David H. Kistenbroker

David H. Kistenbroker is Managing Partner of the Chicago office, Chair of the Litigation and Dispute Resolution Practice, and Co-Chair of the Securities Litigation and Corporate Governance Practices. He is also a member of the firm's Executive Committee and the Board of Directors.

Mr. Kistenbroker's practice is focused on the representation of publicly traded companies and their directors and officers in securities class actions, SEC investigations, and corporate governance disputes. He has been selected by his peers as one of Illinois' leading trial lawyers and was featured in The National Law Journal for having one of the top ten defense verdicts in the nation. He was recognized in 2008 Benchmark: America's Leading Litigation Firms and Attorneys published by Legal Media Group, has been listed in Chambers USA: America's Leading Lawyers for Business (2008–2010) in the area of General Commercial Litigation, and was named to the 2010 Directorship 100 list of the most influential people in corporate governance and the boardroom. Mr. Kistenbroker is a frequent lecturer on securities litigation and directors and officers insurance matters and corporate governance.

Mr. Kistenbroker earned his Juris Doctor in 1980 from Marquette University School of Law, his M.A. in political science in 1977 from Marquette University and his B.S. in 1975, magna cum laude, from the University of Wisconsin-Whitewater. He is admitted to the bars of the U.S. Supreme Court, the U.S. Courts of Appeals for the Second, Sixth, Seventh, Eighth and Ninth Circuits, the U.S. District Courts for the Northern District of Illinois and the Eastern District of Wisconsin.  He is also a member of the Trial Bar for the U. S. District Court for the Northern District of Illinois.

Representative Clients

The Boeing Company

Century Business Services, Inc.

Goodyear Tire & Rubber Company

HSBC Bank USA

DT Industries, Inc.

Kmart Inc.

Krispy Kreme Donuts, Inc.

OM Group, Inc.

Siegel-Robert, Inc.

Talx Corporation

Cardean Learning Group

Exide Technologies, Inc.

Merge Technologies Incorporated

Ben Franklin Retail Stores, Inc.

Cerner Corporation

Enterasys Networks, Inc.

Acceptance Insurance Company, Inc.

Waste Management, Inc.

Career Education Corporation

United Recycling Industries, Inc.

Keithley Instruments, Inc.

ABC Naco, Inc.

Applied Digital Solutions, Inc.

Charter Communications

Muzak Holdings LLC

McLeodUSA Inc.

New York Community Bancorp, Inc.

School Specialty, Inc.

SSA Global Technologies, Inc.

Crown Media Holdings, Inc.

Midway Games Inc.

iStar Financial

FC Stone Group, Inc.

MEMC Electronic Materials, Inc.

thinkorswim Group Inc.

 

Publications

 

“Recent Development in Delaware Corporate Governance,” Practising Law Institute: Securities Litigation & Enforcement Institute 2009, Chapter 5 (September 2009).

 

“Recent Development in Delaware Corporate Governance,” Practising Law Institute: Securities Litigation & Enforcement Institute 2008, Chapter 17 (September 2008).

 

“Recent Development in Delaware Corporate Governance,” Practising Law Institute: Securities Litigation & Enforcement Institute 2007, Chapter 11 (August 2007).

 

“Criminal and Civil Investigations: United States v. Stein and Related Issues,” Practising Law Institute: Securities Litigation & Enforcement Institute 2006, Chapter 18 (August 2006).

 

This article analyzes the government’s investigatory tactics in the Sarbanes-Oxley era and critically examines recent judicial decisions and administrative actions that have helped clarify the difference between proper and improper prosecutorial conduct regarding the above-noted topics.

 

“Criminal and Civil Investigations,” Practising Law Institute: Stock Options Pricing Practices, Chapter 23 (September 2006).

 

“The Seventh Circuit’s Abbott Derivative Decision – What Went Wrong?” Practising Law Institute, Chapter 24 (August 2005).

 

“Director Disinterest and Independence the SLC – Which Way To Go,” Practicing Law Institute, Chapter 14 (September 2004).

 

In the post-Enron world, corporate boards are often viewed with suspicion. Not surprisingly, the judiciary is not ignorant of the world beyond the courtroom’s doors. Indeed, the impact of recent corporate scandals on the Delaware judiciary is evidenced in two recent Delaware decisions – In re Oracle Corporation Derivative Litigation, issued in June 2003 by Vice Chancellor Strine of the Delaware Chancery Court, and Beam v. Martha Stewart ("Martha Stewart"), issued in March 2004 by the Delaware Supreme Court. Read together, these two decisions signal a significant change in Delaware law – one which seriously undermines the continued vitality of special litigation committees. In addition to providing the background necessary to understanding the shift in Delaware law, this article analyzes Oracle and Martha Stewart and provides suggestions for counsel and corporate boards when forming a special litigation committee.

 

“Corporate Motive and Time Warner: Smoke and Mirrors Revisited,” PLI Course Handbook, Chapter 6 (2003).

 

Since the Private Litigation Securities Reform Act of 1995 was passed, the securities bar has focused almost exclusively on arguing the requirements of that statute as it applies to actions arising under Section 10(b) of the Securities Exchange Act. Little attention, however, has been focused on the Plaintiffs’’ Bar’s attempt to expand the substantive scienter standard based on the "corporate motive" theory that has its origins in the Second Circuit’s decision In re Time Warner Securities Litigation.

The purpose of this article is (i) to discuss Time Warner’s progeny which have assumed that corporations may possess motives independent of their Directors and Officers and (ii) to address whether this method of alleging scienter is legitimate.

 

“Securities Litigation and Insolvency: The Case for the Director and Officer Insurance Proceeds,” Practicing Law Institute, Chapter 12 (September 2001).

 

The availability of director-and-officer – or “D&O” – insurance has for many years been one of the primary financial protections for individuals serving as directors and officers.  The recent spate of failing companies has highlighted the importance of D&O insurance, a very real threat to the availability of D&O insurance proceeds has materialized.  This threat manifests itself when companies file for bankruptcy protection and parties to the proceeding -- trustees, creditors or estate representatives -- claim the proceeds of the D&O insurance are assets not of the directors and officers, but rather, of the debtor’s bankruptcy estate.  A finding that the proceeds are the property of the estate can have devastating consequences for individual directors and officers.  Assets that are the property of the estate can be frozen indefinitely pending resolution of the bankruptcy proceeding.  This results in a strong disincentive to talented and competent individuals serving as directors and officers.  This article describes the current state of the law on this issue, assesses the strength of the various positions taken by the courts addressing the issue and suggests the proper analytical framework within which such cases should be decided.