Mitchell A. Lowenthal

In California Public Employees Retirement System (CalPERS) v. ANZ Securities Inc. et al., the U.S. Supreme Court upheld the Second Circuit’s IndyMac decision holding that the class action tolling rule does not apply to the statute of repose established by Section 13 of the Securities Act of 1933. This landmark decision affirms the limits of the liability period for securities issuers and underwriters, as well as corporate officers and directors, and extinguishes actions filed after repose periods expire. Along with Cleary partners Victor Hou and Roger Cooper, Mitchell handled the case from its filing in the United Stated District Court for the Southern District of New York, through to the Supreme Court’s affirmance of the dismissal they obtained in the trial court on behalf of all of their clients.

Along with colleague Victor Hou, Mitchell also recently represented Alpha Natural Resources before the Delaware Court of Chancery in the successful dismissal of claims brought against Massey Energy (now owned by Alpha Natural Resources), and former directors and officers of Massey Energy. In dismissing the claims, the Chancery Court agreed that the acquisition of Massey Energy by Alpha Natural eliminated the standing of former Massey Energy stockholders to pursue derivative claims against Massey Energy and its former officers and directors, thereby refusing to re-write the risk allocations inherent in the merger agreement, overwhelmingly approved by such stockholders, through which Alpha Natural acquired Massey Energy.

In litigation arising under the federal securities laws, Mitchell has represented Petrobras, Bank of America, Alpha Natural Resources Inc., Countrywide Financial Corp., ING Groep N.V., Barclays Bank Plc, dozens of banks acting as underwriters of securities issued by The Royal Bank of Scotland, Lehman Brothers, Healthsouth Corp., Adelphia Communications Corp., and various issuers of mortgage-backed securities, and the Securities Industry and Financial Markets Association in amicus briefs submitted to the U.S. Supreme Court and various Circuit Courts.

In M&A litigation and derivative actions, Mitchell has represented American Express Co., and the boards of directors of Family Dollar, Dollar Thrifty, National Financial Partners, and PeopleSoft. He has also represented corporate acquirors in M&A litigation, including: Alpha Natural Resources (of Massey Energy), AB (of Power One), Suntory (of Jim Bean) 3M (of Ceradyne), DSM (of Martek), and buyer consortia of private equity firms (of Alltel, of Biomet and of Chindex).

Pro Bono representation of two women, and a class of all women detainees, who were sexually abused by guards while confined to the all-women jail on New York City’s Rikers Island.

In a case against the City of New York and a correction officer, Mitchell recently represented two women who were raped and sexually abused while confined to the all-women jail on New York City’s Rikers Island, and secured a $1.2 million settlement.

Mitchell has also represented numerous clients pro bono publico, primarily in connection with the unique problems of the homeless.