David B. Bergman | People | Arnold & Porter

David Bergman is a first-chair trial lawyer who represents a wide range of clients — including leading financial institutions, private equity funds, public and closely held companies, board committees, individuals, and foreign sovereigns and corporations — in complex commercial disputes. He has extensive experience in federal and state court litigation, domestic and international arbitration, and administrative and enforcement actions, including those brought by the OCC, FDIC, FTC, and SEC. David represents plaintiffs and defendants in breach of contract, fiduciary duty, corporate governance, and fraud actions, including disputed merger and acquisition transactions, and defends against putative class actions and government enforcement actions presenting claims under securities, antitrust, banking, and consumer protection laws. He also maintains an active pro bono practice.

Focus Areas

Experience

Mortgage originator EquiFirst Corp. in successful defense against claims of alleged breach of representations and warranties in connection with origination and securitization of residential mortgage loans. MASTR Asset Backed Securities Trust 2006-HE3 ex rel. U.S. Bank Nat. Ass'n v. WMC Mortg. Corp, et al., 843 F.Supp.2d 996 (D. Minn.).
Leading international financial institution in week-long AAA arbitration trial against breach of contract claims brought by Fortune 500 corporate business partner. Defeated claims for more than $40 million in damages as well as claim for specific performance that would have cost client additional tens of millions of dollars.
Financial institution in successful defense against state court action for breach of contract in connection with servicing for more than $100 million of loans. Won motion for summary judgment. Sherman Originator LLC v HSBC Taxpayer Services (NY County Supreme Court).
Financial institution in successful defense against federal court action for alleged breach of contract to originate billions of dollars in short-term loans. H&R Block v. HSBC (E.D. Mo.).
Private equity firm in putative class action claiming WARN Act violations. Won motion for summary judgment. Cleary v. American Capital Ltd., 59 F.Supp.3d 249 (D. Mass.).

Private equity firms and members of the board of directors in litigation asserting claims for breach of fiduciary duty in connection with failed portfolio companies. Litigation has involved portfolio companies in various industries, including candy and confection, real estate, electrical contracting, and steel mining.
Federal Housing Finance Agency in litigation asserting alleged breach of contract, breach of duty, and related claims in connection with the operation and funding of Fannie Mae and Freddie Mac in conservatorship. Numerous cases in federal courts across the United States seeking hundreds of billions of dollars in damages.
Large financial institution in litigating and negotiating a favorable settlement in connection with broken M&A transaction. Dispute involved contract for sale and acquisition of network of bank branches with hundreds of millions of dollars in deposits. Fifth Third Financial Corp. and Fifth Third Bank, N.A. v. First Horizon National Corp. and First Tennessee Bank National Association (Tennessee Chancery Court).
"Big Five" accounting firm in successful defense against claims of fraud, negligence, and professional malpractice brought by New York Superintendent of Insurance.
Individual and institutional trustees in arbitration of dispute over administration of estate and related trusts. Defeated attempt to remove as trustees and obtained removal of co-trustee.
Estate of prominent investor and philanthropist in federal court action brought by creditor. Defeated motion for Preliminary Injunction over claims of fraudulent transfer. T.D. Bank v. Pearl, 891 F.Supp.2d 103 (D.D.C.).
D.C. real estate developer in dispute with partners concerning ownership and management of hotels and apartment buildings worth in excess of $200 million. Claims for breach of fiduciary duty, breach of contract, and fraud. Obtained favorable settlement.
Lawyer in federal court action for claims of defamation. Won motion to dismiss. Marsh v. Hollander, 339 F.Supp.2d 1 (D.D.C.).

The Kingdom of Saudi Arabia and its Ministry of Defense and Aviation in successful defense against claims for alleged breach of contract and various business torts. Lead counsel at week-long trial in District Court and on appeal (argued). Defeated some claims on basis of foreign sovereign immunity; defeated all remaining claims after trial on the merits. UNC Lear Services Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210 (5th Cir.); 720 F. Supp. 2d 800 (W.D. Tex.).
SunTrust Bank, the successor-in-interest to plaintiff American Federal Bank, in obtaining a $31 million judgment for a breach of contract action arising from the acquisition of four savings and loan institutions. Lead counsel in a two-week trial on liability and a subsequent three-week trial on damages. Argued the case on appeal, where the Federal Circuit affirmed the damages award in its entirety. American Federal Bank, FSB v. United States, 72 Fed. Cl. 586; 62 Fed. Cl. 185, aff'd 295 Fed. Appx 368 (Fed. Cir.).
Old Stone Corporation, a financial services holding company, in a breach of contract action against the United States in connection with Old Stone's acquisition of two savings and loan institutions. Prevailed in four-week trial and appeal. Court of Appeals affirmed award of $74.5 million. Old Stone Corp. v. United States, 63 Fed. Cl. 65, aff'd in part, 450 F.3d 1360 (Fed. Cir.).
Former Vice Chair of the Federal Reserve Preston Martin and two other individual investors as lead counsel in a six-week damages trial, bringing breach of contract claims against the United States arising out of their acquisition of a failed savings and loan. The trial court awarded clients $15.7 million. Southern California Federal Savings and Loan, et al. v. United States, 57 Fed. Cl. 598.
Prominent trust company in successful defense against claims for $75 million in damages for alleged fraud and breaches of contract and fiduciary duty in connection with investment management services. Won directed verdict after three-week jury trial. Thompson v. Glenmede Trust Co., et al., 1996 WL 635682, E.D. Pa.

Cellular telephone system operator in successful defense of claims of breach of contract and business torts brought by consultant and promoter. Won jury verdict after one-week trial. EDM & Associates v. GEM Cellular (D.C. Superior Court).

Leading banks, thrifts, mortgage brokers, and credit card issuers in individual and putative consumer class actions, including claims for alleged Truth In Lending Act (TILA) violations, predatory lending, breach of representations and warranties in connection with securitized loans, and fraud. Representative clients have included Bank of America, Aurora Loan Services, EquiFirst, Barclays, and CompuCredit.
Turkish steel company in successful defense against claims for alleged breach of contract. Won motion to dismiss after limited jurisdictional discovery. Corus International Trading Ltd. v. Erdemir, 765 F. Supp. 2nd 1079 (N.D. Ill).
Bulgarian bank in federal court action alleging fraudulent transfer.
Major international auto manufacturer in successful defense of putative class action claims brought under Alien Tort Claims Act.
Audit Committees of Boards of Directors of major international companies in conducting internal investigations, including with respect to allegations of insider trading and other financial fraud.

Property owner in an international arbitration action against the Republic of Costa Rica in connection with the expropriation of a large parcel of real estate. Obtained $16 million award. International Centre for Settlement of Investment Disputes, Case. No. ARB/96/1.
Argentine Republic in arbitration over water concession contract brought by Compagnie Générale des Eaux (France). International Centre for Settlement of Investment Disputes, Case. No. ARB/97/3.