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. His clients have achieved dismissal in the vast majority of such matters. He is an experienced appellate advocate, having successfully argued for the affirmance of many dismissals of securities cases, including five in the past two years in the Second and First Circuits. 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, high tech, shipping, and retail.

His successful representations as lead defense counsel in securities class actions include the dismissal of cases against companies such as Karyopharm Therapeutics Inc., Renewable Energy Group, Inc., Synacor, Inc., Top Ships, Inc., Ocular Therapeutix, Inc., Assertio, Inc., Jos. A. Bank Clothiers, Inc., Glencore PLC, Golar LNG, Limited, Electronics for Imaging, Inc., Solid Biosciences, Inc., Argos Therapeutics, Inc., Tetraphase Pharmaceuticals, Inc., LogicBio Therapeutics, Inc., Voyager Therapeutics, 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.

Mr. Bongiorno also has extensive experience leading internal investigations and securities enforcement matters, including matters before the Securities and Exchange Commission, the Department of Justice, various state securities regulators and FINRA. He regularly advises boards of directors and board committees with regard to disclosures, corporate governance issues, and matters related to litigation, enforcement, 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 successful defense of a company and its officers against fraud and other related claims in Massachusetts Superior Court (affirmed on appeal), the successful defense of a finance and investment company in Federal District Court in Boston against claims of breaches of fiduciary duty brought by a closely held corporation 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 and bench trials, as well as AAA and FINRA arbitrations.

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:
      • In re Renewable Energy Group, Inc Sec. Litig., 2022 WL 17930 (S.D.N.Y. Jan. 20, 2022), aff’d 2022 WL 14206678 (2nd Cir. Oct. 25, 2022).: Obtained dismissal of securities class action matter claiming defendants deceived investors by failing to disclose accounting errors and internal control issues, then successfully argued for the affirmance of the decision on appeal to the Second Circuit.
      • Successfully argued at the Second Circuit to affirm the dismissal with prejudice and denial of request to replead 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), aff’d sub nom. Shreiber v. Synacor, Inc., 832 Fed. Appx. 54 (2nd Cir. Oct. 22, 2020).
      • Successfully argued at the Second Circuit 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., 806 Fed. Appx. 64, 2020 WL 1608523, Fed. Sec. L. Rep. P 100,789 (2nd Cir. Apr. 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. Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. Supr. Ct. 2020). 
      • 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 Third Circuit appeal was later dismissed. 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 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, the matter 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, obtained an extremely favorable settlement for the trust.
      • Successfully defended a company and its executives at trial in Superior Court in Massachusetts against claims by former officer for breach of contract, fraud, and unfair trade practices, and successfully argued for affirmance of the judgment on appeal. 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)). In addition, he successfully obtained the dismissal of an unrelated shareholder derivative suit against the board of DryShips that was filed against it in the Republic of the Marshall Islands, where the company was incorporated.  He then successfully argued for the affirmance of that dismissal at the Supreme Court of the Marshall Islands, the first such matter argued in that country.
      • 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 a 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 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 in Federal District Court in Boston, 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 Karyopharm Sec. Litig., 552 F. Supp. 3d 77 (D. Mass. 2021),  aff’d sub nom. Thant v. Karyopharm Therapeutics Inc., 2022 WL 3134028, --F.4th--(1st Cir. 2022): District Court dismissed securities fraud class action against biopharmaceutical company on a variety of grounds, including lack of falsity and scienter, in matter arising out of claims that company failed to disclose serious adverse events and other issues related to its Phase III clinical trials.  Successfully argued in favor of affirmance of appeal at the First Circuit.
      • Hackel v. AVEO, 2020 WL 4274542 (D. Mass. July 24, 2020): Court dismissed entire case with prejudice based on various warnings and cautionary statements about possible delays in projected timing of announcement of results of Phase 3 clinical trial for drug in development. 
      • In re Ocular Therapeutix Sec. Litig., 2019 WL 1950399 (D. Mass. April 30, 2019), aff’d sub nom. Mehta v. Ocular Therapeutix, 955 F.3d 194 (1st Cir. 2020): obtained dismissal after oral argument 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.
      • 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, 2020 WL 7701463 (S.D.N.Y. Apr. 28, 2020).
      • 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. Huang v. Assertio, 443 F. Supp. 3d 1031 (N.D. Cal. 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).
      • Similarly, also obtained voluntary dismissals of suits against Voyager Therapeutics, Inc., LogicBio Therapeutics, Inc., and AtheroGenics, Inc. after successfully moving to transfer securities class action suits from federal courts in other jurisdictions to company’s home state.
      • 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. The First Circuit appeal was later dismissed.
      • 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 affirmance of dismissal before 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 for the dismissal of this shareholder derivative action arising out of disclosures related to FDA studies, and for the affirmance of that dismissal before the Massachusetts Court of Appeals. 
      • Cody v. ConforMIS, Inc., 199 F. Supp. 3d 409 (D. Mass. 2016): successfully argued 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 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, obtained dismissals of both class action and derivative suits arising out of disclosure of the status of FDA application for approval of new drug.
      • In re Medtronic Sec. Litig., 618 F. Supp. 2d 1016 (D. Minn. 2009), aff’d sub nom. Detroit Gen. Ret. Sys. v. Medtronic, Inc., 621 F.3d 800 (8th Cir. 2010), obtained dismissal of securities class action that 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 8th Circuit affirmed the dismissal on appeal. The dismissal of a related ERISA class action was also upheld on appeal in Brown v. Medtronic, Inc. 628 F.3d 451 (8th Cir. 2010). 

Recognition

  • Selected by his peers for inclusion in the 2020–23 editions of Best Lawyers in America for his securities litigation practice.
  • Recognized as a leader in Securities Litigation in the 201922 editions of Chambers USA.
  • Named a 2021 Healthcare/Life Sciences Trailblazer by The National Law Journal.
  • 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.

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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