Daniel Jonas

Litigation:

Dan has managed the prosecution and defense of a broad range of claims, from breach of contract and acquisition/indemnification claims to antitrust matters, patent infringement suits, and product liability and employment cases. He is additionally experienced in responding to threats of litigation relating to contract claims and non-competes.

His previous matters include the following:

• Oversees legal strategy for global medical device company of orthopedic and surgical devices, advising on litigation strategy, mergers and acquisitions, healthcare compliance, and responses tp domestic and international government inquiries and investigations.
• Responded to a complaint for claimed exposure to residual gas and indemnification demands. Won a motion to dismiss 44 claims due to worker’s compensation bar and won insurance coverage litigation in two separate lawsuits against the client’s insurer.
• Crafted strategy for defense of duty to commercialize claim for $20+ million sought by seller for deferred purchase price based on product safety issues in Delaware Chancery Court, with Court finding “overwhelming” evidence to support defense after non-jury trial.
• Managed defense in arbitration for termination of European distributor in which distributor sought $9 million for lost profits or disgorgement; distributor was awarded no damages and was ordered to pay $150,000 for interest on late payments and other damages.
• Managed defense of litigation acquired in acquisition in which false advertising claimant sought $20 million in compensatory damages, $18 million for corrective advertising, and $80 million in disgorgement and lost profits and prospective injunction. Jury awarded $2.2 million in compensatory damages and $10 million in punitive damages. Court denied requests for injunctive relief.
• Commenced antitrust bundling claims for monopolization and attempted monopolization of endoscopy market through tying and foreclosure pricing of sutures in which defendant had an effective monopoly. Case settled favorably with defendant making eight-figure payment to settle claims.
• Secured $10.5 million for breach of representation relating to regulatory compliance of acquired subsidiary after FDA inspected subsidiary post-closing and issued warning letter.
• Secured summary judgment dismissing ERISA class action relating to claim involving restructuring of distribution channel, which resulted in termination of sales representatives who were offered positions with distributors.
• Managed defense of royalty underpayment claim under patent license, ending in defense verdict at trial.
• Defense through Markman hearing and petitions for inter partes review of nine patent infringement claims asserted against sports medicine portfolio. Following Markman determination, and granting of IPR petitions, the case settled for a payment which was less than litigation costs for three months.
• Defense of multiple patent infringement claims relating to smoke evacuation electrosurgical pencils in two US jurisdictions and Canada. The Canadian case ended with plaintiff dedicating patent to public and paying $69,000 in fees to client.
• Advised on patent infringement claim, which settled prior to commencement of discovery with client agreeing to pay a nuisance royalty that was less than the cost of litigation.
• Managed defense of patent infringement claim with settlement pursuant to which client’s product remained on market subject to a minimum royalty to a third party, an unnamed inventor, with plaintiff having made a contribution toward client’s royalty obligation.
• Initiated and then settled patent infringement relating to unique gas-assisted electrosurgery devices. Defendant agreed to pay seven-figure licensing fee and royalty payments for life of patent, with total value estimated at $6 million.
• Oversee defense of product liability claims, including matter in which jury sought damages of $26 million with verdict finding no liability.
• Assisted in settlement of EEOC-filed racial discrimination claim, including entry into limited consent decree.
• Managed defense of newly hired executive from former employer’s claim seeking injunction based on inevitable disclosure doctrine. Former employer then sued for indemnification for former employee and agreed to pay $200,000 of former employee’s defense costs.

Mergers and acquisitions:

Throughout his two-decade career, Dan has advised on multiple transactions valued at over $1.75 billion. He is experienced in letters of intent; diligence; asset purchase agreements; mergers with public and private companies; acquisitions of distribution rights and distributors; and real estate partnerships, including extensive work on diligence; strategy; integration; risk allocation, including securing representation and warranty insurance policies; and post-closing adjustments and disputes.

His previous matters include the following:

• Advised on acquisition for up to $250 million for orthopedic implant company Biorez, based in New Haven, Connecticut, with Australian subsidiary. The acquisition included $20 million R&W insurance policy
• Advised on acquisition of foot and ankle business In2Bones, based in Memphis, Tennessee and Lyon, France, for up to $265 million, with $20 R&W insurance policy
• Advised on acquisition of Buffalo Filter (US), negotiated within three-day exclusivity period, during which transaction was secured from an alternate bidder with a higher price but slower deal team for $365 million
• Advised on asset purchase for Anchor Medical tissue retrieval system with upfront payments and contingent purchase price payments for aggregate consideration up to $45 million
• Assisted on merger  to acquired SurgiQuest, a high-growth company for $265 million on cash-free, debt-free basis, along with amended credit facility to fund acquisition.
• Negotiated exclusive promotion rights agreement with orthopedic field for allograft tissues for $148 million in aggregate consideration; client has been receiving $25 million per year for the past 10+ years, aggregating $250 million for revenues for which it has no cost of goods sold.
• Advised on acquisition of public company in visualization field for $24 million, including defense of plaintiffs’ class action securities fraud claims, which were withdrawn after filing of motion to dismiss.
• Conducted diligence and closed acquisitions of Italian and Brazilian distributors, allowing client to proceed with direct sales organizations in-country. Matter included acquisition of corporate entities, employees, sales contracts, and operations.
• Acquired manufacturing and office facility through structure that was essentially cost-free in that foregone taxes paid for property valued at $23 million.
• Conducted due diligence, issued letters of intent with offers for potential acquisitions that were not consummated, and assisted in several other acquisitions with purchase prices ranging from $6 million to $80 million.

Regulatory affairs and compliance matters, including heathcare compliance:

• Assist in responding to numerous Form 483 Observations, warning letters, and other compliance and related inquiries from US FDA and Canadian regulatory and other agencies. Advise on marketing claims, corrective and preventive actions (CAPAs), and investigations into adverse events and reported product complaints
• Designed corporate RA/QA function in response to request from compliance office. Perform FDA and regulatory diligence in acquisition contexts, as well as negotiate for representation and warranty insurance for regulatory compliance matters.
• Created compliance function with compliance director, annual needs assessment, healthcare professional contracts and arrangements, policies on meal limits and surgeon interactions, compliance committee training program, and auditing/monitoring and Sunshine Act reporting. Advise on physician interactions under Anti-Kickback and Foreign Corrupt Practices Act.
• Respond to anonymous whistleblower complainant and informal government inquiry concerning allegations of distributor paying fraudulent consulting payments.
• Oversee response to international customs investigation into allegedly inflated import pricing to drive reimbursement rates; investigation, which commenced with execution of search warrants, resolved for nominal fine and no admission of wrongdoing.
• Investigate and respond to allegations of misconduct, including allegations of, and inquiries concerning, alleged violations of Foreign Corrupt Practices Act.
• Advise on regular reporting to audit committees and boards of directors on status of compliance matters.

Finance:

• Oversee convertible bond offerings for $800 million, $345 million, and $150 million to trade 4-percent floating-rate debt for fixed debt at 2.25 percent, convertible in common stock in certain circumstances. Completed underwriting due diligence, negotiation of offering memorandum, lock-up agreements, and related agreements – in each instance, within 30 days.
• Manage legal issues for $800 million senior secured credit facility, including amendments to increase borrowing limits, adjust baskets, and secure waivers.
• Manage approval and oversee execution of $200 million stock repurchase program.
• Oversee secondary stock offering, which raised net proceeds of $66 million and closed within 30 days of commencement.

Corporate governance:

• Oversee convertible bond offerings for $800 million, $345 million, and $150 million to trade 4-percent floating-rate debt for fixed debt at 2.25 percent, convertible in common stock in certain circumstances. Completed underwriting due diligence, negotiation of offering memorandum, lock-up agreements, and related agreements – in each instance, within 30 days.
• Manage legal issues for $800 million senior secured credit facility, including amendments to increase borrowing limits, adjust baskets, and secure waivers.
• Manage approval and oversee execution of $200 million stock repurchase program.
• Oversee secondary stock offering, which raised net proceeds of $66 million and closed within 30 days of commencement.

Employment Law:

All aspects of employment, from drafting offer letters, evaluating non-compete agreements, responding to employee and administrative complaints, and litigating gender, racial, age, national origin, and other discrimination claims.

International Experience:

Dan regularly advises management on distribution matters in Europe and Asia. He has designed FCPA due diligence processes for distributors and oversees governance of international subsidiaries, as well as advises on investigations involving international businesses.

• Guest Speaker, Business Ethics at Brown University Fall Semester Class on Entrepreneurship, 2012-2022
• Speaker. New York State Bar Association, Commercial and Federal Litigation Section, The Prosecution and Defense of Actions Involving Restrictive Covenants and implied Duties of Confidentiality and Loyalty – A Client Perspective, June 17, 2020
• Speaker, "Minimizing Risk Through Corporate Governance," New York City Bar, October 25, 2019, New York, New York
• Speaker, "The New Age of Activism: Collaboration Over Conflict," The Rise of Shareholder Activism in Asia Pacific, September 26, 2019, New York, New York
• Speaker, "The Business Perspective on the New York State Supreme Court Commercial Division," New York Business Council Program on the Commercial Division of the New York State Commercial Division, May 6, 2015, Albany, New York