People

Michael G. Bongiorno

Partner

Bongiorno, Michael G.

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, particularly in matters against biotech, life science, biomaterials, medical device, and medical product companies, among other industries and areas. His successful representations include the dismissal of cases against companies such as Tetraphase Pharmaceuticals, Inc., Apollo Education Group, Inc., ConforMIS, Inc., Britannia Bulk Holdings Inc., Optionable, Inc., DryShips Inc., InVivo Therapeutics Holdings Corp., AVEO Pharmaceuticals, Inc., VeraSun Energy Corp., EDAP TMS S.A., Medtronic, Inc., AtheroGenics Inc., and many others.

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

Mr. Bongiorno has substantial trial experience in federal and state courts in various contexts. Recent 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 federal and state courts, including jury trials, bench trials, as well as AAA and FINRA arbitrations.

Honors & Awards

  • Recommended by The Legal 500 United States in 2016 and 2017 for his securities litigation defense practice
  • Named a "Life Sciences Star" in the 2016 editions of LMG Life Sciences for non-IP litigation and enforcement
  • Recognized by New York Super Lawyers for Securities Litigation in every year since 2012
  • Recipient of New York Legal Aid Society Pro Bono Service Award 2010-14

Publications & News

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June 9, 2017

The Legal 500 United States 2017 Recognizes 125 WilmerHale Lawyers Across 28 Practice Areas

The Legal 500 United States has released its 2017 rankings, recommending 125 WilmerHale lawyers—including 12 who are named to its elite “Leading Lawyers” list and two on its “Next Generation Lawyers” list—and 28 practice areas in its 11th edition.

November 9, 2016

LMG Life Sciences Ranks WilmerHale and Attorneys Among the Best

The 2016 guide highlights nine firm practices and 18 attorneys, recognizing work under three categories—Intellectual Property, Finance and Transactional, and Non-IP Litigation and Enforcement.

June 22, 2016

The Legal 500 United States 2016 Recognizes 111 WilmerHale Lawyers Across 30 Practice Areas

The guide's rankings are based on a series of criteria, including client feedback, interviews with private practice lawyers, and its own research.

December 5, 2012

Firm Receives Legal Aid Society’s Pro Bono Publico Award

On November 19, WilmerHale was among 43 law firms to receive the 2012 Pro Bono Publico Award for outstanding service to the Legal Aid Society and its clients.

December 14, 2005

First Circuit Ruling Defines the Meaning of Efficient Market

May 11, 2005

WilmerHale Attorneys Named Rising Stars by Massachusetts Super Lawyers

Recognition Awarded to Twenty-nine of WilmerHale’s Massachusetts-based Attorneys

Highlights

  • Currently serving as lead counsel for the defense for a variety of 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, having previously successfully defended a number of cases arising out of similar issues. Dismissals of securities fraud and derivative suits in this area in the past several years include the following decisions:
    • 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. 
    • Battle Constr. Co. v. InVivo Therapeutics Holdings Corp, 101 F. Supp. 3d 135, aff'd, 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 (2017): successfully argued before the trial court at the Court of Appeals in Massachusetts 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 (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 (Mar. 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. (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.  
  • 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 in February, 2017, Lomingkit v. Apollo Education Group, Inc., 2017 WL 3172861 (D. Ariz. Feb. 16, 2017), and after repleading, was then dismissed with prejudice, 2017 WL 633148 (D. Ariz. July 27, 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 
  • 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 its 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

Professional Activities

  • Former Special Assistant District Attorney, Middlesex County, Massachusetts

Practices

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Education

JD, cum laude, Harvard Law School, 1991

AB, summa cum laude, Dartmouth College, 1988, Phi Beta Kappa, Rufus Choate Scholar, Charles Howe Woodberry Law Prize

Bar Admissions

New York

Massachusetts

New Hampshire

Government Experience

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