Michael E. Swartz

• Masimo Corporation
• Politan Capital Management
• Anson Funds Management
• Land & Buildings

Shareholder Activism & Corporate Governance

• Represented Politan Capital Management in its challenge of Masimo Corporation’s adoption of preclusive advance notice bylaws, making it virtually impossible for Politan or any other investment fund to nominate candidates for election to Masimo’s Board of Directors.  Politan’s challenge led to Masimo repealing those bylaws.  Following this victory, successfully secured an $18 million legal fee award. The Delaware Court of Chancery described it as a "blow-out success" for Politan and "consequential" for corporate governance.
• Represented Politan Capital Management in a second year of proxy contest litigation in which   Masimo Corporation sought injunctive relief pursuant to Section 14(a) of the Exchange Act for alleged misrepresentations and omissions contained in Politan’s proxy disclosures. The Central District of California denied Masimo’s preliminary injunction motion, paving the way for the election of Masimo’s first truly independent board of directors.
• Represented Trian Partners in a dispute over the format of universal proxy card and Broadridge Shareholder Services Voting Instruction Form in Trian’s proxy contest with Walt Disney Company.
• Represented JANA Partners in litigation against Freshpet, Inc. and its Board of Directors when the Board sought to entrench itself in office by re-staggering its classified board seats to reduce the number of seats up for election from four to three. After filing in Delaware Chancery Court, secured a favorable outcome when Freshpet conceded and agreed to restore the number of director seats up for election.
• Represented four directors of Republic First Bank Corp. in an intra-board dispute over business strategy and related party transactions.  After the district court appointed a receiver to replace the board, obtained an expedited reversal from the Third Circuit restoring the four directors to control over the company.
• Represented Driver Opportunity Partners in litigation with First Foundation Inc. in the Delaware Court of Chancery after the company rejected Driver's director nominations on technicalities. After winning key discovery motions and taking critical depositions, secured a settlement that recognized Driver's nominations as valid and implemented corporate governance reforms.
• Represented Saba Capital Management in defeating a preliminary injunction motion brought by Templeton Global Income Fund in the Southern District of New York. Templeton had sought to prevent Saba’s nominees from being seated on the fund’s Board of Trustees following their election to office.
• Represented Anson Funds Management in successful dismissal of an action brought by Nano Dimension Ltd in the Southern District of New York. The court rejected Nano's attempt to use Section 13(d) of the Securities Exchange Act to "sterilize" Anson's shares ahead of a shareholder vote. Subsequently, prevailed in the Second Circuit, obtaining the first circuit court decision in the country that an investor can moot a Section 13(d) claim related to inadequate disclosures by disclosing the existence of the dispute itself.
• Represented Blackwells Capital in its proxy contest with Colony Capital Inc., leading to a very favorable settlement for the client.
• Represented venBio Select Advisor LLC in proxy litigation victory over Immunomedics Inc’s effort to entrench incumbent directors in office.  Days before the stockholder vote, Immunomedics announced a transformative transaction with Seattle Genetics designed to sway the stockholder election. Obtained a TRO enjoining the deal from closing, leading to its termination.  Gilead Sciences subsequently acquired Immunomedics for $21 billion, a 108% premium to its pre-announcement closing price.
• Represented Trian Fund Management LP in review and challenge of election results in its proxy contest securing the election of its CEO and founding partner Nelson Peltz to The Procter & Gamble Company's Board of Directors. Led team in a three-week “snake pit” review of voting cards and proxy instruction forms.
• Trial counsel to a large UK hedge fund, The Children’s Investment Fund, in a bench trial involving proxy litigation commenced by CSX Corp. TCI’s slate was ultimately permitted to run for election to the CSX board.  The Second Circuit’s decision serves as a benchmark for the development of Section 13(d) group case law.
• Represented Land & Buildings regarding the validity of its nomination of directors for election to the board of The Macerich Company.
• Represented TPG-Axon Partners in proxy contest litigation regarding the validity of a consent solicitation and litigation regarding proxy puts.

Class Action Litigation (Securities and M&A)

• Representing Masimo Corporation and certain officers in a putative securities class action brought in the Central District of California alleging Section 10(b) and 20(a) claims regarding alleged accounting plugs and false and misleading disclosures regarding financial results.
• Represented two former SPAC board members and the corporate sponsor in a putative shareholder class action lawsuit in the Eastern District of New York concerning a merger with Arrival SA, an electric vehicle manufacturer, securing dismissal of Section 11 claims.
• Represented Axar Capital Management and Andrew Axelrod in litigation brought by StoneMor shareholders in the Delaware Court of Chancery, challenging fiduciary duties related to transactions and defending subsequent litigation related to StoneMor becoming a wholly owned subsidiary of Axar.
• Obtained dismissal of Section 10(b) and 20(a) claims brought against Starboard Value LP and Jeffrey Smith in the Advance Auto Parts securities class action in the District of Delaware.
• Represented Cerberus Capital Management in M&A litigation involving 14 putative shareholder class actions seeking to enjoin Albertsons Companies' $9.2 billion acquisition of Safeway.
• Served as trial counsel to former Vivendi Universal CFO in a four-month securities class action jury trial brought by a class of French shareholders and holders of American depository shares. The jury returned a verdict of no liability for securities fraud.
• Represented former chief legal officer of media giant Hollinger International in an SEC enforcement action and securities class action.

Investment Funds & Financial Services Disputes

• Trial counsel to portfolio manager of a biotech investment fund regarding the redemption of a former limited partner from the management company and carry vehicle.
• Representing Masimo Corporation in a suit against Masimo’s former CEO Joe Kiani, RTW Investments, LP, and others in the Southern District of New York seeking disgorgement of short-swing profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, and alleging that the defendants formed a stockholder group under Section 13(d).
• Represented Empery Asset Management and led a group of eight defendants allegedly engaged in short-swing sales in violation of Section 16(b) of the Securities Exchange Act.
• Secured dismissal of Criterion Capital Management from a Section 16(b) short swing trading action based on the Registered Investment Advisor exemption in the Northern District of California.
• Represented Solus Alternative Asset Management in winning summary judgment of a Section 16(b) short swing trading case brought in the Southern District of New York.

General Commercial Litigation

• Prevailed on summary judgment to enable shareholder of Boar’s Head Provisions Co. to obtain right to acquire up to 24% of the Company’s shares at book value in a dispute that centered on the interpretation of the Company’s shareholders’ agreement.

Digital Assets & Cryptocurrency

• Secured a major victory for Pantera Capital Management in its dispute with Polychain Capital. After a week-long arbitration, obtained a ruling that invalidated amendments to governing agreements and established that fees from venture and related cryptocurrency funds were corporate opportunities of Polychain Capital. The Delaware Chancery Court confirmed the award, with an estimated value exceeding $1.5 billion.

Pro Bono Leadership

• Led groundbreaking litigation representing the last known living survivors of the 1921 Tulsa Race Massacre, seeking justice for the destruction of the once-prosperous Black community of Greenwood (known as "Black Wall Street"). The case represents one of the most innovative attempts to use public nuisance law to hold governments accountable for racial inequities and is currently being taught at Harvard Law School.
• Represented survivors of the Palm Springs Section 14 demolition, advocating for justice for those whose homes were burned and bulldozed in the 1960s to make way for commercial development, described in a 1968 California attorney general's report as a "city-engineered holocaust."

• Shareholder Activist Litigation
• Securities Litigation
• Commercial Litigation
• Class Action Litigation
• Investment Fund Litigation
• Mergers & Acquisitions Litigation
• Blockchain and Digital Asset Practice
• Special Situations

• Columbia Law School
  (J.D., 1990)
  
  • Columbia Law Review:
    • Editor
      
• University of California, Los Angeles
  (B.A., Communication Studies, magna cum laude, 1987)
  • Phi Beta Kappa

• The State Bar of New York
• United States Supreme Court
• United States Court of Appeals
  • First Circuit
  • Second Circuit
  • Third Circuit
  • Seventh Circuit
  • Ninth Circuit
  • Eleventh Circuit
• United States District Court
  • Eastern District of New York
  • Southern District of New York

• Schulte Roth & Zabel LLP
  • Partner, 2001-2025
• Law Clerk for the Honorable Irving R. Kaufman
  
  • United States Court of Appeals, Second Circuit, 1990-1991

• Chambers US – Litigation: General Commercial Securities
• Benchmark Litigation
• The Legal 500 US – General Commercial Disputes, M&A Litigation: Defense, Securities Litigation: Defense, Shareholder Activism, New York Elite commercial disputes
• New York Super Lawyers – Business Litigation
• Lawdragon – 500 Leading Litigators in America

Select Publications include:

• The Activist Investing Annual Review 2022, March 2022
• “Trends and Developments,” Shareholders’ Rights & Shareholder Activism 2021, Oct. 2021
• Securities Enforcement Quarterly, Schulte Publication, Oct. 2021; republished in the Harvard Law School Forum on Corporate Governance, Nov. 2021
• “Trends and Developments,” Shareholders’ Rights & Shareholder Activism 2020, October 2020; republished in the Harvard Law School Forum on Corporate Governance, Nov. 15, 2020.
• “Information Sharing with Market Professionals,” Insider Trading Law and Compliance Answer Book (Practising Law Institute), 2011-2020

• Co-Chair, Board of the Lawyers' Committee for Civil Rights Under Law
• New York City Bar Association
• American Bar Association (Litigation Section)
• American Bar Foundation Fellow