Mark C. Holscher, P.C.

Securities Litigation

Defended numerous Fortune 500 companies and individuals in securities and fraud related litigation including alleged violations of SEC Rules 10b-5 and 14 e 3 including:

• Obtained dismissal for Wynn Resorts and its directors and officers in a putative securities class action arising from a stock drop following the disclosure of the former CEO's alleged sexual misconduct.

• Secured dismissal of a federal criminal indictment of a President of a Southern California mortgage company in an alleged federal insider trading scheme connection with a bankruptcy fraud proceeding arising out of the company’s failure.

• Representing an investment firm in connection with an internal investigation relating to SEC audit of stock trading.

• Lead counsel to an independent audit committee to the Board of Directors of a publicly-traded healthcare company in an internal investigation by a whistleblower alleging accounting violations and potential securities fraud.

• Lead trial counsel to Bill Ackman’s Pershing Square Capital Management in its partnership with Canadian-based Valeant Pharmaceuticals International, Inc. in their over $50 billion unsolicited offer for Botox-maker Allergan. Allergan responded by filing a lawsuit in the Central District of California, alleging violations of the federal securities laws. Subsequent to the denial of Allergan’s motion, the Allergan board accepted a higher strategic bid from another acquirer, resulting in a nearly $2.7 billion investment return to Pershing Square. Allergan then filed a First Amended Complaint. Before a motion to dismiss was filed, the parties to the lawsuit executed a Joint Stipulation of Voluntary Dismissal, dismissing the action of its entirety, without costs or the payment of compensation by any party.

• Lead counsel to Macerich in connection with Simon Property’s $16.8 billion takeover bid. In response to Simon’s hostile takeover bid, Macerich approved a “poison pill” provision allowing shareholders to purchase shares at a discount, diluting Simon’s potential stake. Shortly thereafter, the matter was settled and Macerich retained control of the company.

• Lead counsel for a Société Générale Board member and largest shareholder of Société Générale stock in U.S. securities class actions and a parallel civil French regulatory trial proceeding, arising out of false insider trading allegations. Won a complete dismissal of all U.S. securities cases and full exoneration in the French regulatory proceedings.

• Co-lead plaintiff’s trial counsel for a multi-national insurance company which sought hundreds of millions of dollars from a company that fraudulently outbid Kirkland’s client for an insurance company. Led and developed the defrauded bidder complaint and case starting in 2006. Client obtained a $236 million recovery on the eve of trial

• Lead counsel for the founder and former CEO of a major California subprime mortgage company in a bankruptcy action for fraudulent conveyance and breach of fiduciary duties related to the lender’s failure.

Government, Regulatory & Internal Investigations

• Lead counsel for multiple companies and individuals in SEC, FCPA, FCA, investigations.

• Obtained dismissal of a federal indictment of a tech entrepreneur and CEO of a well-known software company charged with a $98 million fraud and bribery scheme arising out of the sale of the company.  After several presentations to the United States Attorney’s Office for the Central District of California, the government dismissed the indictment with prejudice.

• Defended Wynn Resorts and its affiliates in a lawsuit alleging RICO and state consumer protection violations in connection with Massachusetts' only gaming license. Won dismissal in 2019. Affirmed on appeal in 2021.

• Represented the CEO and owner of defense contractor charged in federal district court of Arizona on government contract related fraud charges. The government indicted multiple defendants. After making several presentations to prosecutors, obtained a dismissal with prejudice of all charges. The other charged defendants were later convicted.

• Represented an electronic payments solutions provider in an FTC investigation regarding payment processing practices. Favorable settlement secured.

• Member of pre-trial team representing a Chinese real estate billionaire, in an on-going criminal case filed by the DOJ alleging conspiracy to violate the Foreign Corrupt Practices Act (FCPA), violations of the FCPA, bribery, and money laundering.

• Represented BP affiliate, BP West Coast Products, in regulatory litigation relating to an alleged multimillion dollar violation of the California Air Resources Board (CARB) reformulated fuels regulation. The case was the first CARB fuels enforcement action to go to trial in almost thirty years, and the first after recent statutory changes requiring CARB to act in a more transparent fashion in issuing regulatory penalties.

• Represented Los Alamos National Laboratory nuclear scientist Wen Ho Lee, who was charged with providing U.S. nuclear secrets to China. Mr. Lee was remanded to pre-trial solitary confinement and faced 39 counts of life in prison based on false allegations that he had provided U.S. nuclear secrets to China. Mr. Lee was targeted by a team of dozens of federal agents and prosecutors. The national press initially falsely branded Mr. Lee as a traitor and spy. Obtained dismissal of all but a reduced charge for technical violation of mishandling classified information. Obtained immediate release of Mr. Lee for time served. The U.S. District Judge presiding over the criminal matter referred to the defense as an “outstanding” defense that had “turned a battleship in this case.”

• Representing an industrial goods manufacturer in connection with multiple AG actions

• Representing a well-known investment firm in connection with an internal investigation relating to an SEC audit of stock trading.

• Represented the largest Portuguese telecommunications company in and SEC investigation regarding its collapse. Successful negotiated a favorable settlement with the SEC.

• Represented a world-wide investment management company in connection with an SEC investigation regarding possible insider trading.

• Represented pharmaceutical, biotechnology and medical device companies and other healthcare institutions, providers and executives in healthcare fraud investigations conducted by federal and state enforcement agencies involving allegations of off-label promotion, improper sales and marketing practices, pricing issues and alleged violations of the Anti-Kickback Statute and False Claims Act.

• Lead trial counsel for an individual indicted on insider trading and tender offer fraud charges along with a former all-star baseball player and a prominent California attorney. In 2013, obtained a post-indictment dismissal of the charges.

Complex Commercial Litigation

• Represented Wynn Resorts, Ltd. and its CEO in a RICO lawsuit alleging a long-running racketeering scheme in which the defendants conspired to bribe a federal judge in order to harm the plaintiff. In 2021, Kirkland won full dismissal.

• Representing Toll Brothers and its subsidiary, Porter Ranch Development Co., in litigation alleging malfeasance regarding the 2015 Aliso Canyon gas leak, the largest leak of natural gas in U.S. history.

• Representing Ovation Finance Holdings 2 LLC, Ovation Fund Management II, LLC and Banc of California in a fraud lawsuit arising from defendants' acts of fraud in connection with their facilitation of a roughly $200 million Ponzi scheme.

• Representing a family-owned, international conglomerate in litigation regarding the distributions from an estate and alleged fraud, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), breach of contract, and breach of fiduciary duty.

• Represented Altamont Capital and its portfolio company Hybrid Industries, Inc. in an action alleging fraud and a cross-complaint for breach of fiduciary duty and trade secret violations in connection with an unconsummated merger. Following the dismissal, Kirkland obtained a successful settlement.

• Represented Evelozcity in an unfair competition and trade secret litigation against brought by Faraday&Future Inc., related to artificial intelligence electric vehicle technologies. The matter involved actions in the Central District of California, California State Court, as well as JAMS arbitration. The matters settled for less and a fraction of the amount sought.

• Represented LifeLock in false advertising, trademark and unfair competition litigation against private parties and in consumer protection litigation against the FTC.

• Lead counsel for Raytheon Corporation in an action brought by Northrop Grumman Overseas Services Corporation alleging breach of contract over electronic warfare equipment development for use in the F-16 fighter aircraft.

• Lead trial counsel to a defense contractor in response to a civil investigative demand issued by the United States Department of Justice in connection with a False Claims Act investigation relating performance under a contract with a California municipality.

• Lead trial counsel for a software company in a software piracy case against a foreign telecommunications company. Case settled on the eve of trial.

• Lead counsel for a former managing director of Countrywide Financial in an SEC enforcement investigation arising out of the 2008 subprime and financial crisis. Kirkland’s client was the only individual the SEC declined to bring charges against. All other officers were charged by the SEC with securities fraud.

• Co-lead counsel for BP Products North America, Inc., in multiple cases including a criminal environmental proceeding resulting from an explosion and linked fatalities at the U.S.’s third largest refinery.

• Trial counsel to industrial and chemical companies in product liability, environmental liability and wrongful death litigation.

Entertainment & Media Litigation

• Represented Sydney Holland in a $150 million civil action brought by Sumner Redstone, the former Executive Chairman of Viacom Inc. and CBS Corporation, which alleged claims of elder abuse, breach of fiduciary duty and fraud. Kirkland negotiated a settlement for Ms. Holland resulting in dismissal of all claims by and against Ms. Holland with prejudice.

• Represented The Veritas Trust (for the benefit of entertainer Cher) in an action against Cher’s former business manager for breach of contract, breach of fiduciary duty, fraud, and other allegations related to significant investments made by the Trust.

• Represented Goldcrest Film Distribution Limited in a profit participation dispute against Summit Distribution involving the successful movie, Twilight.

• Lead trial counsel for actor-producer Don Johnson in a breach of contract jury trial. Won a $52 million jury verdict including pre-judgment interest. The verdict was recognized as one of the Top 100 verdicts of 2010, by the Daily Journal and the National Law Journal.

• Lead counsel for Hollywood producer Mark Burnett (creator of Survivor, The Apprentice and Celebrity Apprentice) in a breach of contract and ownership dispute involving his production company.

• Lead counsel for Jemella Group (Lion Capital) in connection with a breach of contract dispute involving pop singer Katy Perry and her company, Killer Queen, LLC, related to an endorsement agreement with international hair product company, GHD.

• Lead counsel for private equity fund Melrose Investors 2 LP, in a breach of contract action to recover profits related to its $375 million film financing investment in 29 films produced by Paramount.

• Settled a long-running dispute on the eve of trial, after being brought in as trial counsel, for the creator of “American Idol,” 19 Entertainment and Dick Clark Productions, Inc., in a case alleging idea theft over the reality television hit “So You Think You Can Dance.”

• Lead counsel for IMG Worldwide, Inc., in a trade secret litigation against a former IMG sports agent for breach of confidentiality, non-solicitation and misappropriation of trade secrets. The case was profiled in The Wall Street Journal, the Los Angeles Times, and the Sports Business Journal.

• Lead counsel for multiple investors and studios in profit participation disputes including slate financing agreements.

O'Melveny & Myers LLP, 1995–2007

Assistant United States Attorney, United States Attorney's Office, Central District of California, 1989–1995