R. Montgomery Donaldson

Partner

R. Montgomery “Monty” Donaldson is a partner in Montgomery McCracken’s Delaware office and Chair of the Business Litigation Practice Group. Monty's practice focuses on business counseling and litigation, with an emphasis on matters involving complex business transactions, corporate governance, securities, and special proceedings under the Delaware General Corporation Law and alternative entity laws. Monty’s litigation practice also involves an array of commercial matters, including commercial contract (such as co-development, licensing, merger and asset sale agreements), intra-organizational disputes (including member, partner and shareholder disputes), joint venture disputes, intellectual property cases, and business tort cases.   Many of these matters are venued in the federal and state courts of Delaware, including the internationally-recognized Delaware Court of Chancery. In these and other representations, Monty is called upon to serve as primary counsel or as Delaware counsel in coordination with reputable firms located throughout the country and abroad.

Clients have included:

  • Corporations (private and publicly-traded), limited liability companies, partnerships, and liquidating trusts
  • Officers (including some of the most highly-compensated C-suite executives in the U.S.), boards and director committees
  • Sophisticated investors, including founders, family offices, venture capital and private equity
  • Joint ventures and co-developers
  • Entrepreneurs and their early-stage enterprises

Services provided to these clients have involved consultation where litigation is threatened or in connection with transactions (such as controller transactions and inside funding rounds) implicating nuanced governance issues, the prosecution and defense of direct and derivative breach of fiduciary duty claims, and all manner of commercial disputes, ranging from “busted deals” and funding rounds in venture-backed companies to contract indemnity claims in the context of mergers, divestitures and asset acquisitions. Monty also serves as Delaware counsel in connection with patent and other intellectual property cases.

Monty has provided Delaware legal opinions in the context of both routine and extraordinary transactions. He has published extensively, including most recently in the Delaware Journal of Corporate Law (“Inside Funding Rounds in Venture-Backed Companies: The Perils of ‘Effective Control’”). In collaboration with his corporate and transactional colleagues, Monty has counseled controlling shareholders, minority shareholders who may be deemed to exercise effective control broadly or in connection with a specific transaction, founders, directors and director committees in connection with a wide array of matters, including change in control transactions, funding rounds and internal investigations.

Monty served as lead counsel under the provisions of the Private Securities Litigation Reform Act of 1995, representing institutional investors and shareholder classes in, among others, In re Dollar General Sec. Litig. and In re DaimlerChrysler Sec. Litig., the latter concerning the 1998 trans-Atlantic merger of Chrysler Corporation and Daimler-Benz AG. The settlements obtained in some of the cases in which Monty has been involved were among the largest obtained in comparable securities litigation. In addition to class claims, Monty represented a $120 billion state pension fund in opt-out litigation arising from a $58 billion merger creating at the time the largest U.S. banking operation. This matter settled at a substantial premium over the per share settlement obtained on behalf of the class.

Monty was lead trial counsel in the widely-publicized Basho Technologies litigation (Basho Tech. Holdco B, LLC v. Georgetown Basho Inv., LLC, 2018 WL 3326693 (Del. Ch. July 6, 2018)). There, Monty and his trial team represented Basho’s co-founder, former CEO and Chairman of the Board and numerous affiliated investment entities. Monty’s clients claimed that a venture capital investor and its board designees committed serial breaches of fiduciary duty to secure majority control over and extract value from Basho (a data software technology company), ultimately causing the company to fail. Delaware Court of Chancery Vice Chancellor J. Travis Laster’s 126-page post-trial opinion (affirmed on appeal) strongly condemned the actions taken by Basho’s controller, and awarded $20 million in damages to Monty’s clients.

Further demonstrating the breadth of his experience, Monty was one of three attorneys representing a team of distinguished scientists who successfully challenged the U.S. government's intended disposition of 9,000 year-old human remains in the internationally-publicized "Kennewick Man" litigation, featured on NOVA ("Mystery of the First Americans") and the Discovery Channel ("Discover Magazine: The Earliest Immigrants"). He since has represented the Ethnic Minority Council of America in the equally controversial "Spirit Cave Mummy” litigation in the Federal District of Nevada.

Monty received his J.D. from Dickinson School of Law where he was Senior Editor of the Dickinson Law Review and a member of the Appellate Moot Court Board. He earned his B.A. degree from Bucknell University.

RELATED Practices

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Commercial Litigation

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Credentials

Selected Representations

Business Litigation

  • Basho Tech. Holdco B, LLC v. Georgetown Basho Inv., LLC, 2018 WL 3326693 (Del. Ch. July 6, 2018) (representation of co-founder, former CEO and Chairman of the Board and affiliated investment entities in prosecuting fiduciary duty claims against VC investor and board designees)
  • AIG Corp. Consol. Derivative Litig., C.A. No. 769-N (Del. Ch. 2004) (defense of former CEO of Gen Re in connection with shareholder derivative claims)
  • Ortsman v. ADESA, et al., C.A. No. 2670-VCL (Del. Ch. 2007) (representation of Adesa’s CEO, COB and CFO against shareholder breach of fiduciary duty claims arising from private equity acquisition transaction)
  • In re Compucom Systems, Inc. Stockholders Litig., C.A. No. 499-N, 2005 WL 2481325 (Del. Ch. Sept 29, 2005) (defense of special committee in connection with shareholder breach of fiduciary duty claims)
  • Teachers’ Retirement System of Louisiana v. Scrushy, C.A. No. 20529, 2004 WL 423122 (Del.Ch. March 2, 2004) (defense of former HealthSouth director in connection with direct and derivative shareholder claims)
  • Blackthorn Partners, L.P. v. Malone (Del. Ch. 2010) (representation of Thomson Reuters Lipper Hedge Fund Award recipient in connection with breach of fiduciary duty claims arising from sale of Liberty Media business unit to DirecTV)
  • In re Cal-Maine Foods, Inc. Shareholders Litig., C.A. No. 20507 (Del. Ch. 2003) (representation of sophisticated shareholder group challenging proposed freeze-out transaction)
  • Miron v. Microsoft Corp., et al., C.A. No. 1149-CC (Del. Ch. 2005) (defense of corporation and board designees in connection with direct and derivative shareholder claims)
  • Encompass Services Holding Corp. v. Prosero Inc., C.A. No. 578-N, 2005 WL 332810 (Del. Ch. Feb. 3, 2005) (statutory shareholder appraisal action)
  • Sicking v. JetStar Holdings, Inc., C.A. No. 2232-N (Del. Ch. 2006) (statutory shareholder appraisal action)

Commercial Litigation

  • Jack v. Jack Acquisitions, Inc., et al., No. 19-0052-CFC (Del. Sup. 2020) (assignment and indemnity disputes arising under stock purchase agreement)
  • Southco, Inc. v. Penn Engineering and Manufacturing Corp., No. 1:10-CV-00003-LPS (D. Del. 2010) (patent infringement and invalidity claims)
  • Winchester Carpet & Rug Co. v. WebVention Holdings LLC, No. 11-00337-GMS (D. Del. 2011) (patent non-infringement action)
  • Redwood Regional Medical Group v. CCE Partners, LLC, No. 6273-VCS (Del. Ch. 2010) (LLC member dispute involving direct and derivative claims)
  • Philip A. Templeton, M.D., P.A. v. EmCare, Inc., No. 11-CV-00808-SSR (D. Del. 2011) (declaration of rights under membership interest purchase agreement)
  • Olson v. Microsoft Corp., et al., C.A. No. 06C-01-355 (Del. Super. 2006) (defense of corporation in connection with contractual employment claims)
  • CertainTeed Corp. v. Celotex Corp., C.A. No. 471-N (Del. Ch. 2004) (defense of seller corporation and related entities in connection with claims arising from asset acquisition transaction)
  • Trull v. Microsoft Corp., C.A. No. 97CH3140 (Cook Co., Ill., Chanc. Div. 1997) (defense of corporation against consumer class action)

General Business

  • Process and risk management consulting in connection with both routine and extraordinary transactions
  • Recommendation and implementation of prophylactic measures such as recusal and special committee processes in the context of private equity (“going private”) acquisitions, reverse stock splits, funding rounds, recapitalizations and a wide array of interested or controlling shareholder transactions
  • Internal investigations of potential director or officer misconduct

Cultural Antiquities/North American Indian Law

  • Co-representation of scientists in successfully challenging federal government’s intended disposition of nine-thousand-year-old human remains in the internationally publicized “Kennewick Man” litigation, featured on NOVA (“Mystery of the First Americans”) and the Discovery Channel (“Discover Magazine: The Earliest Immigrants”)
  • Representation of Ethnic Minority Council of America in supporting Bureau of Land Management’s decision against repatriating ancient mummified remains and cultural items in “Spirit Cave Mummy” litigation held in Federal District Court for the District of Nevada
Selected Speaking Engagements
  • Presenter, “The Allure of the First State: Delaware as a Preferred Organizational Situs,” 2016 Business Law Institute
  • Presenter, “The Allure of the First State:  A Brief Overview of Delaware’s Preeminence as a Business Formation Situs,” State Bar of Arizona Annual Convention, June 15, 2017
  • Co-Chair and presenter, “Recent Developments in Delaware Corporate and Alternative Entity Law,” Corporation Law Section of the Delaware State Bar Association, Wilmington, DE, May 22, 2012
  • Organizer, content editor and presenter, Webinar series on M&A Litigation; 8 multi-topic webinar presentations, October 2015 through October 2016
  • Co-Chair and presenter, “Recent Developments in Delaware Corporate and Alternative Entity Law,” Corporation Law Section of the Delaware State Bar Association, Wilmington, DE, May 12, 2011
  • Co-Chair and presenter, “Recent Developments in Delaware Corporate and Alternative Entity Law,” Corporation Law Section of the Delaware State Bar Association, Wilmington, DE, April 29, 2010
Selected Publications
Professional Activities
  • Delaware State Bar Association
    • Richard S. Rodney Inn of Court
    • Delaware State Bar Executive Committee
    • Corporation Law and Litigation Sections
    • Service on Delaware State Bar Association Executive Committee
  • Pennsylvania Bar Association
    • Business Law Section
    • Civil Litigation Section
  • New Jersey Bar
Education

Law School

  • Dickinson School of Law

Undergraduate School

  • Bucknell University