Robert J. Malionek

Robert regularly represents private equity sponsors, broker-dealers, direct lenders, financial advisory firms, and other financial services clients, such as:

• Apollo Global Management
• Ares Capital Partners
• Barclays
• Blackstone Alternative Credit Advisors LP
• Bluetorch Capital
• FT Partners
• GE Capital
• JP Morgan Securities
• One Rock Capital Partners
• Orion Enerty Partners
• Oxford Finance LLC

His work includes representing:

Complex Commercial Litigation

• Clients in various complex litigation matters, including suits involving allegations of fraud, contract and transactional disputes, trade secrets, business disputes, lender liability, M&A litigation, class actions, unfair competition, hiring practices, fraudulent transfer, derivative contracts, private equity, and hedge fund disputes
• Credere Capital in:
  • Various bondholder liability management transaction litigations
  • A dispute among bondholder groups regarding collateral outside a restricted group
• Decathlon Alpha IV LP in successfully dismissing a fraudulent transfer lawsuit
• Ernst & Young in securing Daubert and summary judgment victories, and Tenth Circuit affirmance, in a Private Securities Litigation Reform Act (PSLRA) class action arising out of a $3 billion impairment by Williams Communications Group
• Financial institutions in disputes with borrowers and issuers, and in securities regulatory and internal investigations
• FT Partners in claims and litigations related to engagement letter disputes claiming hundreds of millions of dollars in damages, including:
  • A dispute with AlphaSense over improper termination
  • A breach-of-contract dispute arising from an engagement letter for investment banking services
  • Litigation against a financial advisory client
  • A dispute with Circle for failure to pay financial advisory fees
• Genesis Digital Assets in a $1.1 billion fraudulent transfer lawsuit brought by the FTX estate
• GoldenTree Asset Management in litigation related to indemnification claims related to the sale of a credit card receivables portfolio
• RingCentral in various matters, including:
  • Workout litigation related to its investment in a strategic partner in bankruptcy
  • Litigation regarding San Francisco’s 911 tax
  • Transactional regulatory advice

Legal Malpractice and Ethics

• A renowned national law firm in winning summary judgment against malpractice claims resulting from the failed restructuring of a wholly owned subsidiary of a publicly traded asset manager, whose founders were the subject of government investigations
• An Am Law 100 firm in connection with claims for legal malpractice, breach of fiduciary duties, and aiding and abetting fraudulent activity, brought by the liquidators of a hedge fund whose founders have been the subject of criminal investigation and prosecution
• A major law firm in a complete arbitration victory in connection with an action brought by former partners of a since-dissolved law firm seeking to recover millions of dollars from their capital accounts
• Lowenstein Sandler and its partners in achieving a complete victory in a high-exposure malpractice claim
• A law firm in its successful defense against malpractice claims by the bankruptcy liquidating trustee of a multibillion-dollar investment fund, whose principals faced fraud charges; Latham compelled arbitration after an evidentiary trial and defended against claims seeking to hold the firm responsible for the fund's fraud and bankruptcy
• A law firm in securing a complete arbitration victory in an action brought by former partners of an acquired firm seeking capital based on the client’s acquisition of the acquired firm’s assets
• Various other law firms in defending against malpractice and aiding and abetting fraud claims, and as a consulting and testifying expert on issues of legal ethics
• Law firms, private equity funds, financial institutions, and others on various issues of legal ethics, risk management and financial restructurings and investments

Creditors Rights, Financial Disputes, and Bankruptcy Litigation

• Binance.US in litigation against Voyager Digital’s Liquidation Trust as part of Voyager’s bankruptcy case, in which Binance.US terminated an asset purchase agreement
• JPMorgan Chase as the prepetition agent in connection with the Chapter 11 liquidation of the largest independent wholesale food distributor in the United States, Harvest Sherwood, in which Latham was able to ensure the client received priority recovery
• Orion Energy Partners (now Orion Infrastructure Capital) through the bankruptcy restructuring proceedings of a biofuel conversion construction project
• Financial advisors and investment funds in business disputes and litigations in federal and state court
• GE Capital in dismissals and appellate victories in several civil conspiracy claims arising out of the Petters Ponzi activity
• Wilmington Trust and bank syndicates through various cramdown plan confirmation trials in a range of industries
• A major financial institution as indenture trustee in obtaining injunctive relief against a bond issuer to install significant controls over a casino’s operations to protect bondholders’ collateral
• A major financial institution as administrative agent in successfully bringing fraudulent transfer claims against the former owner of a Major League Baseball franchise
• Several bankruptcy debtors in reorganization proceedings through plan confirmation trial and other contested matters
• A crypto mining company in its defense in a $1.1 billion fraudulent transfer adversary proceeding in the FTX bankruptcy
• A crypto trading platform in an adversary proceeding against a liquidating trustee for another crypto platform
• Beneficiaries of various family trusts and related vehicles in litigation and arbitration in multiple states over trustees’ actions to prevent beneficiaries from participating in investment opportunities
• Family trusts and beneficiaries in disputes with related trusts over use of material non-public information

Employment Litigation

• Safeco in an employment class action involving alleged improper classification of exempt employees. Both plaintiffs’ claims were dismissed and their motion to pursue a class action was denied
• An insurance company in the defense of a nationwide opt-in class action alleging misclassification of adjusters. The court granted Latham’s motion for summary judgement and was affirmed on appeal
• City of Hope in the successful defense of:
  • A wrongful termination claim filed by a former employee alleging retaliatory termination
  • An employment suit alleging race, national origin, and disability discrimination
• The Big 4 accounting firms in securing dismissal of a statewide wage-and-hour class action brought by manager-level auditors
• A US state in an adverse impact lawsuit brought by the US Department of Justice (DOJ) challenging the state's hiring practices for State Troopers
• A US city in the successful defense of an employment class action brought by the DOJ challenging the City's police officer and firefighter hiring practices
• A financial services firm in an employment dispute with several of its founding partners.
• A US city in the successful defense of an employment suit brought by the DOJ against the police and fire departments alleging a pattern of discrimination in hiring and employment
• An executive of a New Jersey company in the defense of sex discrimination and sexual harassment claims

Financial Disputes, Investigations, and Fintech

• A major financial institution as administrative agent in successfully bringing fraudulent transfer claims against the former owner of a Major League Baseball franchise. Latham's role in the matter included taking depositions of the MLB Commissioner
• Syndicates of lenders in litigation and disputes involving NHL and MLS franchises
• GE Capital in dismissals and appellate victories in several civil conspiracy claims arising out of the Petters Ponzi activity
• Wilmington Trust and bank syndicates through various cramdown plan confirmation trials in a range of industries
• A major financial institution as indenture trustee in obtaining injunctive relief against a bond issuer to install significant controls over a casino’s operations to protect bondholders’ collateral
• Spansion as bankruptcy debtor in defeating a motion to appoint an equity committee, and through plan confirmation trial

Pro Bono

• Asylum seeker Jose Linares in securing two reversals by the Second Circuit of the Board of Immigration Appeals’ claim denials (after having been appointed by the Second Circuit to represent Mr. Linares)
• A class of tenants in a suit against an LA slumlord, successfully appointing a receiver to deliver safe housing
• A class of New York minors in an Administrative Procedure Act claim against a federal policy denying Special Immigrant Juvenile Status based on New York Family Court guardianship orders for those over 18
• The Legal Services Corporation’s Disaster Task Force as its general counsel, revamping the way in which pro bono organizations, governments, state court systems, aid agencies, and private businesses can collaborate to deliver effective legal services to those most in need following a natural disaster

Select Speaking Engagements

• Co-Chair, Panelist and Moderator of “Audit Committees and Financial Reporting: Recent Developments and Current Issues,” PLI Program (January 2023)
• Speaker, “Audit Committee/Special Committee Investigation – The Outside Counsel’s Perspective,” and “Legal Ethics Issues” PLI Program (January 2023 and January 2022)
• Panelist, “Attorneys as Whistleblowers,” ABA (June 2021)
• Speaker, “SPAC-related Litigation Risks and Mitigation Strategies,” Latham & Watkins (Webinar May 2021, with updates August 2021 focusing on the Asia market, and November 2021 for the ABA)
• Speaker, “COVID-19 Pandemic-Related Compliance, Financial Reporting & SEC Enforcement Considerations,” Securities Docket (June 2020)
• Panelist, “Evolving Issues in Ethics for Lawyers and Accountants,” PLI Program (May 2021 and May 2020)
• Speech regarding release of LSC Disaster Task Force Report, available online (November 2019)
• Speaker, “In-House and in Compliance: Key Ethics Issues for In-House Lawyers,” Lawdition, available online (February 2019)
• Numerous internal firmwide training on conflicts of interest and various other legal ethics and risk management issues 

Select Media and Publications

Robert is frequently quoted in leading publications, such as Bloomberg, Compliance Week, Wall Street Journal, and Wall Street Lawyer.

He has also written articles on a variety of commercial litigation topics, including:

• Five Key Takeaways: SPAC-Related Litigation Risks and Mitigation Strategies,” ACC (August 2021)
• “M&A Pandemic Litigation and the ‘AB Stable’ Decision,” New York Law Journal (February 2021)
• “The Receipt of Inadvertently-Disclosed Confidential Information: Practical Guidance for Attorneys Practicing in New York,” New York City Bar White Paper, available online (March 2019)
• “Second Circuit Backs Foreign Clawback Claims in Madoff Bankruptcy Action,” Harvard Law School Bankruptcy Roundtable (April 2019) and Latham & Watkins Client Alert (March 2019)
• “Civil Legal Aid’s Essential Role In Wildfire Response,” Law360 (January 2019)
• “Five Keys to Analyzing a Material Adverse Effect,” New York Law Journal (March 2019) “Read Before Whistleblowing: What Every Lawyer Needs to Know,” JD Supra and Latham & Watkins Client Alert (October 2013) 
• “The Auditor’s Need For Its Client’s Detailed Information vs. The Client’s Need to Preserve the Attorney-Client Privilege and Work Product Protection: The Debate, The Problems, and Proposed Solutions,” ABA, available online (April 2006)