Why Is This Class Action Different From All Others: Securities Class Actions and SEC Investigations (Update)

Having practiced in securities regulation, litigation, and enforcement for more than 30 years, Marc Powers has developed a deep understanding of the legal, business and regulatory environments surrounding his clients. He is regularly engaged in high profile matters including complex securities litigation and arbitration, with his practice expanding to cover bankruptcy litigations as well. His combination of experience and knowledge has provided Marc with the well-earned confidence to aggressively, yet deliberately, act on behalf of his diverse client base. In the hedge fund industry, Marc possesses the flexibility to address each client concern and circumstance individually, providing proactive support throughout all aspects of fund operation, from inception to regulatory compliance to unavoidable litigations.

Marc has led the national Securities Litigation and Regulatory Enforcement practice team since 2004 and leads the national Hedge Fund Industry group. He is regularly invited to speak at premier conferences for the securities industry and appears regularly in the media commenting on the SEC, insider trading cases, and the JOBS Act.

Experience

• Marc is representing a Latin-American investment fund in an insider trading investigation by the SEC Los Angeles office concerning its purchases of a public company’s stock and options prior to a tender offer announcement. He has negotiated testimony and document production in such a way to minimize any possible legal exposure to the client.
• Marc has been representing a well-known and highly successful South American businessman and his companies in several related federal and state litigations arising from an investment fraud involving an alleged Swiss bank affiliate. He filed an appeal of an international arbitration lost by the client’s former counsel, resulting in an eight-figure settlement in favor of the clients. With that in hand, Marc leveraged that settlement to resolve for no payment by his clients' several other cases which named them as defendants.
• During an investigation by the SEC headquarters and the CFTC of a hedge fund and commodity pool operator alleging cornering of the market in Treasury futures and false statements made to market regulators, Marc relied on his understanding of the sophisticated nature of the hedge fund industry and markets to ensure that no manipulation charges were brought against his client in conjunction with the case’s settlement, based on books and records violations.
• Marc represented an international investment banking firm located in Greenwich, Connecticut, involved in an international investigation by the SEC, the Financial Conduct Authority in the U.K. and the Comision Nacional del Mercado de Valores in Spain. The investigation arose from the failure and liquidation of an $850 million hedge fund with inflated portfolio valuations. Marc and his team developed a strategy to protect the interests of the client and minimize legal liability for the investment bank. One of the cases involved Chapter 15 of the Bankruptcy Code, allowing the liquidators’ foreign proceedings involving the hedge fund to be recognized in American courts. A criminal case was filed against the hedge fund portfolio manager, as well as a securities class action. Marc and his team guided the client through the parallel regulatory and civil litigations that developed throughout the matter, eventually resolving all matters through their diligence with no actions against the client by the government and a small class action settlement.
• Marc is a member of the BakerHostetler team serving as court-appointed counsel to the Securities Investor Protection Act (SIPA) Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS). One of the largest financial frauds in recorded history, the SIPA liquidation requires global investigations and litigation seeking tens of billions of dollars in worldwide asset recovery from hedge funds, funds of funds, investment banks, other financial institutions, investment managers, and other hedge fund fiduciaries. Marc’s primary focus to date has been the investigation and coordination of legal strategy for the SIPA Trustee’s actions involving the Rye Select, Tremont, and Merkin families of feeder funds. The Tremont settlement resulted in a recovery for the Customer Fund of over $1 billion and allowed the SIPA Trustee to move forward with a third interim pro rata distribution to BLMIS customers with allowed claims in the spring of 2013.
• Marc represented a bond trader’s assistant during an investigation by the SEC and U.S. Attorney in one of the first large internal investigations in the investment banking industry. The investigation was sparked by alleged phantom trades that caused a parent company to report a several hundred-million dollar loss. Not only was Marc involved in the case from its inception, despite his client not being criminally charged, the case also allowed Marc to be involved in the developing realm of internal investigations from its outset.
• Marc represented the broker’s assistant who became a star witness in a high-profile SEC and criminal insider trading investigation, securities class action, and criminal trial of Martha Stewart. Marc worked through the whole process, and while his client purportedly initially misled authorities about the stock trades in question, his client's testimony played a crucial role in the conviction of his boss and a major business woman. Marc’s representation assisted in saving his client from probation or prison time.
• Marc assisted in performing an internal investigation for a mutual fund board allegedly market timing and late trading mutual funds. Marc structured and led a large team of attorneys and developed tactics and strategies to lead the investigations during his complete immersion, which eventually was resolved for less sanctions and penalties than other similarly situated mutual funds.
• Marc represented a Midwestern public corporation during a three-year investigation by the SEC Chicago office alleging violations of Sarbanes-Oxley 404, Regulation FD and stock manipulation by a hedge fund. Marc worked with the corporation’s counsel to ensure that no charges were brought against the Company or its officer (after a Wells Notice) as a result of the investigation.

Recognitions

• New York Metro "Super Lawyer" in Securities Litigation (2006 to present)
• SEC Sustained Superior Performance Award
• Hofstra University Distinguished Alumni Award (2006)
• Martindale-Hubbell: AV Preeminent

Memberships

• Wolters Kluwer (CCH) Securities Regulation Advisory Board (2010 to present)
• American Bar Association: Presidential Task Force on the Attorney-Client Privilege (2005 to 2009)
• New York State Bar: Presidential Task Force on the Attorney-Client Privilege (2005 to 2009)
• New York County Lawyers’ Association
• Board of Directors (2002 to 2005)
• Committee on Securities and Exchanges: Co-Chair (1997 to 2002)

Education

• J.D., Hofstra University School of Law, 1980
• B.B.A., University of Wisconsin-Madison, 1977, Finance, with honors

Deborah Renner focuses her practice on complex commercial litigation, consumer fraud, false advertising, data breach, ERISA, and securities class actions. Deborah has successfully represented numerous companies in nationwide, multidistrict and state class actions. Deborah frequently advises companies on class action issues and regulatory inquiries. Among her areas of knowledge and experience, Deborah is certified in information privacy.

Experience

• Won complete dismissal of data breach class action. Polanco v. Omnicell, Inc., 2013 WL 6823265 (D.N.J. Dec. 26, 2013).
• Represented amicus on winning side in seminal class action cases in U.S. Supreme Court. Standard Fire v. Knowles, 133 S. Ct. 1345 (2013);Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
• Successfully represented broker-dealer in securities class action.
• Successfully represented company in Civil Investigative Demand by state attorney general regarding data privacy and security practices.
• Won summary judgment in a putative class action concerning alleged fraud in the pricing of long-term care insurance. Rakes v. Life Investors Ins. Co. of America, 2008 WL 2158717 (N.D. Iowa June 20, 2008), aff'd, 2009 WL 2981976 (8th Cir. Sept. 18, 2009).
• Won the complete dismissal of a securities fraud class action alleging violations of Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934. Medis Investor Group v. Medis Technologies, Ltd., 586 F.Supp.2d 136 (S.D.N.Y. 2008), aff'd, 2009 WL 2171277 (2d Cir. July 21, 2009).
• Since 2009, as a lead attorney on the BakerHostetler team that serves as counsel to Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, Deborah managed a team of attorneys in Picard v. JPMorgan Chase, which resolved in two settlements totaling $543 million for the SIPA Trustee and class action plaintiffs and which led to a $1.7 billion forfeiture to the United States Attorney's Office. In addition, Deborah has focused her efforts on enforcing the U.S. Bankruptcy Court's automatic stay and otherwise seeking injunctions to stop class actions and other cases from proceeding. Deborah's reported decisions include: 
• Picard v. Fox, 429 B.R. 423 (Bankr. S.D.N.Y. 2010), aff'd, In re Madoff, 848 F.Supp.2d 469 (S.D.N.Y. 2012), aff'd, 740 F.3d 81 (2d Cir. 2014).
• Picard v. Stahl, 443 B.R. 295 (Bankr. S.D.N.Y. 2011), aff'd, In re Bernard L. Madoff Inv. Sec. LLC, 2011 WL 7981599 (S.D.N.Y. Dec. 5, 2011), aff'd, The Lautenberg Found. v. Picard, 512 Fed.Appx. 18 (2d Cir. 2013).
• Picard v. Maxam Absolute Return Fund, L.P., 460 B.R. 106 (Bankr. S.D.N.Y. 2011), aff'd, 474 B.R. 76 (S.D.N.Y. 2012).
• In re Bernard L. Madoff, 477 B.R. 351 (Bankr. S.D.N.Y. 2012), aff'd, 2013 WL 551027 (S.D.N.Y. Sept. 30. 2013).
•  
• Recognition
• New York Metro "Super Lawyer"
•  
• Memberships
• American Bar Association, Section of Litigation Class Action and Derivative Suits 
• International Association of Privacy Professionals 

• Pro Bono
• Deborah frequently works with Immigration Equality, helping gay, lesbian, transgendered and HIV positive individuals gain asylum in the United States.
• She works closely with the Brooklyn Bar Association's Volunteer Lawyers Association, and has served on its Advisory Board.
• Services
• Appellate and Major Motions
• Class Action Defense
• Complex Commercial Litigation
• Prior Positions
• Fordham University Law School: Adjunct Assistant Professor of Class Action Law (2002 to 2006)
• Admissions
• U.S. Supreme Court
• U.S. Court of Appeals, Second Circuit
• U.S. Court of Appeals, Third Circuit
• U.S. Court of Appeals, Fourth Circuit
• U.S. Court of Appeals, Eighth Circuit
• U.S. District Court, Southern District of New York
• U.S. District Court, Eastern District of New York
• U.S. District Court, Northern District of New York
• New York
• New Jersey
• District of Columbia
• Education
• J.D., Harvard Law School, 1992, cum laude
• M.A., Princeton University, 1987
• B.A., The Johns Hopkins University, 1984, with honors

Jessie Gabriel is a sharp and experienced litigator in the fields of securities litigation and class actions. She also counsels high-tech and energy companies faced with unfair competition and securities claims. Jessie takes a holistic approach to her practice by providing her clients with top-notch litigation skills, and by working closely with her colleagues in BakerHostetler’s Securities, Corporate Governance, and Data Privacy groups to help anticipate and prevent issues that can lead to securities litigation. She speaks regularly on the changing landscape of securities litigation and how it is increasingly intersecting with other fields of law. Jessie is co-chair of the M&A/Proxy Litigation Subcommittee of the ABA's Securities Litigation Committee and was appointed to the Administrative Law Committee of the New York City Bar Association.

Jessie believes that management skills are just as important as substantive legal knowledge. Drawing from her previous career in economics, she demands strong project management and efficient, cost-effective utilization of resources in all of her cases. Jessie has a natural ability to execute a legal strategy while coordinating large teams of attorneys and outside vendors, most notably in her representation of Irving H. Picard, the Trustee for the global liquidation of Bernard L. Madoff Investment Securities LLC. She has managed the Trustee’s claims against Madoff’s largest hedge fund investor and his primary banker. Jessie co-chairs the Women’s Steering Committee for the New York office.

Experience Securities Litigation

• Defending a public service provider in New York federal court against claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934 related to financial disclosures and statements regarding the company’s office culture, brought as a class action on behalf of the company’s shareholders.
• Representing a Fortune 500 Texas-based oil and gas company in New York federal court against claims under section 11 of the Securities Act of 1933 and section 14(a) of the Securities Exchange Act of 1934 related to a merger. The case involves matters of first impression under class action and securities laws that Jessie argued before the Second Circuit. Twice successfully dismissed section 14 claims brought by separate plaintiffs.
• Defending the founder and former CEO of a Texas-based energy company against a securities fraud class action brought in Texas federal court, under sections 10(b) and 20(a), arising out of an earnings restatement.
• Involved in representing Irving H. Picard, Securities Investor Protection Act (SIPA) Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, in connection with BakerHostetler's role as court-appointed counsel.
• In a securities fraud class action in New Jersey federal court, represented a Fortune 500 pharmaceuticals company against claims under sections 10(b) and 20(a) related to the company’s statements regarding a drug that the FDA had not yet approved.

Class Action Litigation

• Represented four insurance companies in Kentucky federal court against class action clams challenging the insurers’ calculation and assessment of local government premium taxes, resolving the case on very favorable settlement terms.
• Defended insurance carriers in class action against insurance companies that used a software program to value personal injuries. The suit was brought in Arkansas state court.
• Defended insurance group against class allegations that the insurer improperly calculated premiums for uninsured/underinsured motorist coverage.

High-Tech Litigation

• Representing a foreign software company against a multibillion-dollar software giant in federal court in North Carolina. Multi-jurisdictional litigation involves critical issues of technology law, including copyright infringement, breach of licensing contracts, issues regarding the propriety of benchmarking and reverse engineering, and how similar laws are applied in the United States and the European Union.
• Prosecuting claims under the Computer Fraud and Abuse Act and the California Uniform Trade Secrets Act on behalf of client whose former employees took confidential information when they departed the company. This action is pending in California federal court.
• Represented a Fortune 500 cellular technology company against antitrust claims in New Jersey federal court. Successfully moved to dismiss for failure to state a claim, a decision that was ultimately overruled by the Third Circuit.

Recognitions

• New York Metro Super Lawyers "Rising Star" (2014, 2015)
• Ohio Super Lawyers "Rising Star" (2013)

Memberships

American Bar Association

• Securities Litigation Committee
• M&A/Proxy Litigation Subcommittee: Co-Chair

New York City Bar Association

• Administrative Law Committee: Appointed Member

New York State Bar Association

California State Bar Association

Pro Bono

• Representing a death row inmate in Georgia in federal habeas proceedings involving claims of ineffective assistance of counsel, prosecutorial misconduct, and constitutional violations related to the Georgia death penalty statute.
• Support the work of HerJustice by serving as pro bono counsel to New York City women seeking divorces.
• Assisted Amend.org, a non-profit organization that implements traffic safety programs in Uganda and Tanzania, in obtaining 501(c)(3) status.
• Served as counsel to the Martha Graham Dance Company in a successful appeal to the Second Circuit, where the court was considering issues regarding copyright and trademark infringement.
• Petitioned the United States Supreme Court for a writ of certiorari on behalf of an inmate in Kentucky, raising arguments regarding the prosecutor’s improper reliance on religion.
• Drafted state and federal habeas petitions and requests for clemency on behalf of death row inmates in Alabama, Indiana, and Illinois while working at the Midwest Center for Justice.

Education

• J.D., University of Michigan Law School, 2004, cum laude, Order of the Coif, Campbell Moot Court Champion (2003-2004)
• B.A., Dartmouth College, 1998

David McMillan is an Associate in the firm’s litigation group whose practice centers on class action defense, securities litigation, bankruptcy and other types of general commercial litigation. David has worked extensively on a number of high profile fraud cases involving the financial industry, including representation of the SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC. As part of the SIPA Trustee’s team advancing the global effort to trace and recover assets for Madoff’s defrauded customers with allowed claims, David has deconstructed BLMIS’s books and records, initiated multimillion-dollar lawsuits against financial institutions, funds and other sophisticated investors in the United States and abroad, and litigated a range of issues in securities and bankruptcy law. David also defends clients in significant securities-related government investigations and securities fraud class actions, including a high-profile matter arising from derivatives trading losses at a major international bank. David has spoken on a number of panels discussing cutting edge issues in class action law, and writes frequently on current trends in class action and securities litigation. David considers himself a strategy-driven, creative litigator who aims to deliver cost-effective and meaningful solutions for his clients.

Experience

• A member of the legal team representing Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, in connection with BakerHostetler’s role as court-appointed counsel which is responsible for investigating and initiating complex multi-million dollar lawsuits against individuals and financial entities around the world, pursuing foreign and domestic discovery, participating in dispositive motion practice, and providing thought leadership on an array of substantive securities and bankruptcy-related issues.
• Currently representing former London-based JPM managing director whose cooperation was sought in the investigation related to a multibillion-dollar trading loss for the bank. Helped secure rare non-prosecution agreement with the Justice Department and agreements with other regulatory authorities by providing valuable factual analyses and assessments regarding securities derivatives trading in JPM's Chief Investment Office.
• Defended medical director of major pharmaceutical company in multimillion-dollar securities fraud class action, in which dismissal was obtained via summary judgment following Supreme Court’s decision in Halliburton.
• Represent nonprofit organization dedicated to the economic empowerment of African American communities in amicus brief before the United States Supreme Court in Campbell-Ewald Co. v. Gomez, a case with key implications for the ability of companies to defeat class actions using offers of judgment under Rule 68 of the Federal Rules of Civil Procedure.
• Represent nonpartisan public policy research foundation in amicus brief before the United States Supreme Court in Tyson Foods v. Bouaphakeo, which deals with the constitutional viability of “trial-by-formula” to determine liability and damages in wage hour class actions.

Recognitions

• Legal Aid Society: Pro Bono Publico Award (2014)

Memberships

• American Bar Association: Litigation Section
• New York State Bar Association
• Massachusetts Bar Association

Admissions

• New York, 2010
• Massachusetts, 2010

Education

• J.D., Fordham University School of Law, 2009, cum laude
• M.S., Pace University, 2006
• B.A., Cornell University, 2004, with distinction

Dr. Jordan Milev is a Vice President in NERA’s Securities and Finance Practice and the White Collar, Investigations and Enforcement Practice. He has submitted testimony as an expert witness in numerous matters, having been retained by plaintiffs and defendants in both civil and criminal actions. He has assisted clients at all stages of litigation, including mediation and trial.

Dr. Milev’s extensive international experience includes directing and supervising analyses in numerous cross-border disputes involving companies domiciled in Austria, Canada, Germany, India, Russia, Switzerland, and The Netherlands. His expertise includes economic analyses relevant to securities class actions, corporate internal investigations and regulatory actions, criminal securities fraud actions, shareholder activism disputes, private commercial litigation, and arbitrations.

Areas of specialty include:

• Securities Class Actions / ERISA Litigation: analysis of price impact, market efficiency, materiality, aggregate damages, and opt-out claims; calculation of ERISA aggregate damages using plan-level and participant-level data; predicted settlement estimation; settlement apportionment and distribution; assistance with economic analyses at mediation.
• Internal Investigations, Regulatory Probes and Enforcement Actions: analysis of insider trading, materiality, and tipper’s personal benefit; evaluation of trading strategies, including order routing, modifications, and cancellations; analysis of materiality of information to municipal issuers; analysis of internal procedure compliance and assistance with presenting findings to boards of directors and regulatory staff.
• M&A Objections / Corporate Activism: evaluation of shareholder activist proposals/arguments to assist corporate boards and in-house counsel; economic analysis of objections to M&A and tender offers.
• Insurance Disputes: evaluation of settlement amount reasonableness; assisting company boards, in-house counsel, and insurance carriers with assessing exposure from existing, anticipated, and/or hypothetical litigation.
• Civil Litigation / Arbitration: commercial valuation and damages estimation; quantitative apportionment of liability; valuation of derivatives, structured products, and other complex financial instruments.

Dr. Milev is a frequent speaker and subject matter expert at industry and academic conferences and at events providing CLE credits for attorneys. He publishes and presents in the areas of covered bonds and fixed income securities, securities litigation trends, the quantitative analysis of settlements, litigation insurance coverage, and assessing economic exposure in cybersecurity and data breach cases. 

Dr. Milev holds a PhD in economics from Yale University. His doctoral dissertation developed an automated computer learning system used to analyze big data sets of stock price reactions following company earnings announcements. He has also taught sections of microeconomics and econometrics courses at Yale University. He holds a BA in economics and mathematics, summa cum laude with Distinction in economics, from Amherst College.