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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. His practice emphasizes litigation that arises out of M&A transactions and corporate governance related litigation. Mr. Flocos began his legal career as a transactional lawyer at Cravath, Swaine & Moore and then became a litigator.

Mr. Flocos regularly litigates and advises clients on a variety of “deal” related disputes, including 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. He also follows and provides “real time” analysis of high profile M&A and corporate governance litigation for hedge fund and investment bank clients.

Part of Mr. Flocos’s practice involves working with Firm partners 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 merger agreements and stock or asset purchase agreements, and SEC filings.

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.

In addition to his other litigation work, Mr. Flocos represents and advises policyholders in insurance coverage litigation and other coverage disputes, including coverage disputes arising out of M&A and other corporate transactions. A separate curriculum vitae regarding Mr. Flocos’s insurance coverage experience is available on request.

Mr. Flocos teaches M&A on an adjunct basis at the University of Pennsylvania Law School, and is also a frequent public speaker and writer on M&A issues.

Professional Background

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 a Lecturer in Law at the University of Pennsylvania Law School, where is teaches an M&A litigation course and has taught the general M&A course. He also has served as 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 Board of Trustees 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, structured dialog, education, and outreach to the public.

Speaking Engagements

  • “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) (forthcoming)

  • "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 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 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 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 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 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.  (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 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)
  • 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 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 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)

Corporate Governance and Control Disputes
  • 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.  (Commercial Division of the New York Supreme Court)
  • 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 and Complex Commercial Litigation
  • 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)
  • 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 mining company, now part of a major global iron ore and metallurgical coal producer, in multi-jurisdictional litigation involving 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.  (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 litigation involving insurance coverage under business interruption and property policies for loss and damage resulting from methane ignitions at a 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)