Gary Ewell

Partner
gewell@ebbklaw.com
+1 512.770.4030 (direct)
+1 512.415.1644 (mobile)
+1 877.851.6384 (fax)

111 Congress Avenue
Suite 2800
Austin, TX 78701
USA

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Practice Areas

Securities Litigation

Securities Enforcement

White Collar Defense and Government Investigations

Education

The University of Texas
J.D. 1978

Editor-in-Chief
Texas Law Review

Brown University
A.B. (Economics) 1975

Admissions

Texas

California

Eastern District Court of Texas

Northern District Court of Texas

Western District Court of Texas

Central District Court of California

Eastern District of California

Northern Eastern District of California

Southern District Court of California

District of Columbia District Court

D.C. Circuit Court of Appeals

Fifth Circuit Court of Appeals

Ninth Circuit Court of Appeals

United States Supreme Court

Mr. Ewell's 37 years of experience spans a wide range of subject matter areas, including antitrust, financial fraud, professional negligence, and energy regulation. For the past two decades, he has concentrated on securities-related matters, representing issuers, underwriters, investors, officers, and directors in investigations (conducted by special committees, governmental authorities, and regulatory agencies) and adversarial proceedings in the courts and before regulatory authorities. Mr. Ewell has served as lead trial counsel in corporate governance disputes, shareholder class actions, shareholder derivative actions, collateralized and derivative financial instrument litigation, and investigations of alleged Foreign Corrupt Practices Act (FCPA) violations.

Mr. Ewell began with Vinson & Elkins in its Houston and Washington, D.C. offices. Following a brief stint as a refugee relief worker in Somalia, he moved to San Francisco to join Morrison & Foerster, then he founded a litigation boutique where he practiced for 18 years. In 2000, Mr. Ewell returned to Vinson & Elkins in Austin, serving from there as co-head of the firm’s Litigation Section. At EBBK, Mr. Ewell continues to represent individuals, small and mid-size corporations, and public companies nationwide in a variety of adversarial proceedings.

Representative Experience*

  • Representation of former Wal-Mart executive in the Department of Justice's Foreign Corrupt Practices Act investigations of Wal-Mart's foreign operations.
  • Serving as lead counsel for public employee pension fund in lawsuit against hedge fund for fraud and breach of fiduciary duties.
  • Served as lead counsel for public company in investigations and proceedings involving allegations of back-dated stock options, including a special committee investigation culminating in restated financial statements, a NASDAQ delisting proceeding in which the company prevailed, an SEC investigation that concluded with no action taken, and shareholders’ derivative suits that settled with the plaintiffs' attorneys waiving their fee claims and the company receiving $2.85 million, In re Cirrus Logic Inc., No. 07-00212, slip op. (W.D. Tex. May 28, 2009); Amanda Bronstad, Attorneys Drop Fees in Shareholder Case Alleging Backdating, The National Law Journal, March 31, 2009.
  • Served as lead counsel for a medical device company former executive in series of investigations and proceedings over alleged inflating of revenues, including a consolidated class action in which the securities control person claims against him were dismissed, In re Arthrocare Securities Litigation, 726 F. Supp. 2d 696, 729-31 (W.D. Tex. 2010), an SEC enforcement action that settled immediately on favorable terms, SEC v. Raffle, No. 1:11-CV-540 (W.D. Tex. July 11, 2011), and a DOJ criminal prosecution concluded by plea agreement, U.S. v. Raffle, No. 1:12-CR-314-SS (W.D. Tex. May 9, 2013).
  • Acted as lead counsel for institutional investors seeking recovery of their $1.2 billion investment in an internet incubator before the SEC in proceeding to revoke the incubator's exemption from the Investment Advisors Act of 1940 Act and before a Los Angeles Superior Court in high profile dissolution litigation. See, e.g., Erika Brown, Angry Investors Seek to Liquidate Idealab, Forbes, December 30, 2002. Following successful interlocutory appeal on issues of first impression under California's dissolution statute, Kline Hawkes California SBIC v. Superior Court, 117 Cal. App. 4th 183, 11 Cal. Rptr. 3d 581 (2004), the investors settled on terms permitting an "exit event" return of their capital.
  • Obtained dismissal of a putative class action against underwriters brought under Section 10(b) of the Securities Exchange Act of 1934 over the adequacy of internal controls, improper revenue recognition, and undisclosed sales and product problems, Alcina v. pcOrder.com, Inc., 230 F. Supp. 2d 732 (W.D. Tex. 2002), succeeded in opposing class certification in a companion case under Section 11 of the Securities Act of 1933, Krim v. pcOrder.com, Inc., 210 F.R.D. 581 (W.D. Tex. 2002), and obtained dismissal of the remaining claims, Krim v. pcOrder.com, Inc., 1:00-cv-00776-SS, 2003 WL 21076787 (W.D. Tex. May 5, 2003), aff’d, 402 F.3d 489 (5th Cir. 2005).
  • Served as lead trial counsel for microprocessor manufacturer in obtaining summary judgment on purchaser's claims of deceptive trade practice, breach of contract, fraud, and negligent misrepresentation, Hugh Symons Group, PLC v. Motorola, Inc., 292 F.3d 466 (5th Cir.), cert. denied, 537 U.S. 950 (2002).
  • Served as lead trial counsel for alcoholic beverage wholesaler and distributor in obtaining a judgment declaring the Texas Alcoholic Beverage Code's one-year residential and citizenship requirements unconstitutional as a violation of the Commerce Clause, Southern Wine and Spirits of Texas, Inc. v. Steen, 486 F. Supp. 2d 626 (W.D. Tex. 2007).
  • Served as lead trial counsel in litigation over stock options awarded to financial consultant in connection with a company's initial public offering, Woelke v. Pacific Gateway Exchange, Civil Action No. 4-99CV-0166Y (N.D. Tex.).
  • Represented major airline in derivative suits and consumer class actions over allegedly uninspected fuselages, Kleiner v. Southwest Airlines Co., No. 5:08-CV-00218-WRF, 2008 U.S. Dist. LEXIS 122232 (W.D. Tex. Nov. 4, 2008).
  • Represented UBS Investment Bank and affiliates in various business tort actions.
  • Represented a leading medical research foundation in successfully obtaining financial support against related research institution, in lawsuit requiring judicial interpretation of long-suppressed charitable trust documents.
  • Represented a leading promoter of mixed martial arts events in regulatory matters involving the Texas combative sports licensing authority.
  • Served as lead counsel for a national title insurance company in the Texas Attorney General's investigation into mortgage foreclosure practices.

*Includes matters prior to forming EBB. Prior results do not guarantee a similar outcome.

Professional Recognition

  • Named to Texas Super Lawyers by Thompson Reuters, as published in Texas Monthly, 2007-2008.
  • Recognized “Best in Business Law, Commercial Litigation” by the Austin Business Journal, 2003.