David A. Kotler

Mutual Fund and Financial Services

• Representing a large Private Credit Manager in an arbitration (tried to a successful verdict) against a spun-off adviser over service-fee obligations, post-spin employee equity commitments, and alleged non-compete and confidentiality violations.
• Representing Guggenheim Funds Investment Advisors in breach of fiduciary duty class action and derivative litigation both challenging the merger of a closed-end fund and seeking recovery for alleged investment losses.
• Representing the Mutual Fund Directors Forum as amicus before the Supreme Court in an appeal arising under Section 47(b) of the Investment Company Act of 1940.
• Representing the Investment Company Institute as amicus in a Second Circuit appeal arising under Section 18(i) of the Investment Company Act of 1940.
• Representing Calamos Advisors and Calamos Financial Services in Section 36(b) litigation challenging advisory and distribution fees for the complex’s largest mutual fund.
• Representing Prudential Investment in Section 36(b) litigation challenging advisory fees for five mutual funds.
• Representing Security Investors, LLC in Section 36(b) litigation challenging advisory fees for a closed-end fund.
• Representing Harbor International Fund in Section 36(b) litigation challenging advisory fees for three mutual funds.
• Representing the independent trustees of several mutual fund complexes in Section 36(b) litigation.
• Representing one of the world’s largest ETFs in a derivative breach of fiduciary duty action threatened by investors in the mutual fund.
• Representing Charles Schwab & Co., in a breach of fiduciary duty class action challenging the advisory fees for a donor advised fund.
• Representing Oppenheimer Funds and Oppenheimer Acquisition Corp. in more than a dozen class action and individual lawsuits brought in several courts arising out of the Madoff Ponzi scheme.
• Representing the investment adviser, distributor and key officers of the Rydex Series Funds in a Section 11 class action brought by investors in an inverse mutual fund.
• Representing Oppenheimer Funds Distributors, Inc. and several related entities/persons in a derivative action brought on behalf of two mutual funds that challenge the 12b-1 payments made to broker-dealers.
• Representing a family of mutual funds for one of the world’s largest money managers in a multi-billion-dollar Commodity Exchange Act class action arising out of the alleged manipulation of the U.S. Treasury futures market.
• Representing two mutual funds of one of the largest investment management companies in the U.S. in a precedent-setting Sarbanes-Oxley whistle-blowing matter before an administrative law judge.
• Representing a long-short hedge fund in a state law RICO action alleging an improper short-selling scheme.

Securities and Complex Commercial Litigation

• Representing Nomi Health in corporate governance litigation brought by a preferred stockholder.
• Representing the former CEO of Hertz Corp. in a precedent-setting clawback lawsuit.
• Representing the unsecured creditors committee of LATAM Airlines in an expedited litigation matter.
• Representing venture capital entrepreneur and investors in a series of federal and state court lawsuits arising out of private equity investment in a technology company.
• Representing international creditors of a Lehman affiliate in a US$100 million bankruptcy adversary proceeding.
• Representing the investment arm of a foreign government in bankruptcy litigation in connection with its purchase of real estate assets for US$1.5 billion.
• Representing one of New York’s largest commercial real estate developers in a series of complex litigation matters arising out of several transactions for the purchase of skilled nursing facilities.
• Representing the former controller of AIG in various direct and derivative securities fraud actions.
• Representing four issuers in Sec. 11 and Sec. 10(b)/Rule 10b-5 consolidated class action arising out of IPO allocation process.
• Representing Starwood Capital Group and individual defendants in a veil piercing action arising out of an alleged breach of investment contract.
• Representing equity investor Starwood Capital Group and several of its principals (including Barry Sternlicht) in a breach of fiduciary duty/tortious interference action.
• Representing the issuer, a closed-end fund, in several Section 11 and Section 10(b)/Rule 10b-5 class actions.
• The successful resolution of a multi-million-dollar tortious interference and breach of fiduciary duty claim arising out of an Internet-based business.
• The successful application of an adult living community to expand its facility in the face of a challenge under an anti-eviction statute (a case of first impression in New Jersey).
• On a pro bono representation, obtaining a substantial federal jury verdict for sexual harassment in favor of a former New York Police Department employee.
  

M&A Litigation

• Representing Turtle Beach Corp., its CEO, and its former private equity sponsor in breach of fiduciary duty and equity expropriation litigation arising out of a reverse merger with Parametric Sound Corp.
• Representing Inhibitex, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Bristol-Myers Squibb for US$2.5 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of the acquisition of ArthroCare Corp. by Smith & Nephew for US$1.7 billion.
• Representing Buckeye Technologies, Inc. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Georgia Pacific for US$1.4 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of M*Modal for US$1.1 billion.
• Representing One Equity Partners in expedited shareholder litigation following the announcement of its acquisition of APAC Customer Services for US$470 million.
• Representing Tufco Corp. and its board of directors in expedited shareholder litigation following the announcement of the company's acquisition by Griffin Holdings.

• Dispute Resolution: Financial Services Litigation — Legal 500 US (2025-2026)
• Dispute Resolution: Securities Litigation: Defense — Legal 500 US (2025-2026)
• Investment Fund Formation and Management: Mutual/Registered/Exchange-traded Funds — Legal 500 US (2026)

• Value for Money: Changing the Retail Investor Landscape IBA Global Challenges and Opportunities for the Asset Management Industry Conference | Boston, MA (June 11, 2024)
• Corporate Governance Symposium Dechert LLP | New York, NY (February 27, 2024)
• ESG Backlash in the United States: Litigation Risks Dechert LLP | Webinar (July 12, 2023)
• Mutual Fund Litigation and Enforcement Update Mutual Fund Directors Forum | Webinar (June 6, 2023)
• Mutual Fund Litigation and Enforcement Update Mutual Fund Directors Forum | Webinar (March 23, 2022)
  
• SPAC Litigation: Issues and Trends (April 21, 2021)
  
• Mutual Fund Litigation and Enforcement Update Mutual Fund Directors Forum | Webinar (November 17, 2020)
  
• Disclosures and Communications with U.S. Fund Investors in the Current Environment Dechert LLP | COVID-19 Coronavirus Business Impact Webinar (April 7, 2020)
  
• Excessive Fee Litigation and Enforcement: Recent Decisions and Trends Mutual Fund Directors Forum | Webinar (May 7, 2019)
  
• Fund Directors Conference Independent Directors Council | Chicago, IL (October 23-25, 2017)
• Policy Conference Mutual Fund Directors Forum | Washington, D.C. (July 24, 2017)
• Current Developments Affecting the Fund Industry ICI Breakfast Briefing | Palm Desert, CA (March 14, 2017)
  
• The ALIC Annual Meeting Association of Life Insurance Counsel | Colorado Springs, CO (May 16, 2016)
• Mutual Funds and Investment Management Conference ICI Investment Company Institute | Orlando, FL (March 13, 2016)

• Board Minute Best Practices — Directors & Boards (July 2024)
• Navigating the Recent Wave of Section 36(b) Litigation: What Have We Learned? — The Investment Lawyer (February 2022)