Alex J. Kaplan

Alex’s experience has included serving as lead or co-lead counsel for clients in the following matters:

Securities Litigation:

• Broker-Dealers
  • TD Ameritrade in putative class actions alleging violations of the federal securities laws concerning the duty of best execution, payment for order flow, and high-frequency trading.
  • Schwab in putative class action alleging violations of the federal securities laws concerning the duty of best execution, payment for order flow, and high-frequency trading.
  • Broker-dealer in a putative securities class action concerning purported misstatements regarding the sale of structured products to brokerage customers.
  • Merrill Lynch in securities fraud action brought by institutional investor in auction-rate securities issued by a CDO.
  • Multiple broker-dealers in numerous FINRA arbitrations concerning suitability issues relating to derivative instruments or Puerto Rican bonds.
• Mutual Funds and Advisors
  • Closed-end funds in obtaining a complete defense judgment following expedited proceedings brought by activist shareholders, followed by affirmances on appeal.
  • Mutual fund distributor in securities lawsuit arising out of market declines associated with COVID-19.
  • Mutual fund distributor in securities lawsuit arising out of the then-historic spike in the CBOE Volatility Index (VIX) in 2018.
  • Numerous successful defenses of actions asserting violations of Section 36(b) of the Investment Company Act of 1940, based on allegations that mutual fund advisor received excessive compensation in the form of advisor fees or acquired fund fees and expenses (AFFE).
  • Mutual fund board in connection with books and records demand.
  • Closed-end funds in proxy-related issues.
  • Close-end funds and officers in putative class action alleging securities fraud claims based on misleading disclosures.
• Issuers
  • Pre-revenue biopharma company in obtaining highly favorable resolution of securities class action.
  • MiMedx in obtaining successful defense of securities class action, shareholder derivative litigation, and other stockholder litigation in Florida and Georgia.
  • Construction company in obtaining highly favorable resolution of Section 16 short-swing profit lawsuit.
  • A container company and its officers in a securities class action concerning alleged artificial inflation of the value of the company’s securities.
• Investment Banks / Underwriters / Accounting Firms
  • J.P. Morgan and affiliates in numerous actions brought by the FDIC, a Texas pension fund, and a Federal Home Loan Bank in connection with offerings of mortgage-backed securities.
  • Large financial institution in class action lawsuits and direct actions involving Enron and WorldCom.
  • Underwriters in securities lawsuits alleging misleading statements in offering materials for debt and equity securities.
  • Big Four accounting firm in shareholder derivative and securities lawsuits arising out of the backdating of employee stock options at telecommunications and software companies.

M&A/Proxy Litigation:

• Texas Pacific Land Corp. in obtaining a complete trial victory in expedited proceedings in the Delaware Court of Chancery concerning activist stockholders’ breaches of a voting commitment and standstill in a stockholders’ agreement, followed by an affirmance on appeal to the Delaware Supreme Court. 
• CytoDyn Inc. and its directors in obtaining a complete defense judgment after an expedited trial in the Delaware Court of Chancery in a case of first impression arising from the directors’ rejection of a nomination of potential directors for failure to provide information required by the company’s advance notice bylaw.
• Fujifilm Holdings Corp. in obtaining the reversal of preliminary injunction orders previously entered in connection with a merger transaction with Xerox Corp. and successfully resolving a lawsuit against Xerox seeking more than US$1 billion for breaching its obligations in connection with that transaction.
• Private equity and venture capital firms in post-closing lawsuits asserting inadequate merger consideration or other fiduciary breaches.
• Private equity firm and board appointees in obtaining trial victory in the Delaware Court of Chancery to enforce advancement and indemnification rights.
• Hedge fund in obtaining highly favorable resolution of proxy-related claims.
• Utility company in expedited action (including trial) arising out of its hostile bid of another utility. 
• Advisory firm in connection with lawsuits relating to numerous M&A transactions.
• Numerous “strike” suits on behalf of a variety of clients.
• Numerous books and records demands on behalf of public companies, private companies, private equity firms, and hedge funds. 

Distressed Asset Litigation:

• Financial institution in an adversary proceeding brought by the trustee of a REIT concerning a master repurchase agreement. 
• Investment funds in adversary proceedings in the Lehman Brothers bankruptcy concerning priority of payment provisions in credit default swap agreements. 
• Special opportunities fund on an emergency basis before the U.S. Bankruptcy Court for the Southern District of Georgia, where debtor instigated a bad-faith involuntary filing to block a UCC foreclosure on a shipyard and, following a multi-day evidentiary hearing, the court lifted the automatic stay and permitted the foreclosure to continue. 
• REIT in actions brought in New York state and federal courts to enforce the terms of a commercial mezzanine loan agreement and guaranty for a hotel property located in Miami Beach. 
• REIT in lawsuits to enforce the terms of a variety of guarantees underlying mortgage and mezzanine loans on multi-family complexes located in California, Texas, and Arizona.

Investigations:

• Audit committee concerning retail lending practices.
• Technology company regarding subscription cancellation practices.
• Private equity firm principal in antitrust investigation.
• Special litigation committee of the board of a large financial services company concerning a shareholder demand letter relating to broker compensation issues.
• Special litigation committee of the board of a private company concerning allegations that a board member sought to usurp corporate opportunities.
• Investment advisor relating to a special committee investigation concerning excessive fees.
• Reinsurer regarding audit practices.
• Clearing broker concerning allegations around “meme” stocks.
• Financial services firms concerning insider trading, expert networks, and selective dissemination.
• Large financial services company in connection with a regulatory and internal investigation into certain practices relating to mortgage-backed securities. 

Alex is or has been a member of:

• the Board of Directors of StreetWise Partners, a non-profit organization that seeks to leverage mentorship to increase employment opportunities for adults from overlooked and under-resourced communities within New York and Washington, D.C. (Chair of Nominating & Governance Committee) 
• the New York City Bar Association (and former member of its Securities Litigation Committee and Committee on Government Ethics)
• the New York State Bar Association (and former member of its Hedge Fund and Capital Markets Litigation Committee) 
• the Securities Industry and Financial Markets Association (SIFMA) Compliance & Legal Division  
• the New York Lawyer’s Committee for the U.S. Holocaust Museum (prior)

In addition, Alex participates in the University of Pennsylvania’s Alumni Interview Program.