David J. Kerstein

David J. Kerstein is of counsel in the New York office of Gibson, Dunn & Crutcher. He is a member of the Firm’s Litigation Practice and focuses on complex commercial disputes (with an emphasis on corporate control disputes, fiduciary duty litigation, bankruptcy litigation and arbitration). He has represented clients in state and federal courts and before arbitration panels in a variety of matters across the United States and internationally in cases involving breach of contract, shareholder disputes, fraud claims, corporate control contests, bank fraud, securities law violations, purchase price adjustment disputes, trade secrets, employment disputes and other matters. Mr. Kerstein regularly represents plaintiffs, for whom he has recovered substantial sums or achieved significant injunctive relief, and defendants, for whom he has achieved trial court victories or favorable outcomes.

Mr. Kerstein joined Gibson Dunn in 2000 after being associated with the law firm of Chadbourne & Parke LLP. He earned his Juris Doctor from the University of Pennsylvania Law School in 1999 where he was a member of the Sports Law Society; served as a summer clerk to The Honorable Joanna Seybert, United States District Judge for the Eastern District of New York; and graduated as a Toll Scholar. Mr. Kerstein is a graduate of the School of Arts and Sciences at the University of Pennsylvania, where he was a Benjamin Franklin Scholar and received a degree in diplomatic history. During this time he worked first for United States Senator Alfonse M. D’Amato (New York), and then for United States Senator and Minority Whip Alan K. Simpson (Wyoming).

Mr. Kerstein is admitted to practice in the State of New York and before the United States District Court for the Southern and Eastern Districts of New York. He is a member of the Association of the Bar of the City of New York and the New York State Bar Association.

Representative engagements include:
Corporate Control Matters

Represented Delcath Systems in successful defense of consent solicitation by an activist shareholder to replace the entire board. Despite receiving sufficient shareholder votes, the activist investor was prevented from replacing the board with his nominees because of the various restraining orders and the preliminary injunction Mr. Kerstein and Delcath Systems won in the U.S. District Court for the Southern District of New York.
Represented Parlux Fragrance in successful defense of consent solicitation by an activist shareholder to replace the entire board. After achieving, in effect, a stay on the consent solicitation following our emergency application for relief on both antitrust and securities grounds in the U.S. District Court for the Southern District of New York, and following pitched discovery, Parlux resolved the battle without giving control to the insurgents.
Represented the Special Committee of the Board of Directors of iBasis in successful defense of hostile tender offer by iBasis’ majority shareholder. After the Special Committee rejected the acquirer’s initial offer, Mr. Kerstein, et al, filed actions in the Southern District of New York and Delaware Chancery Court to preliminarily enjoin the tender offer. Following a trial on the merits, the majority shareholder increased its original bid for the company by over 90%, and the Special Committee recommended the offer.
Regularly provides advice to companies, special board committees and activist shareholders on corporate control, mergers and acquisitions and litigation related matters.

Arbitration Matters

Represented General Growth Properties, Inc. (GGP) in an arbitration against the heirs to the Howard Hughes estate. After the liability phase of the hearing, the arbitration panel ruled in favor of GGP on six of seven of the heirs' claims, and, with respect to the seventh claim, found zero damages.
Represented Sun International, an insurance company, in successful defense against fraud and breach of contract claims related to reinsurance contracts.
Successfully defended Fortune 500 company in purchase price adjustment arbitration resulting in a finding of no liability on all claims brought against the company.
Brought purchase price adjustment arbitration on behalf of large private company resulting in a significant settlement for the claimant.
Defended steel producer in international arbitration involving a dispute over shipped goods. Successfully used procedural defenses to secure favorable settlement for client.

Bankruptcy Matters

Represents directors/claimants in U.S. and Cayman Island bankruptcy proceedings of PlusFunds and SPhinX.
Represented debtors FINOVA Capital, and Resorts International in their respective bankruptcy reorganizations which included advice and litigation on environmental, employee benefit and contract formation and rescission issues.
Filed motion to remove suit brought against major media company to bankruptcy court in order to obtain a speedy resolution of contract dispute related to the claimant's bankruptcy case. Succeeded in negotiating favorable settlement of case after the motion to remove the case to the bankruptcy court was granted.
Successfully defended a major financial services company in bankruptcy against administrative expense claims arising out of a loan contract.

Additional Representative Matters

Lead associate of litigation team that represented private equity funds, and won a complete victory at trial, in a shareholder litigation concerning fraud and breach of fiduciary duty allegations stemming from the funds’ investment in a portfolio company.
Defended PricewaterhouseCoopers LLP against claims of negligence and fraud related to the bankruptcy of a health maintenance organization, resulting in a favorable settlement.
Advised a Fortune 500 company of litigation risks associated with a spin-off transaction of a subsidiary with product liability risks.
Defended a major commercial lender in a contract dispute over its lending practices and policies.
Defended Computer Sciences Corporation in a breach of contract action related to a failed merger attempt and breakup fee.
Brought suit against former employee of Aon for breaching a covenant not to compete and for misappropriating confidential trade secrets.
Brought suit against 25 note issuers and former employees of a premier medical technology firm over the note issuers failure to make promised payments with respect to their notes.
Represented an alcohol wholesaler in an action seeking to repudiate New York's three-tier system of alcohol distribution on constitutional grounds.
Brought suit against the provider of website backup facilities for breach of contract and fraud related to a failure to provide service.
Defended a real estate developer against fraud and breach of contract claims related to the purchase of an interest in undeveloped property.
Brought suit against a joint venturer for recovery of funds disbursed to support a real estate project that the plaintiff was fraudulently induced to participate in.

Good to know

Areas of Practice 1) Emerging Technologies, 2) Securities Litigation and 3) White Collar Defense and Investigations
Law School University of Pennsylvania Law School, Penn Law, J.D., 1999
Education University of Pennsylvania, B.A., 1996
Bar Member / Association New York State Bar Association
Most recent firm Gibson, Dunn & Crutcher LLP
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