David Whittlesey

David Whittlesey

Partner

David focuses on complex commercial, business and intellectual property litigation. He has litigated numerous cases involving shareholder disputes, mergers and acquisitions, securities fraud claims, deceptive trade practices claims, patent infringement claims and trademark disputes.
In addition, he has significant experience with disputes relating to consumer products, license agreements, software, telecommunications, professional malpractice, trade secrets, real estate, insurance, banking, construction and oil and gas matters. He has represented clients in litigation and arbitration matters and in trial and appellate proceedings in several states and the District of Columbia. He also regularly counsels clients on compliance issues.

Experience

Representative matters

SECURITIES AND SHAREHOLDER LITIGATION

Lead counsel in numerous merger and acquisition disputes, representing both buyers and sellers in arbitrations and in litigation across several jurisdictions, including Delaware, Texas, New York, and California.

Represent certain defendants in consolidated securities litigation, regarding an alleged $1.8 billion “Ponzi scheme” purportedly orchestrated by GPB Capital Holdings, LLC and its owners.

Represented HPI Holdings, LLC in Delaware merger litigation brought by former stockholders of AdvantEdge Healthcare Holdings, Inc., who were seeking damages for alleged breach of an “earn-out” provision in the merger agreement. After full briefing and oral argument, obtained dismissal with prejudice of Plaintiffs’ “earn-out” claims on motion to dismiss.

Represented an insurance industry client in a multi-billion dollar securities class action arising from the Stanford alleged Ponzi scheme, a separate multi-billion dollar receivership claim, numerous related lawsuits filed in both state and federal court, a federal multi-district litigation (MDL) proceeding and appellate proceedings in the Fifth Circuit Court of Appeals and the United States Supreme Court.

Represented a publicly-traded technology company and its board of directors in a Delaware class action arising from a $560 million merger transaction. In re Mavenir Systems, Inc. Stockholders Lit. (Del. 2015).

Lead defense counsel for multiple former National Football League players (including two Heisman trophy winning quarterbacks) in connection with securities fraud litigation in state and federal court arising from the alleged Triton Financial Ponzi scheme. Secured dismissal of all claims with no money changing hands.

Texas counsel for private equity firm sued in connection with the $24 billion going private transaction of a publicly traded Austin based computer manufacturer. Successfully obtained stay of all proceedings in Texas courts in favor of related proceedings in Delaware.

Lead counsel for major international commodities firm in connection with an onslaught of shareholder litigation in state and federal court arising from the acquisition of a publicly traded Texas company. Secured dismissal of all of the plaintiffs’ claims in all cases with no money changing hands and no additional disclosures required.

Lead counsel for Atlanta-based Fortune 500 company in “entire fairness” merger litigation arising from the $134 million completed acquisition of an Austin-based Internet banking company.
Lead trial counsel for major Texas School District in a bond validation lawsuit seeking to validate $490 million in bonds challenged by a taxpayer group. Prevailed in all respects at trial, secured validation of the bonds, and obtained a $15 million bond requirement for any appeal of the judgment.

Trial counsel for major Texas city in successful public securities authorization validation lawsuit involving more than $600 million in projected future bond issuances.
Lead counsel for Austin-based software company in merger litigation involving claims of securities fraud, as well as claims concerning ownership rights to certain software following the completed merger.

Counsel for major Texas law firm in an $80 million lawsuit involving claims of alleged securities fraud.
Lead counsel for Chicago-based Fortune 500 company in arbitration proceeding involving claims of fraud, breach of contract and securities law violations in connection with the acquisition of a Texas-based company.

INTELLECTUAL PROPERTY LITIGATION

Lead trial counsel for defendant in trade secret case involving alleged theft of diamond technology for the manufacture of PDC inserts. The plaintiff sought more than $13 million in actual damages, punitive damages and attorneys’ fees. After a three-week jury trial, the jury found that no actual damages had been suffered. The Court entered a take nothing judgment in our client’s favor.

Lead counsel for multi-national telecommunications company in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Case dismissed against AT&T after summary judgment motion filed. Click-to-Call Technologies LP v. AT&T Inc., et al.

Lead counsel for wholly owned subsidiary of a multi-national telecommunications company in patent litigation in the United States District Court for the Northern District of Georgia, Atlanta Division. Case dismissed with no money changing hands. Visual Interactive Phone Concepts, Inc. v. AT&T Mobility.

Lead counsel for YETI Coolers in multiple consumer product trademark and trade dress disputes, including YETI Coolers, LLC v. Ontel Products Corporation et al.

Counsel for industry data and analysis company in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Dynamic 3D Geosolutions LLC v. IHS Inc. and IHS Global Inc.

Counsel for multi-national computer and electronics manufacturer defendants in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Bandspeed, Inc. v. Sony, et al.

Counsel for defendant in trade dress infringement action brought by Shell Oil Company alleging violations of the Lanham Act and Texas law in the United States District Court for the Southern District of Texas, Houston Division.

OIL AND GAS LITIGATION\

Lead counsel for publicly traded oilfield services company in connection with trade secrets litigation involving ownership and distribution of dissolvable frac plugs.

Trial counsel in Delaware Bankruptcy Court for the five day trial of an adversary proceeding on behalf of the debtor, Southland Royalty Company, in connection with a midstream contract dispute involving minimum volume commitments in a gas gathering agreement. Southland Royalty Company, LLC v. Wamsutter LLC; Adv Pro. No. 20-50551 (KBO).

Lead counsel for multiple oil and gas producers in connection with lawsuits in Texas, Louisiana, Alabama, and Oklahoma, arising from disputes over the purchase and sale of oil and gas properties.

Lead counsel for clients in various disputes concerning gas gathering, processing, and related agreements, including litigation in state and federal courts, in bankruptcy courts, and in arbitration proceedings.

Lead counsel for major midstream company in connection with $50 million dispute over firm transportation agreements for natural gas.

Lead counsel for directional drilling company in multi-jurisdictional lawsuits involving alleged failure to drill according to contractual requirements.

Lead counsel for directional drilling company in connection with trade secret litigation.

Antitrust Litigation

Lead counsel for leading health insurer in $100 million antitrust lawsuit brought by a failed hospital alleging a “hub and spoke” conspiracy.

Texas counsel for major international book publisher in connection with multi-state antitrust investigation and subsequent lawsuit arising from alleged antitrust conspiracy relating to e-books.

Counsel for major satellite broadcaster in “baseball style” arbitration against Big 4 network owned and operated television stations

OTHER COMMERCIAL LITIGATION

Lead counsel for national broadband provider in connection with multi-state contract dispute with business broker in Colorado and Georgia.

Lead counsel for YETI Coolers in state and federal court consumer class action litigation; obtained summary judgment in favor of client and dismissal of all claims with prejudice. Moore et al. v. Mack’s Sport Shop, LLLP D/B/A Mack’s Prairie Wings, LLLP and YETI Coolers, LLC.; in the U.S. District Court for the Eastern District of Arkansas.

Lead counsel for defendant marketing firm in Telephone Consumer Protection Act class action; secured summary judgment completely dismissing the litigation against our client. Smith v. Premier Dermatology, No. 17 C 3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019).

Texas counsel for national jewelry retailer “The Jewelry Channel” in class action alleging false advertising and other claims arising from television marketing practices; successfully defeated plaintiffs’ motion for class certification.

Lead counsel for major private equity firm in fraudulent transfer lawsuit arising from $94 million debt to equity restructuring transaction.

Lead counsel for mortgage company in defense of lawsuit involving alleged fraud and fraudulent inducement in an alleged “bait & switch” scheme relating to commercial mortgages.

Lead counsel for one of the defendants in a class action filed by 2,000 former Verizon retirees seeking statutory penalties of more than $70 million, claiming they had been improperly transferred from a fully funded and highly solvent Verizon retirement plan into the retirement plan of a publicly-traded spin-off entity. Obtained dismissal of all claims in the trial court, and an award of costs in favor of our client. Dismissal affirmed on appeal to the 5th Circuit. Philip A. Murphy v. Verizon, et al., in the United States District Court for the Northern District of Texas, Dallas Division.

Trial counsel in In re Schugg, a dispute over access to, and zoning of, a landlocked parcel of fee-simple property located entirely within the outer boundaries of the Gila River Indian Reservation near Phoenix.

Trial counsel in a two-week trial involving $4 million breach of contract, fraud and negligent misrepresentation claims against the client, a major national telephone company, resulting in a take nothing judgment in favor of the client and a recovery on $1 million counterclaim for attorneys’ fees.

Member of litigation team representing major semiconductor manufacturer in $500 million breach of contract case in the United States District Court for the Western District of Texas.
Lead counsel in more than 20 systems integration and software lawsuits and arbitrations for a major national telephone services provider.

Lead counsel for alleged control person of defunct HMO in a $180 million lawsuit brought by special deputy receiver. Claims included breach of fiduciary duty and related insurance code violations.
Counsel for Big 4 accounting firm in an arbitration proceeding relating to a business valuation prepared by the firm.

Lead counsel for directional drilling company in multi-jurisdictional lawsuits involving alleged failure to drill according to contractual requirements.Legal 500 US 2013 – International Arbitration

Amebal Dispute of the Year (2013) for the firm’s handling of The Dow Chemical Company v. Kuwait

American Lawyer’s Global Lawyer of the Year (2012)

Published Work

  • Shareholder Representative Servs. LLC v. HPI Holdings, LLC, No. 2022-0166-PAF, 2023 WL 3092895 (Del. Ch. Apr. 26, 2023)
  • In re Southland Royalty Co. LLC, 623 B.R. 64 (Bankr. D. Del. 2020)
  • Smith v. Premier Dermatology, No. 17 C 3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019)
  • Ontel Products Corp. v. YETI Coolers, LLC, 2017 WL 3033436 (D. N.J. 2017)

Speaking Engagements

  • Presenter, “Case in Point Webinar Series: Class Actions: Fundamentals & Trends” May 2017
  • Presenter, “Drafting Contracts and Related Legal Issues”, Belgian Economic Mission to the United States of America - Texas, December 2016
  • Presenter, “Trade Secret Claims Under the Texas Uniform Trade Secrets Act” September 2015
  • Presenter, “TexasBarCLE Essentials in Business Law Course” March 2015

Leadership Positions And Professional Affiliations

  • The General Counsel Forum, Board Member (2015-Current)
  • State Bar of Texas, Board Member, District 9 (2011-2014)
  • State Bar of Texas, Professionalism Committee (2015-2020)
  • Austin Bar Association, President (2010-2011); Secretary (2008-2009); Treasurer (2007-2008)

Awards

  • Profiled as a leading Commercial Litigation lawyer, The Best Lawyers in America®, 2013–2023
  • Ranked in Securities Shareholder Litigation (2015) and Securities Litigation – Defense (2016-2017), The US Legal 500
  • “Texas Super Lawyer”, Thomson Reuters, 2008–2020
  • “Texas Rising Star”, Thomson Reuters, 2005–2007

Qualifications

Admissions

Texas, 1994

Courts

United States District Court for the Northern District of Texas, 1998

United States District Court for the Southern District of Texas, 1998

United States District Court for the Eastern District of Texas, 1998

United States District Court for the Western District of Texas, 1998

United States Court of Appeals for the Fifth Circuit, 1999

United States Supreme Court, 2012

Academic

B.B.A., University of Texas, Austin, 1991

J.D., The University of Houston Law Center, magna cum laude, 1994
– Houston Journal of International Law
– Order of the Coif 
– Order of the Barons

Disclaimer
A&O Shearman was formed on May 1, 2024 by the combination of Shearman & Sterling LLP and Allen & Overy LLP and their respective affiliates (the legacy firms). Any matters referred to above may include matters undertaken by one or more of the legacy firms rather than A&O Shearman.