Richard D. Bernstein

Partner

Washington
Willkie Farr & Gallagher LLP
1875 K Street, N.W.
Washington, DC 20006-1238
T 202 303 1108
F 202 303 2108
rbernsteinwillkie.com

Richard D. Bernstein is a partner in the Litigation Department and Co-Chair of the firm’s Securities Litigation & Enforcement Practice Group. He specializes in complex financial litigation, including securities litigation and also has substantial experience litigating contract, real estate, RICO, business tort, professional liability, and constitutional law matters.

Richard D. Bernstein is a partner in the Litigation Department and Co-Chair of the firm’s Securities Litigation & Enforcement Practice Group. He specializes in complex financial litigation, including securities litigation and also has substantial experience litigating contract, real estate, RICO, business tort, professional liability, and constitutional law matters.

Selected Significant Matters

Securities Cases

  • In re Facebook Secs. Litig., 84 Fed. R Serv.3d 1344 (SDNY 2013): Obtained dismissal (as co-lead counsel) of derivative actions, and ruling that Facebook had no duty to disclose projections.
  • In re General Elec. Co. Secs. Litig, 856 F. Supp.2d 645  (SDNY 2012): Obtained dismissal (lead counsel) of all underwriters in case challenging $12 billion offering.
  • Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502 (7th Cir. 2007): Obtained dismissal (lead counsel) of Goldman Sachs in RICO and fraud case arising out of private equity investment. The decision holds that a private equity investor cannot be sued on the implausible allegation that it knew about the company’s fraud before it decided to invest. It also dismissed a claim for document destruction because the inference that the documents implicated the investor was "not a reasonable one."
  • Net Coalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010): Successful representation of Net Coalition in appeal that reversed SEC and held that cost was relevant to reasonableness of fees for market data.
  • Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011): Successfully represented United States Chamber of Commerce in obtaining narrow construction of which defendants "make" a statement under Rule 10b-5.
  • Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008): Successfully represented United States Chamber of Commerce in case rejecting "scheme liability."
  • Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005): Successfully represented the Securities Industry Association and the Bond Market Association in loss causation case.
  • Merrill Lynch v. Dabit, 126 S. Ct. 1503 (2006): Successfully represented the Securities Industry Association and the Bond Market Association in SLUSA preemption case.
  • SEC v. Tambone, 597 F.3d 436 (1st Cir. 2010) (en banc): Successfully represented United States Chamber of Commerce in case rejecting primary liability against underwriters under Rule 10b-5.
  • Robbins v. Kroger Properties, Inc., 116 F.3d 1441 (11th Cir. 1997). Represented Deloitte on the successful reversal of an $81 million securities class action judgment.
  • Arnlund v. Deloitte & Touche LLP, 199 F. Supp. 2d 461 (E.D. Va. 2002): Served as co-lead counsel to Deloitte, winning a partial Rule 12(b)(6) dismissal and a favorable settlement for the rest of the claims.

Other Significant Trial Level Cases

  • General Electric v. United States (Ct. Fed. Cl.): Lead counsel for GE in $1 billion dispute with government concerning pension and health care costs under government contracts. GE has been granted partial summary judgment on issues including credit for pension asset transfers and earnings assumptions.
  • ICE v. Alcatel-Lucent (Fla. Cir. Ct. 2011): Lead counsel in obtaining a forum non conveniens dismissal of RICO and all other civil claims by a foreign utility arising from FCPA violations.
  • Street Retail, Inc. v. Vornado Realty Trust (Va. Cir. Ct. 2010): Lead counsel in successfully representing entities owned by Federal Realty Investment Trust and Post Properties, Inc. in obtaining specific performance of right of first offer provision. The decision upheld on appeal, awarded ownership of 14 acres of commercial and residential property to the plaintiffs.
  • The Glendale Litigation (Ct. Fed. Cl.): Co-lead trial counsel for California savings and loan Glendale Federal Bank in a 20,000-page damages trial that resulted in a $381 million judgment.
  • Executive Life Litigation (C.D. Cal.): Lead counsel for Aurora National Life Assurance Company in multi-party litigation settled on a successful basis.
  • PNC Litigation: Lead counsel for PNC in the successful defense of a derivative lawsuit and a complaint filed with the Federal Election Commission challenging PNC’s home mortgage loan to President and Senator Clinton.
  • Deloitte & Touche litigation: Defended Deloitte against a $200 million lawsuit filed in Denver by the RTC as receiver for Otero Savings.
  • The Silverado Litigation: Represented Denver law firm Sherman & Howard against a $200 million lawsuit by the FDIC as receiver for the failed Silverado Savings & Loan.

Other Significant Appellate Cases

  • Glendale Federal Bank v. United States, 378 F.3d 1308 (Fed. Cir. 2004): Successfully argued appeal obtaining unanimous affirmation of $381 million judgment for Glendale.
  • eBay Inc. v. MercExchange, Inc., 126 S. Ct. 1837 (2006): Principal brief writer, resulting in the Court’s overturning of two decades of Federal Circuit precedent.
  • Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604 (2000): Principal brief writer, resulting in the Court finding that generally the same common law rules that apply to private contracts also apply to government contracts. On remand, the Federal Circuit awarded Mobil and Marathon the full $156 million they sought. Marathon Oil Co. v. United States, 236 F.3d 1313 (Fed. Cir. 2001).
  • United States v. Winstar Corp., 518 U.S. 839 (1996): Principal brief writer, obtaining ruling that the government was liable for breaching contracts even when it was directed by Congress to breach.
  • Carmell v. Texas, 529 U.S. 513 (2000): Mr. Bernstein was appointed by the Supreme Court to argue for an indigent criminal defendant.  By a 5-4 vote, the Court reversed all of the defendant’s convictions at issue based on a violation of the Ex Post Facto clause.

Prior Experience

Prior to joining Willkie, Richard was a partner at Sidley Austin LLP, where he was the Co-Global Coordinator of the Complex Commercial Litigation practice. He also previously served as law clerk for Judge Amalya Kearse of the Second Circuit Court of Appeals and for United States Supreme Court Justice Antonin Scalia.

Selected Professional and Business Activities

Richard regularly speaks and writes about securities litigation. Recently, he was a panelist at the New York City Bar’s Securities Litigation & Enforcement Institute. Richard has been a member of the Securities Litigation Advisory Committee of the National Chamber Litigation Center. He is the author of "SEC Rule 412: What Is Said Now Trumps What Was Said Before," (Review of Securities & Commodities Reg.,2/6/13), "Closing Time: You Don’t Have To Go Home But You Can’t Stay Here," (The Business Lawyer, August 2012), "Supreme Court Adopts Rule of Narrow Construction for Rule 10b-5" (New York Law Journal, 6/23/11), "Court Toughens Application of Rule 8 Pleading Standards for Civil Cases" (New York Law Journal, 7/6/09), Failed Financial Institution Litigation: Remember When" (NYU Journal of Law and Business, Spring 2009, "Good Lawyering and Securities Cases" in Best Practices for Securities Litigation (Aspatore 2007), and "Lower Courts’ Handling of Tellabs Inference of Scienter" (New York Law Journal, 12/11/07).

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