DAVID PARKER

On June 21, 2018, the U.S. Supreme Court handed down its decision in Lucia v. Securities and Exchange Commission, finding that the SEC’s system of appointing administrative law judges (ALJs) by the SEC staff, rather than by the SEC commissioners themselves, is unconstitutional.   The case resolved a split between the U.S. Courts of Appeals for the…

The United States Supreme Court has narrowed the scope of section 546(e), the Bankruptcy Code securities safe harbor for clawbacks, such that it may be available in many cases to only banks, large funds, and other large financial institutions. The case, Merit Management Group LP v. FTI Consulting, Inc., is the first Supreme Court test…

Overview: On February 21, 2018, the U.S. Supreme Court issued its ruling in Digital Realty Trust, Inc. v. Somers, resolving disagreement among the Second, Fifth and Ninth Circuit Courts of Appeals and the SEC concerning the scope of the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, applicable to…

A case currently before the United States Supreme Court could significantly restrict the scope of an important defense to clawback actions, limiting its usefulness for entities that are not major financial institutions or large funds. Based on recent oral argument, the Bankruptcy Code safe harbor for clawbacks may be given a narrow interpretation, leaving it…

Effective October 31, 2017, after being signed into law by New York City Mayor Bill de Blasio on May 4, 2017, The New York City Human Rights Law has been amended to prohibit employers from asking questions about job applicants’ history of wages, salary, benefits, and other compensation during all stages of the interview process.…

The U.S. Court of Appeals made a major change to insider trading law in its ruling this week in Martoma v. United States, involving Matthew Martoma, a former portfolio manager at S.A.C. Capital Advisors. The Second Circuit held that the inference of a personal benefit to a tipper no longer requires a showing of a…

On June 5, 2017, the U.S. Supreme Court rendered a decision of significant consequence to securities industry participants, holding that disgorgement claims under the federal securities laws are “penalties” under 28 U.S.C. § 2462, and therefore are subject to a 5-year statute of limitations. The Supreme Court’s unanimous decision in Kokesh v. Securities and Exchange…

On December 20, 2016, New York’s highest court rendered a decision confirming what participants in financial markets have long believed to be true: that absent an express manifestation of the parties’ intent not to be bound, an agreement to buy or sell a financial instrument that includes all material terms but is “subject to” additional…

On December 6, 2016, the U.S. Supreme Court issued a decision in the long-awaited case of Salman v. United States, the first substantive insider trading case to be taken up by the high court in nearly two decades. Although the Supreme Court has spoken, the uncertainty resulting from the 2014 decision of the U.S. Court…

On July 13, 2016, the Securities and Exchange Commission adopted amendments updating the rules of practice governing its in-house administrative proceedings. Among the most significant new rules adopted by the SEC are: Timing of Hearing and Initial Decision The new rules make the deadline for a final decision run from the date that the hearing…

The Securities and Exchange Commission and the Department of Justice recently have sought to persuade companies to self-report violations of the Foreign Corrupt Practices Act. The SEC has announced non-prosecution agreements with two companies, Akamai Technologies and Nortek Inc., respecting bribes paid to Chinese officials by Chinese subsidiaries. Each U.S. company was required to disgorge…

In a much anticipated decision rendered just days ago – one which will have profound implications in the transactional world as well as in the courtroom – New York’s highest court refused to extend the so-called common interest privilege to communications between two or more parties and their counsel where there was no actual or…

A recent decision by the Court of Appeals for the Second Circuit, In re Tribune Company Fraudulent Conveyance Litigation, has emphatically rejected a controversial workaround strategy used by plaintiffs in several pending fraudulent conveyance cases brought against shareholders of public companies, providing clarity regarding the scope of the “Safe Harbor” defenses of Bankruptcy Code section…

A recent decision by New York Bankruptcy Judge Gerber has both raised the hopes of thousands of good faith shareholder defendants mired in long-running adversary proceedings and provided useful guidance to practitioners regarding the scope of “actual intent” fraudulent conveyance law. The cases, Weisfelner v. Fund 1, Weisfelner v. Reichman, and Weisfelner v. Hofmann, are…

On December 8, the United States Court of Appeals for the Second Circuit reversed the March 2014 convictions of former Jefferies RMBS trader Jesse Litvak for fraud against the United States and making false statements and vacated Litvak’s conviction for securities fraud, remanding the case to the District Court for a new trial on the…

On June 30, 2015, U.S. District Judge Ronnie Abrams handed down an important decision affecting the SEC’s controversial practice of bringing insider trading enforcement actions in the form of in-house administrative proceedings instead of as civil court actions. In a 23-page opinion, Judge Abrams refused to enjoin the SEC from continuing with an ongoing administrative…

On June 8, 2015, U.S. District Judge Leigh Martin May handed down an important decision affecting the SEC’s practice of bringing insider trading enforcement actions in the form of in-house administrative proceedings instead of civil court actions. In a 45-page opinion, Judge May enjoined the SEC from continuing with an ongoing administrative proceeding on the…

On Friday, May 8, 2015, the Securities and Exchange Commission issued guidance to its staff to assist in determining whether to bring enforcement actions in federal district court or as administrative proceedings before an Administrative Law Judge. The administrative proceedings have become highly controversial in recent years, as many defendants in the proceedings have complained…

The U.S. Court of Appeals for the Second Circuit, in In re Kingate Management Limited Litigation, recently made it significantly easier for plaintiffs in the Second Circuit and New York, Connecticut and Vermont state courts to bring class actions alleging violations of state law in litigation involving certain types of securities. By allowing these claims…

On March 24, 2015, the Supreme Court of the United States issued a decision setting standards for opinions in issuers’ registration statements. In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, the Court held that an issuer of securities must ensure that representations of opinion in registration statements are (1) sincerely held and…

In a decision sure to affect the behavior of parties in transactional and other contexts, the New York Appellate Division for the First Department on December 4, 2014 eliminated the “pending or reasonably contemplated litigation” requirement from the common interest privilege. Thus, the presence of a third party at an otherwise privileged communication will not…