Mark E. McDonald’s practice focuses on high-stakes shareholder and M&A litigation as well as complex commercial litigation and arbitration.

Mark has extensive experience handling trials, appeals, and all other aspects of litigation in federal and state courts (including the Delaware Court of Chancery), including in disputes involving corporate governance, commercial contracts, private equity, and real estate.

Mark has built a strong record of significant victories for his clients. Just in the last year, Mark obtained a preliminary injunction of a $500 million transaction; defeated a preliminary injunction following a full-day evidentiary hearing in a breach of contract dispute; successfully obtained the Second Circuit’s reversal of the denial of a preliminary injunction of arbitration of released claims; and obtained a highly favorable settlement just as the jury began deliberating after a five-day trial of breach of fiduciary duty claims in the Southern District of New York.

Mark’s substantial body of published work reflects his status as a thought leader in shareholder and M&A litigation. His articles are frequently published in The M&A Lawyer, Harvard Law School Forum on Corporate Governance, and the Columbia Law School Blue Sky Blog, and he is co-author of two chapters in Business and Commercial Litigation in Federal Court (“Valuation of a Business” and “Shareholder Activism”). He is invited to speak on these topics regularly.

In addition to active litigations, Mark routinely advises boards, corporate executives, and in-house counsel on fiduciary duties and litigation risk, including in connection with M&A transactions and corporate control disputes.

Mark joined the firm in 2011 and became partner in 2021.

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Notable Experience

Securities and M&A Litigation

  • Parkwood in fiduciary duty litigation against a fund manager, resulting in a favorable settlement after closing arguments in a five-day jury trial

  • CEO of Wells Fargo in various shareholder derivative actions arising from regulatory consent decrees

  • National Amusements Inc. (NAI), Shari Redstone, and Sumner Redstone in Delaware litigation against CBS Corporation and certain members of its board of directors concerning CBS’s attempt to dilute NAI’s voting control of CBS, ending in a favorable settlement rescinding a proposed dilutive stock dividend and the dismissal of all claims

  • T-Mobile USA in two separate matters in the Delaware Court of Chancery, including a shareholder derivative action relating to a significant data breach and a purported class and derivative action brought by a T-Mobile stockholder arising from T-Mobile’s merger with Sprint and subsequent transactions involving major shareholders Deutsche Telekom and Softbank

  • Kindred Healthcare in successfully defeating a motion for preliminary injunction in connection with its merger with TPG, Humana and Welsh, Carson

  • Controlling stockholder Danfoss in litigation challenging the fairness of its $700 million acquisition of minority shares of Sauer-Danfoss

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Complex Commercial Litigation

  • Howmet in a contract dispute with Lockheed Martin related to the F-35 Joint Strike Fighter Program

  • YPF S.A. in defending against $14 billion in fraudulent conveyance and alter ego claims brought by the Maxus Liquidating Trust

  • J. Aron (the commodities trading arm of Goldman Sachs) in litigation brought by oil producers claiming liens in oil they sold to SemGroup, which traded oil and derivatives with J. Aron; won summary judgment in the bankruptcy court, which was affirmed by the district court and by the U.S. Court of Appeals for the Third Circuit

  • Brazilian commercial real estate company in successfully moving to dismiss two separate lawsuits in New York state court relating to a brokerage commission and a lease dispute

  • Times Square JV in the successful resolution of claims to secure the acquisition of a parcel under the Times Square Crowne Plaza building for $121 million

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International Arbitration

  • The Resource Group, Inc. in connection with multiple JAMS arbitration proceedings and related litigation in the Southern District of New York and Second Circuit against one of its co-founders concerning numerous corporate governance and related disputes

  • Aerospace company in an ICC arbitration seeking to enforce a right of first refusal to acquire a joint venture and a related proceeding to obtain a preliminary injunction in aid of arbitration

  • Leonardo Electronics in defeating $230 million breach of contract claim in an ICDR arbitration

  • Latin American affiliates of international oil and gas companies in an ICC arbitration in New York relating to a dispute under a gas sales agreement

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Selected Activities

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  • Notes Editor, Law Review, New York University School of Law
  • Member, Second Circuit Courts Committee of the Federal Bar Council

Publications

“Remedies for Unclosed M&A Deals,” Practical Guidance, (with James Jian Hu)

“Second Circuit Holds Sections 1782 Discovery Is Not Available In An ICSID Arbitration,” Cleary Gottlieb Alert Memo, (with Jeffrey A. Rosenthal, Carmine D. Boccuzzi Jr., Ari D. MacKinnon, Boaz S. Morag, Katie Gonzalez, Nowell D. Bamberger, Christopher P. Moore)

“Delaware Chancery Court Finds Private Equity Sponsor’s Tax Receivable Agreement Potentially Led to Conflicted Sale Process,” Cleary Gottlieb Alert Memo, (with John A. Kupiec, Matthew P. Salerno, and Mina Kim)

“U.S. Supreme Court Rules That Judges, Not Arbitrators, Decide If A Dispute Is Arbitrable When Multiple Agreements Conflict On The Question,” Cleary Gottlieb Alert Memo, (with Jefferey A. Rosenthal, Carmine D. Boccuzzi Jr., Ari D. MacKinnon, Christopher P. Moore, Laurie Achtouk-Spivak, Boaz S. Morag, Samuel Levander, and Katie Gonzalez) 

“Delaware Supreme Court Provides Important Guidance on Application of MFW Framework to Controlling Stockholder Transactions,” Cleary Gottlieb Alert Memo, (with James E. Langston, James Jian Hu, and Arjan Heir) (April 10, 2024) 

“Delaware Court of Chancery Invalidates Common Provisions in Stockholder Agreements,” Cleary M&A and Corporate Governance Watch blog, (with Matthew P. Salerno, David Leinwand, David Lopez, Adam Fleisher, Adam Brenneman, and John A. Kupiec) (March 4, 2024) 

“Delaware Courts Beef Up Caremark Claims Involving Corporate Misconduct While Leaving Hot-Button Political and ESG Issues to the Boardroom,” Cleary Gottlieb Selected Issues for Boards of Directors in 2024 (with Roger A. Cooper and Andrew Khanarian) (January 17, 2024) 

The Mergers and Acquisitions Litigation Review, 4th Edition, co-author of the U.S. chapter, (October 2023)  

“Bringing an End to “Derivative” Section 14(a) Claims – Without Waiting for the Supreme Court to Weigh In,” Cleary M&A and Corporate Governance Watch blog, (with Roger Cooper) (August 7, 2023)

“U.S. Supreme Court Rejects Anti-Terrorism Act Claims Against Social Media Platforms Used By ISIS,” Cleary Gottlieb Alert Memo, (with Carmine D. Boccuzzi Jr., Mark E. McDonald, Leila Mgaloblishvili, Miranda Herzog, and Nowell D. Bamberger) (May 31, 2023)

“Corwin Cleansing Denied In Action For Post-Closing Injunctive Relief Under Unocal,” Cleary Gottlieb Alert Memo, (with Kyle A. Harris and Nicholas DiStefano) (May 10, 2023)

“Delaware Chancery Court’s Mindbody Decision – Lessons for Private Equity Buyers in Take-Private Transactions,” Cleary Gottlieb Alert Memo, (with John A. Kupiec, Mark E. McDonald, Nickolas, Bogdanovich, Jessica Cymbaluk, and Yuan He) (March 23, 2022)

“Post-M&A Disputes,” Corporate Disputes Magazine, (April-June 2023)

The Mergers and Acquisitions Litigation Review, 3rd Edition, co-author of the U.S. chapter, (October 2022) 

A Back-Door Section 220? Chancery Court Limits Appraisal Petitioners’ Demand for Broad Discovery, Cleary M&A and Corporate Governance Watch blog (with Julie-Irene Nkodo) (February 7, 2022)

“The Delaware Supreme Court Speaks on ‘Ordinary Course’ Covenants,”The M&A Lawyer (with Charles W. Allen and Kayla Rooney) (February 4, 2022) 

“2021 Developments in Securities and M&A Litigation,” Cleary Gottlieb Alert Memo, (with Joon H. Kim, Matthew C. Solomon, Victor L. Hou, Roger A. Cooper, Lisa Vicens, Jared Gerber, Rishi N. Zutshi, Nowell D. Bamberger, Abena Mainoo, Rahul Mukhi, Lina Bensman, Alexander Janghorbani, Anthony M. Shults, Avion A. Tai and Chelsea Hanlock) (January 18, 2022)

The Mergers and Acquisitions Review, 15th Edition,“ M&A Litigation in the United States” chapter (with Roger Cooper and Pascale Bibi), The Law Reviews, (January 14, 2022) 

Delaware Chancery Court Allows SPAC Merger Challenge to Proceed, Cleary Gottlieb Alert Memo, (with John A. Kupiec, Roger A. Cooper, Pascale Bibi, and James E. Langston) (January 5, 2022)

The Delaware Supreme Court Speaks on “Ordinary Course” Covenants, Cleary M&A and Corporate Governance Watch blog (with Charles W. Allen and Kayla Rooney) (December 20, 2021)

The Mergers and Acquisitions Litigation Review, 2nd Edition, co-author of the U.S. chapter, (December 3, 2021) 

“Second Circuit Rules That International Comity and New York’s ‘Separate Entity’ Rule May Prevent Asset Restraint Orders From Reaching Assets Held at Bank’s Foreign Branches,” Cleary Gottlieb Alert Memo (with Carmine D. Boccuzzi Jr., Joon H. Kim, Lisa Vicens, Rathna Ramamurthi, Nowell D. Bamberger and Jorge A. Bonilla Lopez)  (September 2021)

“Delaware Court Orders Up Prevention Doctrine to Require Reluctant Buyer to Close,”  Cleary Gottlieb Alert Memo (with Matthew P. Salerno, Roger A. Cooper, James E. Langston and Pascale Bibi), (May 12, 2021)

Delaware Court Enjoins Poison Pill Adopted in Response to COVID-19-Related Market Disruption, Cleary Gottlieb Alert Memo (with Roger A. Cooper, James E. Langston, Kyle A. Harris and Pascale Bibi), (March 2, 2021) 

The Mergers & Acquisitions Review, 14th Edition, United States chapter (with Roger Cooper and Pascale Bibi), The Law Reviews, (January 29, 2021) 

“Caremark Claims on the Rise Fueled by Section 220 Demands,” Selected Issues for Boards of Directors in 2021 (January 11, 2021) 

The Mergers and Acquisitions Litigation Law Review, 1st Edition, (co-author of the U.S. chapter), January 8, 2021

Delaware Supreme Court Clarifies Section 220’s “Proper Purpose” Test, Cleary M&A and Corporate Governance Watch blog (December 18, 2020) 

Fee-Shifting—A Potential New Tool In Stockholders’ Toolbox When Seeking Books And Records, Cleary M&A and Corporate Governance Watch (December 03, 2020)

Recent Decision Confirms Directors’ Right to Access Privileged Communications Between Management and Company Counsel, (with Christopher E. Austin, James E. Langston, Rahul Mukhi, & Elizabeth Carlson) August 26, 2020; republished by Harvard Law School Forum on Corporate Governance and Financial Regulation, September 12, 2020 

Shareholder Complaints Seek to Hold Directors Liable for Lack of Diversity, Cleary Gottlieb Alert Memorandum (July 24, 2020); republished by Law360 (August 4, 2020) and Harvard Law School Forum on Corporate Governance (August 11, 2020)

Delaware Supreme Court Green Lights Federal-Forum Charter Provisions (with Roger Cooper, Jared Gerber, and  Leslie N. Silverman) March 20, 2020, (republished by The Review of Securities & Commodities Regulation, July 15, 2020)

2019 Developments in Securities and M&A Litigation (with Roger Cooper and Jared Gerber), March 3, 2020, (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation, March 17, 2020

Appraisal Update: Unaffected Market Price Makes a Comeback (with Roger Cooper), July 24, 2019, (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation, August 6, 2019

Developments in M&A Litigation (with Meredith Kotler), The Review of Securities & Commodities Regulation, April 24, 2019

Target’s Termination of Merger Agreement Approved Based on Plain Contract Language, March 18, 2019 (with David Gelfand and Paul Shim), (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation onApril 6, 2019)

Re: Xura Decision – Are Non-Director Officers Protected by Business Judgment Rule? (with Arthur H. Kohn, Ashley Powell, Vanessa Richardson, and Julia M. Rozenblitt), The Conference Board, January 14, 2019

Corwin Cleansing Denied For Company Sold During Restatement Process—Sound Familiar, (with Meredith Kotler, Roger Cooper, and Kal Blassberger), November 27, 2018, (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on December 16, 2018)

Claim Against Target CEO Survives Dismissal, While Aiding and Abetting Claim Against Private Equity Buyer is Dismissed (with Meredith E. Kotler, Roger A. Cooper, and April Collaku), December 13, 2018 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on January 13, 2019)

Delaware Decision Provides Further Lessons for Directors, Activist Investors, and Financial Advisors in Negotiating Mergers (with Meredith E. Kotler, Roger A. Cooper, and Kal Blassberger), October 17, 2018 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on November 7, 2018)

Lessons from the CBS-NAI Dispute: When (If Ever) Will the Court of Chancery Grant a TRO To Restrain a Controlling Stockholder From Taking Action to Prevent a Board From Diluting Its Voting Control? (with Meredith E. Kotler), October 15, 2018 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on October 29, 2018)

Akorn v. Fresenius: A MAC in Delaware (with David Leinwand and James E. Langston), October 11, 2018 (republished in Law360 on October 12, 2018)

Delaware Court of Chancery Finds Fair Value in Appraisal Case To Be Unaffected Market Price (with Meredith Kotler and Vanessa Richardson), February 21, 2018

Delaware Supreme Court’s Dell Decision Further Reduces Appraisal Risks for Buyers (with Victor Lewkow and Meredith Kotler), December 18, 2017 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on December 19, 2017)

“Recent Delaware Opinions Shake Up Appraisal Litigation” (with Meredith Kotler and Vanessa Richardson), Law360, August 11, 2017

Delaware Supreme Court Declines To Establish A Presumption In Favor Of Deal Price In Appraisal Actions—Or Did It? (with Meredith Kotler and Vanessa Richardson), August 8, 2017

Chancery Finds Fair Value To Be Less Than Half Merger Price (with Meredith Kotler and Vanessa Richardson), August 1, 2017 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on August 14, 2017 and in Transaction Advisors in October 2017)

Chancery Court Suggests that Rights Offerings May Limit Liability in Transactions with Controlling Stockholders (with Meredith Kotler), June 7, 2017 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on June 16, 2017)

Acting SEC Chair’s Steps to Centralize the Process of Issuing Formal Orders—Are Commentators Drawing the Right Lessons? (with Matthew Solomon, Lisa Vicens, and Alexander Janghorbani), February 28, 2017 (republished in the Harvard Law School Forum on Corporate Governance and Financial Regulation on March 13, 2017)

Chancery Court Invalidates Bylaw Purporting to Shift Litigation Expenses onto Stockholders Who Violate a Valid Forum-Selection Bylaw (with Meredith Kotler), January 9, 2017

Chancery Court Rejects Disclosure-Only Settlement, Suggests in Future Such Settlements Will Be Approved Only in Narrow Circumstances (with Meredith Kotler), January 25, 2016

“‘Conflict-of-Interest Fraud’ after Skilling,” Criminal Law Journal, Spring 2011

Events