webcast, August 2012
“Relationships With Institutional Investors,” SRZ 21st Annual Private Investment Funds Seminar, New York, January 2012
“The Changing Landscape of the Investor-Manager Relationships Negotiating with Sizeable Investors,” SRZ Investment Management Hot Topics, New York, May 2010
“Disclosure and Reporting Under Sections 13 and 16: Groups and Swaps Post-CSX,” SRZ 18th Annual Private Investment Funds Seminar, New York, January 2009
- American Bar Association
- Antitrust and Litigation Sections
- International Bar Association
- New York City Bar Association
- Board of the Lawyers’ Committee for Civil Rights Under Law
- Regional Vice Chair for the Mid-Atlantic Region
- Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms & Attorneys, identified as a leading New York litigation attorney
- The Legal 500 US
- New York Super Lawyers, business litigation category
- Law Clerk to Hon. Irving R. Kaufman, U.S. Court of Appeals, Second Circuit