While Davis Polk & Wardwell houses one of the smaller litigation groups among firms of a similar stature, it has secured a notable presence at the forefront of some of the country’s most high-stakes securities, commercial, antitrust and white-collar matters. The firm has also displayed renewed vigor in the bankruptcy and intellectual property arenas. The litigation group is still decidedly compact but actually exhibiting signs of steady growth, now up to 38 partners in total distributed among several strategic locations: New York, Washington, DC and Silicon Valley, CA.
The New York office houses the firm’s highest concentration of star power and is not surprisingly the epicenter of its securities practice. In this capacity, James Rouhandeh is an established and longstanding peer favorite. “We see him pretty often, and he is a real go-to for Morgan Stanley work.” However, others are more recently making their mark. Several peers weigh in for Andrew Ditchfield, with all of them of the consensus that “we’re seeing a lot more of him.” One extrapolates, “I’m seeing Andrew all the time now, and it’s kind of out of nowhere. He suddenly has become the go-to guy for all of Davis Polk’s M&A work.” In this capacity, Ditchfield led the firm in securing a victory for Exxon Mobil Corporation, InterOil Corporation and InterOil’s former directors in one such lawsuit, and represents Citibank, N.A. and Citigroup Global Markets in another. Another New York-based securities star with a rapidly rising profile, Dana Seshens also lays claim to several wins over the past year; in one, she led a team that secured a July 2020 victory for Livent, certain of its officers and directors, and FMC Corporation in a putative securities class-action lawsuit. While Seshens has been particularly active in her securities practice, she also attends to a wider variety of work that encompasses general commercial litigation, bankruptcy and intellectual property.
In the bankruptcy space, Elliot Moskowitz has emerged as Davis Polk’s key partner. “He is one of those rare bankruptcy lawyers who is also really a litigator, not just a restructuring partner,” confirms another bankruptcy leader, who also speculates, “In the wake of COVID and its effect on certain business sectors, I expect him to be very busy.” Moskowitz represents Uniti Group in connection with the bankruptcy cases initiated in February 2019 by a provider of advanced network communications and technology concerning a spinoff of assets to the client. In March 2020, on the eve of a trial, the two parties reached a settlement.
Paul Spagnoletti and future star Antonio Perez-Marques represent oil exploration entity EnVen Energy Corporation and certain affiliates in litigation between the company and its co-founder and former president, who sued the company, alleging that the company had breached his employment agreement by diminishing his role and reducing his relative equity compensation. The company sued the individual in Delaware Chancery Court alleging that he breached his duty of loyalty to the company by failing to disclose his father’s financial interest in one of the company’s major suppliers. The Delaware litigation is currently stayed pending the outcome of the Texas litigation, which was set for trial in June 2021. “If you have a sticky professional liability issue that you want sorted, you look up Paul Spagnoletti,” asserts a peer.
While considerably smaller in size, the firm’s West Coast operations have also been particularly active, thanks largely to the firm’s California commercial litigation practice leader Neal Potischman. Boasting a diverse practice that encompasses securities, antitrust, commercial litigation, consumer class actions and even white-collar criminal matters, Potischman lays claim to a total victory for Verisk Analytics in a case filed in federal court in Northern California arising from the 2017 wildfires in Sonoma County. Plaintiffs were Sonoma County residents whose homes were destroyed. Their complaint alleged that their insurance carrier had sold them policies that undervalued the replacement costs of their homes, leaving them underinsured. They claimed that the client—which makes software tools used by insurance companies in estimating replacement costs—was also liable, based on theories of antitrust, fraud and negligence, as well as under California consumer protection laws. In March 2020, the court granted a motion to dismiss, with prejudice. Potischman also, along with Rouhandeh, secured a victory for Novo Nordisk in two actions brought by consumers with diabetes and by certain health plans; both groups claim that they paid excessive prices for insulin manufactured by Novo Nordisk and other pharmaceutical manufacturers. The theory of the cases is that prices paid at the pharmacy counter are deceptive because they do not properly reflect the value of rebates that manufacturers pay to pharmacy benefit managers (PBMs) to ensure that the manufacturers’ products are made available to consumers on drug formularies. Plaintiffs in both cases alleged that each of the manufacturer defendants was involved in a conspiracy with different PBMs to inflate the price of insulin in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). Plaintiffs also brought claims under the consumer protection laws of various states. In February 2020, the court granted Davis Polk’s motions to dismiss all of plaintiffs’ RICO claims. Potischman is also working with another star in the New York office, Edmund Polubinski, representing Block.one, a blockchain technology company, in putative class actions alleging securities violations. The plaintiffs, purchasers of cryptocurrency tokens, allege that Block.one unlawfully sold the token without registering the sale as a securities offering and that Block.one and the individual defendants made fraudulent statements in connection with the sale of the token. Also based in the Silicon Valley office, Ashok Ramani heads the firm’s intellectual property capacity. A former partner with an esteemed California litigation boutique and a member of the American College of Trial Lawyers, Ramani juggles patents, trademarks and trade secrets in his practice. In the trademark capacity, Ramani represents data analytics firm Splunk in a declaratory-judgment action seeking a determination that Splunk’s three-color gradient marketing design does not infringe Deutsche Telekom’s US trademarks to the use of the color magenta (and alternatively that the marks are invalid).