Mitchell A. Lowenthal’s practice focuses on the prosecution and defense of civil litigations, with an emphasis on disputes arising out of securities and M&A transactions.
Mitchell joined the firm in 1981, became a partner in 1990 and became a senior counsel in 2016.
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.
- Former Chairman, Board of Directors, Urban Justice Center
- Member, Board of Directors, Urban Justice Center
- Former Member, Executive Committee, Bar Association of the City of New York; Former Chair, Committee on Securities Litigation
- Member, American Law Institute
- Former Member, Committee on Professional Ethics, New York State Bar Association
Regularly publishes on securities litigation and complex civil procedure, and regularly publishes articles on these subjects, including in The Cornell Law Review, The Fordham Law Review, The George Washington Law Review, The University of Pennsylvania Journal of Business Law, and The Harvard Law School Forum on Corporate Governance and Financial Regulation. He is also the author of treatise chapters on New York Jurisdiction and Securities Class Actions.
“The Daily Abuse of Women at Rikers,” New York Law Journal, August 18, 2017.
“M&A Litigation,” co-author, The Mergers & Acquisitions Review (Law Business Research, 9th Ed.), August 2015.
“State Courts Lack Jurisdiction to Hear Securities Act Class Actions, But the Frequent Failure to Ask the Right Question Too Often Produces The Wrong Answer," co-author with Shiwon Choe, The University of Pennsylvania Journal of Business Law (April 2015).
"Forum Selection Clauses in the ‘Foreign' Court," co-author with Victor Lewkow, The Wall Street Lawyer, April 28, 2014.
"What It Means When a Lead Plaintiff Says ‘No,'" co-author with Scott Buell and Sean K. Mullen, Securities Law Daily, April 28, 2014.
"Halliburton Decision Could Change the Game, But Won’t End It," co-author with Lewis J. Liman, Today’s General Counsel, April/May 2014.
“U.S. Supreme Court Sharply Limits General Jurisdiction Over Corporate Defendants," co-author with Jonathan Blackman and Carmine Boccuzzi, Aspen Publishers Corporation, Vol. 85, No. 5, pp. 4. March 3, 2014.
“Shareholder Inspection Rights Under New York Law," co-author with Ari D. MacKinnon, Bloomberg Law, June 11, 2013.
“Merck v. Reynolds: The Supreme Court Clarifies the Standard for Determining When a Plaintiff ‘Discovers' Fraud for Limitations Purposes in Section 10(b) Actions," co-author with Meredith Kotler and Nancy Ruskin, Financial Fraud Law Report, July 1, 2010.
“Lone Star Deserves Company," co-Author with Evan Davis, Westlaw Journal Derivatives, Vol. 16, Iss. 15, June 7, 2010.
“Jurisdictional Struggle Continues Over 1933 Act Class Suits," co-author with Timothy M. Haggerty, New York Law Journal, June 14, 2010.
"The Primacy of Standing in Mortgage-Backed Securities Class Actions," co-author with Roger Cooper, U.S. Law Week, BNA Insights, Vol. 79, No. 42, May 11, 2010.
"When May Investment Advisors Serve as Lead Plaintiffs in Securities Class Actions?" co-author with Joon H. Kim, Journal of Securities Law, Regulation & Compliance, Vol. 2, No. 4, September 2009.
- May 21, 2017: "Zealous" Representation, Lawyer Self-Defense, and Clients on the Edge, American Law Institute Ethics Program
- November 18, 2014: 13th Annual Corporate Governance and Disclosure Seminar
- December 11, 2012: NYCBA's 1st Annual Securities Litigation & Enforcement Institute
- October 17, 2012: Society of Corporate Secretaries & Governance Professionals 2012 Regional Fall Conference
- October 10, 2012: Current Developments - Atlanta