About the author
David Priebe, a partner of DLA Piper LLP (US), has practiced law for over twenty-five years in the Silicon Valley, California. His principal focus is the defense of issuers, officers, and directors in securities fraud and corporate governance matters. This includes private investor cases (class action and individual plaintiffs), shareholder derivative and merger cases, government investigations and litigation, corporate investigations, and pre-litigation disclosure and stock trading counseling. David also has defended consumer class actions, intellectual property cases, and other litigation or government matters for technology and life sciences companies, in both federal and State courts. David also supports DLA Piper's venture and private company practice on all start-up matters.
California Bar Number 148679
Admitted December 1990
- University of California at Berkeley (Boalt Hall) School of Law, J.D. (1990); Order of the Coif
- Yale University, M.Phil., M.A., Political Science (1983)
- State University of New York at Albany, B.A., Political Science and Mathematics (1981); Phi Beta Kappa
- Partner, DLA Piper LLP (US), 2001-present
- 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
- Prior to Law School: Marketing Communications and Desktop Publishing for high tech companies
The law is based on precedent and reason. It is the lawyer's job to mine these sources of knowledge in order to defend the client's interests and reputation. Living in the Silicon Valley, the natural and proper method is to pursue innovation and cross-disciplinary thinking. Moreover, the facts matter. Thus, based on his
- Deep study and knowledge of the law and the American court system
- Listening to the client
- Factual investigation and analysis
- Experience in litigating all types of cases for all types of businesses, and
- Collaboration with his colleagues across the USA and (if needed) around the world,
if there is a valid and material legal or factual argument to be made on your behalf, David will find it and assert it. In the securities and corporate governance area in particular, David systematically stays informed of and writes about new cases and regulations and owns and publishes this Internet site.
In securities fraud and corporate governance matters, David has represented current or former officers and directors of Countrywide Financial Corporation, KLA-Tencor, Tripath Technologies, Sipex Corporation, and Riverstone Networks; and the company and management or directors of Finisar, Super Micro Computer, Extreme Networks, Applied Signal Technology, Las Vegas Sands Corp., AXT, Santa Cruz County Bank, Openwave Systems, Foundry Networks, Monterey Pasta Company, Strategic Realty Trust, Trident Microsystems, Vantive, Immersion, Informatica, iPrint Technologies, InsWeb, NetRatings, Agile Software, ValiCert, Preview Systems, Virage, Calico Commerce, SONUS Pharmaceuticals, Genentech, The Boeing Company, Sybase, 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.
Outside of the securities area, David also co-lead counsel in a successful lending \ securities fraud arbitration on behalf of a defrauded borrower and a pro bono civil rights trial. From time to time, David also has represented companies in intellectual property and commercial cases, representing (among others) the Williams Companies, Borland, Network Associates, American Mensa Ltd., and Packard Bell; and in matters involving FDA regulations. David came to the Silicon Valley from the East Coast because he respected the contributions of technology companies, and is interested in advancing their valid interests in every way he can.
Represented the former CFO of Countrywide Financial Corporation in numerous class action, institutional, and regulatory lawsuits involving common stock purchasers and mortgage-backed securities investors.
- Won a motion to dismiss ruling that directors who sign an exemplar registration statement for a mortgage-backed securities offering are not liable under Section 11 of the Securities Act for alleged false statements in the prospectus supplements used later to conduct individual offerings. In re Countrywide Financial Corp. Mortgage-Backed Sec. Litig., 932 F. Supp. 2d 1095 (C.D. Cal. 2013). Our opponent in the case called our position unprecedented-and we agreed that it was, and then persuaded the judge that it was correct.
- Our other cases include SEC action that resulted in a settlement without fraud claims or an officer and director bar against our client, Securities & Exch. Comm'n v. Mozilo, No. CV 09-03944 (C.D. Cal.); two State court cases dismissed on our motions 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 Western & Southern Life Ins. Co. v. Countrywide Fin. Corp., Nos. 2:11-cv-07166 MRP etc., 2012 WL 1097244 (C.D. Cal. Mar. 9, 2012); and a summary judgment victory on a joint motion arguing that the statute of repose for Securities Act claims cannot be extended or tolled. Footbridge Ltd. Trust v. Countrywide Fin. Corp., 770 F. Supp. 2d 618 (S.D.N.Y. 2011).
Won dismissal of a securities class action case by obtaining the first judicial decision applying a Rule 10b5-1(c) stock trading plan 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. We also won the dismissal of parallel shareholder derivative lawsuit in the Superior Court of California, Monterey County.
Defeated an injunctive challenge to sale of high technology defense contractor, then won complete motion to dismiss after the transaction closed based on the novel argument that the action was derivative in nature under California law (unlike Delaware law). Jarackas v. Applied Signal Technology, Inc., No. 1:11 CV 191643 (Superior Court of California, Santa Clara County).
Led internal investigation for small-cap corporation seeking to go public through Regulation A offering in response to NASDAQ questions regarding background of former officer. The prompt response to NASDAQ (and cooperation from officer) resolved any issues and allowed company to commence the offering (2017).
Representing local bank accused of involvement in investment firm's Ponzi scheme.
- Won a motion to dismiss claims under Section 12(a)(2) of the Securities Act against a regional bank that allegedly solicited the sale of interest in an investment fund operated by Ponzi schemers. Bridges v. Geringer, No. 5:13-cv-01290-EJD, 2015 WL 2438227 (N.D. Cal. May 21, 2015). We prevailed on the basis that the complaint did not allege that our client used the means of interstate commerce in the alleged communications with investors. Again, our opponent called our position unprecedented in the context of this statute-and we agreed that it was, and then persuaded the judge that it was correct. We also won on the basis that the complaint did not allege that our client had any financial interest in the sales and hence was not a solicitor under the statute.
- Plaintiffs filed a new lawsuit in State court, which when consolidated with prior lawsuits resulted in successful motion to dismiss under Securities Litigation Uniform Standards Act of 1998. Bridges v. Santa Cruz County Bank, No. CV 181834 (Superior Ct. Santa Cruz Cty. Apr. 20, 2016).
- When plaintiffs in the consolidated cases filed new federal court lawsuit without subject matter jurisdiction, won motion to strike amended complaint on grounds that lack of jurisdiction at start meant no jurisdiction to amend. Strudley v. Santa Cruz County Bank, No. 15-cv-05106-EJD, slip op. (N.D. Cal. Sept. 29, 2017).
Won dismissal on forum non conveniens grounds in bet-the-company contract and fraud lawsuit arising from a stock-for-stock acquisition of a business by our Queensland, Australia-based alternative energy client. Summa Resource Holdings LLC v. Carbon Energy Ltd., No. 15-cv-05334-THE, 2016 WL 2593868 (N.D. Cal. May 5, 2016). This was the first time the judge has dismissed on this basis in over thirty-five years on the bench.
Wrote an article for a securities litigation professional journal in 1999, contending that shareholder derivative cases based on allegations also asserted in a parallel securities class action against the corporation were not in a corporation's best interests and should be stayed or dismissed. 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). At the time, while one case had suggested the concept, there were no decisions actually applying it. Since then, numerous courts have applied my position to dismiss or stay such cases.
Won decision declining to apply in a California court a Delaware law presumption that an increase in the price of a challenged transaction followed the filing of an M & A lawsuit challenging the same was caused by the plaintiff's attorneys and justifies awarding them fees. Capgrowth Group v. Vij, No. 1:12 CV 236874 (Superior Court of California, Santa Clara County Feb. 6, 2015).
Won a motion to dismiss a shareholder derivative lawsuit based on plaintiff's failure to plead contemporaneous ownership, where issue had not been raised when the shareholder had sent a pre-litigation demand on the corporation. Sokolowski v. Adelson, No. 14-cv-00111-JCM, 2014 WL 3748191 (D. Nev. July 30, 2014). In same shareholder's follow-on lawsuit, wrote successful motion to dismiss under res judicata and rarely-applied doctrines applicable to individual plaintiffs (failure to make true demand, statute of limitations). Sokolowski v. Adelson, No. A-16-739547-B (Dist. Ct., Clark County Nevada Jan. 4, 2017).
As an associate at my prior firm, selected and served as the principal legislative history researcher in support of advanced interpretation arguments in the seminal Reform Act case in the Ninth Circuit, In re Silicon Graphics Securities Litigation. In this capacity, was first to call attention to statute and legislative history requiring disclosure of all facts underlying allegations-which proved to be the key basis for the Ninth Circuit's affirmance of the dismissal.
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 & Exch. Comm'n 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, which initially had attempted to blame our client for suboptimal practices.
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).
Played a leading role in issuers' joint defense group in the 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).
Represented former CEO of a 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.
Successfully defended American Mensa in a copyright lawsuit based on the alleged infringement of intelligence text by New Zealand and Australia Mensa branches by presenting record that foreign entities were not affiliated with US group or subject to jurisdiction. Publicly praised by the worthy plaintiff after the fact as well qualified to be a Mensa member.
Drafted briefs and declaration that resulted in granting of motion to dismiss, and change in plaintiff's 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 (by separate counsel) exonerated our clients and resulted in a voluntary 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).
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).
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).
Assisted in drafting of brief result in grant of motion to dismiss class action complaint challenging terms of acquisition of high technology company on basis of State law preemption. 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 a copyright case that reached the United States Supreme Court, Lotus v. Borland.