DAVID PARKER

PARTNER

David Parker has a broad range of litigation experience in commercial matters, including contract disputes, securities, tax, executive employment, covenants not-to-compete and intellectual property issues, with a specialty in complex financial instruments. David handles many diverse and complex issues on behalf of private investment funds, both at the litigation and pre-litigation stages. He has significant experience in representing clients with respect to regulatory investigations, including responding to subpoenas and preparing clients for testimony.

Practices

About

David also handles general commercial matters, including litigation arising from the purchases and sales of businesses and alleged breaches of confidentiality and non-disparagement agreements.

David has been named a “New York Super Lawyer” every year since 2007, a leading lawyer in Commercial Litigation by “Best Lawyers” every year since 2019, and was listed in the 2010 Corporate Counsel national edition of Super Lawyers as one of the top attorneys in business litigation.

Experience

Private investment fund experience:

  • Enforcing investors’ rights when issuers refuse to convert debentures or preferred stock into common stock, to redeem those securities or otherwise to comply with their obligations.
  • Maximizing creditors’, bondholders’ or preferred stockholders’ claims in bankruptcy proceedings.
  • Pursuing and defending claims arising in the context of corporate control contests.
  • Defending against actions on behalf of issuers seeking to recover claimed “short swing” profits.
  • Responding to SEC or other domestic or foreign regulatory subpoenas and investigations and preparing clients for their testimony.
  • Defending a hedge fund against claims for fees by a marketer.
  • Enforcing an investor’s right to make certain information public so that the investor could trade in the related securities.
  • Enforcing an investor’s right to complete a trade in which the counterparty was not performing.

Bankruptcy and workout experience:

  • Representing investment funds, including with respect to transactions in which these entities invest in distressed securities and other special situations.
  • Representing avoidance action defendants in several major bankruptcy proceedings.
  • Representing investment funds which took sizable positions in the debt of companies which then filed for bankruptcy, including with respect to substantive consolidation and equitable subordination.
  • Acting as court-appointed receiver for a commercial Manhattan office building.

Education

Yale University (J.D., 1973)

Brown University (A.B., cum laude, 1969) Phi Beta Kappa

Bar Admissions

2012, Supreme Court of the United States

1991, U.S. Claims Court and U.S. Court of Appeals, Federal Circuit

1985, U.S. Tax Court

1975, U.S. Court of Appeals, Second Circuit

1974, U.S. District Court, Southern and Eastern Districts of NY

1974, New York

Accolades

New York Super Lawyer

2007 – Present

Best Lawyers – Commercial Litigation

2019

Super Lawyers – Business Litigation

2010 Corporate Counsel

Insights

Wish You Were Here: Notarizing in the Age of Social Distancing

April 14, 2020

As we manage the many dislocations resulting from the COVID-19 pandemic, some of the more ordinary tasks still need to be undertaken. One such task is notarization. How can one subscribe and swear “before” a notary in this age of social distancing? Fortunately, workarounds are available, some new and some already existing pre-pandemic. New York State Notarization Using…

Hot Off The Press: Newest Tribune Decision Affirms Safe Harbor Defenses

December 23, 2019

The latest decision by the Second Circuit Court of Appeals in the long-running Tribune Company fraudulent conveyance litigation provides Court of Appeals endorsement of safe harbor defenses to clawback actions that had been considered potentially vulnerable following the Supreme Court’s decision in Merit Management Group LP v. FTI Consulting, Inc. The opinion amounts to a reconsideration and reaffirmation…

Extra, Extra: Tribune decision bolsters Safe Harbor Defenses

May 1, 2019

The most recent decision in the long-running Tribune Company Fraudulent Conveyance Litigation multi-district case shores up safe harbor defenses to clawback actions that had been challenged following the Supreme Court’s Merit Management decision. The decision approves a broad reading of the statutory definition of “financial institution,” and thus extends the protection of the safe harbor…

Supreme Court Finds the SEC’s In-House Enforcement Proceedings To Be Unconstitutional: An Easy Fix

June 27, 2018,

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…

Troubled Waters Ahead: Supreme Court Narrows Safe Harbor

March 6, 2018,

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…

In Somers, the Supreme Court Narrows the Law Governing Retaliation Against Whistleblowers – but the Ruling May Hurt Employers in the Long Run

February 23, 2018,

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…

Storm Warning: Supreme Court to Rule on Safe Harbor

November 29, 2017,

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…

Supreme Court Limits SEC’s Recovery on Disgorgement Claims

June 7, 2017,

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…

New York’s Highest Court Affirms Enforceability of Agreements That Are “Subject To” Further Documentation

January 12, 2017,

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…

The Value of Domestic Cooperation in Dealing with Foreign Corruption

June 16, 2016,

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…

Stop the Presses: Court of Appeals Holds That Safe Harbor Blocks Creditor Fraudulent Conveyance Actions Against Tribune Shareholders

March 31, 2016,

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…

Paved with Good Intentions: Court Explores Contours of “Actual Intent” Fraud

February 9, 2016,

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…

Two Federal Judges in New York Reject Bids To Enjoin SEC Administrative Proceedings Against Securities Fraud Defendants

July 1, 2015,

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…

Supreme Court Declines to Review Safe Harbor Victory for Madoff Defendants

June 24, 2015

In a significant victory for brokerage customers, the Supreme Court has declined to accept an appeal by Irving Picard, the Madoff Securities trustee, from a decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC) (analyzed in our previous alert), that…

Federal Court Chips Away at SEC’s Use of In-House Administrative Proceedings Against Insider Trading Defendants

June 11, 2015,

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…

SEC Issues Guidance Regarding Administrative Proceedings

May 11, 2015,

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…

Class Assertion of State Law Fraud Claims relating to Certain Securities Is Now Easier in New York, Connecticut and Vermont

May 5, 2015,

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…

Issuer Liability for Opinions in Registration Statements

March 27, 2015,

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…

SEC’s Co-Chief of Enforcement (Asset Management Unit) Describes Enforcement Priorities for the Year

March 3, 2015

The Co-Chief of the Securities and Exchange Commission’s Asset Management Unit (the “AMU”) recently provided a revealing and important glimpse into the SEC’s priorities in bringing enforcement actions in the investment fund community. Julie M. Riewe gave an overview of the AMU’s capabilities and accomplishments in the five years since it was formed, and provided…

Second Circuit Provides Safe Harbor for Madoff Defendants

December 15, 2014

A recent decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC), sharply limits the remedies available to trustees in brokerage liquidations, provides significant protections for innocent customers of fraudulent brokers, and further shapes the ongoing debate over Bankruptcy Code safe harbors. For former customers…

Victory for Kleinberg Kaplan Clients in U.S. Court of Appeals

December 9, 2014

Kleinberg, Kaplan, Wolff & Cohen attorneys David Parker and Matthew Gold are part of the legal team that won an important victory in the United States Court of Appeals for the Second Circuit for former customers of Bernard Madoff Securities. The Second Circuit’s ruling sharply restricts the remedies available to Irving Picard, the Madoff Securities…

First Department Extends Common Interest Privilege

December 9, 2014,

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…

An arbitration by any other name…

April 30, 2014

When entering into a contract, parties need to know that they could be agreeing to arbitration without knowing it. A New York federal court recently held that the parties’ agreement to utilize a third-party appraisal procedure in the event of a dispute entitles the successful party to exercise important enforcement rights relating to arbitration, even…

Analyst Indicted for Stealing Hedge Fund Trading Data

April 1, 2014

The New York County District Attorney’s Office recently announced the indictment of a former analyst with a New York City hedge fund alleging that the analyst illegally accessed and duplicated proprietary and highly confidential information relating to the firm’s trading methods. The analyst is charged with multiple counts of Unlawful Use of Secret Scientific Material,…

Disclosure of Wells Notices Not Required by Section 10(b)

August 31, 2012

A recent decision of the United States District Court for the Southern District of New York has held that Section 10(b) of the Securities Exchange Act of 1934 does not require companies to disclose their receipt of a Wells Notice. The SEC provides the target of an investigation with a Wells Notice whenever the Enforcement…

Whistler Beware: Court of Appeals Puts Advisers’ Compliance Officer at Risk

April 30, 2012

In a controversial but important decision, the highest state court in New York has held that an employer can terminate the employment of its chief compliance officer for voicing objections to allegedly improper trading practices. Issued last week, the decision of the New York State Court of Appeals in Sullivan v. Harnisch, 2012 N.Y. Lexis…

Language Trumps Logic in Indemnification Clauses

August 10, 2010

A recent decision by New York’s Appellate Division for the First Department, Gotham Partners, L.P. v. High River Limited Partnership, 2010 NY Slip Op. 6149, 2010 N.Y. App. Div. LEXIS 6223 (1st Dept. 2010), confirms that the wording of an indemnification provision must be very specific in order to afford indemnified parties the full protection…