James P. Smith III


James P. Smith III is a member of the Firm’s Executive Committee and serves as US Litigation Department co-chair and co-chair of the Firm’s Securities, M&A and Corporate Governance Litigation Practice Group. His practice areas comprise a broad range of complex commercial litigation, including securities, mergers and acquisitions and contests for corporate control, corporate governance, financial institution, class action, multidistrict, insurance sales practices and D&O coverage, and international litigation.

Mr. Smith has first-chair trial experience and has tried numerous cases (including in the Delaware Chancery Court) and argued appeals for major Firm clients before various state and federal appellate courts. He has been involved in the representation of Firm clients in a variety of industries, including technology/e-commerce, commercial and investment banking, private equity, hedge funds, derivatives and securitization, life sciences, insurance, energy, oil and gas, healthcare, semiconductors and telecommunications.

Representative Matters

M&A and Corporate Governance Litigation

  • The defense of The MONY Group Inc. in litigation in Delaware Chancery Court and federal court in New York arising out of its merger with AXA Financial Corp., including leading the federal court litigation and successfully arguing the appeal in The MONY Group Inc. v. Highfields Capital Management, et. al., a case of first impression in which the United States Court of Appeals for the Second Circuit unanimously reversed the district court (and the long-standing informal position of the Securities and Exchange Commission Office of Corporation Finance Staff) by holding that dissident shareholders soliciting against approval of a Delaware merger are prohibited under the federal proxy rules from sending shareholders a duplicate copy of management’s proxy card during a purportedly exempt solicitation. The case also generated the seminal Delaware “post agreement market check” decision In re MONY;
  • The representation of Omnicare, Inc. in Delaware Court of Chancery litigation leading to Omnicare’s successful acquisition of NCS Healthcare, Inc., including the landmark Delaware Supreme Court decision in Omnicare, Inc. v. NCS Healthcare, Inc., et al.;
  • The defense of LifePoint Hospitals, Inc. and its board of directors in litigation brought in the Delaware Court of Chancery by a dissident hedge fund seeking to nominate a slate of directors to LifePoint’s board, notwithstanding the plaintiff’s failure to comply with the Company’s advance notice bylaw, in which the Court denied plaintiff’s motion for a preliminary injunction delaying LifePoint’s annual shareholders’ meeting and dismissed the case on the Company’s motion for summary judgment;
  • The representation of CNET Networks in its proxy contest with JANA Partners and subsequent successful merger with CBS;
  • Currently leading the defense of the board of directors of Illumina in shareholder class action litigation arising out of Roche Holding’s failed $6.2 billion hostile takeover attempt, in which plaintiffs’ motion to expedite in the Delaware Court of Chancery, and motions to expedite and for a temporary restraining order requiring the board to pull a “poison pill” in California state court in San Diego, were denied;
  • Led the defense of eBay in connection with class action litigation challenging its $2.4 billion acquisition of GSI;
  • Led the defense of AGL in shareholder class action litigation challenging its $2.4 billion acquisition of Nicor Inc.;
  • Led the defense of Edo Corp. and its board of directors in shareholder class action litigation challenging its $1.7 billion acquisition by ITT;
  • Currently leading the defense of Blackboard Inc. and its board of directors in shareholder class action litigation challenging its $1.6 billion acquisition by Providence Equity;
  • Led the defense of NYMagic and its board of directors in class action litigation in the New York State Supreme Court, Commercial Division, challenging NYMagic’s merger with ProSight Specialty Insurance, an operating company backed by Goldman Sachs Capital Partners and private equity firm TPG;
  • Led the defense of Applied Materials in class action litigation challenging its acquisition of Semitool, in which plaintiffs’ motion for expedited discovery was denied;
  • Led the defense of Merz Pharmaceuticals in connection with California state court class action litigation challenging its acquisition of BioForm, in which plaintiffs’ motion for a temporary restraining order enjoining Merz’s tender offer was denied;
  • The defense of USI Holdings in New York state court shareholder class action litigation challenging the $1.4 billion buyout of USI by Goldman Sachs, in which plaintiffs’ motion for a preliminary injunction was denied in one of the few New York decisions construing and applying Delaware merger law in this context;
  • Led the defense of Citigroup Global Markets Inc. in California state court shareholder litigation challenging the $1.4 billion acquisition of Conor Medsystems by Johnson & Johnson, in which claims that Citi, as financial advisor, owed a fiduciary duty to Conor shareholders and/or aided and abetted a breach of fiduciary duty by the Conor board were dismissed on Citi’s successful demurrer;
  • The representation of Banc of America Securities LLC, as non-party witness, in its capacity as financial advisor to defendant Applica Inc. in NACCO v. Applica, a post-closing dispute in Delaware Court of Chancery alleging that Applica and affiliates of Harbinger Capital Partners conspired to position Harbinger to top NACCO’s initially successful bid and prevail in the ensuing bidding war;
  • The representation of numerous bulge bracket and other investment banks, hedge funds, target companies and others in various capacities in connection with some of the largest and most high-profile M&A deals in recent years, including, among others, Oracle/PeopleSoft, CVS/Caremark, Clear Channel/Bain Capital-Thomas H. Lee, MedImmune/AstraZeneca, Hilton Hotels/Blackstone, SL Green/Reckson, Mirant Corp./RRI Energy, OSI/Astellas, CommScope Inc./The Carlyle Group and Hertz/Dollar Thrifty.

Securities Fraud & Related Matters

  • The representation of Omnicare, Inc. in federal securities fraud class action litigation arising out of a series of government investigations in which claims alleging violations of the Securities Exchange Act of 1934 and Rule 10b-5 were dismissed for failure to plead loss causation under Dura and/or scienter under Tellabs (affirmed by the Sixth Circuit), and in related derivative litigation dismissed for failure to plead demand futility;
  • The representation of Tesoro Petroleum Corporation in federal securities class action litigation in which claims alleging violations of the ’34 Act and Rule 10b-5 based on oil refining margin information posted on Tesoro’s website were dismissed under the Private Securities Litigation Reform Act of 1995;
  • The defense of Wachovia Capital Markets, LLC in a federal RICO action in the Southern District of New York dismissed for failure to state a claim, and follow-on litigation in the New York State Supreme Court, Commercial Division, brought by a consortium of plaintiffs led by hedge fund Harbinger Capital Partners seeking $165 million in damages and alleging that Wachovia conspired with now-bankrupt health drink company Le-Nature’s, Inc., in a fraudulent accounting scheme, including successfully arguing for the dismissal of claims of negligent misrepresentation and civil conspiracy and arguing the subsequent appeal (pending);
  • The defense of Emergis Inc. in a post-closing dispute in federal court in New York arising out of the sale of an Emergis subsidiary to MultiPlan, Inc., alleging federal securities fraud and seeking indemnification for purported breaches of representations and warranties in the Share Purchase Agreement;

Consumer Fraud and Other Class Action & Financial Institution Litigation

  • Representation of MONY Life Insurance Company in class action litigation involving the marketing of so-called “vanishing premium” life insurance policies, including the New York Court of Appeals decisions in Gaidon v. Guardian Life Insurance Company, affirming the dismissal of eight of nine causes of action asserted against MONY in a nationwide “vanishing premium” class action, Goshen v. The Mutual Life Insurance Company of New York, et al., affirming the dismissal of the remaining claims of all non-New York purchasers in that action under New York’s consumer protection act and the New York Appellate Division decision in DeFilippo v. MONY Life Insurance Company, decertifying the remaining New York-only class;
  • Representation of Panasonic Corporation of America in numerous putative nationwide class actions alleging, among other things, violations of the New Jersey Consumer Fraud Act in connection with the marketing and sale of HD televisions, cordless telephones and DVD players in which class certification was denied;
  • Representation of Crèdit Agricole and its subsidiaries in emerging markets/Russian debt crisis litigation in New York state court and abroad, including a $119 million judgment against National Reserve Bank of Russia as a result of its default on a series of foreign currency exchange forward transactions in the wake of the Russian Federation’s August 1998 moratorium on the repayment of foreign debt;
  • The conduct of internal investigations; and
  • Representation and counseling of foreign banks in connection with bank secrecy issues and the application of international mutual legal assistance treaties in the context of a US criminal investigation.
  • Mr. Smith joined the firm after his graduation from law school in 1993. He became a member of the firm on January 1, 2002.


Since 2006, Mr. Smith has co-authored the “Delaware Quarterly: Recent Developments in Delaware Business and Securities Law,” a quarterly roundup of major decisions in the Delaware Court of Chancery published in both the Bank and Corporate Governance Law Reporter and the Securities Reform Act Litigation Reporter.

Other publications include:

  • “CSX – A Case of First Impression: Hedge Funds Violated Securities Laws’ Disclosure Requirements,” Derivatives Financial Products Reports (October 2008) (w/Richard W. Reinthaler).
  • “‘CSX’: Second Circuit Upholds Denial of Injunctive Relief,” New York Law Journal (September 26, 2008) (w/Corinne D. Levy).
  • “Changing Face of Class Actions,” New York Law Journal, special pullout section, “Securities Litigation & Regulation” (July 9, 2007) (w/Jonathan W. Miller & Corinne D. Levy).
  • “1998-99 Merits Decisions in ‘Vanishing Premium’ Sales Practices Litigation: A Vintage Year for Insurance Company Defendants,” ALI-ABA Conference on Life Insurance Litigation: Course of Study Materials (American Law Institute May-13-14, 1999) (with Richard W. Reinthaler).
  • “A Reversible Shield: Model Rule 4.2 in Competing Class Actions,” Litigation Ethics (American Bar Association, Section of Litigation, Committee on Ethics and Professional Responsibility Fall/Winter 1997) (with Richard W. Reinthaler).

Speeches, Programs & Other Appearances

  • Mr. Smith has appeared on “InsideTrack,” Bloomberg Television’s morning market coverage, providing insight on securities fraud, fiduciary duty and corporate governance issues, and has been interviewed on related matters by Dow Jones and other financial media outlets.

Additional speeches, programs and appearances include:

  • Financial Sector in Distress: “Workout Strategies, Bankruptcy, Receiverships and Acquisitions” (panel with Martin Bienenstock and Jay Goldin)(American Lawyer-sponsored conference, The Harvard Club, Feb. 18, 2009).
  • PLI Securities Litigation and Enforcement Institute 2009: “Corporate Governance Litigation” (panel with former Vice Chancellor Stephen Lamb of the Delaware Court of Chancery) (Sept. 29, 2009).
  • Numerous in-house and client CLE certified programs on topics ranging from the latest developments in Delaware M&A and corporate governance jurisprudence to developments in class action and multidistrict litigation to the attorney-client privilege and work product doctrine to ethics in the conduct of corporate internal investigations to deposition skills training.

Awards & Recognitions

  • Law & Politics Magazine “New York Super Lawyer” in Litigation, 2006
  • Law & Politics Magazine “New York Super Lawyer” in Securities Litigation, 2007, 2008, 2009
  • Law & Politics Magazine “Super Lawyer” in Securities Litigation, 2010 National “Corporate Counsel Edition.”


  • Georgetown University, 1990, A.B., cum laude
  • Georgetown University Law Center, 1993, J.D., cum laude, Articles Editor, Georgetown International Environmental Law Review

Bar Admissions

  • New York

Court Admissions

  • U.S. Court of Appeals, 1st Circuit
  • U.S. Court of Appeals, 2nd Circuit
  • U.S. Court of Appeals, 6th Circuit
  • U.S. District Court, Southern and Eastern Districts of New York