David M. McMillan

Associate

New York
T +1 212.847.2838
F +1 212.589.4201

Overview

David McMillan is an associate in the firm's litigation group whose practice centers on class action defense, securities litigation, bankruptcy and other types of general commercial litigation. David has worked extensively on a number of high-profile fraud cases involving the financial industry, including representation of the SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS). As part of the SIPA Trustee's team advancing the global effort to trace and recover assets for Madoff's defrauded customers with allowed claims, David has deconstructed BLMIS's books and records; initiated multimillion-dollar lawsuits against financial institutions, funds, and other sophisticated investors in the United States and abroad; and litigated a range of issues in securities and bankruptcy law. He also defends clients in significant securities-related government investigations and securities fraud class actions, including a high-profile matter arising from derivatives trading losses at a major international bank. David has spoken on a number of panels discussing cutting-edge issues in class action law, and writes frequently on current trends in class action and securities litigation. He considers himself a strategy-driven, creative litigator who aims to deliver cost-effective and meaningful solutions for his clients.  

Select Experience

  • Member of the legal team representing Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, in connection with BakerHostetler's role as court-appointed counsel, responsible for investigating and initiating complex multimillion-dollar lawsuits against individuals and financial entities around the world, pursuing foreign and domestic discovery, participating in dispositive motion practice, and providing thought leadership on an array of substantive securities and bankruptcy-related issues.
  • Represents former London-based JPM managing director whose cooperation was sought in the investigation related to a multibillion-dollar trading loss for the bank. Helped secure rare nonprosecution agreement with U.S. Department of Justice and agreements with other regulatory authorities by providing valuable factual analyses and assessments regarding securities derivatives trading in JPM's Chief Investment Office.
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Experience

  • Member of the legal team representing Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, in connection with BakerHostetler's role as court-appointed counsel, responsible for investigating and initiating complex multimillion-dollar lawsuits against individuals and financial entities around the world, pursuing foreign and domestic discovery, participating in dispositive motion practice, and providing thought leadership on an array of substantive securities and bankruptcy-related issues.
  • Represents former London-based JPM managing director whose cooperation was sought in the investigation related to a multibillion-dollar trading loss for the bank. Helped secure rare nonprosecution agreement with U.S. Department of Justice and agreements with other regulatory authorities by providing valuable factual analyses and assessments regarding securities derivatives trading in JPM's Chief Investment Office.
  • Defended medical director of major pharmaceutical company in multimillion-dollar securities fraud class action, in which dismissal was obtained via summary judgment following Supreme Court's decision in Halliburton.
  • Represented nonprofit organization dedicated to economic empowerment of African American communities in amicus brief before the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez, a case with key implications for the ability of companies to defeat class actions using offers of judgment under Rule 68 of the Federal Rules of Civil Procedure.
  • Represented nonpartisan public policy research foundation in amicus brief before the U.S. Supreme Court in Tyson Foods v. Bouaphakeo, which deals with the constitutional viability of “trial by formula” to determine liability and damages in wage-hour class actions.
  • Obtained dismissal of tort and unjust enrichment claims on behalf of an internet server hosting company that fell victim to a “phishing” attack, resulting in the loss of client data.
  • Defended telemedicine triage service company providing mobile diabetic retinopathy examinations in putative class action asserting violations of the Telephone Consumer Protection Act. Filed motion to dismiss based on lack of standing, precipitating a favorable settlement for the client.
  • Obtained class certification and defeated a motion to dismiss on behalf of a class of Colorado Medicaid enrollees in action challenging Colorado Medicaid restrictions on coverage of Direct Acting Antiviral medications for chronic Hepatitis C.
  • Represented nonpartisan public policy research foundation in amicus brief before the U.S. Supreme Court in Pena v. Taylor Farms, arguing that courts should only certify class actions based on evidence that would otherwise be admissible at trial.

Recognitions and Memberships

Recognitions

  • Legal Aid Society: Pro Bono Publico Award (2014 and 2015)

Memberships

  • American Bar Association: Litigation Section
  • New York State Bar Association
  • Massachusetts Bar Association

News

News

Pro Bono

  • Represented indigent death-sentenced inmate in state and federal habeas corpus proceedings in Georgia.
  • Represented rent-stabilized tenant in housing court proceedings to enforce repairs and to collect rent overcharges before the New York State Division of Housing and Community Renewal.
  • Represented New York City in taking and defending depositions in tort cases as part of pro bono partnership with the New York City Law Department.
  • Represented class of Colorado Medicaid enrollees in class action challenging the legality of Colorado Medicaid restrictions on coverage for Direct Acting Antiviral medications (DAAs) for Hepatitis C. DAAs have been labeled “breakthrough therapy” by the FDA and have been shown to result in a de facto cure for more than 90% of patients.

Prior Positions

  • New York City Teaching Fellows: Mathematics Teacher

Admissions

  • New York, 2010
  • Massachusetts, 2010

Education

  • J.D., Fordham University School of Law, 2009, cum laude
  • M.S., Pace University, 2006
  • B.A., Cornell University, 2004, with distinction

Blog

In The Blogs

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IP Intelligence: Insight on Intellectual Property
Trademark Office Takes Tougher Stance on Registering Rights to Colors on Packaging
By Shannon V. McCue
October 12, 2018
Trademark law recognizes that a color can be used to identify the source of products and therefore, enjoys protection under trademark law. Let’s test your color brand awareness: • What can Brown do for you? – shipping services • The little...
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Class Action Lawsuit Defense
Kentucky Federal Court Brushes Aside Pre-emptive Attack on Class Allegations in Phishing Case, Rejects Out-of-the-Box Defense Strategy
By David M. McMillan
December 28, 2017
Brushing aside apparent flaws in a proposed class definition, a federal court in Kentucky declined to dismiss class allegations against North Carolina-based pharmacy services provider Pharm-Save Inc. (Pharm-Save) stemming from a W-2...
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Class Action Lawsuit Defense
District Court Follows Supreme Court's Lead in Halliburton, Allows Class Action to Proceed with Narrowed Factual Scope
By David M. McMillan
July 31, 2015
Applying the Supreme Court’s landmark decision in Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014) (“Halliburton II”), which allowed companies facing securities fraud class actions to defeat certification by presenting...
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Class Action Lawsuit Defense
Genzyme First Circuit Decision
By David M. McMillan
June 13, 2014
In a huge victory for Massachusetts-based biologics manufacturer Genzyme Corporation, the First Circuit Court of Appeals on June 5, 2014...
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Class Action Lawsuit Defense
Wall Street Banks, Stock Exchanges and High Frequency Trading Firms Hit With Securities Fraud Class Action
By David M. McMillan
May 12, 2014
Last month, the City of Providence, Rhode Island filed a first-of-its-kind class action against Wall Street banks, securities exchanges and brokerage firms over alleged violations of federal securities laws stemming from the defendants’...
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