Regulatory Examinations and Investigations
Our team of enforcement attorneys routinely represent public companies, broker-dealers and investment advisors and hedge funds and their officers, directors and employees as well as individual investors in investigations and enforcement proceedings initiated by securities regulators of potential violations of the securities laws and regulations and internal investigations. We regularly appear before the SEC, FINRA, the CFTC (Commodities Futures Trading Commission), the U.S. Department of Justice and state securities regulators. We also guide broker-dealers and investment advisors through the examination process.
The collective years and experience that our enforcement attorneys have before regulators allow us to counsel clients and to assist them in evaluating risks and developing a strategy. We are well versed in the language, regulations, rules, policies, and processes of these regulators and analyzing evidence, including complex trade data. We use this experience to optimize our clients’ position, whether that means positioning the client to receive cooperation credit, using our investigative and trial skills to develop the factual record or litigating (we have served as both prosecutors and defense counsel) enforcement proceedings.
Securities and Capital Markets Litigation
Our securities litigation attorneys represent plaintiffs and defendants in a wide range of securities litigations, including class actions and sophisticated matters arising from private investment disputes. Our technical knowledge of the securities laws has made us a leader in litigating issues arising under Sections 13(d), 14 and 16(b) of the Securities Exchange Act and in disputes surrounding PIPEs (private investment in public equity), warrants and other complex instruments, including asset- and mortgage-backed securities.
We often provide counsel before securities litigation begins, permitting clients to obtain optimal results without incurring the cost of an extended litigation. Our litigators regularly advise public companies, hedge funds and investors on a wide range of issues concerning corporate and securities litigation strategy, and when necessary engage in litigation to protect or enforce the rights of stakeholders in limited liability companies, limited partnerships, and public and private corporations.
We have substantial experience representing broker-dealers and registered representatives in FINRA arbitrations and other alternative dispute resolution forums, as well as in complementary litigation to enforce arbitration agreements. Matters at issue frequently include sales practice issues and complex products, trade disputes and employment disputes.
For our regulated clients, compliance questions frequently arise in the context of SEC and FINRA examinations, as well as during internal reviews. Our approach is to collaborate with clients to strengthen their compliance and risk management programs, review and provide guidance on gaps in their policies and procedures and, as needed, design remedial measures. Our goal is to identify practical solutions that clients can implement and integrate into their regular business processes.
Our securities litigation attorneys routinely collaborate across practice areas to ensure the highest caliber representation for our clients. Olshan’s active Arbitration practice advises both customers and broker dealers on FINRA matters and securities arbitrations generally, and our White Collar practice group with extensive experience in securities and other capital markets investigations. In addition, we provide the firm’s Corporate/Securities, Activist and Real Estate groups with extensive counsel concerning the trading and ownership restrictions and judicial treatment of specific, proposed financing terms, contractual language, or transaction structures.
Securities and Capital Markets Litigation and Arbitration
- Appellate Division Affirms Denial of Summary Judgment and Holding that Olshan Client Properly Pled Claims for Breach of Contract and Reformation of Warrant Agreement
On September 21, 2021, the First Department of the Supreme Court, State of New York, affirmed the trial court’s ruling that client Empery Asset Master, Ltd. had stated claims for breach of contract and for reformation of contract on a warrant agreement. The court agreed that Empery had shown that the agreement was ambiguous, and raised questions of fact as to whether there was mutual mistake or a scrivener’s error. In so doing, the court rejected defendant’s effort to relitigate issues already decided six months before when the First Department affirmed denial of defendant’s motion to dismiss. On October 14, 2021, the trial court held that Empery had proven its claims. Thomas Fleming and Kerrin Klein represented Empery. Read the decisions here and here.
- Olshan Prevails Before the Second Circuit in Major Short Swing Profit Ruling
On November 23, 2020, in a significant case involving the application of Section 16’s short swing profit rule to hedge funds and their advisors, the U.S. Court of Appeals for the Second Circuit vacated a judgment by the U.S. District Court holding Olshan’s client, a hedge fund, liable under Section 16 for $5 million in short swing profits on the theory that its delegation of investment authority over its portfolio to its registered investment advisor was ineffective. The District Court had cited the overlap in executive personnel between the fund and the advisor as one reason for the ineffectiveness of the delegation as well Second Circuit case law holding internal delegations within a limited partnership ineffective. In its precedential decision, the Second Circuit made clear the delegation from the hedge fund to its investment advisor would be effective so long as the fund and advisor were not under the common control of a single person or entity and limited the scope of its prior decisions. Thomas Fleming and John Moon represented client Raging Capital Management LLC. Read the decision here, and analysis in the Harvard Law School Forum on Corporate Governance is here.
- Order Rescinding Securities Purchase Agreement on Grounds of Fraud Affirmed
On February 18, 2020, the First Department of the Supreme Court, State of New York, affirmed the trial court’s judgment, after an eight-day bench trial, that the corporation in which Olshan’s client had invested had falsely represented that its largest shareholder was an affiliate, which would have prevented that shareholder from rapidly selling off its shares causing a substantial drop in stock price and that the misrepresentation had induced Olshan’s client to purchase securities in a private placement. The First Department held that the corporation’s misrepresentation was material, Olshan’s client did not have an adequate remedy at law and that rescission was warranted on grounds of fraudulent inducement. Such relief – the rescission of a stock purchase agreement – is rarely granted. Thomas Fleming and Peter Sartorius represented client Sabby Healthcare Master Fund Ltd. Read the decision here.
- Securities Class Action Claim Withdrawn After Olshan Files Motion to Dismiss
In Brown v. Papa Murphy’s Holdings, Inc., No. 3:19-cv-05514-BHS-JRC (W.D. Wash.), the class action plaintiff sued Olshan’s client, which had served as the financial advisor for M&A transaction, claiming that it had issued misleading fairness opinion by incorporating projections less favorable to company than those prepared by management. After Olshan briefed its motion to dismiss, plaintiff voluntarily withdrew all claims against the advisor. Adrienne Ward led the engagement.
- FINRA Arbitration Panel Dismisses All Claims Against Broker-Dealer
On May 15, 2019, following a three-day hearing, a FINRA Panel issued an award dismissing all claims against Olshan client Cantella & Co., Inc. The firm’s customer had sought $2.9 million in damages on claims that broker-dealer violated trading restrictions on common stock spun off from a corporate combination. John Moon and Nicholas Hirst represented Cantella & Co., Inc.
- SEC Enforcement Matter Resolved Without Fraud Charges
Olshan represented a former supervisor of clearing and stock loan in a SEC sweep of trading practices in pre-release American Depository Receipts (ADRs). While the SEC staff had argued that the conduct at issue supported fraud charges, Olshan, at the pre-Wells phase, challenged the SEC’s theory and successfully resolved the matter with a failure to supervise. Adrienne Ward led the engagement.
- Investigation Demonstrates No Insider Trading
In a matter that originated with an inquiry by FINRA Market Regulation after a transaction announcement, Olshan represented a public company’s board chairman, a director and a family member in a SEC investigation of stock trading in advance of the public announcement. By developing detailed, minute-by-minute timelines, Olshan demonstrated that the stock purchases at issue occurred before any transaction had been agreed-upon, and the investigation was closed without further action. Adrienne Ward led the engagement.
- Investigation of Demonstrates Compliance With Accounting Standards
In a matter headed by the Philadelphia office of the SEC prompted by a multi-quarter re-statement by and international telecommunications public company. Olshan represented the company’s board chairman and Chief Executive Officer. By marshalling voluminous emails and financial data, Olshan demonstrated that its client did not violate or aid and abet violations of the Securities Exchange Act and rules thereunder with respect to revenue recognition. John Moon led the representation.
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- Article|Securities Regulation Law Journal (a Thomson Reuters publication)|Fall 2023
- Article|Securities Regulation Law Journal (a Thomson Reuters publication)|Summer 2023
- Article|Securities Regulation Law Journal (a Thomson Reuters publication)|Spring 2023