Jonathan Rosenberg

Partner

Jonathan Rosenberg is a Partner in O’Melveny's New York office and a member of the White Collar Defense and Corporate Investigations and Securities Litigation Practices. He focuses on securities and breach of fiduciary duty litigation, internal investigations and white collar criminal defense. Prior to joining the Firm, Jonathan was an Assistant U.S. Attorney in the Southern District for six years, where he spent two-and-a-half years in the Securities and Commodities Frauds Unit and served as Deputy Chief of the Criminal Division. Jonathan has tried more than twenty cases in government and private practice. Jonathan has also argued many times before federal and state appellate courts, including the United States Court of Appeals for the Second Circuit and the Delaware Supreme Court.
 

Illustrative Professional Experience

• Leads an O'Melveny team as Bank of America's national coordinating counsel for all auction-rate-securities litigation, including: (i) a putative securities class action and a derivative action, (ii) two putative antitrust class actions; and (iii) two individual federal lawsuits and numerous FINRA arbitrations. 
• Represents Bank of America in shareholder class and derivative litigation regarding the Bank’s merger with Countrywide Financial Corporation. Negotiated the Bank's settlement, with no change in merger agreement's terms, of a class action seeking to enjoin the merger.
• Represents Banc of America Securities ("BAS") in a multi-billion dollar putative securities class action regarding Biovail, Canada's largest publicly-traded drug maker. The suit regards an alleged conspiracy among short-selling hedge funds and analysts to drive down Biovail's share price. Previously obtained dismissal of a state court RICO action against BAS based on similar allegations.
• Obtained dismissal in November 2008 for Apollo Global Management, LLC of a federal antitrust class action alleging that Apollo and other leading private equity firms conspired to allocate the market for large leveraged buyout transactions, through improperly forming "bidding clubs" for the acquisitions.
• Obtained dismissal in November 2008 of a complaint against Electronic Arts that sought to compel the company to include in its proxy statement a shareholder proposal to adopt a by-law opting out of the federal proxy access framework and allowing them to compel the company to include numerous categories of proposals that the proxy rules allow the company to exclude.
• Represented the Special Committee of the Sun-Times Media Group (formerly known as Hollinger International) Board of Directors in a comprehensive internal investigation and resulting litigation in Delaware, Illinois, and Canada. Currently represents Sun-Times Media Group in prosecuting breach of fiduciary duty and fraud claims against the Company's former senior management. The investigation and ensuing civil litigation resulted in ousting former senior management, the Company obtaining nearly two hundred million dollars in recoveries, and criminal convictions of the Company's former senior management.
• Co-tried in late 2007 the defense of eight-figure theft-of-corporate-opportunity and breach-of-fiduciary duty claims. Negotiated a settlement mid-trial resulting in client paying nothing.
• Lead trial counsel for New York Stock Exchange's directors in putative class action litigation challenging the Exchange's historic merger with Archipelago Holdings as a breach of the directors' fiduciary duties. The case settled during the late-2005 injunction hearing with no change in the merger consideration. In re New York Stock Exchange/Archipelago Merger Litig., Index No. 60146/05 (NY Sup. Ct., NY Cty.).
• Represents Cendant Corp. and certain successor entities in an appeal to the United States Court of Appeals to the Second Circuit of a US$97 million judgment in an earnout case.
• Lazard Debt Recovery GP, LLC v. Weinstock, 864 A.2d 955 (Del. Ch. August 6, 2004), in which he obtained dismissal of breach of fiduciary duty and fraud claims against a hedge fund manager.
• Manufacturers Life Ins. Co. v. Donaldson Lufkin & Jenrette Securities Corp., 2000 Fed. Sec. L. Rep. (CCH) 90,987 (S.D.N.Y. May 31, 2000), in which he obtained dismissal of securities fraud claims against an underwriter of mortgage-backed securities.
• Bukstel & Halfpenny v. Advanced Health Corporation, Index No. 98-13896, where he convinced a judge to vacate a preliminary injunction after proving in a three-day evidentiary hearing that plaintiffs had engaged in an internet stock manipulation fraud scheme, and Biebeault v. Advanced Health Corp., 97 Civ. 6026 (WHP), 2002 U.S. Dist. LEXIS 225 (S.D.N.Y. Jan. 8, 2002); Biebeault v. Advanced Health Corp., Fed. Sec. L. Rep. [CCH] 90,487 (S.D.N.Y. May 12, 1999), where he obtained dismissal of all claims against an issuer in a private placement.
• In re Livent, Inc., Noteholders Sec. Litig., 174 F. Supp. 2d 144 (S.D.N.Y. 2001); In re Livent, Inc., Sec. Litig., 78 F. Supp. 2d 194 (S.D.N.Y. 1999), where he obtained dismissal of Section 10(b) claims against a member of the audit committee of a theatre production company in bankruptcy.  
• Defending underwriter UBS Securities LLC and Piper Jaffray & Co. in a putative class action lawsuit alleging that Atricure, Inc.’s IPO registration statement was materially false and misleading and therefore violated Section 11 of the Securities Act. Levine v. Atricure, Inc., Case No. 06 CV 1432 (RJH) (S.D.N.Y.).
• Represents an investment bank in defending two cases under the treble damages provision of the Antiterrorism Act for engaging in financial transactions alleged to be tied to terrorism.
• Represents a maker and developer of online games in a putative securities fraud class action pending in the Southern District of New York arising out of the company’s initial public offering.
• Represented former President and Chairman and former Chief Operating Officer of ICG Communications, Inc., in a putative Rule 10b-5 class action arising from the failure of a large telecommunications company. After prevailing on the vast bulk of a motion to dismiss the consolidated complaint, ultimately obtained favorable settlement. In re ICG Communications, Inc. Sec. Litig., No. 00-RB-1864 (D. Colo.).
• Represened former Global Crossing officer in one of the largest, most complex securities class actions ever brought, asserting numerous claims under both the Securities Act of 1933 and the Securities Exchange Act of 1934 for a multi-year class period. Obtained favorable settlement. In re Global Crossing Inc. Sec. Litig., Case No. MDL-1630 (S.D.N.Y.).
• Represented founder and former CEO of Crayfish Company, an internet-based e-mail services company, in a putative class action asserting claims under the Securities Act of 1933. Obtained favorable settlement. In re Crayfish Co. Sec. Litig. Master File No. 00 Civ. 6766 (DAB) (S.D.N.Y.).

In addition to successfully handling numerous significant securities and other complex commercial cases in state and federal courts and in arbitration, Jonathan’s white collar criminal and regulatory experience is similarly deep and varied. He has represented more than sixty individuals and entities in various criminal and SEC and SRO enforcement matters, including investigations handled by the SEC’s New York and Chicago Regional Offices, the United States Attorney’s Offices in the Southern District of New York, the Northern District of Illinois, the District of New Jersey, the Eastern District of Pennsylvania, and the Central District of California, the New York State Attorney General’s Office, the Department of Justice’s Antitrust Division, the NYSE and the NASD. Jonathan also regularly advises companies, boards of directors, and special committees regarding regulatory and corporate governance matters, internal investigations, and M&A litigation matters.

Among his more significant public criminal matters are the following:

• Senior member of the defense trial team that obtained the 1997 acquittal of a manufacturer of thermal fax paper in a criminal price-fixing trial
• Obtained probation, and then the early termination of probation, for a record company executive in the largest payola case the U.S. Department of Justice has ever filed
• Represented five employees of a bankrupt cable company in the SEC’s and the Southern District of New York U.S. Attorney’s office investigation
• As a prosecutor, proved after a two-week evidentiary hearing that the former CEO of a finance company, who had pleaded guilty to orchestrating a $400 million ponzi scheme, violated his cooperation agreement, resulting in a twenty-year sentence
• Tried and convicted a former Wall Street high yield bond research analyst for participating in a kickback scheme involving the firm’s bond trader
• Obtained the conviction of the former chief of staff to a New Jersey governor for participating in a kickback scheme involving a municipal securities offering

Professional Activities

Law Clerk, Honorable David N. Edelstein, US District Court, Southern District of New York
Admitted to Practice, US District Court, Southern, Eastern and Northern Districts of New York; US Court of Appeals, Eleventh and Second Circuits; US Supreme Court
Awards, Recognized as a New York "Super Lawyer" for Securities Litigation, Criminal Defense: White Collar, Business Litigation in a survey conducted by Law & Politics Media Inc. (2008)
Author, "Making Sense of New York's Corporate Opportunity Doctrine," New York State Bar Journal (June 2008); “The Truck Stops Here: Closing the Loopholes in Loosely Written Public Company Advancement and Indemnification Bylaws,” Corporate Counsel Quarterly (July 2006); “New York Securities Litigation Landscape Affected by Subtle Changes,” New York Law Journal (December 16, 2002); “Reviewing Standards for Judicial Relief in ADR,” New York Law Journal (January 16, 2002); “Recantation Defense in Federal Perjury Prosecutions,” New York Law Journal (March 23, 1998); “Criminal Liability of Private Citizens for Extortion Under Color of Official Right,” New York Law Journal (December 21, 1995)
Assistant U.S. Attorney, US Attorney’s Office in the Southern District of New York, including two-and-a-half years in the Securities and Commodities Frauds Task Force
Deputy Chief, Criminal Division, US Attorney’s Office
Co-Chairman, Northeast Regional Sub-Committee of the American Bar Association White Collar Crime Committee, 1995-98