Bongiorno_Michael

Michael G. Bongiorno

Bongiorno_Michael

Michael G. Bongiorno

Partner

  • Co-Chair, Securities Litigation and Enforcement Practice Group

Michael Bongiorno concentrates his practice on securities litigation and enforcement matters. He has served as first-chair lead defense counsel and argued motions to dismiss in dozens of securities class action and derivative suits across the country, as well as appeals affirming dismissals in federal and state courts. His clients have achieved dismissal in the vast majority of such matters. His successful defense in such cases spans a variety of industries and jurisdictions, and he is a recognized leader in securities litigation and enforcement matters, particularly in matters against biotech, life science, biomaterials, medical device, and medical product companies, and has handled cases in many other industries and areas as well, including energy, construction, education, technology, shipping and retail.

Thus far in 2020, he has achieved five substantial victories, including a landmark ruling in the Supreme Court of Delaware upholding the validity of a Federal Forum Provision in a client’s corporate charter; the affirmance of motions to dismiss with prejudice of securities class actions after oral arguments in the United States Court of Appeals for the First and Second Circuits in April of this year; and the dismissal with securities class actions in two federal district courts. In 2019, he obtained dismissals in five separate major securities class actions, in five different federal courts (New Jersey, Eastern District of New York, Northern District of California, Southern District of New York and Massachusetts). 

His successful representations as lead counsel in securities class actions include the dismissal of cases against companies such as Synacor, Inc., Top Ships, Inc., Ocular Therapeutix, Inc., Assertio, Inc., Electronics for Imaging, Inc., Solid Biosciences, Inc., Argos Therapeutics, Inc., Tetraphase Pharmaceuticals, Inc., Apollo Education Group, Inc., Nabriva Therapeutics, PLC, ConforMIS, Inc., Britannia Bulk Holdings Inc., Optionable, Inc., DryShips Inc., InVivo Therapeutics Holdings Corp., AVEO Pharmaceuticals, Inc., VeraSun Energy Corp., Technical Olympic, S.A., EDAP TMS, S.A., Medtronic, Inc., AtheroGenics, Inc., and many others, in over a dozen jurisdictions around the country.

Mr. Bongiorno also has extensive experience leading internal investigations and various securities regulatory and enforcement matters, including matters before the Securities and Exchange Commission, the Department of Justice and FINRA. He regularly advises boards of directors and board committees with regard to corporate governance and matters related to litigation, enforcement, regulatory issues, derivative and document demands, and crisis management.

Mr. Bongiorno has substantial trial experience in federal and state courts in various contexts. Trial successes include the defense of a company and its officers against fraud and other related claims in Massachusetts Superior Court (affirmed on appeal), and a five-week trial in the US Bankruptcy Court for the Southern District of New York regarding corporate governance and fiduciary duty claims (resulting in an extraordinarily favorable settlement for his clients). He has tried more than 20 civil and criminal matters in his career in various tribunals, including federal and state court jury trials, bench trials, as well as AAA and FINRA arbitrations.

Professional Activities

  • Former Special Assistant District Attorney, Middlesex County, Massachusetts

Experience

    • Mr. Bongiorno currently serves as lead counsel for a variety of companies in securities litigation matters. His success in various industries over the years includes companies in a wide range of business sectors. Representative successes include:
      • Successfully argued to affirm on appeal the dismissal of a class action alleging securities fraud and market manipulation arising out of a shipping company issuing large quantities of securities to outside institutional investors and effecting reverse stock splits. Onel v. Top Ships, Inc., -- Fed. Appx --, 2020 WL 1608523, Fed. Sec. L. Rep. P 100,789 (2nd Cir. April 2, 2020). The District Court had dismissed the case without leave to replead. Brady v. Top Ships Inc., 2019 WL 3553999 (E.D.N.Y. Aug. 5, 2019).
      • Successfully represented Blue Apron in landmark case, establishing that Delaware corporations may legally enact forum selection clauses requiring Securities Act class actions to be filed only in federal court. Sciabacucchi v. Blue Apron, et al., -- A.3d --, 2020 WL 1280785 (Del. Supr. Ct. March 18, 2020). 
      • After extensive briefing and multiple complaint filings, obtained dismissal with prejudice of securities class action alleging that a technology company made false statements and omissions concerning its projections of annual revenue, internal controls and other issues. Lefkowitz et al. v. Synacor, Inc., et al., 2019 WL 4053956 (S.D.N.Y. Aug. 28, 2019).
      • Obtained dismissal with prejudice in matter in which plaintiff alleged that accounting and internal control issues led to delay in reporting of financial results and stock drop. In re Electronics for Imaging, Inc. Sec. Litig., 2019 WL 397981 (D.N.J. Jan. 31, 2019). The plaintiffs dismissed their appeal voluntarily. 2019 WL 5152343 (3rd Cir. Sept. 24, 2019).
      • Obtained dismissal of a defendant in a class action alleging securities fraud based on claims of bribery of a foreign official and various statements regarding good corporate governance and internal disclosure controls. Das v. Rio Tinto, et al., 332 F. Supp. 3d 786 (S.D.N.Y. 2018). 
      • Successfully represented Apollo Education Group in a securities class action lawsuit filed against it based on the University of Phoenix's military recruiting practices and its transition to a new online learning platform. The initial amended complaint was dismissed without prejudice after oral argument in February, 2017, Lomingkit v. Apollo Education Group, Inc., 275 F. Supp.3d 1139 (D. Ariz. 2017), and after repleading and further oral argument, was then dismissed with prejudice, 2017 WL 633148 (D. Ariz. Feb. 16, 2017). 
      • Co-lead trial counsel for Getty Petroleum Marketing's liquidating trust in its trial against its former parent and affiliate entities regarding the sale of the majority of Getty's assets. After five weeks of trial in the Southern District of New York Bankruptcy Court in 2013, obtained an extremely favorable settlement for the trust.
      • Successful defense at trial in Superior Court in Massachusetts of a privately owned company against claims by former officer for breach of contract, fraud, and unfair trade practices, and affirmance of the judgment on appeal before the Massachusetts Court of Appeals in 2014. Wecker v. Performance Indicator, LLC, 86 Mass. App. Ct. 1118 (2014).
      • Represented a major New York investment bank in a FINRA enforcement investigation regarding leveraged and inverse ETFs.
      • Represented entire underwriting syndicate of more than twenty investment banks in dismissal with prejudice of all claims against the banks in a 2012 Southern District of New York decision.
      • Defended many merger-related cases in state and federal courts nationwide, as counsel both to acquirers and targets, including the denial of an injunction in 2016 in Delaware Chancery Court in an action seeking to halt a multi-billion dollar transaction.
      • Obtained dismissal of securities fraud case under Section 10 of the Exchange Act and Section 11 of the Securities Act in the Eastern District of Missouri in 2012 arising out of various transactions and secondary offerings (Rabbani v. DryShips Inc., 2012 WL 5395787 (E.D. Mo. Nov. 6, 2012)).
      • Represented all defendants in the dismissal of a class action lawsuit filed against former officers of VeraSun Energy Corporation regarding its pricing and hedging practices. Gissin, 739 F. Supp. 2d 488 (S.D.N.Y. 2010).
      • Obtained the dismissal in 2009 of all claims in a Section 11 class action filed in the Southern District of New York arising out of a foreign shipping company’s initial public offering (In re Britannia Bulk Sec. Litig., 665 F. Supp. 2d 404 (S.D.N.Y. 2009), and the denial in 2010 of a Rule 60 motion to re-open the same matter (2010 WL 446529 (S.D.N.Y. Feb. 9, 2010)).
      • Obtained the dismissal in a securities class action in the Southern District of New York in 2008 alleging violations of the Exchange Act of 1934 against an entity that served as a broker of natural gas and other energy derivatives (In re Optionable Sec. Litig., 577 F. Supp. 2d 681 (S.D.N.Y. 2008)), and successfully argued against a Rule 60 motion seeking to re-open the same matter in 2009.
      • Overturned class certification for a medical products company in "a case of first impression" in the First Circuit in the context of defining an efficient market for purposes of the "fraud on the market" doctrine in securities fraud matters; then presented live expert testimony and obtained a decision denying recertification following a full evidentiary hearing, after remand from the First Circuit.
      • Defended a variety of direct and derivative claims against individual directors and officers alleging breaches of fiduciary duties and other similar allegations in a variety of contexts, including matters before Chancery Court in Delaware and elsewhere.
    • Mr. Bongiorno has overseen numerous board and audit committee investigations involving a variety of issues, including revenue recognition, corporate misconduct, disclosures, financial reporting and accounting issues. He regularly represents both companies and individuals in investigations and enforcement actions by various regulatory agencies such as the Securities and Exchange Commission and Department of Justice.
    • Mr. Bongiorno has had an extraordinary amount of experience and success in defending FDA-regulated entities, such as biotechnology and medical device companies and their officers and directors, in federal securities fraud class action suits, derivative suits, and SEC investigations related to disclosures surrounding the progress of clinical trials, the FDA approval process, and the safety and efficacy of their products. Dismissals of securities fraud and derivative suits in this area include the following decisions:
      • In re Ocular Therapeutix Sec. Litig., 2019 WL 1950399 (D. Mass. April 30, 2019), aff’d sub nom. Mehta v. Ocular Therapeutix, -- F.3d -- 2020 WL 1808366 (1st Cir. April 9, 2020): obtained dismissal in securities class action alleging company failed properly to disclose substance of FDA Form 483 letters in response to manufacturing inspections, then argued successfully for the affirmance of the dismissal at the First Circuit Court of Appeals.
      • Obtained the dismissal of a securities class action complaint arising out of an alleged failure to disclose a Form 483 letter after an FDA inspection of an overseas contract manufacturing facility for a developer of an antibiotic. Schaeffer v. Nabriva Therapeutics PLC, No. 19-cv-04183-VM, 2020 U.S. Dist. LEXIS 78035  (S.D.N.Y. Apr. 28, 2020).
      • Successfully obtained transfer from New York to issuer’s home state of Massachusetts and then the voluntarily dismissal of a securities class action against a biotech company arising out of disclosures related to the status and enrollment of a clinical trial. Garity v. Tetraphase, 2019 WL 2314691, (S.D.N.Y. May 30, 2019).
      • Huang v. Assertio, 2019 WL 1245136 (N.D. Cal. March 18, 2019): successfully argued for dismissal of an action against an FDA-regulated company based on allegations that the company promoted its product off-label and failed to disclose regulatory risks associated with its sales practices. The court later dismissed all claims with prejudice after an amended complaint, further briefing, and additional oral argument.
      • Successfully argued in well-publicized ruling that Massachusetts state courts cannot maintain nationwide class actions in Securities Act cases, leading to a stay of a state court securities case, then obtained a voluntarily dismissal of both the federal and state court cases, ending all pending securities litigation. Lowinger v. Solid Biosciences, Inc., 35 Mass. L. Rptr. 133, 2018 WL 3711305 (Mass. Super. June 24, 2018) and Watkins v. Solid Biosciences, Inc., No 18-cv-10639 (D. Mass.).   
      • Harrington v. Tetraphase Pharm. Inc., 2017 WL 1946305 (D. Mass. May 9, 2017): obtained dismissal four days after oral argument in a securities fraud claim arising out of stock drop after announcement of disappointing results of a Phase 3 clinical trial. The decision was closely watched and received substantial attention because of its ruling regarding the protection afforded to sales made pursuant to 10b5-1 trading plans.
      • Battle Constr. Co. v. InVivo Therapeutics Holdings Corp, 101 F. Supp. 3d 135, aff'd sub nom. Ganem v. InVivo Therapeutics Holdings Corp., 845 F.3d 447 (1st Cir. 2017): successfully argued for the dismissal of a securities fraud complaint at the federal district court level and before the United States Court of Appeals for the First Circuit in this action arising out of the defendant company's disclosures related to communications with the FDA regarding the timing of a study of a new biomaterials device. 
      • Luger v. McCarthy, 65 N.E.3d 671 (Mass. App. Ct. 2017): successfully argued before the state trial court and appeals for the dismissal of this shareholder derivative action arising out of disclosures related to FDA studies. 
      • Cody v. ConforMIS, Inc., 199 F. Supp. 3d 409 (D. Mass. 2016): successfully argued before the federal district court for the dismissal of this action arising out of the recall of a medical device as a result of certain manufacturing concerns. 
      • In re EDAP TMS S.A. Sec. Litig., No. 14 Civ. 6069, 2015 WL 5326166 (S.D.N.Y. Sept. 14, 2015): obtained dismissal of this action in federal court in the Southern district of New York arising out of disclosures related to a “Major Deficiency Letter” from the FDA.
      • In re AVEO Pharma., Inc. Sec. Litig., No. 1:13-cv-11157-DJC, 2015 WL 1276824 (D. Mass. March 20, 2015) and after repleading, dismissal with prejudice, slip op. (Nov. 18, 2015), and Van Ingen v. Ha-Ngoc, No. 1:14-cv-11672-DJC, slip op. (D. Mass. Apr. 28, 2015): after multiple oral arguments before the United States District Court in Boston, obtained dismissals of both class action and derivative suits arising out of disclosure of the status of FDA application for approval of new drug.
      • Brown v. Medtronic, Inc. 628 F.3d 451 (8th Cir. 2010), where plaintiffs had unsuccessfully alleged that the failure to warn of adverse events and potential defects of a medical device that eventually led to a voluntary recall of the product constituted an actionable failure to disclose.  The District of Minnesota dismissed the case with prejudice, and the 8th Circuit affirmed the dismissal on appeal. 

Recognition

  • Named one of the Best Lawyers in America in the 2020 edition for his securities litigation practice
  • Recognized as a leader in Securities Litigation in the 2019 and 2020 editions of Chambers USA
  • Recommended by The Legal 500 United States for his securities litigation defense practice 2016–present
  • Named a Life Sciences Star in LMG Life Sciences for non-IP litigation and enforcement 2016present
  • Recognized by New York Super Lawyers and Massachusetts Super Lawyers for Securities Litigation 2012present
  • Recipient of New York Legal Aid Society Pro Bono Service Award 2010–14

Insights & News

Credentials

  • Education

    • JD, Harvard Law School, 1991

      cum laude
    • AB, Dartmouth College, 1988

      summa cum laude Phi Beta Kappa, Rufus Choate Scholar, Charles Howe Woodberry Law Prize
  • Admissions

    • New York

    • Massachusetts

    • New Hampshire

  • Government Experience

    • State and Local Government

      Special Assistant District Attorney, Middlesex County, Massachusetts

Credentials