David H. Kistenbroker is Co-Leader of the white collar and securities litigation practice of Dechert LLP and managing partner of the firm’s Chicago office. He represents publicly traded companies and their directors and officers in securities class actions, SEC investigations, internal investigations and corporate governance disputes.
Mr. Kistenbroker is recognized annually by peers and clients across the country as a leading trial lawyer and has been featured in The National Law Journal for securing one of the top defense verdicts in the nation. He has been recommended by Benchmark Litigation (2008–2016) for securities litigation, The Legal 500 US (2013–2015) as a Leading Lawyer in securities shareholder litigation, and by Chambers USA (2008–2016) for general commercial litigation as "a very knowledgeable litigator in the shareholder derivatives space" and "an excellent communicator." The Directorship 100 list (2010–2015) has also included Mr. Kistenbroker as one of the most influential people in corporate governance and the boardroom.
Mr. Kistenbroker frequently writes and lectures on the topics of securities litigation, directors’ and officers’ insurance matters and corporate governance. He served as co-chair of the Practising Law Institute Securities Litigation & Enforcement Institute for 2011.
Prior to joining Dechert, Mr. Kistenbroker worked at an international law firm where he served as managing partner of its Chicago office, chairman of its litigation and dispute resolution practice and co-head of its securities litigation and corporate governance practices.
Significant RepresentationsIn re The Boeing Company Deriv. Litig. (S.D.N.Y./ 2d Cir. / IL Ch. Ct.)
Tekelec Securities and Derivative Litigation (E.D. North Carolina)
- Represented the Board of Directors of The Boeing Company in derivative action filed in the Southern District of New York, alleging the company’s proxy statement violated §14(a) in connection with the solicitation of shareholder approval of a new stock incentive plan. Obtained dismissal, with prejudice, from the district court, which was affirmed by the Second Circuit, and the Supreme Court denied petition for writ of certiorari.
- Represented the Board of Directors in derivative action filed in Illinois state court, alleging directors breached their fiduciary duties in the oversight and control of the company’s compliance with legal and ethical requirements in Boeing’s defense business. Allegations related to the alleged theft of competitive information and trade secrets, the illegal hiring of an Air Force procurement officer and the alleged internal cover-up of these matters. After protracted motion practice the matter was settled on terms favorable to the company and the directors.
In re Section 16(b) Litigation (W.D. Wash. / 9th Cir.)
- Represented Tekelec and its directors and officers in two groups of cases. The first group includes an action for violations of Sections 10(b) and 20(a) of the Exchange Act pending in the U.S. District Court for the Eastern District of North Carolina and companion derivative cases pending in the state and federal courts of California. These actions arise from allegedly false and misleading statements made by the company and its officers during 2010 about one of the company’s main product lines and the company’s business prospects in developing markets. Court granted defendants’ motion to dismiss, without prejudice. Plaintiffs filed an amended complaint and Defendants again moved to dismiss. Court granted Defendants’ second motion to dismiss, with prejudice, and Plaintiffs declined to appeal. In light of the dismissal of the Exchange Act claims, Plaintiffs in the derivative actions voluntarily dismissed their cases, with prejudice. The second set of cases involves four actions in state courts in California and North Carolina seeking to block a proposed going-private transaction and claiming the company’s directors breached their fiduciary duties in approving the company’s merger agreement. After expedited discovery and motion practice, case was settled in exchange for modest additional disclosures and no additional compensation to shareholders.
MEMC Electronic Materials, Inc. Securities and Derivative Litigation (E.D. Missouri / 8th Cir.)
- Represent 26 public companies named as defendants in 55 related cases brought pursuant to Section 16(b) of the Securities and Exchange Act seeking disgorgement of profits by underwriters as a result of short-swing trading in initial public offerings. Clients include Akamai Technologies, Inc., Ariba, Inc., AsiaInfo Holdings, Inc., Aspect Medical Systems, Inc., Audible, Inc., Capstone Turbine Corp., Digimarc Corp., Internap Network Services Corporation, Intersil Corporation, Martha Stewart Living Omnimedia, Inc., NaviSite, Inc., Occam Networks, Inc. (formerly Accelerated Networks), Onvia.Com, Inc., Oplink Communications, Inc., Packeteer, Inc., Perot Systems Corp., Priceline.com, Inc., Red Hat, Inc., Saba Software, Inc., Selectica, Inc., Silicon Laboratories, Inc., Soapstone Networks (f/k/a) Avici Systems Inc., Sonus Networks, Inc., Sycamore Networks, Inc., TheStreet.com, Inc., and Vignette Corp.
- All cases are conducted before Judge Robart in the U.S. District Court for the Western District of Washington. The court granted the motion to dismiss on behalf of all clients following oral argument. Plaintiff appealed to the 9th Circuit Court of Appeals. The 9th Circuit ruled in favor of all clients, dismissing the claims with prejudice. The U.S. Supreme Court denied plaintiff’s petition for Writ of Certiorari regarding the cases involving our clients. The U.S. Supreme Court granted the underwriter’s petition for Writ of Certiorari regarding the statute of limitations and reversed the Ninth Circuit’s decision with respect to that issue. All cases have been remanded to the district court where we expect the cases involving our clients to be dismissed consistent with the Ninth Circuit opinion.
In re Goodyear Tire & Rubber Co. Derivative Litigation (N.D. Ohio)
- Obtained dismissal, with prejudice, of all claims against MEMC Electronic Materials, Inc. and its former CEO and CFO in shareholder class actions filed in Eastern District of Missouri. Plaintiffs alleged that MEMC engaged in a scheme to inflate stock price by failing to disclose certain material facts regarding MEMC’s operations and performance in violation of Sections 10(b) and 20(a) of the Exchange Act. The Eighth Circuit affirmed the dismissal following oral argument. Persuaded derivative plaintiffs to voluntarily dismiss derivative action once Eighth Circuit affirmed dismissal of securities case.
Cordova v. HSBC Bank USA, N.A. (S.D. Florida)
- Secured dismissal of claims against current and former members of the company’s Board of Directors in consolidated securities class actions and derivative actions in the Northern District of Ohio, alleging violations of Exchange Act and common law arising from accounting improprieties and unreasonably optimistic projections resulting in multi-year restatement of earnings.
Includes matters handled at Dechert or prior to joining the firm.
- Represented HSBC Bank USA in putative shareholder class actions, receivership action and SEC investigation arising out of the bank’s alleged involvement in the fraudulent sale of unregistered securities by a bank customer. Successfully moved pursuant to SLUSA to dismiss original class action complaint, alleging state law claims for breach of fiduciary duties, common law fraud and aiding and abetting. Putative class amended to assert claims under the Exchange Act and the Securities Act. While motion to dismiss amended complaint was pending, successfully negotiated favorable settlement of all remaining claims in all proceedings.
University of Wisconsin - Whitewater, B.S., 1975
Marquette University, M.A., Political Science, 1977
Marquette University Law School, J.D., 1980
Supreme Court of the United States
United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Eighth Circuit
United States Court of Appeals for the Ninth Circuit
United States District Court for the Eastern District of Wisconsin
United States District Court for the Northern District of Illinois
Chair, Board of Directors, University of Chicago Laboratory Schools