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Peter N. Flocos

Partner
+1.212.536.4025
Fax +1.212.536.3901
+1.412.355.6341
Fax +1.412.355.6501
Mr. Flocos is a litigation partner in the firm’s New York City office in the securities and transactional litigation practice group. The group has been named a “Powerhouse” or “Standout” by BTI Consulting Group and recognized as a “Tier 1” national practice in the U.S. News & World Report-Best Lawyers survey.

Mr. Flocos began his legal career as a transactional lawyer at Cravath, Swaine & Moore LLP and then became a litigator. His practice emphasizes litigation that arises out of M&A transactions, corporate governance related litigation and securities litigation. Mr. Flocos’s experience includes several bench and jury trials, as well as arbitrations, although many of his cases have been resolved in favor of his clients on pre‑trial motions. His practice is focused on the United States, but he has also been involved in proceedings before the High Court of Justice, Queen’s Bench Division (Commercial Court), in London, and has handled London arbitrations.

Mr. Flocos regularly litigates and advises clients on a variety of “deal” related disputes. These include shareholder class action and derivative suits challenging public company M&A transactions, which often are multi-jurisdictional and involve expedited discovery and injunction proceedings; pre-closing disputes between the buyer and seller in an M&A deal, such as those involving claims by the buyer of fraud or “material adverse effect” and claims that specific performance is or is not available as a remedy; and post-closing disputes between the buyer and seller in an M&A deal, such as those involving claims under indemnity and escrow provisions contained in the transaction documents. He also handles other types of corporate governance and corporate control related disputes. Mr. Flocos has represented Board of Director “independent” or “special” committees considering transactions.

Mr. Flocos also litigates class action suits arising under the federal securities laws, and litigates and advises clients on a variety of complex business and general commercial disputes. He has followed and provided “real time” analysis of high profile M&A, securities and corporate governance litigation for hedge fund, investment bank and other clients.

Mr. Flocos frequently works with the Firm’s corporate partners practicing in the M&A, corporate governance and capital markets areas, with a view to either avoiding litigation or better positioning our clients should litigation ultimately arise. For example, he provides advice from the litigation perspective on transaction structure, the language of transaction documents, and SEC filings.

Mr. Flocos is an Adjunct Professor of Law at the University of Pennsylvania Law School, where he teaches a class on M&A litigation, and is also a frequent public speaker and writer on M&A and corporate governance litigation issues. He has been quoted on these and other issues in various articles, including “AKRX/Fresenius: Akorn Will Have to Satisfy Burden to Secure Specific Performance Even if It Wins on the Merits” (Event Driven, July 23, 2018), “Delaware Chancery Court Cases To Watch In 2017” (Law360, January 2, 2017), “3 Ways To Help Chancery M&A Suits Survive Trulia” (Law360, July 29, 2016), “Delaware’s Pro-Defense Merger Stance Primed To Go National” (Law360, May 6, 2016), and “GCs Crown 3 Firms That Lead Securities Pack” (Law360, September 10, 2013).

In addition to his other litigation and advisory work, Mr. Flocos represents and advises policyholders in insurance coverage litigation and other coverage disputes. These include disputes under D&O policies and “representation and warranty” policies, and other insurance related disputes arising out of M&A and other transactions. A separate curriculum vitae regarding Mr. Flocos’s insurance coverage experience is available on request.

Professional Background

Mr. Flocos has been a litigation partner with K&L Gates LLP since 1999. Prior to joining K&L Gates LLP, Mr. Flocos was an associate at Cravath, Swaine & Moore, and served as a Law Clerk to the Honorable Roger J. Miner, United States Court of Appeals for the Second Circuit, in New York.

Mr. Flocos is an Adjunct Professor of Law at the University of Pennsylvania Law School, where he teaches an M&A litigation course and has taught the main mergers and acquisitions course. He also has been a Lecturer at the Wharton School of the University of Pennsylvania, where he has taught a general business law and business organizations course.

Mr. Flocos is also a member of the Advisory Board of the Center for Financial Stability, which is an independent, nonpartisan, and nonprofit think tank focused on financial markets for the benefit of investors, officials, and the public, and which promotes a stronger and more stable financial system through innovative and practical policy-oriented research spanning finance, law and economics, structured dialog, education, and outreach to the public.

Speaking Engagements

  • “Effectively Managing Shareholder Derivative Litigation in the M&A Context, and How It Implicates Side A of Your D&O Policy,” presentation at the American Conference Institute’s National Advanced Forum On M&A Liability (New York City, October 26, 2016)
  • “Deal Litigation: Trends and Tactics,” moderator of speaking panel on U.S. deal litigation at the Inter-Pacific Bar Association Annual Meeting and Conference (Hong Kong, May 8, 2015)
  • "Indemnification Clauses in M&A Agreements: Mitigating Inherent Litigation Risks,” speaker in a national Webcast sponsored by the American Law Institute’s ALI CLE division (March 4, 2014) 
  • “Advanced Insurance Issues in Corporate Merger and Acquisition Transactions,” presentation to the Risk and Insurance Management Society (RIMS) 2013 Annual Conference and Exhibition (Los Angeles, California, April 24, 2013) 
  • “Projections, Prospects & Other Crystal Ball Provisions: Colliding With 20/20 Hindsight,” speaker in a national Webcast sponsored by DealLawyers.com (February 13, 2013) 
  • “Mergers and Acquisitions and Risk Management,” a two day workshop developed and conducted for the Risk and Insurance Management Society (RIMS) (Orlando, Florida, December 10-11, 2012; Chicago, Illinois, August 27-28, 2012; New York City, May 21-22, 2012; Chicago, Illinois, November 1-2, 2011; and New York City, March 7-8, 2011) 
  • “Litigation Issues Arising From M&A Agreements: Will A Court See It The Way ‘Deal Lawyers’ Do?,” speaker in a national Webcast sponsored by the American Law Institute (January 18, 2013 and November 9, 2012) 
  • “Litigation Issues Arising From Merger and Acquisition Agreements: Will A Court See It The Way ‘Deal Lawyers’ Do?,” speaker in a national Webcast sponsored by the National Business Institute (September 28, 2012) 
  • “Advanced Insurance Issues in Corporate Merger and Acquisition Transactions,” presentation to the Risk and Insurance Management Society (RIMS) 2012 Annual Conference and Exhibition (Philadelphia, Pennsylvania, April 18, 2012) 
  • “Risk Transfer Provisions in Commercial Contracts,” speaker in a national Webcast sponsored by Strafford Publications, Inc. (September 30, 2010) 
  • “Drafting Indemnification Provisions for LLCs and Partnerships,” speaker at the University of Texas School of Law 2010 LLCs and Partnerships Conference (Austin, Texas, July 23, 2010)
  • “Advanced Insurance Issues in Corporate Merger and Acquisition Transactions,” presentation to the Risk and Insurance Management Society (RIMS) 2010 Annual Conference and Exhibition (Boston, Massachusetts, April 28, 2010) 
  • “Advanced Issues in Drafting and Enforcing Complex Indemnity Agreements for 2010,” speaker in a national Webcast sponsored by the State Bar of Texas (Austin, Texas, February 10, 2010) 
  • “Litigation Issues Arising From Merger And Acquisition Agreements: Will A Court See It The Way ‘Deal Lawyers’ Do?,” speaker in a two part national Webcast sponsored by the American Law Institute-American Bar Association (February 5, 2010 and March 30, 2010) 
  • “Drafting and Enforcing Complex Indemnification Provisions,” speaker in a series of national Webcasts co-sponsored by the American Law Institute-American Bar Association and the State Bar of Texas (August 14, 2009, April 30, 2009 and November 27, 2007) 
  • “Insurance Issues in Corporate Merger, Acquisition and Similar Transactions,” presentation to the Risk and Insurance Management Society (RIMS) 2009 Annual Conference and Exhibition (Orlando, Florida, April 20, 2009)
The list below sets forth examples of M&A and corporate governance litigation matters in which Mr. Flocos represents or has represented clients. Subject to confidentiality and other ethical restrictions, additional details regarding these matters are available on request.

Shareholder Class Action and Derivative Litigation Challenging Public M&A Transactions
  • Representation of a US silver producer in the and the oldest NYSE-listed precious metals mining company in all of North America, in class action litigation asserting Rule 14a-9 claims based upon its acquisition of a gold mining company. Assisted counsel for the acquired company in defeating the class plaintiffs’ preliminary injunction motion. (United States District Court, District of Nevada)
  • Representation of the Special Committee of the Board of Directors of a natural gas production company in shareholder litigation, including expedited discovery and injunction proceedings, arising out of the company’s acquisition by another energy company, which was an allegedly controlling party, in a merger. Obtained dismissal of the Special Committee from the case. (Delaware Chancery Court)
  • Representation of a mortgage REIT and certain of its affiliates in multi-jurisdictional shareholder litigation arising out of the REIT’s tender offer for and merger with another REIT. Defeated attempts to obtain expedited discovery and enjoin the transaction, obtained dismissal of the New York cases so that the litigation could proceed in defendants’ desired forum of Maryland, and then eventually obtained dismissal of the Maryland cases as well. (Commercial Division of the New York Supreme Court and Maryland state court, Business and Technology Case Management Program)
  • Representation of an investment vehicle associated with a publicly traded Chinese scrap metal recycler, in class action shareholder litigation arising out of the investment vehicle’s acquisition of a New York Stock Exchange-traded scrap metal recycling company. Obtained dismissal of our client from the case. (Delaware Chancery Court and New Jersey state court)
  • Representation of a global leader in engineer materials and optoelectronic components in class action shareholder litigation arising out of its acquisition of a provider of semiconductor solutions to the communications industry. Successfully removed the case to federal court, leading to settlement of the case. (Delaware Chancery Court, Delaware federal court, New Jersey state court and New Jersey federal court)
  • Representation of a textile products company in shareholder class action and derivative litigation arising out of its acquisition by an allegedly controlling shareholder. (Delaware Chancery Court)
  • Representation of a processor of thermoplastics and polymeric compounds, and its Board of Directors, in multi-jurisdictional shareholder litigation seeking to enjoin its acquisition in a merger by a provider of specialized polymer materials. (Delaware Chancery Court and Missouri state and federal courts)
  • Representation of a customer experience management and mobile marketing company, and its Board of Directors, in shareholder litigation seeking to enjoin a tender offer for the company by a leading provider of customer engagement and contact center solutions. (Massachusetts state court)
  • Representation of a multi-state bank holding company in shareholder litigation, including injunction and expedited discovery proceedings, arising out of its acquisition of another bank holding company in a merger. (Pennsylvania state court, Commerce and Complex Litigation Center)
  • Representation of a mortgage REIT and co-defendants in multi-jurisdictional shareholder litigation arising out of the REIT’s purchase of certain real estate assets from a third-party and rejection of a merger offer from another REIT. Obtained dismissal of all actions. (Commercial Division of the New York Supreme Court and Maryland state court, Business and Technology Case Management Program)
Pre-Closing Litigation Between Acquirer/Buyer and Target/Seller
  • Representation of a global manufacturer and distributor of coatings, optical and specialty materials and glass products in litigation against a private equity firm arising out of the private equity firm’s failure to close its purchase of one of our client’s glass businesses under an asset sale agreement. Prior to the closing, the private equity firm sought to terminate the asset sale agreement and filed suit, asserting claims of fraud, “Material Adverse Effect” and breach of a customer representation. Obtained dismissal of the private equity firm’s fraud claims against our client. (Commercial Division of the New York Supreme Court)
Post-Closing Litigation Between Acquirer/Buyer and Target/Seller
  •  Representation of certain directors of a leading global e-Commerce, marketing and payment platform, who also founded the company, in litigation arising out of the sale of the company to a private equity firm. After an extended trial in the Delaware Chancery Court, the court rejected all fraud-based claims against our clients, rejected the acquirer’s position regarding the scope of our clients’ contractual indemnification obligations, and postponed a decision on the remaining claims against our clients pending further briefing. (Delaware Chancery Court)
  • Representation of a leading global science and engineering company selling products, materials and services in various sectors in connection with post-closing litigation arising out of the acquisition by our client from a private equity firm of a company that designs sulfuric acid plants. The parties disputed our client’s right, under the merger agreement’s indemnity provisions, to freeze purchase price funds held in escrow pending the resolution of potential tax liabilities arising out of the target’s pre-closing activities. Obtained dismissal of the complaint filed by the private equity firm, thereby vindicating our client’s right to freeze the escrow funds. (United States District Court, Southern District of New York)
  • Representation of an international underwriter of specialty insurance and reinsurance products in connection with post-closing litigation arising out of our client’s sale of a reinsurance subsidiary to a UK insurance company. The parties dispute the buyer’s entitlement to indemnification under the stock purchase agreement for damages allegedly resulting from an alleged understatement of certain case reserves of the target company. Successfully defeated the buyer’s attempt to assert a common law fraud claim against our client. (Commercial Division of the New York Supreme Court)
  • Representation of one of the world’s largest pharmaceutical services companies in connection with post-closing litigation arising out of its acquisition by merger of an oncology data and analysis company from a private equity firm. The parties disputed our client’s entitlement to indemnification under the merger agreement for damages resulting from an alleged breach of a customer representation in the merger agreement. The case settled after a summary judgment hearing that was favorable to our client. (Delaware Chancery Court)
  • Representation of one of the world’s largest providers of products and services to the energy industry in connection with litigation arising out of its spin-off of its insurance affiliates. The parties disputed the insurance affiliates’ ultimate responsibility to our client, under the spin-off transaction documents, for payments made by our client to American International Group under a guarantee agreement relating to certain insurance matters. Obtained summary judgment in favor of our client. (Delaware Chancery Court and Texas state court)
  • Representation of a global leader in lightweight metals engineering and manufacturing in connection with post-closing litigation arising out of the sale by our client of its packaging business to a private equity firm. The parties dispute the private equity firm’s entitlement to indemnification under the acquisition agreement for certain tax liabilities arising out of a loan made by an acquired subsidiary. (United States District Court, Southern District of New York)
Corporate Governance and Control Disputes Including Shareholder Derivative Demands
  • Representation of the non-independent directors and officers, and the external manager, of a mortgage REIT in shareholder litigation challenging an “externalization” transaction under which management of the REIT was transferred to a firm owned by the non-independent directors and officers. Obtained dismissal of these clients from the case and affirmance of the dismissal on appeal. (Commercial Division of the New York Supreme Court and New York Appellate Division, First Department)
  • Advised the Boards, or Board special or independent committees, of a mortgage REIT and other publicly traded companies regarding the receipt by the company of shareholder derivative demand letters regarding a variety of corporate governance related matters.
  • Advised an independent committee of a venture capital firm, regarding a potential stock investment by, and release of litigation claims against, a significant investor affiliated or associated with certain other board members, including with respect to potential shareholder derivative claims that might have been brought in connection with these matters.
  • Representation of a health insurance company and certain affiliates in a control related dispute with a dissident director and minority shareholder claiming “oppression.” (Delaware Chancery Court)
  • Representation of major shareholder and debtholder of emerging technology companies in various control related disputes with boards of directors and other investors.
Investment Bank and Hedge Fund Representation
  • Representation of the financial adviser to a healthcare services company in shareholder litigation and appraisal proceedings arising out of the company’s acquisition by a skilled nursing and rehabilitation care company in a merger. (Delaware Chancery Court and California state court)
  • Provision to hedge fund and investment bank clients of “real time” analysis of the litigation arising out of the proposed buyout of Clear Channel Communications, Inc. by Bain Capital, LLC and Thomas H. Lee Partners, and the proposed merger of Huntsman Corporation and Hexion Specialty Chemicals, Inc. (a portfolio company of Apollo Investment Corporation). (Commercial Division of the New York Supreme Court and Delaware Chancery Court)
Securities Class Action Litigation
  • Representation of the former Chairman of one of the world’s largest grocery and general merchandise retailers, in class action securities litigation involving Rule 10b-5 claims against the company and certain directors and officers arising out of accounting practices that allegedly overstated the company’s earnings. The case was settled without any payment by or on behalf of our client. (United States District Court, Southern District of New York)
  • Representation of a digital business solutions company, and its directors and officers, in class action, derivative and individual investor suits asserting Rule 10b-5 and Rule 14a-9 claims based upon alleged transactions involving a purported undisclosed controlling party. Obtained dismissal of the class action case and settlement of most of the remaining suits as a result. (United States District Court, Southern District of New York and United States Court of Appeals for the Second Circuit)
  • Representation of an integrated media organization and recognized leader in global entertainment, and certain of its directors and officers, in class action litigation that was part of a complex group of 309 separate securities class actions brought against 309 companies going public over the 1999-2001 time period. Also advised a Special Committee of the same company’s Board of Directors in connection with settlement of that litigation. Obtained dismissal of Rule 10b-5 claims against the company and its director and officer co-defendants. (United States District Court, Southern District of New York)
Complex Commercial Litigation and Insurance Coverage Litigation
  • Representation of a major international bank and certain affiliates including its U.S. subsidiary, in complex transactional litigation arising out of lending and foreclosure transactions in Eastern Europe involving one of the largest granite producers in Europe. Obtained dismissal of the case on subject matter jurisdiction grounds. (United States District Court, Southern District of New York)
  • Representation of an integrated media organization and recognized leader in global entertainment in litigation relating to a videogame license granted by the company to a joint venture of a toy designer and marketer and a developer of video games. (United States Court of Appeals for the Second Circuit, United States District Court, Southern District of New York, and Connecticut state court)
  • Representation of an investment fund associated with a private equity firm in D&O coverage litigation arising out of the payment of dividends to the fund by a major financial institution before its demise. (Delaware Superior Court, Complex Commercial Litigation Division)
  • Representation of a private equity firm and associated investment funds in coverage litigation arising out of the proposed buyout of a major financial institution. (Commercial Division of the New York Supreme Court and arbitration proceedings)
  • Representation of a global leader in lightweight metals engineering and manufacturing in coverage litigation relating to asbestos liabilities arising out of the construction of the World Trade Center in New York City. Obtained summary judgment in favor of the client on all significant coverage issues and affirmance of that decision on appeal. (Commercial Division of the New York Supreme Court and New York Appellate Division, First Department)
  • Representation of a mining company, now part of a major global iron ore and metallurgical coal producer, in multi-jurisdictional litigation against multiple insurers, including various Lloyd’s syndicates, for insurance coverage under business interruption and “all risks” property policies for loss and damage resulting from methane ignitions at a coal mine owned by the company. The case settled on favorable terms in the midst of a jury trial. (West Virginia state and federal courts; High Court of Justice, Queen’s Bench Division (Commercial Court); and London arbitrations)
  • Representation of a major global iron ore and metallurgical coal producer in litigation with certain Lloyd’s syndicates arising out of the settlement of the above-listed insurance coverage litigation involving the coal mine owned by the company. Obtained dismissal of all claims made by Lloyd’s. (West Virginia state court)
  • Representation of a leading nonprofit organization and certain officers in litigation initiated by an unsuccessful candidate for political office, in which the candidate claimed that he had been defamed by the organization and its officers. Obtained dismissal of the case. (West Virginia state court)