Kaye Scholer

Mr. Root's experience also includes conducting internal investigations on behalf of management and audit committees of public companies, and representing clients in governmental and regulatory investigations. Mr. Root counsels clients on compliance, governance practices and litigation avoidance strategies.

Prior to joining the firm, Mr. Root was an Associate General Counsel of litigation at Affymetrix, Inc., a biotech company in Silicon Valley, where he and other members of the in-house litigation team directly handled intellectual property and securities litigation matters. Before joining Affymetrix, Mr. Root was a Partner at Orrick, Herrington & Sutcliffe, LLP, in its San Francisco office. Earlier in his career, Mr. Root served as a Special Assistant District Attorney for the San Francisco District Attorney's Office and as a Judicial Clerk for the Honorable John T. Noonan, Jr., Circuit Judge for the United States Court of Appeals of the Ninth Circuit.

Mr. Root was a commissioned officer in the United States Navy before entering the legal profession, where he served as the Commander of a Navy SEAL platoon.

Representative Matters

Securities Class and Derivative Actions

• In re Affymetrix Derivative Litigation (N.D. Cal. 2006–present). Represent individual directors and officers in consolidated shareholder derivative action alleging stock option backdating.
  
  
• In re NovaStar Securities Litigation (W.D. Mo. 2004–07). Represented issuer (subprime mortgage lender) and top executives in defense of class action and derivative actions based on nondisclosure of alleged regulatory problems.
  
  
• Operating Engineers v. IMPAC Medical Systems (N.D. Cal. 2004–05). Represented issuer, directors and officers in obtaining voluntary dismissal of this and two related class actions claiming improper revenue recognition in connection with restated financial statements.
  
  
• Khader v. Affymetrix (N.D. Cal. 2003–04). Represented the issuer, directors and officers in obtaining dismissal of class action claiming misleading projections.
  
  
• In re Metricom Securities Litigation (N.D. Cal., 9th Cir. 2001–2005). Represented underwriters – Lehman Brothers, Inc., Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Inc., J.P. Morgan Securities, Inc. – in obtaining dismissal with prejudice of class action alleging claims of false and misleading statements in stock offering. The case was affirmed on appeal.
  
  
• In re Onyx Software Corp. Securities Litigation (W.D. Wash. 2001–03). Represented company, directors and officers in defense of class action and derivative actions claiming improper revenue recognition in connection with restated financial statements. Obtained dismissal of 10b-5 claim, balance settled without payment by clients.
  
  
• In re Clarent Corp. Securities Litigation (N.D. Cal. 2002–05). Represented a former CFO in defense of a class action and mass action (Ahlstrom v. Clarent Corp., D. Minn.), claiming improper revenue recognition in connection with restated financial statements. Obtained dismissal of a 10b-5 claim, balance settled without payment by client.
  
  
• Ameriks v. Zions First National Bank (D. Utah, 10th Cir. 1990–2000). Represented Zions bank in mass action alleging that Zions, as the indenture trustee, was liable for losses on debt securities issued by over 30 syndicated partnerships. Defeated plaintiffs’ motion for class certification and won summary judgment on each of the 28 causes of action, including claims under federal and state securities laws, ERISA, and common law fraud, contract and breach of fiduciary duty claims. Case affirmed on appeal.
  
  
• Shields v. Battaglia (Santa Clara Superior Court 1993–98). Represented 17 directors and officers of Varian Associates, Inc. in this shareholder derivative action alleging that the defendants obtained defense contracts by illegal means; successfully petitioned the California Court of Appeal for a writ of mandate directing entry of summary judgment in favor of all defendants, and a judgment of dismissal was entered by the Superior Court.

Financial Services/Fiduciary Litigation

• In re Dynegy, Inc. ERISA Litigation (S.D. Texas 2003–04). Counsel for three former directors of Dynegy in this class action on behalf of Dynegy employees who were invested in Dynegy stock through the 401(k) plan. All claims against his clients were dismissed with prejudice.
  
  
• Fuller v. Emmett A. Larkin Company, Inc. (Alameda Superior Court 2001–03). Represented brokerage firm against claims for conversion, negligence and breach of contract. Won summary judgment on all claims.
  
  
• Deimer v. Salomon Smith Barney Inc. (N.D. Cal. 1999). Represented SSB and its registered representative in obtaining dismissal with prejudice of action alleging misrepresentation and negligent failure to render tax and bankruptcy advice.
  
  
• Prosper Corporation v. Gary C. Johnson (Santa Cruz Superior Court 1995–97). Defended Merrill Lynch, Pierce, Fenner & Smith Inc. and Merrill Lynch Credit Corporation against claims arising from loans made to the individual defendant. After opening statements on first day of jury trial, the court granted our motion for non-suit as to 7 of the 8 claims. Case settled for nuisance value on remaining claim.
  
  
• American Investment Bank, N.A. v. McPhee (San Francisco Superior Court 1993–1996). Represented bank in collection action to recover amounts due on promissory notes the bank had purchased from certain limited partnerships. Successfully defeated the defense claim that the bank was not a holder in due course and prevailed on a motion for summary judgment. The summary judgment was affirmed on appeal.

Mergers & Acquisitions Litigation

• Penna v. Dresdner Kleinwort Wasserstein, LLC (Los Angeles Superior Court 2003–2005). Represented investment bank and executives in litigation arising from their services as financial advisor for acquired company in stock-for-stock merger. Obtained dismissal of the breach of fiduciary duty claim and claims under California’s Unfair Competition Law and securities statutes; remaining claims settled on favorable terms.
  
  
• U.S. Surgical Corp. v. Guidant Corp. (N.D. Cal. 2002–2003). Represented Guidant Corp. against claims arising from acquisition of a Guidant subsidiary. Settled case favorably after we demonstrated that a key document relied on by plaintiff had been forged by a third party.
  
  
• FPA Securities Litigation (S.D. Cal., 9th Cir. 1999–2004). Represented investment bank Volpe Brown Whelan & Co., which had served as financial advisor to the acquiring company in a stock-for-stock merger transaction, against Securities Act claims brought by shareholders of the acquired company. Won summary judgment in favor of Volpe, which was affirmed on appeal.

Unfair Competition Litigation

• Politzer v. Salomon Smith Barney, Inc. (Los Angeles Superior Court, removed to C.D. Cal., 9th Cir., U.S. Supreme Court, 2003–05). Represented SSB against claims brought under California’s Unfair Competition Law alleging misrepresentations by SSB in its research reports. Following removal, the district court denied the motion for remand and granted our motion to dismiss. The Ninth Circuit affirmed the dismissal, and the Supreme Court denied plaintiff’s petition for review.
  
  
• Lippitt v. Raymond James Financial Services, Inc. (San Francisco Superior Court, removed to N.D. Cal., 9th Cir. 2001–04). Represented Salomon Smith Barney Inc. in an action brought under California’s Unfair Competition Law in marketing of callable certificates of deposits. Case favorably settled during the initial procedural phase in the state court after denial of remand was reversed by Ninth Circuit.
  
  
• State of California v. Fremont Bank (Santa Clara Superior Court, 1994–98). Represented the bank in a civil enforcement action by Santa Clara District Attorney alleging claims of unfair competition and false advertising arising from the bank’s marketing of its no-cost mortgage loans. Negotiated favorable settlement.
  
  
• Wuttke v. Intersil, Inc. (Santa Clara Superior Court, 1992–93). Represented an electronics company against actions alleging state antitrust claim under California’s Cartwright Act and related claims for malicious prosecution and abuse of process. The action was dismissed with prejudice.

Intellectual Property Litigation

• Affymetrix, Inc. v. Illumina, Inc. (D. Delaware 2004–2008). Represented Affymetrix in patent infringement suit that culminated in $90 million settlement payment to Affymetrix.
  
  
• Oxford Gene Technology, Ltd. v. Affymetrix, Inc. (D. Delaware 1999–2001). Represented Affymetrix in high-stakes patent infringement case involving DNA micro-arrays. As case manager, oversaw fact and expert discovery, and drafting/editing of all written advocacy. Case settled after the initial phase of the jury trial.

Tax Litigation

• E. & J. Gallo Winery v. United States (U.S. Court of Federal Claims 1996–98). Represented Gallo Winery in a tax refund action challenging disallowance of expenses relating to its employee relocation program. The case settled after the court took our motion for summary judgment under submission.
  
  
• Fu Investment Co., Ltd. v. Commissioner of Internal Revenue (U.S. Tax Court 1995–98). Successfully defended investment company against claims that it owed taxes on interest payments on loans made through its Dutch finance subsidiary. After the Court granted our motion to compel discovery from the Treasury Department on its historical administration of the tax treaty with the Netherlands, the case settled favorably for our client.

Securities Arbitration

• Successfully represented broker-dealers and their registered representatives against investor claims in over 30 arbitration proceedings before the National Association of Securities Dealers, Inc., the American Arbitration Association and the Pacific Stock Exchange on behalf of such clients as Goldman Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Inc., Charles Schwab & Co. and Emmett A. Larkin Company, Inc. Obtained summary dismissal of all claims prior to evidentiary hearings in a number of these cases.