Mark A.
Kirsch

Represent Rio Tinto, the world’s second largest mining company, in an SEC suit alleging violations of Section 10(b), 17(a), internal controls requirements and books and records requirements, concerning the timing of a more than $3 billion impairment taken in connection with a mining project in Mozambique. Prior to trial the SEC dropped the 10(b), 17(a) and all scienter-based charges, settling for non-scienter books and records violations, a historic outcome for Rio Tinto.

Represented Rio Tinto in defeating a Section 10(b) class action based on the same conduct as in the SEC case. The Second Circuit affirmed the dismissal by the District Court.

Represented Vale S.A. in massive class actions relating to the collapse of the Fundao dam in Brazil. Defeated class certification in one class action, effectively ending it, and obtained dismissal of a second that was affirmed by the Second Circuit.

Represented Vale S.A. in another massive class action resulting from the collapse of the Brumadinho dam in Brazil. (Case still pending.)

Successfully represented half the board of directors of AeroJet RocketDyne against the other half of the board in a proxy fight, including trial to verdict in Delaware Chancery.

Defending BlackRock in a major suit in Virgin Islands Superior Court by shareholders of two public companies alleging BlackRock fraudulently drove down the share price of the companies.

Defending FanDuel and its directors in an action in New York State court brought by common shareholders challenging distribution of $550 million in merger proceeds.

Defending a major global bank in a large arbitration brought by a corporate entity alleging breach of fiduciary duty and breach of contract in connection with the sale of a large energy asset.

Defending Fareva S.A., a large European manufacturer, in a breach of contract suit brought by LG and Avon the Southern District of New York.

Gerald Metals, the largest privately owned metals trading firm in the world, in litigation in Connecticut Superior Court brought by former senior executives and shareholders alleging breach of fiduciary duty and breach of contract in connection with shareholding and other agreements.

Defended UBS in class actions alleging that primary dealers of the New York Federal Reserve Bank price-fixed the auction market for U.S. Treasury securities.

Defended UBS in multiple LIBOR-related actions alleging price fixing, including cases where class certification was denied in connection with three separate putative classes.

Won a complete trial verdict for global investment adviser Investcorp in a case brought by hedge fund Kortright Partners for $250 million for negligent misrepresentation.

Won a significant trial verdict for a Susquehanna fund and two senior executives after a bench trial asserting fraud claims in the $115 million sale of Plimus to Great Hill.

Obtained complete dismissal of a shareholder class action for AmTrust Financial, a Fortune 500 insurer, alleging violations of Section 11 of the 1933 Act and Section 10(b) of the Exchange Act, despite the Company’s restatement of financials and a disclosed SEC investigation.

Served as the co-lead lawyer for Lynn Tilton, the “Diva of Distressed,” and defeated the SEC after a three-week trial in the SEC’s ALJ court, where the ALJ dismissed all fraud and negligence charges against Ms. Tilton.

Obtained a rare reversal of a denial of summary judgment from the New York Appellate Division, on behalf of Trust Company of the West, on grounds the plaintiff hedge fund failed to establish loss causation in a case where TCW was the collateral manager for a large portfolio of mortgage-backed securities that failed to perform in the wake of the global financial crisis. TCW successfully argued the financial crisis caused the loss, not TCW’s management.

Obtained affirmance by the New Jersey Appellate Division of a dismissal from the bench after oral argument of a complaint against Merck challenging its tax disclosures.

Defended Corvex Management and The Related Companies in a two-week arbitration (the result of which was publicly disclosed) that resulted in invalidating all material anti-shareholder defenses of CommonWealth REIT, whose Trustees Corvex/Related ultimately removed in a consent solicitation.  Many major media outlets described the outcome as a “major victory” for Corvex/Related.

Obtained the voluntary dismissal of a putative class action on behalf of Goldman Sachs, Citigroup, Merrill Lynch, Morgan Stanley, UBS and BNY Mellon Capital Markets – after three years of litigation – arising from BNYM’s foreign exchange business, alleging violation of the federal securities laws in connection with underwriting $2 billion of securities for BNYM.

Defended Goldman Sachs, Citigroup, Bank of America, Merrill Lynch, J.P. Morgan, Deutsche Bank and Royal Bank of Scotland in a putative class action alleging violation of the federal securities laws in connection with underwriting $900 million of notes for MF Global Holdings.

Resolved favorably for Moody’s the two most significant cases it had faced concerning ratings of structured investment vehicles. 

Obtained summary judgment for Citigroup in connection with a securities fraud claim for $13.2 billion brought by Parmalat investors after Parmalat’s collapse.

Led the team that achieved five significant victories for AllianceBernstein in securities litigation arising out of the Enron collapse, including a seven-week state court jury trial in which Alliance defeated the Florida state pension fund’s attempt to recover $3.2 billion in losses the fund sustained in Enron and other stocks, and AllianceBernstein won its damages counterclaim and costs.  The National Law Journal selected the trial victory as one of its “Top 10 Defense Verdicts of 2006.”

Represented AllianceBernstein in the Newby securities class action in Houston, in which Enron shareholders and bondholders sought over $1 billion in damages against the company. Obtained summary judgment for AllianceBernstein and costs against plaintiffs’ counsel, a victory written about twice by the Wall Street Journal in editorials.