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Michelle M. Newcomer

Counsel

D   484.270.1412
F   610.667.7706

Michelle M. Newcomer, Counsel to the Firm, concentrates her practice in the area of securities litigation. Michelle has been involved in dozens of class actions in which the Firm has served as Lead or Co-Lead Counsel, through all aspects of pre-trial proceedings, including complaint drafting, litigating motions to dismiss, for class certification and for summary judgment, conducting document, deposition and expert discovery, and appeals.  Michelle was also part of the trial team in the Firm’s most recent securities fraud class action trial, which resulted in a jury verdict on liability and damages in favor of investors.

Michelle has represented many types of individual and institutional investors, including public pension funds, asset managers and Sovereign Wealth Funds.  Michelle’s experience includes traditional class actions, direct actions, and non-U.S. collective actions.

Michelle began her legal career with the Firm in 2005.  Prior to joining the Firm, she was a summer law clerk for the Hon. John T.J. Kelly, Jr. of the Pennsylvania Superior Court.

Awards/Rankings

  • Pennsylvania Super Lawyers–Rising Star, 2012, 2013, 2014, and 2015
Experience

Ongoing Cases

  •   CASE CAPTION Sjunde AP-Fonden, et al., v. General Electric Company, et al.
      COURT United States District Court for the Southern District of New York
      CASE NUMBER 1:17-cv-08457-JMF
      JUDGE Honorable Jesse M. Furman
      PLAINTIFF  Sjunde AP-Fonden and The Cleveland Bakers and Teamsters Pension Fund
      DEFENDANTS General Electric Company and Jeffrey S. Bornstein
      CLASS PERIOD March 2, 2015 through January 23, 2018, inclusive

    This securities fraud class action case arises out of alleged misrepresentations made by General Electric (“GE”) and its former Chief Financial Officer, Jeffrey S. Bornstein (together, “Defendants”), regarding the use of factoring to conceal cash flow problems that existed within GE Power between March 2, 2015, and January 24, 2018 (the “Class Period”).

    GE Power is the largest business in GE’s Industrials operating segment. The segment constructs and sells power plants, generators, and turbines, and also services such assets through long term service agreements (“LTSAs”). In the years leading up to the Class Period, as global demand for traditional power waned, so too did GE’s sales of gas turbines and its customer’s utilization of existing GE-serviced equipment.  These declines drove down GE Power’s earnings under its LTSAs associated with that equipment.  This was because GE could only collect cash from customers when certain utilization levels were achieved or upon some occurrence within the LTSA, such as significant service work.

    Plaintiffs allege that in an attempt to make up for these lost earnings, GE modified existing LTSAs to increase its profit margin and then utilized an accounting technique known as a “cumulative catch-up adjustment” to book immediate profits based on that higher margin.  In most instances, GE recorded those cumulative catch-up earnings on its income statement long before it could actually invoice customers and collect cash under those agreements. This contributed to a growing gap between GE’s recorded non-cash revenues (or “Contract Assets”) and its industrial cash flows from operating activities (“Industrial CFOA”).  

    In order to conceal this increasing disparity, Plaintiffs allege that GE increased its reliance on receivables factoring (i.e., selling future receivables, including on LTSAs, to GE Capital or third parties for immediate cash).  Through factoring, GE pulled forward future cash flows and, in light of the steep concessions it often agreed to in order to factor a receivable, traded away future revenues for immediate cash.  In stark contrast to the true state of affairs within GE Power—and in violation of Item 303 of Regulation S-K—GE’s Class Period financial statements did not disclose material facts regarding GE’s factoring practices, the true extent of the cash flow problems that GE was attempting to conceal through receivables factoring, or the risks associated with GE’s reliance on factoring.  Rather, Defendants affirmatively misled investors about the purpose of the Company’s factoring practices, claiming that such practices were aimed at managing credit risk, not liquidity

    Eventually, however, GE could no longer rely on this unsustainable practice to conceal its weak Industrial cash flows.  As the truth was gradually revealed to investors—in the form of, among other things, disclosures of poor Industrial cash flows, massive reductions in Industrial CFOA guidance, and a dividend cut that was attributable in part to weaker-than-expected Industrial cash flows—GE’s stock price plummeted, causing substantial harm to Plaintiffs and the Class. 

    In January 2021, the Court sustained Plaintiffs’ claims based on allegations that GE failed to disclose material facts relating its practice of and reliance on factoring, in violation of Item 303, and affirmatively misled investors about the purpose of GE’s factoring practices.  Fact discovery in the case is ongoing and is currently scheduled to conclude in February 2022.

  • CASE CAPTION  Washtenaw County Employees' Retirement System v Walgreen Co., et al.
    COURT United States District Court for the Northern District of Illinois
    CASE NUMBER 1:15-cv-03187
    JUDGE Honorable Sharon Johnson Coleman
    PLAINTIFF Industriens Pensionsforsikring A/S (“Industriens”)
    DEFENDANTS Walgreen Co. (“Walgreen” or the “Company”), Gregory D. Wasson, and Wade Miquelon
    CLASS PERIOD March 25, 2014 through August 5, 2014, inclusive

    This securities fraud class action case arises out of Defendants’ representations and omissions regarding Walgreen’s highly publicized earnings target of $9 billion to $9.5 billion for fiscal year 2016 (the “FY16 target”) and the negative impact of hyperinflation in generic drug prices (“generic inflation”) combined with unfavorable reimbursement contracts that caused significant reductions in Walgreen’s gross margins and earnings. During the Class Period, Defendants repeatedly reaffirmed the FY16 target and represented that Walgreen was seeing “nothing unusual” with respect to generic inflation or reimbursement pressure. Plaintiff alleges that unbeknownst to investors, the systemic shift to generic inflation caused a catastrophic impact on Walgreen’s earnings and profitability because it was “locked up” in multi-year contracts with lower reimbursement rates that did not protect against generic inflation.

    Industriens filed a 124-page complaint in August 2015 on behalf of a proposed class of investors alleging that Walgreen and its former executives, CEO Greg Wasson and CFO Wade Miquelon, violated Section 10(b) of the Securities Exchange Act by making false and misleading statements and concealing material facts about the magnitude and severity of generic inflation and reimbursement pressure and the combined impact on Walgreens’ margins and profitability, including the FY16 target. As alleged, following Walgreens’ disclosure of a $2 billion shortfall to its FY16 EBIT target as a direct result of generic inflation and reimbursement pressure, Walgreens’s stock price fell precipitously, causing significant losses and damages to the Company’s investors.

    In September 2016, the Honorable Sharon Johnson Coleman issued an order denying in part Defendants’ motion to dismiss. In March 2018, Judge Coleman certified the case as a class action. Following Industriens’s amendment of the complaint in December 2018, Judge Coleman issued an order in September 2019 denying in part Defendants’ renewed motion to dismiss. The order held that Plaintiff’s amended complaint adequately alleged several additional false and misleading statements and omissions, including statements regarding the FY16 target and the negative impact of generic inflation and reimbursement pressure on the Company’s performance.

    On November 2, 2021, the Court issued a Memorandum and Opinion and Order denying in large part Defendants’ motion for summary judgment, clearing the case to proceed to trial.

Representative Outcomes

  • This securities fraud class action in Manhattan federal court arose out of Pfizer’s concealment of clinical results for two arthritic pain drugs, Celebrex and Bextra. Despite being aware of significant cardiovascular adverse events in clinical trials, Pfizer misrepresented the safety profile of the drugs until the U.S. Food & Drug Administration discontinued a key trial, forced the withdrawal of Bextra from the market, and issued an enhanced warning label for Celebrex. Following a summary judgment order dismissing the case several weeks before trial was set to begin, we successfully appealed the dismissal at the U.S. Court of Appeals for the Second Circuit and the case was remanded for trial.

    After twelve years of litigation, the case resolved in 2016 with Pfizer agreeing to pay the shareholder class $486 million, the largest-ever securities fraud settlement against a pharmaceutical company in the Southern District of New York.

  • As co-lead counsel representing the State of New Jersey – Division of Investment, negotiated a groundbreaking multipart settlement in litigation arising from Tenet Healthcare’s (Tenet) manipulation of the Medicare Outlier reimbursement system and related misrepresentations and omissions.

    The initial partial settlement included $215 million from Tenet, personal contributions totaling $1.5 million from two individual defendants—an unusual result in class action litigation—and numerous changes to the company’s corporate governance practices. A second partial settlement of $65 million from Tenet’s outside auditor, KPMG, addressed claims that it had provided false and misleading certifications of Tenet’s financial statements.  As a result of the settlement, various institutional rating entities now rank Tenet’s corporate governance policies among the strongest in the United States.