James P. Smith III is a partner in Winston & Strawn’s New York office and chairs the firm’s Securities Litigation practice. His practice areas comprise a broad range of complex commercial litigation, with a focus on M&A-related litigation and contests for corporate control, federal securities fraud class action defense, corporate governance litigation and advice, the defense of shareholder derivative suits, and state deceptive sales practices/consumer fraud class action defense.
Mr. Smith is a first-chair trial lawyer and has tried numerous cases (including in the Delaware Court of Chancery) and argued notable appeals before various state and federal appellate courts. He has represented clients in a variety of industries, including technology/ecommerce, commercial and investment banking, private equity, hedge funds, derivatives and securitization, insurance, energy, oil and gas, health care, biotech, semiconductors and telecommunications.
M&A and Corporate Governance Litigation
- The defense of The MONY Group Inc. litigation in Delaware Chancery Court and federal court in New York, arising out of its merger with AXA Financial Corp., including leading the federal court litigation and successfully arguing the appeal in The MONY Group Inc. v. Highfields Capital Management, et. al., a case of first impression in which the U.S. Court of Appeals for the Second Circuit unanimously reversed the district court (and the long-standing informal position of the Securities and Exchange Commission Office of Corporation Finance Staff) by holding that dissident shareholders soliciting against approval of a Delaware merger are prohibited under the federal proxy rules from sending shareholders a duplicate copy of management’s proxy card during a purportedly exempt solicitation. The case also generated the seminal Delaware “post agreement market check” decision In re MONY.
- The representation of Omnicare, Inc. in Delaware Court of Chancery litigation leading to Omnicare’s successful acquisition of NCS Healthcare, Inc., including the landmark Delaware Supreme Court decision in Omnicare, Inc. v. NCS Healthcare, Inc., et al.
- The defense of LifePoint Hospitals, Inc. and its board of directors in litigation brought in the Delaware Court of Chancery by a dissident hedge fund seeking to nominate a slate of directors to LifePoint’s board, notwithstanding the plaintiff’s failure to comply with the company’s advance notice bylaw, in which the Court denied the plaintiff’s motion for a preliminary injunction, delaying LifePoint’s annual shareholders’ meeting, and dismissed the case on the Company’s motion for summary judgment.
- The representation of CNET Networks in its proxy contest with JANA Partners and subsequent successful merger with CBS.
- Led the defense of the board of directors of Illumina in shareholder class action litigation arising out of Roche Holding’s failed $6.2 billion hostile takeover attempt, in which plaintiffs’ motion to expedite in the Delaware Court of Chancery, and motions to expedite and for a temporary restraining order requiring the board to pull a “poison pill” in California state court in San Diego, were denied and the cases subsequently dismissed.
- Led the defense of eBay in connection with class action litigation challenging its $2.4 billion acquisition of GSI;
- Led the defense of AGL in shareholder class action litigation challenging its $2.4 billion acquisition of Nicor, Inc.
- Led the defense of Edo Corp. and its board of directors in shareholder class action litigation challenging its $1.7 billion acquisition by ITT.
- Led the defense of Blackboard Inc. and its board of directors in shareholder class action litigation challenging its $1.6 billion acquisition by Providence Equity in which expedited discovery was denied and the actions subsequently dismissed on defendants’ motion.
- Led the defense of NYMagic and its board of directors in a class action litigation in the New York State Supreme Court, Commercial Division, challenging NYMagic’s merger with ProSight Specialty Insurance, an operating company backed by Goldman Sachs Capital Partners and private equity firm TPG.
- Led the defense of Applied Materials in a class action litigation challenging its acquisition of Semitool, in which plaintiffs’ motion for expedited discovery was denied.
- Led the defense of Merz Pharmaceuticals, in connection with a California state court class action litigation, challenging its acquisition of BioForm, in which plaintiffs’ motion for a temporary retraining order enjoining Merz’s tender offer was denied.
- The defense of USI Holdings in a New York state court shareholder class action litigation challenging the $1.4 billion buyout of USI by Goldman Sachs, in which plaintiffs’ motion for a preliminary injunction was denied in one of the few New York decisions construing and applying Delaware merger law in this context.
- Led the defense of Citigroup Global Markets Inc. in a California state court shareholder litigation challenging the $1.4 billion acquisition of Conor Medsystems by Johnson & Johnson, in which claims that Citi, as financial advisor, owed a fiduciary duty to Conor shareholders and/or aided and abetted a breach of fiduciary duty by the Conor board, were dismissed on Citi’s successful demurrer.
- The representation of a leading diversified financial institution, as non-party witness, in its capacity as financial advisor to defendant Applica Inc. in NACCO v. Applica, a post-closing dispute in Delaware Chancery Court alleging that Applica and affiliates of Harbinger Capital Partners conspired to position Harbinger to top NACCO’s initially successful bid and prevail in the ensuing bidding war.
- The representation of numerous bulge bracket and other investment banks, hedge funds, target company boards and others in various capacities in connection with some of the largest and most high-profile M&A deals in recent years, including, among others, Oracle/PeopleSoft, CVS/Caremark, Clear Channel/Bain Capital-Thomas H. Lee, MedImmune/AstraZeneca, Hilton Hotels/Blackstone, SLGreen/Reckson, Mirant Corp./RRI Energy, OSI/Astellas, CommScope Inc./The Carlyle Group and Hertz/Dollar Thrifty.
Securities Fraud, Shareholder Derivative & Related Actions
- Led the defense of the board of directors of Lender Processing Services in shareholder derivative litigation in the Delaware Court of Chancery alleging Caremark claims arising out of the so-called “robo-signing” scandal; voluntary dismissal by plaintiffs after oral argument on defendants' motion to dismiss on demand futility grounds.
- The representation of Omnicare, Inc. in a federal securities fraud class action litigation arising out of a series of government investigations in which claims alleging violations of the Securities Exchange Act of 1934, and Rule 10b-5, were dismissed for failure to plead loss causation under Dura, and/or scienter under Tellabs(affirmed by the Sixth Circuit), and in a related derivative litigation that was dismissed for failure to plead demand futility.
- The representation of Tesoro Petroleum Corporation in federal securities class action litigation in which claims alleging violations of the 1934 Act and Rule 10b-5, based on oil refining margin information posted on Tesoro’s website, were dismissed under the Private Securities Litigation Reform Act of 1995.
- The defense of Wachovia Capital Markets, LLC in a federal RICO action in the Southern District of New York. The case was dismissed for failure to state a claim. Follow-on litigation in the New York State Supreme Court, Commercial Division, was brought by a consortium of plaintiffs, led by hedge fund Harbinger Capital Partners, seeking $165 million in damages and alleging that Wachovia conspired with now-bankrupt health drink company Le-Nature’s, Inc. in a fraudulent accounting scheme. Mr. Smith successfully argued for the dismissal of claims of negligent misrepresentation and civil conspiracy and argued the subsequent appeal.
- The defense of Emergis Inc. in a post-closing dispute in federal court in New York arising out of the sale of an Emergis subsidiary to MultiPlan, Inc., alleging federal securities fraud and seeking indemnification for purported breaches of representations and warranties in the Share Purchase Agreement.
Other Class Action & Financial Institution Litigation
- Representation of MONY Life Insurance Company in a class action litigation involving the marketing of so-called “vanishing premium” life insurance policies, including the New York Court of Appeals decisions in Gaidon v. Guardian Life Insurance Company, affirming the dismissal of eight of nine causes of action asserted against MONY in a nationwide “vanishing premium” class action; Goshen v. The Mutual Life Insurance Company of New York, et al., affirming the dismissal of the remaining claims of all non-New York purchasers in that action under New York’s consumer protection act; and the New York Appellate Division decision in DeFilippo v. MONY Life Insurance Company, decertifying the remaining New York-only class.
- Representation of Panasonic Corporation of America in putative nationwide class actions alleging violations of the New Jersey Consumer Fraud Act in connection with the marketing and sale of cordless telephones and DVD players in which class certification was denied.
- Representation of Crèdit Agricole and its subsidiaries in emerging markets/Russian debt crisis litigation in New York state court and abroad, including a $119 million judgment against National Reserve Bank of Russia as a result of its default on a series of foreign currency exchange forward transactions in the wake of the Russian Federation’s August 1998 moratorium on the repayment of foreign debt.
- Conducting internal investigations.
- Representation and counseling of foreign banks in connection with bank-secrecy issues and the application of international mutual legal assistance treaties in the context of a U.S. criminal investigation.
Mr. Smith received an A.B., cum laude, from Georgetown University, Washington D.C., in 1990, and a J.D., cum laude, from Georgetown University Law Center, Washington D.C., in 1993, where he was the articles editor for the Georgetown International Environmental Law Review.
Honors & Awards
Mr. Smith is listed in the Law & Politics Magazine as a “Super Lawyer,” in the 2010 National “Corporate Counsel Edition” publication. He is also listed as a “New York Super Lawyer,” in the Law & Politics Magazine’s Securities Litigation and Litigation editions.
Mr. Smith has appeared on “InsideTrack,” Bloomberg Television’s morning market coverage, providing insight on securities fraud, fiduciary duty and corporate governance issues, and has been interviewed on related matters by Dow Jones and other financial media outlets.
Additional speeches, programs and appearances include:
- Boston Bar Association First Annual Mergers & Acquisitions Conference, "The Evolving Standards of Judicial Review for M&A Transactions and Recent Developments in M&A Litigation" (Nov. 13, 2013)
- ABA Business Law Section 2013 Spring Meeting, Mergers & Acquisitions Committee, “What Deal Lawyers Need to Know About M&A Litigation” (panel with Hon. Myron Steele, Chief Justice, Delaware Supreme Court) (April 2013)
- ABA Business Law Section 2013 Spring Meeting, Financial Advisor Task Force, Mock Investment Banker Engagement Letter Negotiation (April 2013)
- 40th Annual Northwestern Law Securities Regulation Institute, “Federal and State Judicial Developments and Private Securities Litigation” (panel chaired by Chief Justice Myron Steele of the Delaware Supreme Court) (Coronado, CA, Jan. 2013)
- “Securities Litigation in 2012 and Beyond: New Targets, New Solutions,” panel presentation for the Association of Corporate Counsel – Southern California Chapter (Nov. 13, 2012)
- Financial Sector in Distress: “Workout Strategies, Bankruptcy, Receiverships and Acquisitions” (Feb. 18, 2009)
- PLI Securities Litigation and Enforcement Institute 2009, “Corporate Governance Litigation,” (panel with former Vice Chancellor Stephen Lamb of the Delaware Court of Chancery) (Sept. 29, 2009)
- Numerous in-house and client CLE certified programs on topics ranging from the latest developments in Delaware M&A and corporate governance jurisprudence to developments in class action and multidistrict litigation to the attorney-client privilege and work product doctrine to ethics in the conduct of corporate internal investigations to deposition skills training.
Since 2006, Mr. Smith has co-authored the “Delaware Quarterly: Recent Developments in Delaware Business and Securities Law,” a quarterly roundup of major decisions in the Delaware Court of Chancery published in both the Bank and Corporate Governance Law Reporter and the Securities Reform Act Litigation Reporter.
Additional publications include:
- “CSX – A Case of First Impression: Hedge Funds Violated Securities Laws’ Disclosure Requirements,” Derivatives Financial Products Reports, October 2008.
- “’CSX’: Second Circuit Upholds Denial of Injunctive Relief,” New York Law Journal, September 26, 2008.
- “Changing Face of Class Actions,” New York Law Journal, special pullout section, “Securities Litigation & Regulation,” July 9, 2007.
- “1998-99 Merits Decisions in ‘Vanishing Premium’ Sales Practices Litigation: A Vintage Year for Insurance Company Defendants,” ALI-ABA Conference on Life Insurance Litigation: Course of Study Materials, American Law Institute May 13-14, 1999.
- “A Reversible Shield: Model Rule 4.2 in Competing Class Actions,” Litigation Ethics, American Bar Association, Section of Litigation, Committee on Ethics and Professional Responsibility, Fall/Winter 1997.
- Hon. Leo E. Strine, Jr., Lawrence A. Hamermesh and Matthew C. Jennejohn, “Putting Stockholders First, Not the First-Filed Complaint,” Harvard Law School, John M. Olin Center For Law, Economics and Business, Discussion Paper No. 740 (1/2013), n. 1(acknowledged for “thoughtful comments”).
- New York
- Georgetown University JD, 1993