Brett M. Middleton

Stockholder Derivative Actions:  Mr. Middleton has had extensive recent success representing stockholders in representative derivative litigation where he recovered money for the company and helped to improve corporate governance practices and enforce the fiduciary obligations of corporate boards and officers.  For example, in In re Nikola Corporation Derivative Litigation, No. 2022-0023-KSJM (Del. Ch.) where Johnson Fistel was appointed Co-Lead Counsel, Mr. Middleton, serving as one of two lead negotiators, helped secure a $33.75 million recovery to resolve overlapping derivative and direct class action claims.  The settlements were the result of over four years of litigation, during which Co-Lead Counsel devoted more than 9,000 hours of time, and involved the exchange of over two million pages of discovery, extensive mediation, and coordination with Nikola’s bankruptcy estate.  Prior to mediation, Co-Lead Counsel overcame the defendants’ multiple motions to dismiss when Chancellor Kathleen St. J. McCormick issued an order that sustained the alleged disclosure violations and oversight failures under Caremark, upheld the Brophy claim for insider trading, and upheld certain of the direct class claims for disclosure violations concerning the Merger under MultiPlan and its progeny.  In approving the settlements, Chancellor McCormick offered her “[c]ongratulations on what was a hard-fought set of litigations and an incredibly complicated settlement to achieve,” and “recognize[d] that the perils of bankruptcy added complications to these negotiations that perhaps rendered already complicated cases even more so.”

Mergers & Acquisitions Class Actions:  He has contributed significantly to important post-closing damages M&A class actions, which recovered significant amounts for stockholders as a result of mergers allegedly closing at an unfair price and pursuant to an inadequate process, including: Morrison v. Berry, et al., (Del. Ch.) ($27.5 million recovered for The Fresh Market stockholders); Baum v. Harman Int’l Industries, Inc. (D. Conn.) ($28 million recovered for Harman Int’l stockholders); Goldstein v. Denner, et al., (Del. Ch.) ($124 million recovered for Bioverativ, Inc. stockholders); and Teamsters Local 237 Additional Security Benefit Fund and the Teamsters Local 237 Supplemental Fund for Housing Authority Employees and Alan Waterhouse v. Dan Caruso, (Del. Ch.) ($27.125 million obtained for Zayo Group Holdings, Inc. stockholders).  Recently, in Murray v. EarthLink Holdings Corp., No. 4:18-cv-00202-JM (E.D. Ark.), a securities class action where Johnson Fistel served as Additional Counsel for the Lead Plaintiff, Mr. Middleton helped secure an $85 million class-wide settlement for alleged breaches of fiduciary duty by EarthLink and Windstream insiders in connection with false and misleading statements in a proxy and registration statement issued in connection with a merger.

While with BLB&G, Mr. Middleton contributed significantly to successful M&A transactional litigation efforts to challenge the improper use of defensive measures and deal protections for management’s benefit, including M&A transactional expedited litigation in the Delaware Court of Chancery involving Alberto-Culver and Unilever, Caremark and CVS, Emulex and Broadcom, Medco and Express Scripts, and Yahoo! and Microsoft, as well as Ticketmaster and Live Nation in the Superior Court of California, County  of Los Angeles. 

Securities Fraud Class Actions: Mr. Middleton has also had success in the practice area of stockholder securities class action litigation.  For example, in FTSI Securities Litigation (Glock v. FTS International, Inc.) (S.D. Tex.), a securities class action where Johnson Fistel served as Co-Lead Counsel, Mr. Middleton helped secure a $10 million class-wide settlement for certain investors for alleged violations of Sections 11 and 15 of the Securities Act of 1933.  Similarly, while with BLB&G, Mr. Middleton was a senior member of the teams responsible for the prosecution of a wide variety of high-profile securities class action cases that have achieved substantial recoveries for investors.  Notable high-profile securities class action cases include: Lehman Brothers Equity/Debt Securities Litigation (S.D.N.Y.) (recovered $615 million for investors from multiple defendants, which is considered one of the largest total recoveries for stockholders in any case arising from the financial crisis), Williams Securities Litigation (N.D. Okla.) ($311 million combined settlement for alleged accounting fraud, which was the largest settlement at the time without a company restatement), Lehman Brothers/Ernst & Young Securities Fraud Class Action (S.D.N.Y.) (resulted in the $99 million settlement with Lehman’s former auditor, Ernst & Young, arising from the financial crisis, which at the time was one of the 10 highest public auditor settlements ever achieved), Lumber Liquidators Securities Litigation (E.D. Va.) (obtained over $40 million for class members arising from alleged scheme to inflate margins by importing cheap and illegal flooring products as exposed by the CBS news show 60 Minutes), Accredo Health Securities Litigation (W.D. Tenn.) ($33 million for investors arising from accounting fraud claims), Accredited Home Lenders Securities Litigation (S.D. Cal.) ($22 million recovered for investors for fraud claims relating to mortgage lending practices), and Clarent Corp. Securities Litigation (N.D. Cal.) (after a four-week jury trial, obtained rare jury verdict in favor of plaintiffs and against the company’s former CEO for knowingly making false and misleading statements in violations of federal securities laws).