M. Duncan Grant is a partner and vice chair of the Commercial Litigation Practice Group at Pepper Hamilton LLP. He also is head of the firm’s Delaware litigation practice. He is a Fellow of the American Bar Foundation.
Mr. Grant’s practice emphasizes corporate and commercial litigation matters. The following are representative examples of the matters he has handled.
Mr. Grant’s recent work in securities litigation includes achieving a no-payment settlement of 10b-5 claims made by three hedge funds that alleged that our client had misled them about its future financial prospects. Mr. Grant also led the defense of a former CFO in a trial against the SEC in which the SEC had alleged accounting misstatements, and defending former officers and directors in a stockholder class action involving complicated loss causation issues under the Supreme Court’s Dura decision. In the SEC case, the court granted our motion to dismiss the case at the conclusion of the SEC’s case-in-chief, commenting in its written ruling that “[t]here has been a complete and utter failure of proof on the part of the Commission.” In the same case, we had obtained a monetary sanction against the SEC in connection with a motion to compel that we filed.
Mr. Grant also has defended a client against a claim that a “going public” transaction had been improperly terminated, and he has represented defendants (both pre- and post-Reform Act) in shareholder class action litigation involving assertions that companies’ financial statements were materially misleading. On two occasions, federal prosecutors investigated the conduct of our clients, but as a result of Mr. Grant’s negotiations, criminal charges were not filed against either client.
Mr. Grant also has advised clients on a range of fiduciary duty and disclosure issues in the context of actual and potential takeover contests, and he has represented multiple clients in SEC investigations involving accounting issues, disclosure issues and the supervision of registered representatives.
Delaware Court of Chancery Litigation
In the Delaware Court of Chancery, Mr. Grant has handled trials and motions involving a range of corporate law issues, including:
- stockholder challenges to corporate mergers, involving claims that disclosures were inadequate
- disputes over election to membership on boards of directors
- a request for the appointment of a custodian to break a deadlock on a board of directors
- the validity of stock options
- the right of a holder of debentures to convert them into common stock
- appraisals of the value of stock in the context of cash-out mergers
- fiduciary duties that general partners owe to limited partners
- indemnification of corporate directors for litigation expenses
- the interpretation of proxies
- stockholders’ and limited partners’ demands for inspection of corporate and partnership books and records.
He also has represented clients in cases involving a variety of injunctive relief issues, including claims of theft of trade secrets in the air pollution control industry and the scope of post-termination support obligations owed to a former distributor of voice mail systems.
Mr. Grant was counsel to the company in a Court of Chancery action that is the leading Delaware case interpreting no-compete clauses contained in employment contracts.
Mr. Grant’s antitrust litigation experience includes participating in the defense of a client at the jury trial of 10 antitrust actions which were consolidated in the Eastern District of Pennsylvania under the caption Lower Lake Erie Iron Ore Antitrust Litigation. The plaintiffs asserted that the defendant railroads had conspired over a 25 year period to impede the development of new technologies which allegedly would have enabled the plaintiffs (steel companies, dock companies and trucking companies) to economize on the delivered price of iron ore and to compete with the railroads for the delivery of iron ore to inland steel mills. Our client settled with all plaintiffs after five weeks of trial; the jury ultimately returned a verdict of $638 million (after trebling) against the non-settling defendant.
Mr. Grant also participated in the trial of a monopolization case in the Northern District of New York involving the rail transportation of newsprint; the case settled on the second day of trial.
He has advised clients in antitrust litigation involving such diverse industries as television picture tubes, firearms, cemeteries and highway signage.
Mr. Grant has been involved in both prosecuting and defending several patent litigation cases in the federal court in Delaware. The cases have involved such matters as a method for manufacturing computer chips and a process for determining whether certain substances inhibit or activate proteins in cells.
Mr. Grant has defended many clients in lawsuits alleging RICO violations. Representative examples include:
- the defense of a financial institution against RICO charges arising from loans to students at a vocational school
- a defense against claims that a bank violated RICO by charging borrowers a higher interest rate than the bank’s “prime rate,” which was the rate that was agreed upon in the loan documents
- defending another bank against a claim that it violated RICO by conspiring to divert the plaintiffs’ funds by opening checking accounts the plaintiffs did not control, but into which the plaintiffs’ funds were fraudulently wire-transferred
- defending against RICO claims arising from a bank’s contacts with individuals who fraudulently induced the plaintiffs to invest in a phantom trust known as the Oman Ghana Trust Fund.
Mr. Grant has substantial appellate litigation experience. He began his career as a law clerk for a Third Circuit judge, and he has represented clients in appeals to the U.S. Courts of Appeals for the First, Third, Tenth and Eleventh Circuits, the Delaware Supreme Court, and the Pennsylvania Supreme and Superior Courts.
The issues that he has handled on appeal include antitrust, securities law, arbitration proceedings, election of the members of a corporate board of directors, bankruptcy law and contractual disputes. He also has lectured on appellate advocacy topics at CLE seminars.
Mr. Grant has been involved in the arbitration of many commercial disputes. He tried a securities arbitration matter before an arbitration panel of NASD (now the Financial Industry Regulatory Authority, Inc.) in a case involving claims of theft, churning, falsification of trading information and complex damages analysis; the arbitration hearing lasted for 21 sessions. In addition, he represented a law firm in the arbitration of a dispute with one of its clients about the payment of a contingent fee arising from a complex commercial litigation claim.
Mr. Grant also has served as a party-appointed arbitrator in a contractual arbitration proceeding involving a dispute over the value of a privately held corporation. In addition, he successfully enjoined a customer of a brokerage firm from seeking NASD arbitration against the brokerage firm; the customer had already pursued some of his claims in federal court, and we obtained an order (later affirmed by the Third Circuit) barring arbitration of other claims on res judicata and waiver grounds.
Lender Liability Litigation
In litigation involving the representation of financial institutions, Mr. Grant defended the real estate lending subsidiary of a national bank against a claim by a prospective borrower that the bank had improperly refused to close on an interim loan for the purchase and renovation of a large industrial site. The case was tried to a jury, and it settled after six days of testimony.
Mr. Grant represented the same bank as plaintiff in an action charging a takeout lender with a breach of its contractual obligation to fund a permanent loan that would have replaced our client’s interim loan for the construction of a hotel property in California. The case involved a complex analysis of the damages available to an interim lender when the permanent lender refuses to close on the permanent loan. After two years of intensive discovery, we defeated the takeout lender’s motion for summary judgment, following which the case settled.
Mr. Grant also represented two banks that were the holders of a tax-exempt bond in a federal court action against the bond indenture trustee for breach of contractual and fiduciary duties owed to the bondholders.
Mr. Grant has extensive experience working with clients involved in media litigation. He represented the defendant magazine publisher in the leading Third Circuit case establishing the fair report privilege, which protects the publication of accurate information about governmental documents and proceedings. He also defended a television station that was sued by the mayor of a large city following a report that the mayor was under investigation for the receipt of improper payments to award certain city contracts. In addition, Mr. Grant has advised many clients of the firm on a broad range of defamation issues.
Mr. Grant is listed in The Best Lawyers in America and has been named by Best Lawyers as the Philadelphia “Lawyer of the Year” for Litigation – Securities (2015). He was selected for inclusion on the 2014 Pennsylvania Super Lawyers list, and is listed as a local litigation star in Pennsylvania in Benchmark Litigation.