Melinda A. Nicholson, a partner in KSF’s Louisiana office, focuses on shareholder derivative and class action litigation, representing institutional and individual shareholders in corporate governance litigation and securities fraud actions, and antitrust matters. Ms. Nicholson also oversees KSF’s shareholder derivative practice.
Ms. Nicholson has been involved in a number of significant derivative and class action cases throughout the country seeking recovery for harmed shareholders and individuals, obtaining seminal decisions in shareholders’ favor, including:
- Oliver, et al. v. American Express Company, et al., No. 1:19-cv-00566-NGG-SMG (E.D.N.Y). On April 30, 2020, the Hon. Nicholas G. Garaufis, United States District Court Judge for the Eastern District of New York, entered an Order denying, in part, defendants’ motion to dismiss. This matter, in which Kahn Swick & Foti, LLC is a member of Plaintiffs’ Executive Committee, seeks damages, restitution, and injunctive relief against the American Express Company and American Express Travel Related Services Company, Inc. (collectively, “Amex”), on behalf of persons that used an electronic form of payment other than an Amex charge or credit card to purchase goods and services sold by merchants across the country at prices allegedly inflated by Amex’s non-discrimination provisions. Judge Garaufis ruled that plaintiffs adequately pled violations of 22 state antitrust and/or consumer protection laws and allowed plaintiffs’ case to proceed against Amex for these violations.
- In re Fitbit, Inc. Stockholder Derivative Litigation, Consolidated C.A. No. 2017-0402-JRS (Del. Ch.). On December 14, 2018, Vice Chancellor Joseph R. Slights III of the Delaware Chancery Court rejected a motion to dismiss a stockholder derivative suit alleging insider trading and breach of fiduciary duty claims against executive officers and directors of Fitbit, Inc. (“Fitbit”). The lawsuit, in which Ms. Nicholson serves as co-lead counsel, alleges that certain insiders made $385 million in stock sales in the company’s initial public offering and—after agreeing to release the insiders from lock-up agreements that barred them from trading for 180 days after the initial public offering—an early secondary offering, taking take advantage of an artificially positive market response to Fitbit’s flagship PurePulse heartrate monitoring technology. Vice Chancellor Slights held that the plaintiffs’ complaint—bolstered by internal company documents obtained by KSF and its co-counsel—reasonably alleges that, while Fitbit was actively promoting its PurePulse technology, the company internally was struggling to correct and contain news about serious problems with the accurate functioning of their devices containing PurePulse. In the opinion, Vice Chancellor Slights further held that the complaint adequately pled that the directors and officers who sold stock traded on inside information, and “designed the secondary offering to accommodate sellers’ interests.”
- Dougherty v. Esperion Therapeutics, Inc., et al., 16-10089 (E.D. Mich.). On September 27, 2018, the Sixth Circuit Court of Appeals reversed and remanded the lower court’s dismissal of the securities class action filed on behalf of a putative class of Esperion Therapeutics, Inc. investors. In a decision written by Senior Circuit Judge Eugene Edward Siler, Jr., the Sixth Circuit held that the district court erred by concluding that lead plaintiffs had not adequately alleged scienter, stating that, “Esperion has offered no innocent inference stronger than Plaintiffs’ inference that Esperion knowingly or recklessly made material misrepresentations or omissions in its  communications with investors.” The Court further held that defendants’ “innocent inference” explanations were either implausible or actually supported lead plaintiffs’ allegation of recklessness.
Ms. Nicholson is actively involved in cases pending before various federal and state courts across the United States, including:
- Bassett Family Trust v. Costolo, et al. (Twitter, Inc. Derivative Litigation), C.A. No. 2019-0806-TMR; (Del. Ch.); Plaintiffs’ Counsel;
- Dougherty v. Esperion Therapeutics, Inc., et al., No. 16-10089 (E.D. Mich.); Co-Lead Counsel;
- In re GoPro, Inc., Stockholder Derivative Litigation, C.A. No. 2018-0784-JRS (Del. Ch.); Co-Lead Counsel;
- Oliver, et al. v. American Express Company, et al., No. 1:19-cv-00566-NGG-SMG (E.D.N.Y.); Member of Plaintiffs’ Executive Committee;
- In re Pareteum Securities Litigation, No. 1:19-cv-09767-AKH-GWG (S.D.N.Y.);Lead Counsel;
- Pfenning v. Jacobs, et al. (Acadia Healthcare Company, Inc. Derivative Litigation), C.A. No. 2020-0915 (Del. Ch.); Plaintiff’s Counsel;
- In re TrueCar, Inc., Stockholder Derivative Litigation, C.A. No. 2019-0672-AGB (Del. Ch.); Plaintiffs’ Counsel; and
- Welch v. Meaux, et al., No. 19-1260 (W.D. La.) Lead Counsel.
Since joining KSF, Ms. Nicholson has also been involved in a number of cases which ultimately resulted in successful settlements, including:
- Orrego v. Lefkofsky (Groupon, Inc. Derivative Litigation), No. 12 CH 12420 (Ill. Cir. Ct, Cook Cnty., Ch. Div.) (settlement consisting of broad corporate governance reforms with an estimated value of $159 million);
- In re Bank of America Corporation Securities, Derivative, & Employee Retirement Income Security Act (ERISA) Litigation, No. 09-MD-2058 (S.D.N.Y.) (Court-approved settlement including $62.5 million cash recovery and substantial corporate governance changes);
- In re Fifth Street Finance Corp. Stockholder Litigation, Consolidated C.A. No. 12157-VCG (Del. Ch.) (settlement resulted in governance enhancements and advisory fee reductions worth an estimated $30 million);
- In re Barnes & Noble Stockholder Derivative Litigation, C.A. No. 4813-VCS (Del. Ch.) (settlement resulted in $29 million recovery for the company);
- In re Fitbit, Inc. Stockholder Derivative Litigation Consolidated C.A. No. 2017-0402-JRS (Del. Ch.) (settlement resulted in $5 million recovery for the company);
- In re FAB Universal Corporation Shareholder Derivative Litigation., Lead Case No. 14-cv-687 (S.D.N.Y.) (settlement involving broad corporate governance reforms);
- Lowry v. Basile (Violin Memory, Inc. Derivative Litigation), No. 4:13-cv-05768 (N.D. Cal.) (broad corporate governance reform settlement);
- In re Moody’s Corporation Shareholder Derivative Litigation, 1:08-CV-9323 (S.D.N.Y.) (settlement involving comprehensive corporate governance reforms); and
- In re Star Scientific, Inc. Virginia Circuit Court Derivative Litigation, Lead Case No. CL13-2997-6 (Va. Cir. Ct., City of Richmond) (settlement involving sweeping corporate governance reforms).
Prior to joining the firm in 2010, Ms. Nicholson worked for defense firms in New York, handling complex commercial litigations and regulatory investigations involving a variety of legal issues, including fiduciary obligations, securities violations, contractual breaches, antitrust and insurance coverage. Ms. Nicholson completed a joint B.A./J.D. program at Tulane University, receiving a B.A. in Political Science, with a concentration in American Politics and Policies and a minor in Economics, from Tulane in 2003 and a J.D. from Tulane in 2005. While at Tulane Law School, Ms. Nicholson served as a Notes and Comments Managing Editor for the Tulane Law Review, which published her comment, The Constitutional Right to Self-Representation: Proceeding Pro Se and the Requisite Scope of Inquiry When Waiving Right to Counsel, 79 TUL. L. REV. 755 (2005). She has received numerous awards, including the Dean’s Medal for attaining the highest grade point average during the third year, the George Dewey Nelson Memorial Award for attaining the highest grade point average in common law subjects throughout the three years of law study, and Order of the Coif. She graduated from the law school summa cum laude and ranked second in her class.
Ms. Nicholson is admitted to practice in Louisiana and New York, and before the United States District Courts for the Eastern District of Louisiana, Western District of Louisiana, Southern District of New York, Eastern District of New York, District of Colorado, and Eastern District of Michigan.