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David Tulchin has an active litigation practice, with extensive experience in antitrust, contract, patent, trademark and securities matters. He is a fellow of the American College of Trial Lawyers, and has tried more than 20 business cases to verdict.

Mr. Tulchin has handled high-stakes business litigation for a varied roster of clients. His current clients include Anheuser-Busch, CA, Inc., Eisai Co., InBev, Microsoft, Nippon Steel, Novo Nordisk, Regions Financial, Sandler-O’Neill + Partners, Tower Research, Vornado Realty Trust and Wachovia Corporation.

He is well known for serving as Microsoft’s lead national counsel in that company’s defense of private antitrust damages actions around the country brought by both consumers and competitors. He has won dismissals with prejudice in 20 major antitrust actions against Microsoft, and victories in all seven appeals he has argued for Microsoft in U.S. Courts of Appeals. He has also argued and won appeals for Microsoft in the supreme courts of five states.

Recent Appellate Court Decisions

• In In Re Computer Associates Class Action Securities Litigation (2d Cir. July 23, 2009), the U.S. Court of Appeals for the Second Circuit affirmed a decision denying motions made by certain CA shareholders under Rule 60(b) of the Federal Rules of Civil Procedure seeking to overturn certain releases. The Court held that the movants lacked standing to bring a Rule 60(b) motion because, among other things, they had been absent class members who had not appeared in the underlying class action or objected in a timely way to the settlement.
• Johnson v. Microsoft Corp., 834 N.E.2d 791 (Ohio): Ohio Supreme Court affirmed the dismissal with prejudice of this antitrust action against Microsoft. (Mr. Tulchin was lead counsel for Microsoft in this action, as in all the others.)
• In re South Dakota Microsoft Antitrust Litigation, 707 N.W.2d 85, 2005 SD 113 (S.D.): South Dakota Supreme Court reversed the trial court’s order requiring Microsoft to pay about $2.3 million in attorneys’ fees and expenses to counsel for plaintiffs. The parties subsequently settled for less than half that amount.
• Aikens v. Microsoft Corp., No. 05-1013 (4th Cir. 2005) (unpublished): U.S. Court of Appeals for the Fourth Circuit affirmed dismissal with prejudice of this action (raising claims under Louisiana law) against Microsoft.
• On January 17, 2006, the U.S. Supreme Court issued a unanimous decision in Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006), holding that, for purposes of diversity jurisdiction, a national bank is a citizen only of the state in which its main office is located (not a citizen of every state in which it maintains a branch). Mr. Tulchin represented The Clearing House Association L.L.C., which submitted an amicus brief in support of Wachovia. In reversing, the Supreme Court accepted The Clearing House’s arguments in their entirety.
• Comes v. Microsoft Corp., 709 N.W.2d 114 (Iowa 2006): On January 27, 2006, the Supreme Court of Iowa unanimously reversed an order granting plaintiffs’ motion to apply the doctrine of offensive collateral estoppel to 352 of 412 findings of fact entered in a prior action. Mr. Tulchin was wholly successful in obtaining this reversal. He was then lead trial counsel for Microsoft in the three-month trial that followed. The matter settled to Microsoft’s satisfaction in February 2007.
• In Deiter v. Microsoft Corp., the Court of Appeals for the Fourth Circuit affirmed a district court decision denying class certification to a putative class of business customers who were direct purchasers. 436 F.3d 461 (4th Cir. 2006).
• In Kloth v. Microsoft Corp., the Court of Appeals for the Fourth Circuit unanimously affirmed a judgment dismissing legal and equitable claims under federal law by a putative class of tens of millions of indirect purchasers of Microsoft software. 444 F.3d 312 (4th Cir. 2006).
• In October 2006, the Delaware Supreme Court, in Stone v. Ritter, 911 A.2d 362 (Del. 2006), issued a precedent-setting decision affirming the dismissal with prejudice of a shareholder derivative action alleging that the directors violated their fiduciary duties by failing to ensure AmSouth’s compliance with the Bank Secrecy Act. The decision sets high hurdles for plaintiffs attempting to assign blame to corporate directors. Mr. Tulchin obtained the dismissal from the Delaware Court of Chancery and argued the appeal before the Delaware Supreme Court.
• In Shared Communications Services v. Goldman, Sachs & Co., the Appellate Division, First Department on March 17, 2007 unanimously affirmed the dismissal as time-barred of a claim for tortious interference with contract against S&C client Goldman, Sachs & Co. 832 N.Y.S.2d 32 (N.Y. App. Div. 2007).
• Novell, Inc. v. Microsoft Corp., 505 F.3d 302 (4th Cir. 2007): In an antitrust suit, the Fourth Circuit affirmed the district court’s dismissal of all but Counts I and VI of plaintiff’s complaint but also upheld the district court’s refusal to dismiss those two counts.
• In November 2007, the U.S. Court of Appeals for the Fourth Circuit affirmed a decision by the U.S. District Court for the District of Maryland dismissing antitrust claims against Microsoft brought by GO Computer, on the grounds that GO’s claims were barred by the statute of limitations. GO Computer, Inc. v. Microsoft Corp., No. 06-2278, 508 F.3d 170 (4th Cir. 2007).
• In Cox, et al. v. Microsoft Corporation, the Appellate Division, First Department on February 5, 2008 unanimously affirmed a decision by the trial court granting final approval to a proposed settlement of a class action against S&C client Microsoft over an objection challenging the scope of the release provided for in the settlement agreement. 850 N.Y.S.2d 103 (1st Dep’t 2008).
• In June 2008, the New York Court of Appeals denied a motion seeking leave to appeal by an objector to a settlement between Microsoft and a certified class of indirect purchasers of Microsoft software in the state of New York. The order effectively brought to an end the New York class action litigation against Microsoft.

Recent Trial Court Decisions

• In In Re Municipal Derivatives Antitrust Litigation, 620 F.Supp.2d 499 (S.D.N.Y. 2009), Judge Marrero dismissed a purported antitrust class action claim, with leave to replead, against S&C client Wachovia Bank, N.A. and other defendants, finding that plaintiffs failed, under the test laid out in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), to set forth sufficient factual allegations to state a claim against Wachovia and certain of the other defendants.
• In Novo Nordisk A/S v. Sanofi-Aventis U.S. LLC, 2009 WL 2185905 (D.N.J. July 22, 2009), the United States District Court for the District of New Jersey (Hon. Mary Cooper) issued a claim construction decision in a patent infringement case that was exactly in accord with the proposed construction submitted to the Court by Mr. Tulchin for Novo Nordisk. The Court refused to read into the claims of the patent limitations that, according to defendant Sanofi-Aventis, should be imported into those claims. The Court’s claim construction effectively amounted to a declaration of patent infringement in favor of S&C’s client Novo Nordisk.
• In Acuity Capital Management LLC v. MGI Pharma, Inc., 2009 WL 2461719 (D. Minn. Aug. 10, 2009), the U.S. District Court for the District of Minnesota granted summary judgment to MGI Pharma, thereby dismissing with prejudice plaintiff’s claim that Mr. Tulchin’s client, MGI Pharma, had violated the terms of a bond indenture that gave rise, under certain circumstances, to a right to convert into cash the bonds that had been issued pursuant to the indenture. The Court accepted Mr. Tulchin’s argument that no conversion rights were triggered after the expiration of 60 days from the time that MGI Pharma’s common stock was canceled as a result of a merger.
• In Atkinson v. Morgan Asset Management, Inc., __ F.2d __, 2009 WL 3245550 (W.D. Tenn. Sept. 23, 2009), the U.S. District Court for the Western District of Tennessee dismissed with prejudice a putative class action against S&C client Regions Financial Corporation and certain of its subsidiaries. The Court adopted Mr. Tulchin’s arguments in full, holding that the claims asserted in the action were preempted by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), and rejected plaintiffs’ claims that the Delaware carve-out of SLUSA should apply. 
• City and County of San Francisco v. Microsoft Corporation. 2005-1 Trade Cas. (CCH) (D. Md. 2005): The U.S. District Court for the District of Maryland dismissed an antitrust suit brought by California governmental entities against Microsoft under the Cartwright Act and under California’s Unfair Competition Law.
• Mark v. Microsoft Corp., 401 F. Supp. 2d 461 (D. Md. 2005): The U.S. District Court for the District of Maryland dismissed this class action against Microsoft asserting claims under South Carolina law. Plaintiffs did not appeal.
• Walsh v. Microsoft Corp.: The U.S. District Court also dismissed this class action against Microsoft, again under South Carolina law. 2006-1 Trade Cas. (CCH) (D. Md. 2005).
• Sanofi-Aventis U.S. LLC v. Novo Nordisk, Inc., 2006 U.S. Dist. LEXIS 69150 (D.N.J. 2006): The U.S. District Court for the District of New Jersey — in a significant victory for S&C client Novo Nordisk Inc. — denied a preliminary injunction motion made by Novo’s competitor Sanofi-Aventis. The motion was based on Sanofi-Aventis’ claims of false statements under the Lanham Act, but the Court rejected every claim, finding no “reasonable likelihood of success on the merits” of the claims against Novo.
• Dreyer v. MGI Pharma, Inc. et al., No. 27-cv-08-398: In 2008, a Minnesota state trial court rejected a motion seeking to enjoin a tender offer made by S&C client Eisai Co., Ltd. for all the shares of MGI Pharma, Inc., in a transaction valued at approximately $3.9 billion. Plaintiff had asserted breach of fiduciary duty claims against the directors of Pharma and aiding and abetting breach of fiduciary duty claims against Eisai. The court adopted Mr. Tulchin’s arguments and ruled entirely in Eisai’s favor, thereby allowing the tender offer to proceed.
• Grand Lodge of Pennsylvania v. Coast Financial Holdings, Inc., et al., No. 8:07-cv-479-26EAJ: In 2008, the U.S. District Court for the Middle District of Florida dismissed a purported class action claim under the Securities Act of 1933 against S&C client Sandler O’Neill + Partners, L.P. Plaintiffs had alleged that Sandler O’Neill was an underwriter of a public offering of common stock, and that the Registration Statement was false and misleading. The court adopted Mr. Tulchin’s argument that plaintiffs lacked standing to assert a Section 11 claim and granted Sandler O’Neill’s motion to dismiss.
• Hood v. Microsoft Corp.: In 2008, the Chancery Court of Hinds County, Mississippi dismissed the Mississippi Attorney General’s amended complaint against Microsoft to the extent that it asserted parens patriae claims for damages allegedly suffered by individual Mississippi consumers and claims for supposed “damage to the economy.”
• Catholic Medical Mission Board v. Ritter, et al. and Stephens v. Ritter, et al., No. 2:2008-cv-00485: In 2008, the Northern District of Alabama dismissed two derivative actions under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, Rule 10b-5 and certain state law against S&C client Regions Financial Corporation. Plaintiffs made claims against directors and officers of Regions alleging that the directors wrongly decided to sell, at a loss, a mortgage lending unit and other assets, that the directors issued misleading public statements about Regions’ exposure to the subprime market, and that they improperly authorized a stock buy-back program. The court dismissed the complaints for failure to make a pre-suit demand (rejecting plaintiffs’ argument that demand would have been futile) and also dismissed each of the other claims.
• Ginsberg et al. v. InBev N.V./S.A. et al., No. 4:08-cv-01375: In 2008, the U.S. District Court for the Eastern District of Missouri dismissed a motion seeking to enjoin preliminarily S&C client InBev’s acquisition of Anheuser-Busch by ten consumers of Anheuser-Busch beer. Plaintiffs argued that InBev’s acquisition of Anheuser-Busch would violate antitrust laws because it would remove InBev as a “potential entrant” to the U.S. beer market and lead to higher prices for beer. The court rejected the plaintiffs’ assertions and adopted each of the arguments advanced in opposition to the motion in concluding that the plaintiffs had failed to establish even one of four prerequisites for a preliminary injunction. Trade Cas. (CCH) (E.D. Mo. 2008)
• Novell, Inc. v. Microsoft Corp., No. 1:2005-cv-01087 (D. Md. 2008): The U.S. District Court of Maryland denied in large measure Novell, Inc.’s motion to obtain collateral estoppel effect for certain findings of fact and legal rulings made by the courts in United States v. Microsoft Corp.
• CA, Inc. v. Rocket Software, Inc., No. 2007-cv-01476: In 2009, S&C client CA, Inc. obtained a highly favorable settlement in an action in the Eastern District of New York in which CA alleged that a competing software company (Rocket Software, Inc.) had in part been able to develop certain software products as a result of its theft of computer source code from CA. In addition to the claim of trade secret misappropriation, CA made a claim for copyright infringement and permanent injunctive relief. The matter was resolved one business day before trial was scheduled to begin.
• Sanofi-Aventis Deutschland GmbH v. Novo Nordisk Inc., No. 09-cv-0561: In 2009, the U.S. District Court for the Eastern District of Texas granted Novo Nordisk Inc.’s motion to stay proceedings in favor of a first-filed action in the Southern District of New York.
• In Re Municipal Derivatives Antitrust Litigation, No. 1:2008-md-01950: In 2009, the U.S. District Court for the Southern District of New York dismissed a purported antitrust class action claim under Section 1 of the Shearman Antitrust Act against S&C client Wachovia Bank, N.A. and 32 other defendants. Plaintiffs had alleged that Wachovia participated in an unlawful conspiracy to rig bids, fix prices and allocate customers and markets in a purported market for municipal derivatives.
• Novell v. Microsoft: In March 2010, the U.S. District Court for the District of Maryland granted Microsoft’s motion for summary judgment in an action brought by Novell. Plaintiffs had alleged that Microsoft participated in anticompetitive conduct in the PC operating system market and injured Plaintiff’s business productivity applications, WordPerfect and Quattro Pro. Plaintiffs had sought damages, including trebling, of between $2.5 billion and $7.8 billion. This decision brought to an end a decade of private antitrust suits filed against Microsoft that included approximately 200 separate actions, all of which were handled by S&C for Microsoft.
• Fait v. Regions Financial Corp., 2010 WL 1883487: In 2010, the U.S. District Court for the Southern District of New York dismissed with prejudice a class action complaint brought against S&C client Regions Financial Corporation under Sections 11, 12 and 15 of the Securities Act of 1933. Plaintiff asserted that the registration statement and prospectus for an April 2008 bond offering by a Regions subsidiary were false and misleading because they incorporated by reference financial statements and SEC filings that allegedly understated loan loss reserves and overstated goodwill related to Regions’ 2006 acquisition of AmSouth Corporation. The Court held that in the absence of fraud allegations (which the plaintiff disclaimed), Regions’ statements of goodwill and loan loss reserves were matters of opinion and estimation, not actionable misstatements of material fact, and therefore were not actionable in the absence of allegations that the defendants did not believe them to be true at the time they were made.

Rankings and Recognitions

• Benchmark: America’s Leading Litigation Firms and Attorneys – recognized as a Star in antitrust litigation (2008, 2009, 2010)
• The Best Lawyers in America – recognized as a leading lawyer in commercial litigation (2006, 2007, 2008, 2009, 2010)
• The Best Lawyers in America – recognized as a leading lawyer in business litigation (2005-2006, 2007, 2008, 2009, 2010)
• Euromoney’s Guide to the World’s Leading United States Litigation Lawyers – recognized as a leading lawyer in commercial litigation (2005)
• The International Who’s Who of Commercial Litigation Lawyers (2006, 2008, 2009)
• The Legal 500, United States, Volume III – recognized as a leading lawyer in antitrust litigation (2007, 2009)
• Law Dragon 500: Leading Lawyers in America (2009-2010)
• New York Super Lawyers (2006, 2007, 2008, 2009)