David R. Fertig

Partner | New York

dfertig@mofo.com | (212) 336-4408

dfertig@mofo.com
(212) 336-4408

My clients rely on my ability to quickly learn and understand their businesses and the complex issues they face, and to partner with them in protecting their interests through a combination of pragmatic counseling and zealous advocacy.

David has over 20 years of high-stakes commercial litigation experience, including in matters involving fraud, contract and IP issues, labor and unemployment, real estate, bankruptcy, and insurance. A partner in our Commercial Litigation Group, David takes a 360-degree view of his clients’ businesses and partners with them to provide practical advice through difficult issues.

During his more than two decades in practice, David has developed a reputation for protecting the interests and core assets and investments of some of the world’s most sophisticated companies through a combination of sound pre-litigation advice and zealous trial advocacy, including in class actions, “mass” actions, and multi-district litigation (MDL) proceedings. His multidisciplinary commercial litigation practice spans the full spectrum. He routinely advises companies across a broad range of industries, including in the media and entertainment, private equity, financial services, retail, infrastructure, and information sectors.

David received his undergraduate degree from Princeton University, where he was a William H. Cane Scholar and an Edward J. Bloustein Distinguished Scholar. He received his J.D. from Brooklyn Law School, where he was a Richardson Merit Scholar, a Markhoff Merit Scholar, and where he served as a notes and comments editor on the Brooklyn Law Review. Prior to entering private practice, David clerked as a summer intern for the Honorable Denise L. Cote, United States District Judge for the Southern District of New York, and served as an intern in the United States Attorney’s Office for the Eastern District of New York.

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Experience

  • Won summary judgment resulting in complete dismissal of claims against a private equity firm in a nationwide antitrust class action alleging that it, and 10 of the other largest private equity firms and investment banks in the world, violated the Sherman and Clayton Acts through “club” bidding practices.

    Represented an urban intercollegiate sports association in an antitrust action against a national collegiate sports association seeking to invalidate certain practices as illegal group boycotts.

  • Represented a well-known fashion and accessory retailer in a valuation dispute and contested litigation proceedings relating to the ultimately successful confirmation of the company’s Chapter 11 plan of reorganization.

    Represented a NY retailer in contested motion practice and litigation relating to its voluntary Chapter 11 case.

    Represented a global financial services firm and its affiliated debtors in various Chapter 11 bankruptcy proceedings, including stay enforcement actions, setoff and avoidance actions, and actions relating to the prosecution and defense of claims by and against the debtors’ estates arising from early termination of the debtors’ multibillion dollar derivatives portfolio.

  • Defended a global equity asset manager and its investment adviser affiliates against multimillion-dollar claims for breach of contract, unjust enrichment, civil conspiracy, and unfair and deceptive trade practices.

    Defended a global financial services firm against tortious interference, breach of contract, and third-party indemnity claims in an action by an insurance adjuster.

    Represented several healthcare insurers and their affiliates in twin class actions by Connecticut and New York healthcare providers challenging certain practices as unfair trade practices.

  • Represented a not-for-profit developer of educational curriculum in a copyright infringement action against a global consulting firm.

    Represented a well-known fashion designer and cosmetics manufacturer in proceedings before the U.S. Patent and Trademark Office (USPTO) and the Trademark Trial and Appeal Board (TTAB) relating to the registration of various trademarks sought by the company over the objection of the USPTO.

    Counseled a global pharmaceutical company on range of copyright and IP issues, including: copyright infringement claims asserted by a stock photo company; licensing of proprietary instructional videos for use by government agencies; and registration issues pertaining to co-authorship of copyrightable works.

  • Advised a Canadian crown corporation regarding potential litigation exposure and risks associated with its investment in a leading insurance broker and its investment and interests in a major satellite communications company.

    Advised a lender and alternative asset manager regarding litigation risks, corporate governance issues, and fiduciary obligations.

    Advised a global private equity investment firm with respect to litigation risks associated with the firm’s 200 million dollar investment and acquisition of a majority stake in a third-party provider.

  • Represented a global financial services firm’s real estate unit, and its joint venture partner, in a $120 million insurance coverage dispute.

    Represented long-term care insurers in a multimillion-dollar arbitration against a reinsurer arising from the reinsurer’s attempted termination of certain quota share and “excess of time” reinsurance treaties between the parties.

  • Represented a well-known asset management firm in a dispute over its limited partner and participation rights with respect to management fees and carried interest earned by a “spin-off” fund.

    Represented a commercial and residential real estate developer and its founder and managing member in $25 million breach of contract, breach of fiduciary duty, and accounting action arising from dissolution of a limited liability company.

    Secured an arbitral award, following an ICDR arbitration, prohibiting a multinational pharmaceutical company’s joint venture partner from terminating the parties’ global collaboration agreement.

    Defended the advisory and capital-raising services arm of an Australian multinational investment bank and financial services firm, and various of its officers, against claims of fraud, breach of contract, and breach of fiduciary duty.

  • Represented a leading modeling agency in an industry-wide class action alleging that it, and other well-known modeling agencies, violated the New York Labor Law, breached their contractual and fiduciary duties, and committed fraud by failing to pay minimum and other wages and systematically concealing the usage of models’ images.

    Conducted investigation into, and provided advice and counseling concerning, allegations of disparate treatment and disparate impact discrimination leveled against a major railroad in connection with the reorganization and re-titling of its non-agreement workforce and the adoption of a revised compensation program.

  • Secured a multimillion-dollar arbitration award on behalf of a global pharmaceutical company following a private, ad hoc arbitration relating to royalties payable under a license agreement relating to certain patented technology.

    Represented a multinational pharmaceutical company in several breach of contract, breach of warranty, fraud, and misappropriation disputes with various biotechnology firms arising from the performance and/or termination of license agreements relating to the discovery, development, and commercialization of novel therapies.

    Represented a multinational media conglomerate in a dispute with a major exchange relating to alleged breaches of a license agreement relating to certain market data and other proprietary content.

    Represented a large American energy techniques company and its parent company in a multimillion-dollar breach of contract action arising from the alleged breach and termination of a contract for the manufacture and sale to a South American joint venture of combustion turbines, generators, and related power generation equipment.

  • Represented a marquee retailer in a breach of contract action against a well-known commercial developer and landlord arising from the suspension of rent payments and subsequent cancellation of its commercial lease.

    Defeated a commercial tenant’s breach of contract and injunctive relief suit against a university landlord arising from its exclusion of the tenant’s non-unionized laborers from the building following a threatened strike by unionized contractors employed by the university.

  • Defended an aerospace and defense contractor against tortious interference and misappropriation of trade secrets claims.

    Represented a legal process outsourcing company and its affiliate in the successful enforcement of non-compete, non-solicitation, and non-disclosure covenants against a former key account executive who resigned to become the vice president of global legal solutions for a competitor.

    Secured an injunction on behalf of a healthcare cost containment provider against a competitor and several former employees who orchestrated and participated in an en masse departure.

    Secured a preliminary injunction on behalf of an insurance brokerage prohibiting the former managing director and head of its Pacific Rim operations from directly or indirectly soliciting its customers, recruiting its employees, or disclosing its trade secrets following his defection to a competitor.

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