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Jonathan Sherman

Partner
Washington, DC

t: 202 237 9605
f: 202 237 6131

jsherman@bsfllp.com
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Areas of Practice

Litigation

Appellate

Class Actions

Constitutional Law and First Amendment / Mass Media

Crisis Management and Government Response

Global Investigations and White Collar Defense

Securities Litigation


Education

Stanford Law School, J.D., 1991; Articles Editor, Stanford Law Review; Law Review Board of Editors' Award for Outstanding Editorial Contributions, Vol. 42; Hilmer Ohelman, Jr. Award for Excellence in First Year Research and Writing

Yale University, M.A., History, 1989; Yale Fellowship

University of Rochester, B.A., magna cum laude, History, 1984; Phi Beta Kappa; Highest Distinction in Major


Admissions

District of Columbia and New York

United States Supreme Court

United States Courts of Appeals: First, Second, Third, Ninth and Eleventh Circuits

United States District Courts for the Southern, Eastern and Western Districts of New York; United States District Court for the District of Columbia

Jonathan Sherman is a civil litigator specializing in high-risk commercial disputes—particularly those involving the strategic use of reputation and publicity.  In its annual rankings, Lawdragon Magazine has named him one of America’s 500 Leading Lawyers since 2012 (click here) (click here).  One of its recent “Lawyer Limelights” dubbed him “Floyd Abrams meets David Boies with a side order of Hunter S. Thompson.”  (click here)

Jonathan is a generalist by instinct.  He has led trials, arbitrations, mediations and multi-party negotiations representing an eclectic mix: from mine owners to media conglomerates, financial institutions to fashion houses, a publicly traded on-line gaming company to privately-owned, bricks-and-mortar investment funds.  He represents class and opt-out plaintiffs, as well as defendants.  His work has taken him to proceedings on six continents.

Three years out of law school, he joined the Court TV outside counsel team that later successfully argued that for television coverage of the O.J. Simpson homicide preliminary hearing and trial.  He has since become known all over the world as an advocate for cameras in courts, an expert on freedom of speech, and twice been published on the op-ed page of The New York Times. (click here) (click here)

Jonathan’s bread and butter work has involved securities, financial instruments, consumer protection, employee/employer benefits, and commercial contract and tort cases.  In the First Amendment area, he has represented (and sued) members of the news media in defamation cases, litigated access rights to judicial proceedings, protected offensive speech (e.g., federal funding for the NEA; Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl), negotiated pre-publication resolutions that protect the creative rights of artists, and defended members of the news media against competitors.

As the “information age” has evolved from technological curiosity to restructured global economy, Jonathan’s commercial litigation and First Amendment practices increasingly have overlapped. Drawing on his expertise in both areas--commercial disputes and free speech litigation--Jonathan occupies a unique vantage point: he helps his clients ask and answer the foundational questions the new economy raises in every case.  Is information a commodity or is it content?  Does the law “think” of it as private property or as creative expression?  When can clients rely on law that has governed the former for generations (e.g., defamation and related reputation and privacy-based torts; trademark, trade secret, and copyright protection), and when can they avail themselves of free speech protection (e.g., prior restraint; punishing content and viewpoint presumed unconstitutional; the privilege against compelled disclosure of information, limited as it may be; the rule that American justice is presumptively transparent and that trials and most other court proceedings must occur in public)?

At what point, in other words, does false or misleading information cause actionable injury?  On the other hand, when does freedom of expression immunize those who commit commercial injury? Jonathan’s practice thus lies at the economic, technological and legal intersection of litigation and information.  He helps clients use information of all types, and draws on counter-intuitive strategies tactics to build factual records tailored for for trial.   He empowers clients--to give them back, in today’s parlance, its own “narrative”--by helping them identify and achieve objectives--without advising them to compromise the plans they had before they hired a lawyer, and sensitive to price.

Sometimes, clients settle; sometimes they litigate; occasionally, they want or need a trial.  Jonathan tries to help them sort out their options, assesses their tolerance for uncertainty, minimize risk and use the control of information to ensure they make as fully informed decisions as possible.

His recent public work includes, among other matters:

  • Leading the Firm’s representation of one of the world’s largest financial institutions in two litigations as an opt-out and as a claimant in a potential international arbitration related to one of those cases, in order to obtain damages for admitted financial fraud that injured the client (click here) (click here);
  • Leading the Firm’s representation of the world’s largest on-line gaming company as its lead outside counsel.  Matters have included (A) providing strategic litigation advice to help the company refine near and long term goals (click here); (B) asserting a claim against parties who breached an agreement that led to a $4.9 billion merger; and (C) preparing litigation arising out of false and defamatory reports, published by a foreign news organization in apparent coordination with the client’s central competitor;
  • Leading the defense against a federal court challenge to enjoin and seek damages for the global re-branding of its Yves Saint Laurent label to “Saint Laurent Paris” and “Saint Laurent”; see, e.g., Saint Laurie, Ltd v. Yves Saint Laurent America, Inc. et al, No. 13-CV-6857 (S.D.N.Y. Sept. 30, 2014) (order denying plaintiff’s motion for preliminary injunction); id. (Mar. 25, 2015 (denying reconsideration; and granting in part dismissal of heart of plaintiff’s claims) (click here);
  •  Defeating a 2014 motion to obtain video footage of trial testimony of the late Steve Jobs, taped shortly before his death from cancer, as part of the Firm’s successful defense of Apple in BSF’s 2014 federal antitrust trial win involving iPods, In re Apple iPod iTunes Antitrust Litig., Case No. 05-CV-0037-YGR (N.D. Cal. Dec. 17, 2014) (argued) (click here);
  • Representing a state-owned Mongolian company in a successful negotiated outcome of a dispute with a publicly-traded Australian mining company arising out of the value of the world’s second largest untapped coal reserve (click here);
  • Providing advice to assist in the Firm’s representation of Sony Corporation to respond to the 1995 cyberattack launched, as public reports stated, by the North Korean dictator, Kim Jong-un, who was offended by a Seth Rogen/James Franco comedy movie, The Interview;
  • Representing in federal district and bankruptcy courts hedge and private equity funds based in the United States and in Europe in connection with disputes about the value of certain debt securities.  The matters included, for example, litigation on behalf of several funds for whom Jonathan obtained summary judgment, before discovery, permitting them to recover the full value (plus interest) of redeemed dividends on preferred stock (at double the price of the redemption).  E.g., D.E. Shaw Laminar Portfolios. v. Archon Corp., 570 F.Supp.2d 1262 (D. Nev. 2008) (argued), aff'd, No. 11-15406 (9th Cir. Sept. 12, 2012) (argued);
  • Representing a well-known financial institution in connection with (A) allegations made about it and one of its former senior executives during a federal election; and (B) claims made in the Lehman bankruptcy relating to collateralized debt obligations; and (C) a dispute with a competitor about the value of certain bonds, as part of an investment in a large private transaction; 
  • Representing a public company in a high profile dispute arising out of allegations made against it by a hedge fund and short seller with three times the net assets of the company;
  • Leading litigation on behalf of a former senior Latin American political figure filed against a news organization for publishing a 2014 report.  The story falsely alleged that the client had committed political corruption; the litigation alleged that the article was the undisclosed brainchild of a corporation the client had criticized and which had made repeated false statements against the client in prior years;
  • Leading the defense of Qwest Communications International Inc. in connection with securities, accounting and commercial contract matters arising out of its investment in a Dutch telecommunications joint venture (Among other matters, Jonathan argued and won (1) in the Third Circuit, which affirmed dismissal of a $9 billion litigation brought by Dutch bankruptcy trustees, Windt v. Qwest, 529 F.3d 183 (3rd Cir. 2008) (argued both appeal and order granting motion to dismiss) and (2) in the Arizona Supreme Court, which affirmed the dismissal of securities opt-out litigation under a novel interpretation of the Arizona Securities Act.  Grand v. Nacchio, 236 P.3d 398 (Ariz. 2010) (argued in Supreme Court, intermediate appeals court and trial court).); 
  • Obtaining dismissal of Bank of New York Mellon from action brought against it, an investment bank, and two rating agencies by Bank of Abu Dhabi arising out of allegations that defendants failed to disclose risks of structured investment vehicle alleged to have consisted of pooled mortgage backed securities (click here);
  • Co-leading on behalf of a certified class of shareholders of Boston-based Genzyme Corporation, which alleged that the company had committed securities fraud by using so-called "tracking stock" to purchase a biotechnology company, make it one of its “tracked” divisions, all while intending to redeem via the tracking stock structure the value of the acquired company at a fraction of the cost of a straight merger.  The case settled five days before trial; Genzyme agreeing to pay $64 million to the class.  Reviewing the case after settlement, including documents filed just before trial, the Boston Globe later reported that “files show [a] secret Genzyme plan to regain shares cheaply.”  (click here);
  • Representing in three different litigations the designers Tory Burch, Joseph Abboud and Calvin Klein-–the first in Delaware Chancery Court (2013) in connection with claims that a former partner misappropriated her company’s intellectual property; the second, in New York Supreme Court (2002) against the company that manufactured and licensed his work; and the last in federal court in New York alleging that a former business partner had diluted his brand through sales and distribution practices (2001);
  • Representing European private equity firm Terra Firma (1) in successfully reversing adverse jury verdict, Terra Firma Investments (GP) 2 Limited v. Citigroup Inc., Dkt 11-126 (2d Cir. May 31, 2013); (2) at 13-day fraud trial in New York federal court arising from the 2007 public-to-private auction of EMI Group, and (3) defeating Defendants’ motion to dismiss on grounds of forum non conveniens. Terra Firma Investments (GP) 2 Ltd. v. Citigroup Inc., 725 F. Supp. 2d 438 (S.D.N.Y. 2010) (argued) (click here).

Selected Professional Awards and Associations

Member, Board of Trustees, Shakespeare Theatre Company (2016-2019), see http://www.shakespearetheatre.org.

Selection, Lawdragon 500 Leading Lawyers in America (2012-2015)

American Bar Association

Who’s Who in America (2000-2016)

Publications

End the Supreme Court's Ban on Cameras,The New York Times, Op-Ed Page (Apr. 24, 2015)

Thoughts on the Constitutionality of Televised Trials in the Age of Information and the Era of Infotainment, MLRC Bulletin (Jan. 2005)

New York Judge Issues Watershed Ruling Declaring Constitutional Right to Televise Trials (LDRC Libelletter, Feb. 2000)

Lifting the Veil, Legal Backgrounder (Nov. 1, 1996)

In Trusts We Trust, Tax Management Compensation Planning Journal (Nov. 1996)

Pictures at an Execution, The New York Times, Op-Ed page (May 3, 1991)

Related News

Mutual fund giant sues real estate mogul: 'Multi-year fraud, cover-up' (philly.com)

Cameras in the Courtroom: Jonathan Sherman Interview (RNN (Video))

Apple Lawyers Fighting The Release Of Steve Jobs’ Testimony, Claim The Media Just Wants To See A ‘Dead Man’ (Inquisitr)

Apple trial likely to go on with new plaintiff (AP)

Quaker Oats accused of stealing the "face of America's breakfast" (In The News)

Lawyer Limelight: Jonathan Sherman (In The News)

Rare Retrial Granted Following BSF’s Second Circuit Arguments for Private Equity Firm Terra Firma (May 31, 2013)

The BSF Report: Spring 2013 (03.08.2013)

Judge in Colorado shooting must decide fair trial versus transparency (08.05.2012)

Judges to Judges: Stop Sealing Cases (September 15, 2011)

BSF Assumes Lead Role in Emerging Legal Matters Arising from the Bernard Madoff Ponzi Scheme (In The News)

BSF Provides Legal Services and Expert Opinion on Matters Related to the Global Credit Crisis (In The News)

BSF's Ongoing Effort to Open Federal Courts to Cameras and the Internet Continues to Make Unprecedented Gains (December 20, 2009)

Firm Report: July 2008 (07.28.2008)

Are Banks Still Off Limits? (July 14, 2008)

Boies, Schiller & Flexner Continues to Press for Camera Access to Federal Court (July 7, 2008)

Firm Report: January 2008 (Vol. 3, Issue I) (01.22.2008)

Firm Report: July/August 2007 (Vol. 2, Issue II) (08.22.2007)

BSF Obtains $64m Settlement for Class in Tracking Stock Litigation (August 10, 2007)

Firm Report: November 2006 (Vol. 1, Issue III (11.01.2006)

Tracking Stock Class Action Litigation Against Genzyme Gets Major Boost (August 17, 2006)

Legal Battle Over Tracking Stocks Heats Up (August 11, 2003)

Seminars and Speaking Engagements

Jonathan Sherman Addresses European Conference on Courts and Communication (2015)

Jonathan Sherman to Lecture at European Conference on Courts and Communication (2015)

Co-Moderator, "International free-speech rights, defamation, privacy, and access to information," Media Law Resource Center (London, United Kingdom) (2005)

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