David A. Priebe

Partner at DLA Piper

David A. Priebe

David A. Priebe

Partner at DLA Piper

Biography

David A. Priebe

Partner
Principal Areas of Practice

Defense of companies, officers, and directors in securities class action lawsuits and investigations and related shareholder derivative lawsuits, government investigations, and corporate control litigation; counseling in investor communications and insider stock trading policies and plans.

Representations

Mr. Priebe has defended numerous companies and their current or former officers and directors in securities cases and related shareholder derivative and M&A litigation for over twenty years. Clients include current or former officers and directors of Countrywide Financial Corporation, KLA-Tencor, Riverstone Networks, Tripath Technologies, and Sipex Corporation; and the corporation and management of Finisar, Applied Signal Technology, Foundry Networks, The Boeing Company, AXT, SONUS Pharmaceuticals, Genentech, Openwave Systems, Vantive, Monterey Pasta Company, Sybase, Extreme Networks, Immersion, Informatica, iPrint Technologies, InsWeb, NetRatings, Agile Software, ValiCert, Preview Systems, Virage, Calico Commerce, Indus International, Silicon Graphics, Informix, Seagate Technologies, Vanstar, Read-Rite, 3DO, Merisel, YES! Entertainment, Cirrus Logic, Silicon Valley Bank, Digital Microwave, Thomas Weisel Partners, Montgomery Securities, PaineWebber, MIPS Technologies, Frame Technologies, Novasensor, and Businessland.

In these representations, Mr. Priebe has actively participated, often in leadership roles, in all forms of motion practice, factual analysis, discovery, mediation, and trial preparation. Mr. Priebe actively and intently keeps informed of and contributes to innovations in securities fraud jurisprudence and owns an Internet site, 10b-5.com, containing articles on securities law developments and other topics. Mr. Priebe was also co-lead trial counsel in a successful lending \ securities fraud arbitration and a pro bono civil rights trial. Mr. Priebe also has defended companies in intellectual property, antitrust, and commercial cases, representing (among others) the Williams Companies, Borland, Network Associates, American Mensa Ltd., and Packard Bell.

Highlights

Won dismissal of derivative lawsuit asserting securities fraud and corporate law claims based on alleged stock option backdating by presenting successful challenge to common statistical method used by plaintiffs in such cases throughout country. In re Finisar Corp. Derivative Litig., 542 F. Supp. 2d 980 (N.D. Cal. 2008); In re Finisar Corp. Derivative Litig., No. C-06-07660 RMW, 2009 WL 3072882 (N.D. Cal. Sept. 22, 2009), now on appeal.
Won dismissal of securities class action against food company by obtaining the first judicial decision applying a Rule 10b5-1(c) stock trading program to negate an inference of scienter in a private securities case. Wietschner v. Monterey Pasta Co., 294 F. Supp. 2d 1102 (N.D. Cal. 2003). This followed several years of research and public speaking on the Rule, including the submission of public comments on it before it was adopted. Although the court allowed leave to amend, plaintiffs voluntarily dismissed the lawsuit.
Won dismissal of parallel shareholder derivative lawsuit involving food company identified above. Imperial County Employees' Retirement Sys. v. Hewitt, No. M63679 (Super. Ct. Monterey Cty. 2003). Plaintiff dismissed the appeal.
Representing former CFO of Countrywide Financial Corporation in numerous class action, institutional, and regulatory lawsuits involving common stock purchasers and mortgage-backed securities investors. Representations include SEC action that resulted in a settlement without fraud claims or an officer and director bar, Securities and Exch. Comm'n v. Mozilo, No. CV 09-03944 (C.D. Cal.); two State court cases dismissed on our motion for lack of personal jurisdiction. New Mexico State Investment Council v. Countrywide Fin. Corp., No. D-0101-CV-2008-02289 (Santa Fe Cty. N.M., 1st Jud. Dist. Apr. 14, 2009); United Western Bank v. Countrywide Financial Corp., No. 2010CV3325 (Dist. Ct. Colo., City and Cty. of Denver 2d Jud. Dist. Nov. 9, 2010); and federal case granting summary judgment on joint motion upon statute of repose for Exchange Act claims. Footbridge Ltd. Trust v. Countrywide Fin. Corp., 10 Civ. 367 (PKC) (S.D.N.Y. Mar. 16, 2011).
Served as principal factual and legal researcher in detailed analyses leading to decision denying an officer and director bar against the former CEO of a semiconductor manufacturing company alleged to have engaged in stock option backdating. Securities and Exch. Commn v. Schroeder, No. C 07-03798 JW, 2010 WL 4789441 (N.D. Cal. Nov. 17, 2010). In the related private litigation, our client recovered over $13 million from the company despite attempts to blame him for allegedly improper practices.
Won motion to dismiss securities class action against substrate manufacturer alleged to have misrepresented quality of products to customers. Morgan v. AXT, Inc., Nos. C 04-4362 etc., 2005 WL 234125 (N.D. Cal. Sept. 23, 2005). The case was settled on favorable terms following the dismissal (no contribution from company).
Defeated attempt to enjoin implementation of challenged term to merger agreement, resulting in a successful tender offer and the consummation of the challenged merger. Jarackas v. Applied Signal Technology, Inc., No. 1:11 CV 191643 (Super. Ct. Santa Clara Cty. Jan. 20, 2011).
Representing entire Board of Directors of audio chip company in breach of fiduciary lawsuit filed by bankruptcy trustee alleging a failure to sell the company. Hermerding v. Tripathi, Adversary Proceeding No. 09 5004 (N.D. Cal. Bank.).
Won motion to dismiss securities fraud claims under Securities Litigation Uniform Standards Act in lawsuit filed when corporation temporality suspended exercise of stock options until restated financial statements were issued. McIntosh v. McAfee Inc., No. C-06-0794 JW (N.D. Cal. Sept. 28, 2007).
Won as lead counsel and co-lead arbitration a $46.5 million arbitration award on behalf of a defrauded borrower unknowingly involved in what the case investigation revealed to be a widespread, international Ponzi scheme. General Holding, Inc. v. Derivium Capital (Charleston, S.C., American Arbitration Ass'n June 13, 2005).
Represented former CEO of semiconductor chip company in securities class action lawsuit and parallel government investigations. The securities class action settled with no contribution from our client, In re Sipex Corp. Sec. Litig., Master File No. 05-CV-00392 (WHA); and an SEC action settled with no fraud claim and no officer and director bar against our client; despite attempts to blame him for allegedly improper practices.
Drafted briefs and declaration that resulted in granting of motion to dismiss, and change in plaintiff's fundamental approach, in derivative case alleging that officers and director steered company to investment banker in exchange for access to IPO shares. Lefort v. Black, No. 02 2464 VRW (N.D. Cal. 2002). After the filing of our second motion to dismiss, plaintiff made a demand on the Board, as we had contended was required. The subsequent investigation exonerated our clients and resulted in a dismissal.
Served as co-lead trial counsel on behalf of plaintiff in pro bono civil rights case, Simpson v. McNack, No. CV 06-04837 EMC (N.D. Cal. 2010). The jury found for our client as against one defendant, and the case settled on favorable terms during the post-verdict judgment phase.
Won motion to dismiss securities class action lawsuit against intelligence contractor alleged to have misrepresented customer backlog. In re Applied Signal Tech., Inc. Sec. Litig., No. C 05-1027 SBA, 2006 WL 1050174 (N.D. Cal. Feb. 9, 2006). Although the decision was reversed three years later by the Ninth Circuit, the strength of the district court’s acceptance of our contentions positioned case well and resulted in a settlement on favorable terms (no contribution from company).
Won dismissal of parallel shareholder derivative lawsuit involving intelligence contractor identified above. Shoemaker v. Devine, No. 1:08 CV 119810 (Jan. 20, 2009) (Super. Ct. Santa Clara Cty.).
Played a leading role in issuers' joint defense group in defense of the over 300 "IPO laddering" securities cases in the Southern District of New York. In re Initial Public Offering Sec. Litig., No. 21 MC 92 (SAS).
Drafted briefs and declarations that resulted in granting of summary judgment on behalf of a leading software company alleged to have issued false forecasts. In re Sybase, Inc. Sec. Litig., 48 F. Supp. 2d 958 (N.D. Cal. 1999).
Selected and served as principal legislative history researcher in support of advanced interpretation arguments in seminal Reform Act case, In re Silicon Graphics Securities Litigation (N.D. Cal. 1997). In this capacity, was first to call attention to statute and legislative history requiring disclosure of all facts underlying allegations.
Drafted briefs that resulted in rare pre-Reform Act dismissal of securities class action case alleging that pioneering video game company misrepresented the performance and quality of its product. In re 3DO Sec. Litig., No. CV 94-1820 CAL (N.D. Cal. July 19, 1995). The case settled on favorable terms after the dismissal (no contribution from company).
Drafted briefs and declarations that resulted in granting of motions to dismiss on behalf of computer distributor alleged to have issued false forecasts. In re Merisel Sec. Litig., Master File No. CV-94-3959-R (C.D. Cal. Apr. 3, 1995). Although the decision was reversed two years later by the Ninth Circuit, the strength of the district court's acceptance of our contentions positioned case well and resulted in a settlement on favorable terms (no contribution from company).
Drafted brief resulting in grant of motion to dismiss shareholder derivative lawsuit against disk drive company. Howard Gunty Profit Sharing v. Quantum Corp., No. C 96 20711 SW (N.D. Cal. May 28, 1997).
Assisted in drafting of brief result in grant of motion to dismiss class action complaint challenging terms of acquisition of high technology company. Barth v. NovaSensor, No. C-91-0830-DLJ, 1991 WL 330922 (N.D. Cal. Dec. 6, 1991).
Served as chief legal researcher on damages issues, and confirmed validity of key procedural step resulting in interlocutory win on the merits, in copyright case that reached the United States Supreme Court. Lotus v. Borland.

Admissions

California


Publications

Mr. Priebe has written numerous articles and comments on the securities laws, insider trading, derivative lawsuits and document retention policies, including the following:

A Missed Opportunity To Define Insider Trading: United States v. Heron (PLI 2009) (with Shirli Weiss)
The Good, The Bad And The Ugly: The Triangular Contest Over Privileged Information Relevant To Securities Litigation (PLI 2008) (with Shirli Weiss)
Five Tenets of a Document Retention Policy, 18:7 INSIGHTS 2 (July 2004) (with Diane Frankle)
State High Court Ruling Expands Securities Fraud Claims, 11:9 WASHINGTON LEGAL FOUNDATION COUNSEL’S ADVISORY (July 25, 2003) (with Paul Reynolds)
Enron Provides Lesson on Audits For Accountants & Public Companies, 17:14 WASHINGTON LEGAL FOUNDATION LEGAL BACKGROUNDER (Mar. 8, 2002) (with Henry C. Montgomery)
Financial Fraud Lawsuits: The Case For Stricter Judicial Scrutiny, 7:5 ANDREWS SECURITIES LITIGATION AND REGULATION REPORTER 15 (Sept. 26, 2001) (with Shirli Fabbri Weiss)
Who is Responsible for Financial Fraud?, 1203 PLI/Corp 651 (Sept. 21, 2000)
Piling On: The Reemergence Of The Parallel Derivative Lawsuit As The Federal Securities Class Action Window Closes, 1136 PLI/Corp 333 (PLI Sept.-Oct. 1999)
Directors’ Reliance On Internal Controls In Light of Caremark And W.R. Grace, 1070 PLI/Corp 285 (PLI Sept.-Oct. 1998) (with Bruce G. Vanyo)
The Pleading Standards and the Safe Harbor Provisions Of The Private Securities Litigation Reform Act of 1995, 1070 PLI/Corp 103 (PLI Sept.-Oct. 1998) (with Bruce G. Vanyo, Lloyd Winawer and Rebecca C. Mitchells)
Federal Securities Law and the Internet, 1 CYBERSPACE LAWYER 4 (July 1996) (with Boris Feldman)

Many of these articles are republished on his Internet site, www.10b-5.com. Mr. Priebe has also spoken on these topics, and in particular on Rule 10b5-1(c) stock trading plans.

Seminars

Since joining DLA Piper in 2001, Mr. Priebe has spoken at numerous professional seminars and presentations, including the following:

Document Retention and Corporate Governance, San Francisco (January 25, 2005)
The Evolving Landscape of Directors’ & Officers’ Liability, East Palo Alto (December 2, 2004)
Symposium on SEC Rule 10b5-1, East Palo Alto (November 4, 2004)
Directors' and Officers' Liability and Employment Practices Liability for Privately Held Companies, Sacramento (August 24, 2004)
Emerging Document Retention Issues and Practices, East Palo Alto, CA June 15, 2004
Emerging Issues In Directors' & Officers' Liability, Los Angeles (June 10, 2004)
Electronic Discovery And Document Storage: Management and Litigation Issues in California, Sacramento (February 19, 2004)
Electronic Document Management: Risks and Opportunities, San Diego (November 21, 2003)
Could Your E-mail or Document Management Systems Destroy Your Company?, San Francisco (May 1, 2003)
Electronic Discovery And Document Storage: Management and Litigation Issues in California, Sacramento (February 16, 2003)
"Compensation Committees: The Silicon Valley Model Under Siege," Venture Capital Task Force Seminar, Palo Alto (June 31, 2002)
Legal Implications of New Accounting Rules: Business Combinations and Goodwill, Palo Alto (July 31, 2001)


Prior Experience

Member (Partner), Wilson Sonsini Goodrich & Rosati, 1999-2001
Associate, Wilson Sonsini Goodrich & Rosati, 1990-1999
Judicial Extern, Honorable Milton Schwartz, United States District Court, Eastern District of California, 1988


Clerk Information

Judicial Extern, Honorable Milton Schwartz, US District Court, Eastern District of California (1988)
EDUCATION

J.D., University of California at Berkeley, Boalt Hall School of Law 1990
Order of the Coif
M.Phil., Political Science, Yale University 1983
B.A., Political Science and Mathematics, State University of New York at Albany 1981
Phi Beta Kappa


Related Global Services

Litigation and Arbitration
Corporate


Related United States Services

Litigation
Securities Litigation
Mergers and Acquisitions
Public Company and Corporate Governance


Related Regions

United States



Publications

Corporate Governance Alert
Annual meeting proxy lawsuits: a new twist on purportedly deficient disclosure?
Securities Litigation Alert
Supreme Court reinforces importance of carefully preparing public disclosures

Overview
RelSci Relationships

3899

Number of Awards

1

Relationships
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Managing Partner (Americas) at DLA Piper

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Co-Chairman, Americas at DLA Piper

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Global Co-Chairman at DLA Piper

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Managing Partner, New York Office at DLA Piper

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General Counsel, Europe, Middle East & Asia Pacific at DLA Piper

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Co-Chairman, Real Estate Capital Markets Group at DLA Piper

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Co-Chair, Federal Law & Policy at DLA Piper

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Partner at DLA Piper

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Partner at DLA Piper

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Partner at DLA Piper

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David A. Priebe
Partner at DLA Piper
Education
Juris Doctorate, Order of the Coif
Class of 1990

The University of California, Berkeley, School of Law, commonly referred to as Berkeley Law and Boalt Hall, is one of 14 schools and colleges at the University of California, Berkeley. Berkeley Law is consistently ranked as one of the top law schools in the nation, with acceptance rates lower than every school except Yale and Stanford. The Department of Jurisprudence was founded at Berkeley in 1894. In 1912, the department was renamed the School of Jurisprudence, which was then renamed the School of Law in 1950. The School was originally located in the center of the main UC Berkeley campus in the Boalt Memorial Hall of Law, built in 1911 with funds largely from Elizabeth Josselyn Boalt donated in memory of her late husband, John Henry Boalt. In 1951, the School moved to its current location in the new Boalt Hall, at the southeast corner of the campus, and the old Boalt Hall was renamed Durant Hall. In April 2008, the law school rebranded itself from "Boalt Hall" to "Berkeley Law", in order to more closely tie the law school's name with the campus upon which it resides. The administration hopes that this move will further increase the law school's prestige, since people will now associate it with the Berkeley campus.

Master of Philosophy in Political Science
Class of 1983

Yale University is an American private Ivy League research university located in New Haven, Connecticut. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States.

Bachelor of Arts in Political Science & Mathematics, Phi Beta Kappa
Class of 1981

The University at Albany, known officially as University at Albany, State University of New York, is an internationally recognized public research institution with campuses in Albany, Guilderland, and East Greenbush, New York, United States. The oldest university campus of the State University of New York (SUNY) system, founded in 1844, it carries out a broad mission of undergraduate and graduate education, research, and service, and has grown to be a flagship institution of New York. The University has three campuses: the Uptown Campus in Albany and Guilderland's McKownville neighborhood, the Downtown Campus in Albany, and the East Campus in East Greenbush, just east of Albany.

Career History
Partner
2001 - Current

DLA Piper provides legal services covering a broad range practice areas. It was created in 2005 by the merger of DLA, Piper Rudnick and Gray Cary, followed by growth in the CIS, Germany, Spain, Asia, the Middle East and US markets. Core practices include Litigation and Arbitration, Corporate and Finance, Real Estate and Real Estate Capital Markets, Regulatory and Government Affairs, Intellectual Property and Technology, Employment and Tax

Partner
1990 - 2001

Wilson Sonsini Goodrich & Rosati PC is the premier legal advisor to technology and growth enterprises worldwide, as well as the investment banks and venture capital firms that finance them. Over the past five decades, Wilson Sonsini Goodrich & Rosati has established its reputation by having an unmatched knowledge of its clients' industries and deep and long-standing contacts throughout the technology sector.The firm's legal expertise serves clients at all stages of growth, from venture-backed start-up companies to multibillion-dollar global enterprises. The firm's clients include some of the most recognized names in the technology, retail, life sciences, venture capital, and finance sectors.Their broad range of services and legal disciplines are focused on serving the principal challenges faced by management and the boards of directors of business enterprises. The firm is nationally recognized as a leader in corporate governance, public and private offerings of equity and debt securities, mergers and acquisitions, securities class action litigation, intellectual property litigation, joint ventures and strategic alliances, and technology licensing and other intellectual property transactions.The firm has offices in Austin, Georgetown, DE, Hong Kong, New York, Palo Alto, San Diego, San Francisco, Seattle, Shanghai, and Washington, DC.

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The University of California, Berkeley, School of Law, commonly referred to as Berkeley Law and Boalt Hall, is one of 14 schools and colleges at the University of California, Berkeley. Berkeley Law is consistently ranked as one of the top law schools in the nation, with acceptance rates lower than every school except Yale and Stanford. The Department of Jurisprudence was founded at Berkeley in 1894. In 1912, the department was renamed the School of Jurisprudence, which was then renamed the School of Law in 1950. The School was originally located in the center of the main UC Berkeley campus in the Boalt Memorial Hall of Law, built in 1911 with funds largely from Elizabeth Josselyn Boalt donated in memory of her late husband, John Henry Boalt. In 1951, the School moved to its current location in the new Boalt Hall, at the southeast corner of the campus, and the old Boalt Hall was renamed Durant Hall. In April 2008, the law school rebranded itself from "Boalt Hall" to "Berkeley Law", in order to more closely tie the law school's name with the campus upon which it resides. The administration hopes that this move will further increase the law school's prestige, since people will now associate it with the Berkeley campus.

Transactions
Details Hidden

Raytheon Company purchases Raytheon Applied Signal Technology, Inc.

Awards & Honors
Admitted to the California Bar
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