Lori Marks-Esterman

Practice Areas

• Litigation

• Shareholder Activist Litigation

• Corporate Governance & Directors & Officers Litigation

• Real Estate Litigation

• Employment Litigation

• Shareholder Activism Practice

• Appellate Practice

• Arbitration

• Business Tort Litigation

• Contract Litigation

• Cross-Border

• Distressed Real Estate

Career

Lori Marks-Esterman is among the nation’s leading litigators representing investors and other stakeholders in capital markets matters and other complex commercial disputes. She is a seasoned trial attorney proficient in handling capital markets litigation and corporate governance disputes and she chairs Olshan’s Litigation Practice.

Hedge funds, private equity companies, shareholder activists, real estate developers, and other public and private entities entrust their most challenging litigation matters to Lori. She litigates and has secured critical wins in multimillion- and multibillion-dollar litigation matters in influential jurisdictions in securities-related litigation, M&A disputes, and cases involving corporate governance, shareholder activism, breach of contract, breach of fiduciary duty, and D&O liability.

Lori also excels in general commercial litigation, assessing risk, defining strategy, and devising business solutions that drive value. She has prevailed in business, contract, and investor disputes, real estate litigation, business tort cases, and commercial employment-related claims.

Investors in private and public companies routinely rely on Lori in high-profile contentious activist matters. She has served as lead trial counsel in several highly sophisticated matters tried in the Delaware Court of Chancery and New York courts.

Lori also has significant experience in cross-border matters, utilizing Section 1782 cases to obtain critical evidence in the U.S. for use in foreign litigation. Working closely with foreign co-counsel, Lori develops case and discovery strategies for foreign disputes. Among these, she represented IsZo Capital LP in the Southern District of New York in a $170 million private placement dispute that culminated in what various media called “an epic” victory. She also recently secured a multibillion-dollar precedent-setting win on a Section 1782 application that sought discovery from multiple corporate respondents in a $2.7 billion merger. Lori’s consistent success in these matters has helped increase the potency of Section 1782 as a tool in litigation involving international business transactions.

A fierce, persistent, and zealous advocate, Lori evaluates the pros and cons of the client’s position and then leverages the pressure points through the various stages of litigation to routinely deliver successful results. With a clear understanding of the problems and her clients’ goals in mind, she plots a strategic course focused on the finish line. Chambers commented that “Lori Marks-Esterman is a strong choice for hedge funds, public companies and shareholders in contentious matters arising from merger transactions.”

Lori is a fellow of the prestigious Litigation Counsel of America, an invitation-only trial lawyers’ honorary society recognizing excellence among American litigation and trial counsel. She is a member of Olshan’s Executive Committee, Women’s Committee, and Diversity and Inclusion Committee.

Professional Memberships

• Litigation Counsel of America

• New York City Bar Association

• 100 Women in Finance

• Co-Founder, Women in Alternatives, a senior-level women’s group focused on advancing the interests of professional women in the alternative investment space

Personal

• Named a “Leading Lawyer” in Litigation: General Commercial by Chambers USA since 2021

• Fellow of the prestigious Litigation Counsel of America, an invitation-only trial lawyer honorary society. Membership is limited to 3,500 fellows, representing less than one-half of one percent of American lawyers

• Named among the “Notable Diverse Leaders in Law” by Crain’s New York Business, 2022

• Named among the “Notable Women in Law” by Crain’s New York Business, 2018 and 2020

• Honored as a “Leading Lady” at the Third Annual Mann Charitable Foundation Event, 2019

• Consistently named to the New York Metro Super Lawyers list since 2013

• Named a “Rising Star” by New York Metro Super Lawyers, 2012

• Recognized among the “Top Women Attorneys” in the New York Metro Area by Super Lawyers since 2013

• Awarded “Deal of the Year” and “Activist Campaign of the Year” by The Deal for representation of George Feldenkreis in his nomination of directors and successful unsolicited acquisition of Perry Ellis

Publications

Lori is published and regularly quoted as an industry expert in notable publications.

Expert in these Jurisdictions

• New York

• U.S. District Court for the Eastern District of New York

• U.S. District Court for the Southern District of New York

Experience

Some of Lori’s notable representations include serving as lead trial counsel for:

Brought an action in Delaware Court of Chancery against primary health care provider Cano Health, Inc. whose stock price plummeted by 92% in the years following its IPO. In 2023, Olshan clients Elliot Cooperstone and Lewis Gold (together with Barry Sternlicht, plaintiffs), former directors of Cano and 35% shareholders, filed a complaint and motion for expedited proceedings against the company and its board in the Delaware Court of Chancery, seeking an injunction to reopen the company’s window for director nominations and shareholder proposals due to material events that occurred and material information that came to light after the nomination window closed. A withhold campaign was launched in tandem with the litigation. Plaintiffs alleged the company and its affiliates had engaged in a series of conflicted transactions with the CEO and members of his immediate family and that after the nomination window closed, the balance of the board formed a special committee intentionally designed to usurp the power of the full board, which precipitated Plaintiffs’ campaign. After securing a motion to expedite, Olshan’s team completed discovery in less than three weeks, including seven depositions. The parties submitted approximately 250 exhibits in advance of the hearing. Although the court denied Plaintiffs’ motion, finding that under Delaware law, the alleged conduct did not constitute “fundamental changes in the operation and management” of the company, the combined efforts of the litigation and withhold campaign were successful. At the annual meeting, over 80% of shareholders voting withheld votes from the company’s nominees for re-election. Further, the conflicted CEO was forced to step down effective immediately.

Olshan client Strategic Investment Opportunities LLC (SIO) brought two proceedings in the Delaware Court of Chancery in its effort to nominate a slate of directors at the annual meeting of Lee Enterprises, Inc. (Lee). In the first litigation, SIO alleged breach of fiduciary duty against the Lee board and sought expedited injunctive relief. In less than a week, after Olshan completed expedited discovery, seven depositions, expert reports, and pre-trial briefs, the trial was held. The court found for the defendants, finding that SIO had not complied with Lee’s advance notice bylaws. Although SIO did not prevail on its claim, the case is important because it clarifies the standard of review applicable to a board’s conduct in a contested election. In the second litigation (Lee II), SIO challenged Lee and the board’s use of the plurality voting standard at the upcoming annual meeting election, alleging the nominations were invalid, a position the court upheld. Thereafter, following briefing and oral argument, the court denied SIO’s motion to expedite and for a temporary restraining order, holding that SIO could pursue its claims following the annual meeting. The court reasoned that SIO had stated colorable claims that the application of a plurality voting standard where only incumbents were running was inconsistent with the bylaws but did not grant the relief sought in view of the imminent meeting date. To our knowledge, Lee II is the first time the court has interpreted a bylaw requiring a majority voting standard in an uncontested election.

Successfully represented Kingstown Partners Master Ltd. (Kingstown) in an §1782 application to the Southern District of New York seeking discovery from multiple corporate respondents to support a Cayman Islands appraisal proceeding in connection with a $2.7 billion merger. Kingstown and other dissenting shareholders alleged multiple conflicts of interest In re Kingstown Partners Master Ltd., No. 21-MC-691-LTS (S.D.N.Y. April 8, 2022). The 1872 application was necessary because Cayman courts lack jurisdiction to order discovery from foreign-domiciled third parties in appraisal proceedings. The court (Hon. L. Swain) rejected the respondents arguments that Kingstown was seeking to circumvent foreign restrictions on evidence and that the discovery requests were unduly broad and irrelevant to the fair value determination and found in our client’s favor, granting all written discovery Kingston sought. This decision has important precedential value given the increasing frequency of litigation over international business transactions, and the increasing potency of § 1782 as a tool for litigants.

Successfully represented FrontFour Capital Group LLC and FrontFour Master Fund, Ltd., in a class action brought on behalf of the shareholders of Medley Capital Corporation (MCC) in a highly expedited trial in the Delaware Court of Chancery that concluded that MCC’s board had breached its fiduciary duty in approving a merger transaction with MCC’s affiliates, Medley Management, Inc. and Sierra Income Corporation, and enjoined the pending transaction.