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Has Another Wave of “Say-On-Pay” Litigation Come to an End?

After enactment of “say-on-pay” legislation in the Dodd-Frank Wall Street Reform and Consumer Protection Act, an unsuccessful wave of litigation sought to convert advisory “no” votes on executive compensation into claims for breach of fiduciary duties by company directors. >>

Diversity Highlights (2012)

The Attorney Diversity Committee (ADC) at Haynes and Boone, LLP is comprised of more than 60 attorneys, management and administrative team members that meets each month to advance our firm’s numerous diversity efforts. This document summarizes some of the highlights of those efforts in 2012. >>

Comcast Corp. v. Behrend: Supreme Court Rejects Expert Damages Model as Insufficient for Class Certification in Antitrust Class Action

On Wednesday, the Supreme Court held in a 5-4 opinion in Comcast Corp. v. Behrend, 569 U.S. ___ (2013), that a party seeking to maintain a class action must satisfy Rule 23’s requirements through evidentiary proof, even where such analysis may overlap with the merits of the underlying claim. >>

Securities Litigation Year in Review 2012

The Haynes and Boone Securities Litigation Year in Review 2012 outlines Supreme Court decisions and rulings from Circuit and District Courts that affect securities class action cases, including class certification issues.

In 2012, Haynes and Boone’s Securities Class Action Defense and Shareholder Litigation Practice Group defended targets, directors and acquirors in a number of M&A-related suits. Our docket also included class actions arising from initial public offerings, shareholder derivative suits, minority/majority shareholder cases and limited liability company disputes. >>



Nicholas Even

Partner
Co-Chair of Attorney Diversity Committee

Dallas


2323 Victory Avenue
Suite 700
Dallas, Texas 75219
T +1 214.651.5045
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New York


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Areas of Practice

Education

  • J.D., Harvard Law School, 1987
  • B.A., Cornell College, 1984, magna cum laude

Bar Admissions

  • New York
  • Texas

Court Admissions

  • U.S. Court of Appeals for the Second Circuit
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Eastern District of Texas
  • U.S. District Court for the Western District of Texas
Nicholas Even

Nick Even is Co-Chair of the firm's national Securities and Shareholder Litigation and Class Action Defense practices. He has extensive experience with class litigation in a variety of contexts. Over the course of his career, Mr. Even has acted as defense counsel in more than 100 shareholder class actions, derivative suits, and other securities-related proceedings. From working on the Time-Warner-Paramount merger contest in the late 1980s, to trying the first case involving a triggered poison pill in 2009, he has more than 23 years of experience in cutting-edge securities litigation and complex business disputes. He has won victories for public company clients in the Texas Supreme Court and the United States Court of Appeals for the Fifth Circuit, has successfully argued against class certification, and has achieved dismissals for companies, officers, directors, underwriters and other defendants in numerous shareholder suits and class actions. He is AV® Peer Review Rated Preeminent by Martindale-Hubbell® Law Directory.

Prior to joining the firm in 1999, Mr. Even practiced at Simpson Thacher & Bartlett in New York. In both Texas and New York, his work consistently includes complex corporate litigation and investigations, and matters before federal and state courts, the SEC and other regulatory bodies. He also focuses on fiduciary counseling and disputes, including advice to special litigation committees and representation of directors and officers in shareholder derivative litigation.  

Mr. Even's recent representations and reported decisions include:

Other representative clients include: Wachovia, Flowserve Corporation, Dynegy Inc., Helen of Troy Limited, Lehman Brothers, Deutsche Bank Securities, Morgan Stanley, Triton Energy, Capstead Mortgage Corporation, and FirstPlus Financial Group. Mr. Even has also represented The Blackstone Group and other private equity firms in matters arising from their investments and acquisitions.

Speaking and Writing: Mr. Even is a frequent speaker and writer on issues pertaining to shareholder litigation, corporate disclosures, SEC enforcement, and corporate governance. Topics have included merger and acquisition litigation, poison pills, derivative litigation and shareholder demand requirements, public company websites, Regulation FD (Fair Disclosure), share "tracing" and standing under Section 11 of the Securities Act, and strategies for opposing class certification. 

Leadership and Service: In the community, Mr. Even's service has included The Dallas Opera (Board of Directors, 2011-present; Board of Trustees, 2009-2010); TACA -The Arts Community Alliance (Board of Directors, 2009-present; Grants Committee Chair, 2011-present; Secretary, 2012); and WaterTower Theatre (President, 2007-2008; Vice President, 2006-2007; Secretary, 2005-2006; Development Chair, 2005-2008). He has also been involved with Lambda Legal and the Human Rights Campaign, and has worked as an American Red Cross volunteer. Mr. Even is co-chair of the firm's Attorney Diversity Committee.

Selected Representative Experience


Antitrust Counseling in Proposed Telecommunications Acquisition
Represented AT&T before the DOJ and FCC on antitrust matters related to proposed acquisition of T-Mobile USA, including pre-merger integration counseling and planning.

Animal Health International, Inc. Acquisition Litigation
Represented Lextron, Inc. in connection with the successful acquisition of Animal Health International, Inc., and five shareholder class actions filed in Delaware and Texas state courts, alleging breaches of fiduciary duties by the target's directors, and purported aiding and abetting by the acquiror.

Silverleaf Resorts, Inc. Derivative Litigation
Represented Cerberus Capital Management and its affiliates in connection with the successful acquisition of Silverleaf, a Texas corporation, and related state court derivative litigation alleging breaches of fiduciary duties by the target's directors, and purported aiding and abetting by the acquiror.

In re EF Johnson Technologies, Inc. Consolidated Shareholder Litigation
Represented acquired entity, EF Johnson Techonologies, Inc. and its board of directors in two shareholder class actions filed in Texas state court alleging breaches of fiduciary duty in connection with the board’s approval of an acquisition of the company by Francisco Partners.

In re Arena Resources, Inc. Shareholder Litigation
Represented acquired entity, Arena Resources, Inc., and its board of directors in nine shareholder class actions filed in two Nevada state courts, two Oklahoma state courts, and Oklahoma federal court, alleging breaches of fiduciary duty in connection with the board’s approval of the $1.6 billion acquisition of the company by SandRidge Energy, Inc.

ICO, Inc. Special Litigation Committee
Represented the Special Litigation Committee of ICO, Inc. in connection with investigating and resolving allegations raised in a shareholder derivative suit filed in Harris County, Texas, alleging breaches of fiduciary duty in connection with the ICO board’s approval of an acquisition of the company by A. Schulman, Inc.

In re Parallel Petroleum Corporation Shareholder Litigation
Represent acquired entity, Parallel Petroleum Corporation, and its board of directors in five shareholder class actions filed in Delaware Chancery Court, District Court of Midland County, Texas, and District Court of Harris County, Texas, alleging breaches of fiduciary duty in connection with the board’s approval of an acquisition of the company by Apollo Global Management, LLC.

In re Schmitz, 285 S.W.3d 451 (Tex. 2009)
In a significant victory for businesses that elect to incorporate under the laws of Texas, obtained the first ruling by the Texas Supreme Court on the strict statutory prerequisites for commencing shareholder derivative litigation. Clarified that a shareholder demand letter must provide meaningful notice of a corporation’s supposed wrongdoing.

Trilogy, Inc., Versata Enterprises, Inc. (Selectica v. Versata)
Represented a provider of enterprise software solutions in the Delaware Chancery Court and Delaware Supreme Court in the trial and appeal of the first case to challenge the validity of a 4.99% shareholder rights plan (or net operating loss “poison pill”), arising from the triggering of the pill and the subsequent dilution of the investor’s holdings.

Helen of Troy Securities Litigation
Represented a major marketer and distributor of personal care and houseware products in a putative securities class action arising from revisions to sales and earnings projections.

Frozen Food Express Derivative Litigation
Represented special litigation committee of one of the country's largest temperature-controlled transportation services companies in investigating breach of fiduciary duty claims arising from related-party transactions.

Microtune Corporation Derivative Litigation
Obtained a motion to dismiss the purported stockholder derivative lawsuit. The lawsuit alleged various claims, including breach of fiduciary duties and violations of the Securities Exchange Act of 1934, as amended, related to the company’s historical stock option granting practices described in its Annual Report. Pedroli v. Bartek, 564 F. Supp.2d 683 (E.D. Tex. 2008).

The Blackstone Group
Defense of The Blackstone Group against "aiding and abetting" claims asserted in class action brought in Texas state court by shareholders of Alliance Data Systems, in connection with intended merger and acquisition transaction.

Flowserve Corporation Securities Litigation
Defending a worldwide manufacturer of pumps, valves and seals for flow control systems in a class action alleging securities fraud arising from accounting restatement, merger integration issues, and missed earnings projections. Obtained an order denying class certification and granting complete summary judgment in favor of the defendants, which was remanded for further proceedings after appeal.

Energytec, Inc. Litigation
Represent a securities broker in a federal suit alleging, among other things, federal securities fraud and violations of violation of Texas securities statutes, and obtained dismissal of those claims against our client. Energytec, Inc. v. Proctor, 516 F.Supp.2d 660 (N.D. Tex. 2007).

Fleming Companies Securities Litigation
Defended underwriters of a grocery wholesaler's secondary stock offering against a class action alleging accounting misstatements were made in the offering registration statement and prospectus.

Dynegy Inc. Securities and Derivative Litigation
Represented Dynegy Inc. in putative securities class action and in shareholder derivative suits arising from allegations of fraudulent accounting treatment of certain energy contracts and a natural gas transaction, and from purported energy market manipulation.

La Quinta Corporation Shareholder Derivative Litigation
Represented a public company in the hotel industry as a nominal defendant, in a putative derivative suit filed in Texas state court alleging fiduciary duty violations in connection with the Board’s approval of an acquisition of the company.

Wyndham International, Inc. Derivative Litigation
Represented certain directors of Wyndham International, Inc., and the company as nominal defendant, in a putative derivative suit filed in federal court in the Northern District of Texas alleging fiduciary duty violations in connection with the Board's approval of an acquisition of the company.

pcOrder.com, Inc. Securities Litigation
Obtained a dismissal of a putative class action brought under Section 10(b) of the Securities Exchange Act of 1934 against an e-commerce software company, its public subsidiary, and certain directors and officers alleging a lack of internal controls, improper revenue recognition, and undisclosed sales and product problems. Alcina v. pcOrder.com, Inc., 230 F. Supp. 2d 732 (W.D. Tex. 2002). In a companion case under Section 11 of the Securities Act of 1933, we successfully opposed class certification on grounds that the proposed class representatives lacked standing to sue and that the proposed representatives and their counsel were inadequate. Krim v. pcOrder.com, Inc., 210 F.R.D. 581 (W.D. Tex. 2002). We obtained dismissal of the remaining individual plaintiffs’ claims. Krim v. pcOrder.com, Inc., 2003 WL 21076787 (W.D. Tex. May 5, 2003). That ruling was affirmed on appeal by the Fifth Circuit. 402 F.3d 489 (5th Cir. March 1, 2005).

Triton Energy Corp. Securities Litigation
Defended an oil and gas company in a putative class action alleging misrepresentations and omissions regarding the company's oil and gas production prospects, and the status of a bidding process for the company's assets.

Christus Health
Defense of two suits against not-for-profit healthcare system in putative class action litigation asserting claims of discriminatory pricing. Removed the actions to federal court, successfully opposing remand. Harrison v. Christus Health, 2005 WL 3989794 (W.D. La. Sept. 1, 2005); Bobo v. Christus Health, 359 F. Supp. 2d 552 (E.D. Tex. 2005). Obtained dismissals of all federal and common law claims in both suits. Harrison v. Christus St. Patrick Hospital, 2006 WL 1217280 (W.D. La. May 3, 2006); Bobo v. Christus Health, 227 F.R.D. 479 (E.D. Tex. 2005).

Intelect, Inc. Securities Litigation
Successfully opposed class certification in an action brought under Section 10(b) of the Securities Exchange Act of 1934 against a manufacturer of fiber-optic, multi-service access platform products and video communication products arising out of a restatement of the company’s quarterly financial results. The court denied class certification on the ground that the proposed class representatives were inadequate. Umsted v. Intelect, Inc., 2003 WL 79750 (N.D. Tex. Jan. 7, 2003).

Capstead Mortgage Corporation Securities Litigation
Obtained a dismissal of a federal suit against a REIT that engaged in mortgage-backed assets and mortgage services, and certain officers and directors, alleging that federal securities laws were violated through the company’s accounting and other disclosures. In re Capstead Mortgage Corp. Sec. Litig., 258 F. Supp. 2d 533 (N.D. Tex. 2003). We defeated plaintiffs’ subsequent motion to vacate the dismissal and to allow further amendments to the complaint. In re Capstead Mortgage Corp. Sec. Litig., 2003 U.S. Dist. LEXIS 16525 (N.D. Tex. Sept. 19, 2003).

The Pinnacle Fund, L.P. v. World Wireless Communications, Inc.
Successfully represented hedge fund as plaintiff in action arising from the defendant company’s failure to register shares with the SEC as required by the offering materials in a PIPE transaction.

FirstPlus Securities Litigation
Defended a specialized finance company, its chief executive officer, president and its chief financial officer alleging misrepresentations in connection with accounting for securities transactions. We obtained dismissal of the claims against the chief financial officer, and successfully negotiated a settlement of the claims against the remaining defendants.

Triton Energy Corp. Securities Litigation - Texas State Court
Obtained dismissal of claims by certain shareholders filed in Texas state court against an oil and gas company and two of its officers alleging misrepresentations in connection with a bidding process for the company's assets and an announcement of certain accounting write-downs, Sherman v. Triton Energy Corp., 124 S.W.3d 272 (Tex. App. - Dallas, 2003), and subsequently obtained summary judgment against the remaining plaintiff shareholders.

ViaGrafix Corp. Securities Litigation
Obtained a dismissal with prejudice of a putative class action against an issuer and certain individuals under Section 11 of the Securities Act, arising out an initial public offering by a provider of interactive training and educational course products for the information technology market. Special Situations Fund III, L.P. v. ViaGrafix Corp., 2001 WL 182666 (N.D. Tex. Jan. 22, 2001).

Memberships

  • State Bar of Texas
  • New York State Bar
  • American Bar Association
  • Dallas Bar Association

Online Publications

06/12/2013 - Has Another Wave of “Say-On-Pay” Litigation Come to an End?
After enactment of “say-on-pay” legislation in the Dodd-Frank Wall Street Reform and Consumer Protection Act, an unsuccessful wave of litigation sought to convert advisory “no” votes on executive compensation into claims for breach of fiduciary duties by company directors.

04/01/2013 - Comcast Corp. v. Behrend: Supreme Court Rejects Expert Damages Model as Insufficient for Class Certification in Antitrust Class Action
On Wednesday, the Supreme Court held in a 5-4 opinion in Comcast Corp. v. Behrend, 569 U.S. ___ (2013), that a party seeking to maintain a class action must satisfy Rule 23’s requirements through evidentiary proof, even where such analysis may overlap with the merits of the underlying claim.

01/30/2013 - Securities Litigation Year in Review 2012
The Haynes and Boone Securities Litigation Year in Review 2012 outlines Supreme Court decisions and rulings from Circuit and District Courts that affect securities class action cases, including class certification issues.

In 2012, Haynes and Boone’s Securities Class Action Defense and Shareholder Litigation Practice Group defended targets, directors and acquirors in a number of M&A-related suits. Our docket also included class actions arising from initial public offerings, shareholder derivative suits, minority/majority shareholder cases and limited liability company disputes.

04/12/2012 - Bloomberg BNA Features Haynes and Boone 2011 Securities Litigation Highlights Report
The year 2011 was a remarkable one in securities litigation, with notable decisions from the Supreme Court and a number of interesting rulings from Circuit and District Courts as well.

03/27/2012 - Supreme Court Holds That a Failure to File Section 16(a) Disclosures Does Not Toll the Statute of Limitations on Recovery of Short Swing Profits
On Monday, March 26, 2012, the United States Supreme Court issued a decision in Credit Suisse Securities (USA) LLC v. Simmonds.

02/13/2012 - Fifth Circuit Affirms Courts’ Discretion on Fee Methods in Common Fund Class Settlements
The United States Court of Appeals for the Fifth Circuit has confirmed that lower courts may use their discretion in choosing either of two methods - the “percentage method” or “lodestar method” - to calculate attorneys’ fees in class action suits. The decision, in Union Asset Mgmt Holding A.G. v. Dell, Inc., 2012 WL 35249 (5th Cir. Feb. 7, 2012), affirmed a district court’s use of the percentage method to calculate a $7.2 million fee award.

02/03/2012 - Securities Litigation Year in Review 2011
The Haynes and Boone Securities Litigation Year in Review 2011 outlines Supreme Court decisions and rulings from Circuit and District Courts that affect securities class action cases, including class certification issues.

03/24/2011 - Matrixx Initiatives, Inc. v. Siracusano: Supreme Court Rejects Bright-Line Materiality Standard
In a unanimous opinion issued this week, Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. __ (2011), the Supreme Court declined to adopt a proposed bright-line rule for materiality and reaffirmed the Basic “total mix” test.

03/15/2011 - Plaintiffs’ Securities Fraud Case Against Boeing Survives, Then Collapses, Based on Reliance on Purported “Confidential Witness”
Since the passage of the Private Securities Litigation Reform Act of 1995, with its heightened pleading standards for shareholder plaintiffs, it has become routine for plaintiffs’ lawyers to load their federal securities class action complaints with allegations purportedly obtained from “confidential witnesses” (or “CWs”).

02/10/2011 - Securities Litigation and The Supreme Court: 2010 in Review and a Preview of 2011
This article, presented by Nick Even at the University of Texas School of Law 33rd Annual Conference on Securities Regulation and Business Law, summarizes the key securities law rulings from the Supreme Court in the past year, as well as the significant issues pending before the Justices in 2011, in the Janus Capital, Matrixx and Halliburton cases.

01/31/2011 - “Control Person” Claim for Employee’s “Outside” Securities Transaction is Reinstated by Texas Appeals Court
Earlier this month, the Court of Appeals of Texas, Third District, Austin, reinstated a “control person” claim under the Texas Securities Act (“TSA”) against Merrill Lynch Pierce Fenner & Smith Inc. related to a former broker’s allegedly fraudulent outside sales transactions. David Fernea v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 03-09-00566-CV (Tex. App. – Austin, Jan. 7, 2011).

10/28/2010 - Law360 Case Study: Versata And Trilogy V. Selectica
Recently, in Versata Enterprises Inc. and Trilogy Inc. v. Selectica Inc., the Delaware Supreme Court addressed for the first time the validity of a net operating loss shareholder rights plan (NOL poison pill) and affirmed the Delaware Court of Chancery’s ruling upholding the adoption of an NOL poison pill, rejecting the application of the business judgment rule but nevertheless setting a high bar for shareholders seeking to challenge the adoption and implementation of such pills as a breach of fiduciary duty.

10/06/2010 - Delaware Supreme Court Upholds “NOL” Poison Pill
On Monday, in Versata Enterprises, Inc. and Trilogy, Inc. v. Selectica, Inc., the Delaware Supreme Court addressed for the first time the validity of a net operating loss shareholder rights plan (“NOL poison pill”) and affirmed the Delaware Court of Chancery’s ruling upholding the adoption of an NOL poison pill, rejecting the application of the business judgment rule but nevertheless setting a high bar for shareholders seeking to challenge the adoption and implementation of such pills as a breach of fiduciary duty.

06/28/2010 - Supreme Court Limits Reach of Securities Fraud Actions Against Foreign Companies
In an opinion issued last week, Morrison v. National Australia Bank Ltd., 559 U.S. __ (2010), the Supreme Court held that foreign plaintiffs cannot use the U.S. Securities laws to sue foreign issuers based on foreign stock purchases: a ruling that sounds the death knell for these so-called “foreign cubed” cases.

05/07/2010 - Supreme Court Vitiates Statute of Limitations Defense in Fraud Cases
In an opinion issued last week, Merck & Co. v. Reynolds, 559 U.S. __ (2010), the Supreme Court significantly curtailed the ability of defendants to assert the statute of limitations as a defense to a securities fraud claim under § 10(b) of the Securities Exchange Act of 1934. The decision makes it less likely that courts will dismiss, on statute of limitations grounds, cases filed within five years of the alleged fraud.

05/22/2009 - Haynes and Boone Represents Victorious Directors in Texas Supreme Court Ruling on Shareholder Derivative Suits and Demand Letters
Today the Texas Supreme Court issued a ground-breaking ruling on shareholder derivative suits against Texas corporations. The decision, In re Schmitz, et al., represents the first ruling by the highest court in Texas on the strict statutory prerequisites for commencing shareholder derivative litigation established by the 1997 amendments to the Texas Business Corporations Act (and subsequently incorporated into the more recent Texas Business Organization Code). The Court’s decision represents a significant victory for businesses that elect to incorporate under the laws of Texas. Haynes and Boone, LLP represented the directors of Lancer Corporation, the victorious parties in this case.

12/26/2008 - Assessing Your Public Company’s Web Site
© Bloomberg Finance L.P. 2008. Originally published by Bloomberg Finance LP. Reprinted by permission.
How does your company’s web site stack up under recent Securities and Exchange Commission (SEC) guidance on the use of web sites for disclosure purposes? Do your site’s design, content and controls minimize the risk of disclosure liability under the federal securities laws? Could your site potentially serve as a platform for “public” disclosure for Regulation FD purposes?
© Bloomberg Finance L.P. 2008. Originally published by Bloomberg Finance LP. Reprinted by permission.

08/01/2005 - Seven on 11: Potential Paths to Early Dismissal of Section 11 Claims

03/18/2005 - "Statistical Tracing" under Section 11 of the Securities Act Rejected in Federal Appeal

03/08/2005 - Court Ruling Confirms Limits on Offering Challenges

05/01/2003 - Group Dysfunction: Two Class Certification Denials Reinforce Rule 23 Adequacy Principles While Exposing the Fiction of “Lead Plaintiff Groups”

05/12/2000 - Handling disclosure in today's marketplace

04/01/2000 - Risky Business: Company-Analyst Communications In Today's Market
 

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