MARC R. ROSEN

PARTNER

Marc Rosen chairs the Litigation & Risk Management Department for Kleinberg Kaplan. An accomplished litigator, Marc is called on by chief executives, general counsel, portfolio managers, investors and entrepreneurs for his experience and strategic advice, in order to resolve high-stakes business and investment-related disputes. He practices corporate and commercial litigation, across a range of subject matters, in state and federal courts and before arbitration tribunals and regulatory agencies.

Practices

About

For two decades, Marc has been representing parties embroiled in complex civil litigation, including in bet-the-company cases. Marc handles contract and business fraud matters, partnership disputes and corporate break-ups; and he prosecutes and defends litigations arising from mergers and acquisitions, control contests, and corporate governance and shareholder disputes. Marc also frequently represents private investment funds and their principals and employees with an emphasis on enforcing financial instruments, credit default swaps, derivatives and other investment-related agreements; resolving investment fund-investor disputes; responding to SEC investigations and defending insider trading and other enforcement claims; advising investment funds and others owning debt of troubled companies, such as Lehman Brothers; representing purchasers of distressed securities in bankruptcy litigation; and advising clients with respect to risk management and litigation avoidance issues.

Marc also has extensive experience handling employment, real estate and trusts and estates litigation. He represents businesses and employees in compensation, restrictive covenant and other employment-related disputes. On behalf of real estate developers, lenders, purchasers and sellers, commercial landlords and tenants, brokerage firms and others, Marc handles finance litigations, purchase-sale disputes, commercial mortgage foreclosures, guaranty enforcement, commission disputes and other real estate matters. Lastly, Marc represents executors, administrators, trustees and beneficiaries in hotly contested probate, administration, accounting and trust proceedings.

Marc has been named a New York Super Lawyer every year since 2013.

Experience

  • Defending a class action shareholders litigation alleging breach of fiduciary duty and related claims in connection with a going-private merger.
  • Representing secured lenders in an action to enjoin a tender offer impairing their rights under a credit agreement and inter-creditor agreement.
  • Enforcing investors’ contractual rights against an issuer for its refusal to convert preferred stock into common stock, to redeem securities and to comply with its other obligations under the parties’ investment agreements.
  • Representing joint venture in lawsuit by real estate developer seeking to enforce letter of intent with respect to sale of commercial property.
  • Representing noteholders in connection with credit default swaps in adversary proceeding brought by bankruptcy trustee, seeking recovery of monies paid by CDO special purpose vehicles based on bankruptcy avoidance powers and state law claims.
  • Prosecuting claims against a company for failing to comply with an anti-dilution provision, to file a registration statement, and to honor the investors’ exercise of warrants and their rights under the parties’ subscription agreement.
  • Defending a hedge fund and its management company in multiple arbitrations brought by investors asserting breach of fiduciary duty, conversion and other business torts.
  • Pursuing claims against a registered broker-dealer, acting as principal, for its failure to honor an agreement to sell certain securities.
  • Representing a large hedge fund-lender in a commercial mortgage foreclosure action relating to a prominent art gallery and related real property.
  • Defending an investment fund and its advisor in a class action lawsuit asserting consumer protection claims and RICO violations.
  • Representing a large investor in multiple litigations seeking to enforce its board composition rights and certain drag-along rights in a merger.
  • Defending corporate borrowers, in a federal litigation, alleged to have breached a loan agreement, guarantee and related contracts.
  • Defending a property owner in arbitration and litigation brought by general contractor in connection with renovation of $20 million townhouse in New York City.
  • Representing acquirers of distressed bank debt in a fraud action against certain banks in bankruptcy action.
  • Pursuing claims on behalf of lenders to foreclose on mining assets following a default under a credit agreement.
  • Defending a group of shareholders claimed to have breached contractual representations and warranties in connection with a merger.
  • Defending judgment enforcement proceedings on behalf of an investment fund’s affiliates.
  • Representing objecting beneficiaries in surrogate court accounting proceeding brought by bank-executor.
  • Defending fraudulent conveyance action in adversary proceeding seeking the recovery of monies paid during an alleged Ponzi scheme.
  • Defending developer alleged to have breached joint venture agreement in connection with the development of condominium units.
  • Representing noteholder in action claiming an event of default under a trust deed and seeking liquidation of collateralized securities.

Education

Yeshiva University, Benjamin N. Cardozo School of Law (J.D., 1998)

Cardozo Journal of International and Comparative Law, Senior Articles Editor

University of Michigan at Ann Arbor (B.A., 1995)

Bar Admissions

U.S. Court of Appeals for the Second Circuit

U.S. Claims Court

New Jersey; District of Columbia; U.S. District Court, District of New Jersey

New York; U.S. District Court, Southern and Eastern Districts of New York

Publications

New York is the new Delaware for going-private mergers

Inside Counsel, May 2016

A Paradise for insider trading? Not so fast

CNBC, February 2015

Everything You Ever Wanted To Know About Contractual Boilerplate but Were Afraid To Ask

Inside Counsel, 3-Part Series: February, March and April 2014

Insights

A SCOTUS Win for the SEC on Disgorgement?

June 25, 2020

In a decision of consequence to securities industry participants, the U.S. Supreme Court just answered a long-unresolved question and ruled, in Liu v. Securities and Exchange Commission, that the U.S. Securities and Exchange Commission could ask courts to order disgorgement of ill-gotten gains. In doing so, the Supreme Court affirmed and at the same time, to some…

#MeToo Breaks New Ground for Corporate Liability Under Federal Securities Laws

June 17, 2020

The legal landscape has changed dramatically since the commencement of the #MeToo movement. Companies’ potential exposure to employment law liability has significantly increased, but now employment claims are not the only ones requiring the attention of the corporate world. A new ground for liability against corporations and their high-level executives has emerged under the federal securities…

Trademark Infringers Beware: Willful Infringement No Longer a Requirement for Damages

June 2, 2020

The U.S. Supreme Court recently settled a long-standing split among the federal appeals courts concerning whether a plaintiff alleging trademark infringement under the Lanham Act must first demonstrate the defendant acted willfully in order to recover a disgorgement of profits. Justice Gorsuch, writing for the Court, rejected Second Circuit authority and held that mens rea, or…

Three for the Lenders

May 27, 2020

A series of recent decisions may provide boosts for the positions of lenders. Post-Petition Interest on an Oversecured Claim In re Family Pharmacy, Inc. held that Missouri law, like New York law, distinguishes between permissible default interest and impermissible penalties. However the case diverges from the majority view adopted by several circuit courts of appeal insofar…

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…

Private Investment Funds & Capital Commitments: Force Majeure as Investors’ Defense Du Jour?

April 8, 2020

Investment funds continue to grapple with COVID-19, responding to fluctuating financial markets and the ongoing economic, strategic and practical challenges facing them. During this tumultuous period, the funds’ limited partners, perhaps struggling with liquidity issues of their own, may be at risk of defaulting on capital calls triggered by the funds and their general partners. These defaults…

Is Your Business in Compliance with the SHIELD Act?

April 7, 2020

New York Governor Andrew Cuomo signed the Stop Hacks and Improve Electronic Data Act (the “SHIELD Act”), amending New York’s data breach laws (N.Y. Gen. Bus. Law § 899-aa) to address the growing cybersecurity risks faced by businesses, employees and consumers. The SHIELD Act now requires businesses and employers collecting private information of New York residents,…

The Force May Be With You: COVID-19 and Force Majeure Provisions

March 31, 2020

COVID-19 has caused major disruption to businesses, commerce and the financial markets. With the CDC and WHO projecting that the coronavirus is only in its early stages in the United States, businesses and individuals may feel the burden of the effects of COVID-19 for the foreseeable future. As the flow of goods and services continues…

Slo-Mo: Bankruptcy Court Suspends Modell’s Case

March 31, 2020

A recent decision by the Bankruptcy Court for the District of New Jersey, In re Modell’s Sporting Goods, Inc., illustrates the difficult problems caused by the COVID-19 pandemic, the ways that parties to a bankruptcy case may react and issues distressed companies, their creditors and stakeholders should consider in the current climate before a bankruptcy petition…

Difficult to Avoid: Supreme Court Leans Against Avoidance Actions

July 31, 2019

A review of the two bankruptcy law decisions issued by the Supreme Court in its most recent term (Mission Product Holdings Inc. v. Tempnology, LLC and Taggart v. Lorenzen) shows that the Court may be tilting against avoidance actions in ways that should provide comfort to avoidance defendants. Mission Product Holdings Inc. v. Tempnology, LLC…

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…

Court Balks at SEC’s Attempt to Prohibit ICO, but Vague on SEC’s Regulation of Digital Assets

December 4, 2018,

The recent proliferation of cryptocurrencies, digital tokens and initial coin offerings (ICOs), facilitated by advances in blockchain and other distributed ledger technologies, has engendered substantial optimism among segments of the investing public. Some envision that these developments will transform financial markets and systems, and hope to benefit from these changes through early investments in digital…

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…

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…

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…

New York is the new Delaware for going-private mergers

May 25, 2016,

On May 5, in a case of first impression, the New York Court of Appeals in Matter of Kenneth Cole Productions Inc. Shareholder Litigation, 2016 N.Y. LEXIS 1059 (2016), relied upon the venerable “business judgment” rule in dismissing minority shareholders’ claims against a board of directors in connection with a going-private transaction. This decision represents…

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…

The CFTC’s First Insider Trading Case: In The Matter of Arya Motazedi

December 17, 2015,

The first insider trading case brought by the United States Commodity Futures Trading Commission concluded in a settlement this month. In The Matter of Arya Motazedi, the CFTC found that, over the course of nearly three months, Arya Motazedi arranged 46 fraudulent transactions across multiple trading accounts he controlled, accruing personal profits at his employer’s…

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…

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…

Civil Insider Trading Case Survives Newman

April 8, 2015,

On April 6, 2015, a federal district court in Manhattan permitted the U.S. Securities and Exchange Commission to pursue a civil enforcement action against two defendants accused of insider trading, notwithstanding the recently reshaped insider trading rules articulated in U.S. v. Newman. This week’s decision, in S.E.C. v. Payton, represents the first direct effort to…

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…

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…