David A. Kotler
Partner | New York
David A. Kotler

David A. Kotler, co-chair of the U.S. Asset Management Litigation/Enforcement practice, advises and represents clients in a wide range of complex corporate and commercial litigation matters involving the financial markets, with a particular focus on investment advisers and other financial services firms both within and outside the mutual fund industry. Mr. Kotler also frequently counsels boards and senior management on a variety of litigation-related matters.

Described as “very smart” and "well regarded among the Bar," Mr. Kotler was recommended by Chambers USA, a referral guide to leading lawyers in the United States based on the opinions of their peers and clients for his commercial litigation practice. The Legal 500 US have also noted his securities and shareholder litigation practice.

Mr. Kotler is also co-author of Mutual Fund Litigation and Insurance Guide (LexisNexis), a comprehensive book that examines the legal risks faced by the mutual fund industry, the legal bases for potential liability of mutual fund industry participants, the key precedents from important regulatory enforcement actions and civil litigation against the industry, and the critical insurance products and approaches that are available to mitigate these risks.

Mutual Fund and Financial Services

  • 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 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 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 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.
  • Steiner v. MedQuist, Inc., Civil Action No. 04-5487 (D.N.J.). Represented a former CEO in Section 10(b)/Rule 10b-5 class action.
  • In re IPO Securities Litigation, 21 MC 92 (S.D.N.Y.). Represented four issuers in Sec. 11 and Sec. 10(b)/Rule 10b-5 consolidated class action arising out of an IPO allocation process.
  • Ball, et al. v. Golf Host Resorts, Inc., Case No. 99-7532-CI-15 (Fla. Cty. Ct.). Represented the issuer of an alleged investment contract.
  • Ball v. Starwood Capital Group, L.L.C., et al., Case No. 01-8582-CI-15 (Fla. Cty. Ct.). Represented corporate and individual defendants in a veil piercing action arising out of an alleged breach of investment contract.
  • Raintree Resorts International, Inc. v. Starwood Hotels & Resorts Worldwide Inc., et al., No. H-02- 3878 (D. Tex.). Represented equity investor Starwood Capital Group and several of its principals (including Barry Sternlicht) in a breach of fiduciary duty/tortious interference action.
  • H.I.G. Capital, L.L.C. v. Vestcom International, Inc., et al., Docket No. C-249-02 (N.J. Ch. Div.). Represented the successful bidder for a publicly traded company.
  • Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2 (2d Cir. 1996). Represented the issuer, a closed-end fund, in Section 11 and Section 10(b)/Rule 10b-5 class action.
  • Karpus v. Hyperion 1997 Term Trust, Inc., 1996 WL 668860 (S.D.N.Y. 1996). Represented the issuer, a closed-end fund, in Sec. 11 and Sec. 10(b)/Rule 10b-5 class action; motion to dismiss granted.
  • 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.
  • Heilman v. Baldino, Case No. MER-C-12808 (N.J. Ch. Div.). Represented the target company and its board of directors in shareholder litigation brought following a merger.
  • 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 Governane Symposium — Dechert LLP (February 27, 2024)
  • 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)
  • 2017 Fund Directors Conference — Presented by the Independent Directors Council, Chicago (October 23-25, 2017)
  • 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 2016 ALIC Annual Meeting, Colorado Springs, CO (May 16, 2016)
  • 2016 Mutual Funds and Investment Management Conference — ICI Investment Company Institute, Orlando, FL (March 13, 2016)
  • The SEC Perspective: SEC Regulation and Conversations with the SEC Staff — Practising Law Institute's Securities Products of Insurance Companies in the Course of Regulatory Reform 2015, New York, NY (January 21, 2015)
  • New York Has an Axe to Grind and Plaintiffs Try to Axe Fees — American Council of Life Insurers Compliance & Legal Sections Annual Meeting, Ft. Lauderdale, FL (July 28, 2014)
  • 2012 Policy Conference — Mutual Fund Directors Forum, Washington, DC (June 19-20, 2012)
  • Developing Business 2012: Developing Networks and Client Relationships — Practising Law Institute, New York, NY (March 26, 2012)
  • Effective Trial Testimony — LSI's Conference on Effective Development and Presentation on Expert Testimony, Chicago, IL (September 24, 2007)
  • Understanding the Link Between Off-Label Sales/Promotion & Securities Fraud/Shareholder Derivative Suits — Pharmaceutical & Medical Device Counsel's Guide to Off-Label Communications, New York, NY (April 24, 2006)

 

  • The Developing Litigation Risks from the ESG Backlash in the United States – Dechert OnPoint (June 21, 2023)
  • Delaware Court of Chancery Issues Significant Decision Addressing Fiduciary Duties of Officers, Including Holding that Officers Owe a Duty of Oversight – Dechert OnPoint (January 30, 2023)
  • Navigating the Recent Wave of Section 36(b) Litigation: What Have We Learned? - The Investment Lawyer (February 2022)
  • Dechert Secures Complete Victory for Antares Pharma Before the Third Circuit - Dechert OnPoint (January 25, 2022)
  • Delaware Court of Chancery Issues First Decision Addressing Directors’ Fiduciary Duties in a De- SPAC Merger - Dechert OnPoint (January 18, 2022)
  • Tenth Circuit Affirms Another Adviser Victory in Section 36(b) Lawsuit - Dechert OnPoint (August 20, 2021)
  • SPAC Roundtable - Dechert OnPoint (April 21, 2021)
  • Lessons Learned From ERISA Class Action Litigation Arising Out Of The “Great Recession” - Dechert OnPoint (January 07, 2021)
  • A Look at the Current State of ERISA Class Action Litigation - Dechert OnPoint (November 20, 2020)
  • California Superior Court Enforces Federal Forum Selection Provision Under California Law - Dechert OnPoint (September 11, 2020)
  • Federal Court Issues Trial Ruling in Section 36(b) Lawsuit: Great-West Advisory Fees Held Not a Breach of Fiduciary Duty - Dechert OnPoint (August 17, 2020)
  • For Whom the Bell Thole(s) – Supreme Court Holds that Fiduciaries Under ERISA-Covered Pension Plans May Be Constitutionally Shielded - Dechert OnPoint (June 10, 2020)
  • Some Good News for the Loan Industry—Loans Are Not Securities - Dechert OnPoint (June 01, 2020)
  • Asset Management Litigation/Enforcement Flash Report - Dechert OnPoint (May 22, 2020)
  • COVID-19 Coronavirus Business Impact: Everything You Need to Know to Manage the Stock Delisting Risk - Dechert OnPoint (May 07, 2020)
  • Financial Support for Nonprofit Organizations Pursuant to the U.S. CARES Act - Dechert OnPoint (April 07, 2020)
  • Disclosures and Communications with U.S. Fund Investors in the Current Environment - Dechert OnPoint (April 07, 2020)
  • Sixth Circuit Issues Section 36(b) Ruling Affirming Grant of Summary Judgment To Mutual Fund Investment Adviser - Dechert OnPoint (April 03, 2020)
  • Managing Enforcement and Litigation Risks for Asset Managers in the Current Economic Climate - Dechert OnPoint (April 01, 2020)
  • COVID-19 Coronavirus Business Impact: Regulatory Impact – Focus on Global Market Abuse Risks - Dechert OnPoint (March 31, 2020)
  • Delaware Supreme Court Rules that Corporations Can Require Securities Act Claims to Be Filed Exclusively in Federal Court - Dechert OnPoint (March 20, 2020)
  • NewsFlash: "Actual" Actually Means Actual - U.S. Supreme Court Rules in Sulyma on ERISA's Statute of Limitations - Dechert OnPoint (March 05, 2020)
  • California Appeals Court Narrows Standing for ETF Retail Investors to Sue for Allegedly False or Misleading Registration Statements - Dechert OnPoint (February 18, 2020)
  • Mutual Fund Litigation and Insurance Practice Guide - Dechert OnPoint (February 04, 2020)
  • Recent Section 36(b) Post-Trial Ruling Awards Complete Victory to Mutual Fund Investment Adviser - Dechert OnPoint (October 10, 2019)
  • Second Circuit Finds that Section 47(b) Provides for Private Right of Action, Raising New Implications and Considerations for Mutual Fund Advisers and Trustees - Dechert OnPoint (September 09, 2019)
  • Court Credits Robust Board Process and Persuasive Independent Trustee Trial Testimony in Section 36(b) Victory - Dechert OnPoint (August 08, 2019)
  • Chambers USA Recognizes 79 Dechert Lawyers and 33 Practices - Dechert OnPoint (May 03, 2018)
  • US Courts Rule in Favor of Advisers in Three Mutual Fund Excessive Fee Cases - Dechert OnPoint (March 28, 2018)
  • Examinations, Enforcement and Litigation: Developments and Trends to Watch in 2018 - Dechert OnPoint (November 28, 2017)
  • 2017 San Francisco Investment Management Symposium - Dechert OnPoint (November 28, 2017)
  • Combating diplomatic involvement in human trafficking - Dechert OnPoint (October 20, 2017)
  • Chambers USA 2017 Recognizes 75 Dechert Lawyers and Practices across 33 Categories - Dechert OnPoint (May 26, 2017)
  • Federal Court Denies “Fiduciary Exception” Challenge in Connection with Section 36(b) Excessive Fee Lawsuit - Dechert OnPoint (May 02, 2017)
  • Updated CHOICE Act Proposes to Impose Heightened Pleading Requirement and Raise Burden of Proof for Plaintiffs in Section 36(b) Cases Against Mutual Fund Advisers - Dechert OnPoint (April 28, 2017)
  • Federal Court Issues Trial Ruling in Section 36(b) “Manager of Managers” Lawsuit: Second Consecutive Opinion Finding Plaintiffs Failed to Meet Their Burden - Dechert OnPoint (March 03, 2017)
  • Dechert survey: Developments in securities fraud class actions against U.S. life sciences companies - Dechert OnPoint (February 17, 2017)
  • Federal Court Issues Trial Ruling in Section 36(b) "Manager of Managers" Lawsuit: AXA Advisory and Administrative Fees Held Not a Breach of Fiduciary Duty - Dechert OnPoint (January 01, 2017)
  • Federal Court Issues Trial Ruling in Section 36(b) “Manager of Managers” Lawsuit: AXA Advisory and Administrative Fees Held Not to Constitute a Breach of Fiduciary Duty - Dechert OnPoint (September 19, 2016)
  • Mutual Fund Litigation and Insurance Practice Guide: 2016 - 2017 Edition - Dechert OnPoint (September 01, 2016)
  • Federal Court Issues Trial Ruling in Section 36(b) "Manager of Managers" Lawsuit - Dechert OnPoint (August 29, 2016)
  • The Legal 500 US Recommends 104 Dechert Lawyers and Practices Across 31 Categories - Dechert OnPoint (June 15, 2016)
  • Chambers USA Recognizes 73 Dechert Lawyers and Practices Across 32 Categories - Dechert OnPoint (May 27, 2016)
  • Mutual Fund Litigation Update for Independent Directors - Dechert OnPoint (February 18, 2016)
  • Basic Written Discovery - Dechert OnPoint (October 20, 2015)
  • Financial Services Quarterly Report - Dechert OnPoint (October 01, 2015)
  • Recent Developments in U.S. Excessive Fee Litigation - Dechert OnPoint (October 01, 2015)
  • The Legal 500 Names Dechert Real Estate Firm of the Year; Recommends 105 Dechert Lawyers Across 27 Practice Categories - Dechert OnPoint (June 11, 2015)
  • Three Court Cases Redefining Fund Governance - Dechert OnPoint (May 19, 2015)
  • Chambers USA Recognizes 68 Dechert Lawyers and Practices Across 30 Categories - Dechert OnPoint (May 19, 2015)
  • Dechert Advises PennantPark in Acquisition of MCG Capital - Dechert OnPoint (April 29, 2015)
  • Dechert Survey of Securities Fraud Class Actions Brought Against US Life Sciences Companies - Dechert OnPoint (March 16, 2015)
  • New York Has an Axa to Grind and Plaintiffs Try to Axe Fees - Dechert OnPoint (July 28, 2014)
  • The Legal 500 Names Dechert Mutual Fund Firm of the Year, Recommends 94 Dechert Lawyers and Practice Groups in 20 Categories - Dechert OnPoint (June 26, 2014)
  • Dechert’s Litigation Teams Recognized around the World by Chambers and The Legal 500 - Dechert OnPoint (June 01, 2014)
  • Dechert’s Securities Litigation Team Recognized by Chambers and The Legal 500 - Dechert OnPoint (June 01, 2014)
  • Chambers USA Recognizes 72 Dechert Lawyers and Recognizes Dechert’s Practices in 29 Categories - Dechert OnPoint (May 23, 2014)
  • Financial Services Quarterly Report - Dechert OnPoint (March 24, 2014)
  • US Fund Litigation Update: Where We are Now and Where We Could be Headed - Dechert OnPoint (March 24, 2014)
  • Current Developments Affecting the Fund Industry - Dechert OnPoint (March 18, 2014)
  • Clinical Trial Disclosure: Keeping Ahead of the Wave - Dechert OnPoint (June 25, 2013)
  • Dechert’s Commercial Litigation Practice Recognized by Chambers USA in 2013 in California, New Jersey and Pennsylvania - Dechert OnPoint (June 14, 2013)
  • Chambers USA Recognizes 72 Dechert Lawyers and Recognizes Dechert’s Practices in 30 Categories - Dechert OnPoint (May 24, 2013)
  • Report: Life Sciences Securities Cases Increased in 2012 - Dechert OnPoint (March 21, 2013)
  • Dechert Survey of Securities Fraud Class Actions Brought Against US Life Sciences Companies - Dechert OnPoint (March 20, 2013)
  • Dechert Advises Sovereign Wealth Fund in Purchase of Hotel Assets from CNL/MSR Resorts - Dechert OnPoint (March 13, 2013)
  • Dechert’s Matthew Larrabee and David Kotler Author “Mutual Fund Litigation and Insurance Practice Guide” - Dechert OnPoint (November 06, 2012)
  • Mutual Fund Litigation and Insurance Practice Guide - Dechert OnPoint (September 27, 2012)
  • 2012 Policy Conference - Dechert OnPoint (June 19, 2012)
  • Dechert Secures Two Appellate Victories in Schron, Cammeby’s Equity Holdings Cases - Dechert OnPoint (May 23, 2012)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - (March 20, 2012)
  • Demonstrating Scienter in Market Manipulation Claims under the Commodity Exchange Act: A Checkered History and an Uncertain Future - Dechert OnPoint (March 01, 2012)
  • Emerging Trends in Merger & Acquisition Disputes - Dechert OnPoint (October 06, 2011)
  • Strike Three: Dismissal of the Third Section 47(b) Lawsuit Brought Against Mutual Fund Trustees and Distributor for the Alleged Failure of Broker-Dealers That Receive Rule 12b-1 Fees to Register as Investment Advisers - Dechert OnPoint (June 14, 2011)
  • EPJ Fund v. Halliburton: US Supreme Court Rules that Rule 10b-5 Plaintiffs Need Not Prove Loss Causation for Class Certification, But Leaves Other Potential Class Certification Defenses Untouched - Dechert OnPoint (June 13, 2011)
  • Dechert LLP Obtains Dismissal of Actions Against OppenheimerFunds Distributor in 12b-1 Fee Matter - Dechert OnPoint (June 06, 2011)
  • Another Section 47(b) Claim Dismissed Against a Mutual Fund’s Distributor and Trustees for the Alleged Failure of Broker-Dealers that Receive Rule 12b-1 Fees to Register as Investment Advisers - Dechert OnPoint (April 18, 2011)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (March 30, 2011)
  • Why Funds’ Risk Management Strategy Must Address Insurance - Dechert OnPoint (March 29, 2011)
  • “Statistically Significant” Standard Suffers an Adverse Event: Matrixx Initiatives, Inc. v. Siracusano - Dechert OnPoint (March 23, 2011)
  • Amicus Curiae Brief, Matrixx Initiatives v. Siracusano - Dechert OnPoint (August 27, 2010)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (March 30, 2010)
  • Advocates Have to Account for Juror Cynicism - Dechert OnPoint (February 01, 2010)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (April 14, 2009)
  • Arbitration Clause and Post-Dispute Considerations for In-House Counsel - Dechert OnPoint (February 06, 2009)
  • A Survey of Sanctions Awarded for E-Discovery Violations - Dechert OnPoint (January 01, 2009)
  • The Potential Impact of the FDA’s Issuance of a “Complete Response Letter” on Publicly Traded Life Sciences Companies - Dechert OnPoint (November 01, 2008)
  • Life Sciences Companies Remain Firmly in the Crosshairs of the Plaintiffs’ Securities Bar - Dechert OnPoint (August 01, 2008)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (June 05, 2008)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (October 30, 2005)
  • Recent Case Summaries - Dechert OnPoint (October 03, 2005)
  • Dechert Survey of Securities Fraud Class Actions Brought Against Life Sciences Companies - Dechert OnPoint (August 10, 2004)
  • Sarbanes-Oxley’s Impact on State Corporate Governance - Dechert OnPoint (July 25, 2003)
  • Court Invokes ‘Enron’ as Basis for Reinstating Securities Fraud Suit - Dechert OnPoint (March 14, 2003)
Services Industries
    • Cornell University, B.A., 1990
    • New York University School of Law, J.D., 1993, Staff Editor of the Annual Survey of American Law
    • New York
    • New Jersey
    • Supreme Court of the United States
    • United States Court of Appeals for the Federal Circuit
    • United States Court of Appeals for the Second Circuit
    • United States Court of Appeals for the Third Circuit
    • United States Court of Appeals for the Ninth Circuit
    • United States District Court for the District of Colorado
    • United States District Court for the District of New Jersey
    • United States District Court for the Eastern District of New York
    • United States District Court for the Southern District of New York