Cohen & Gresser is pleased to announce that 25 of the firm’s lawyers are included on the 2024 New York Metro Super Lawyers list and 13 lawyers are included on the 2024 New York Metro Rising Stars list across a range of practice areas.

Super Lawyers once again named C&G co­-founder Mark S. Cohen and partner Jonathan S. Abernethy to the Super Lawyers list of the Top 100 lawyers in the New York metropolitan area.

Super Lawyers and Rising Stars are annual lists of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only 5 percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

The C&G lawyers recognized on the New York Metro Super Lawyers list are:

• Jonathan S. Abernethy, Criminal Defense: White Collar
• Kwaku Andoh, Mergers & Acquisitions
• Luke Appling, Civil Litigation: Defense
• Elizabeth Bernhardt, Business Litigation
• Karen H. Bromberg, Intellectual Property
• Jason Brown, Criminal Defense: White Collar
• Joanna K. Chan, Securities Litigation
• Mark S. Cohen, Business Litigation
• Gale Dick, Business Litigation
• Christian R. Everdell, Criminal Defense: White Collar
• Robert J. Gavigan, Mergers & Acquisitions
• Lawrence T. Gresser, Business Litigation
• Oliver S. Haker, Business Litigation
• Johannes Jonas, Mergers & Acquisitions
• Nicholas J. Kaiser, Real Estate
• David F. Lisner, Business Litigation
• Ellen Paltiel, General Litigation
• Douglas J. Pepe, Business Litigation
• Matthew V. Povolny, Business Litigation
• Bonnie J. Roe, Securities & Corporate Finance
• Stephen M. Sinaiko, Business Litigation
• Mark Spatz, Civil Litigation: Defense
• Daniel H. Tabak, Business Litigation
• Scott D. Thomson, Business Litigation
• Alexandra Wald, Business Litigation

The C&G lawyers recognized on the New York Metro Rising Stars list are:

• Sharon L. Barbour, Criminal Defense: White Collar
• Randall W. Bryer, Business Litigation
• Shannon A. Daugherty, Business Litigation
• Drew S. Dean, General Litigation
• Christine M. Jordan, General Litigation
• William Kalema, Business Litigation
• Phoebe King, Business Litigation
• Sri Kuehnlenz, Civil Litigation: Defense
• Marvin J. Lowenthal, Criminal Defense: White Collar
• Barbara K. Luse, Criminal Defense: White Collar
• Alexandra Theobald, Business Litigation
• Myia Williams, Mergers & Acquisitions
• Benjamin Zhu, General Litigation

   

Cohen & Gresser is pleased to announce that 29 of the firm's lawyers are included on the 2023 New York Metro Super Lawyers list and 11 lawyers are included on the 2023 New York Metro Rising Stars list across a range of practice areas.

Super Lawyers named C&G co­founder Mark S. Cohen one of the Top 10 lawyers in the New York metropolitan area. Partners Jonathan S. Abernethy and Karen H. Bromberg have also been named to the Super Lawyers list of the Top 100 lawyers in the New York metropolitan area. Additionally, Karen has been recognized as one of the Top 50 women lawyers within the same region.

Super Lawyers and Rising Stars are annual lists of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only 5 percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

The C&G lawyers recognized on the New York Metro Super Lawyers list are:

• Jonathan S. Abernethy, Criminal Defense: White Collar
• Kwaku Andoh, Mergers & Acquisitions
• Luke Appling, Civil Litigation: Defense
• Elizabeth Bernhardt, Business Litigation
• Colin C. Bridge, Criminal Defense: White Collar
• Karen H. Bromberg, Intellectual Property
• Jason Brown, Criminal Defense: White Collar
• Joanna K. Chan, Securities Litigation
• Mark S. Cohen, Business Litigation
• S. Gale Dick, Business Litigation
• Christian R. Everdell, Criminal Defense: White Collar
• Robert J. Gavigan, Mergers & Acquisitions
• Lawrence T. Gresser, Business Litigation
• Oliver S. Haker, Business Litigation
• Johannes Jonas, Mergers & Acquisitions
• Nicholas J. Kaiser, Real Estate
• Jeffrey I. Lang, Civil Litigation: Defense
• David F. Lisner, Business Litigation
• Ellen Paltiel, General Litigation
• Douglas J. Pepe, Business Litigation
• Matthew V. Povolny, Business Litigation
• Nathaniel P. T. Read, Business Litigation
• Bonnie J. Roe, Securities & Corporate Finance
• Stephen M. Sinaiko, Business Litigation
• Mark Spatz, Civil Litigation: Defense
• C. Evan Stewart, Securities Litigation
• Daniel H. Tabak, Business Litigation
• Scott D. Thomson, Business Litigation
• Alexandra Wald, Business Litigation

The C&G lawyers recognized on the New York Metro Rising Stars list are:

• Sharon L. Barbour, Criminal Defense: White Collar
• Randall W. Bryer, Business Litigation
• Shannon A. Daugherty, Business Litigation
• Drew S. Dean, General Litigation
• Jesse Greenwald, Criminal Defense: White Collar
• Christine M. Jordan, General Litigation
• William Kalema, Business Litigation
• Sri Kuehnlenz, Civil Litigation: Defense
• Marvin J. Lowenthal, Criminal Defense: White Collar
• Barbara K. Luse, Criminal Defense: White Collar
• Benjamin Zhu, General Litigation

International law firm Cohen & Gresser represented Sierra Space Corporation, a commercial space company that is building and delivering the infrastructure and systems required for the future of space travel, in its record-breaking $1.4 billion Series A financing round. The private funding round represents the largest aerospace and defense capital raise in the world in 2021 and the second-largest private capital raise of all time in the aerospace and defense sector. Leading global investors including General Atlantic, Coatue, and Moore Strategic Ventures, along with private equity funds managed by firms including Black Rock and AE Industrial Partners and various family offices, all participated in the transaction. Cohen & Gresser served as counsel to our client Sierra Space on all aspects of the transaction. “We are proud of the opportunity to assist Sierra Space in this groundbreaking transaction to support the future of space travel,” said Jeffrey M. Bronheim, lead partner on the engagement for Cohen & Gresser. The Cohen & Gresser team was led by Jeffrey M. Bronheim, Bonnie J. Roe, and Daniel H. Mathias, with assistance from associates Winnifred A Lewis and Georgia Moorhouse. C&G partners Nicholas J. Kaiser (tax), Ronald F. Wick (antitrust), and David F. Lisner (litigation) provided additional support. Read Sierra Space Corporation’s press release here.

C&G successfully obtained the First Department’s affirmance of an order dismissing all claims against our client Fidelity Brokerage Services in a dispute stemming from the acts of convicted fraudster Andrew Caspersen, who allegedly deposited the proceeds of a fraudulent scheme into his trading accounts at Fidelity.

Andrew Caspersen was a prominent and wealthy investment banker who used his position at a reputable private equity firm to lure friends and family to invest in shell entities that he created purportedly to make investments in profitable, risk-free opportunities. In reality, Caspersen funneled the stolen funds from the shell entities to a personal trading account that he held at Fidelity. The brokerage firm ultimately terminated Caspersen’s account several months before Caspersen was arrested and charged with securities and wire fraud. After Caspersen’s guilty plea, his defrauded friends and family brought this suit, claiming that Caspersen’s deposits of their money from the shell entities to his personal trading account constituted fraudulent conveyances under New York’s Debtor and Creditor Law and that Fidelity was therefore liable for the funds that Caspersen stole.

The First Department held that Fidelity did not have dominion and control over the assets in Caspersen’s account so there were no conveyances subject to recovery under fraudulent conveyance law.  In addition, it held that Caspersen’s lack of good faith in deceiving his victims did not constitute a lack of good faith for purposes of fraudulent conveyance law. The First Department’s decision reaffirmed important principles of fraudulent conveyance law that protect financial institutions and, in turn, their innocent customers from the costs of unrelated frauds.

The C&G team consisted of Daniel H Tabak, David F Lisner, Nicole Dhir, Alexandra K Theobald, and Jeffrey Sherman.

International law firm Cohen & Gresser is pleased to announce that Jeffrey I Lang, David F Lisner, and Reggie Schafer have been promoted to Partner, and Sri Kuehnlenz and Daniel H Mathias have been promoted to Counsel.

Cohen & Gresser is pleased to announce that 35 of the firm's New York and Washington D.C.­based attorneys have been named to the 2020 Super Lawyers List across a wide range of practice areas. C&G co-­founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak have also been named to the Super Lawyers list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg has been recognized as one of the top 50 women lawyers in the New York metropolitan area.

A C&G team consisting of Daniel H Tabak, David F Lisner, and Lauren J Salamon achieved a complete dismissal of all claims against our client Fidelity Brokerages Services in a dispute stemming from the acts of convicted fraudster Andrew Caspersen, who allegedly deposited the proceeds of his fraudulent scheme into his trading accounts at Fidelity.

We are pleased to announce that 33 of our New York and Washington D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak to its list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg to its list of the top 50 women lawyers in the New York metropolitan area.

Christian R Everdell has been promoted to partner, and Joanna K Chan, Erica Lai, and David F Lisner have been promoted to counsel.

"Congratulations and thanks to each of these exceptional attorneys for their commitment to excellence, integrity, and superb client service. We are very fortunate to have them," said Managing Partner, Lawrence T Gresser.

We are pleased to announce that thirty of our New York and Washington, D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founders Mark S Cohen and Lawrence T Gresser to its list of the top 100 lawyers in the New York metropolitan area, and partners Karen H Bromberg and Alexandra Wald as two of its top 50 women lawyers in New York. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in the U.S. receive this honor.

Cohen & Gresser advised Reliance Trust Company, a corporate fiduciary, in its $14.5 million sale of 571 Fulton Street in downtown Brooklyn to RedSky Capital. The complex deal spanned nine months and involved complicated lease issues as well as trust and estate and title issues originating in the 1930s. The sale of the property, which had been an asset in a trust for nearly 60 years, is a significant liquidity event for the beneficiaries. The property is also a key asset in RedSky Capital’s extensive redevelopment of Fulton Street. 

Partner Nicholas J Kaiser led the Cohen & Gresser team, which included Matthew V Povolny, David F Lisner, Eliza Sheridan, and paralegal Camille Delgado.

C&G welcomes the attorneys who joined the firm in 2017. "We’re very fortunate to have added these exceptional lawyers in New York and Paris," said Managing Partner, Lawrence T Gresser.  "We look forward to continuing to build our transactional and disputes practices in all of our offices in 2018."

Eleven attorneys general sue asset managers, alleging ESG investment standards raise coal prices and violate antitrust laws

The ideological battle over the role of Environmental, Social and Governance (ESG) investment standards intensified last week, as the Texas Attorney General and 10 other Attorneys General sued three asset management companies, alleging that ESG strategies pursued by these companies in relation to coal production violated federal and state antitrust laws.

ESG is a set of standards or ideals that socially conscious investors seek out when choosing where to place their money. Over the past four years, ESG investment standards have become increasingly controversial. Some liberal and progressive advocates have sought to pressure large investors to consider issues such as racial justice, labor policies, and environmental stewardship when making investments in companies. At the same time, some conservative critics have opposed ESG as an attempt to inject ideology into investment decisions at the expense of shareholder value.

Allegations and Defenses

The tension is on full display in the Texas complaint. The complaint alleges that the three asset management companies—BlackRock, Vanguard, and State Street—violated Section 7 of the Clayton Act by acquiring minority interests in multiple competing coal-producing companies and then using governance rights (such as proxy votes) to influence the coal companies to reduce output in the name of environmental stewardship. The complaint alleges that this output reduction, in turn, raised the price of coal directly and consumer electric bills indirectly. The states claim that the agreement was reached through organizations committed to reducing carbon output, such as Climate Action 100+ and the Net Zero Asset Managers Initiative.

The investment firms likely will raise several defenses. Among other things, they likely will argue that the states have not plausibly alleged an agreement among the investment companies. The complaint relies heavily on public statements and on the involvement of the investment companies in industry organizations, but the law imposes a high pleading burden on Section 1 plaintiffs, and the absence of a plausible economic motive may prove problematic for the plaintiffs. The companies will likely also challenge the plaintiffs’ allegations of anticompetitive effect. The plaintiffs appear to allege that the agreement had the effect of increasing the price of coal, but given the nature of the alleged agreement, if proven, it likely would be assessed under the Rule of Reason. This means the alleged agreement’s pro-competitive justifications (disregarding any potential environmental benefits) would be weighed against the anti-competitive effects, and these types of cases are often difficult for plaintiffs to prove.

Similarly, the complaint’s Section 7 challenge to the acquisition of a minority interest by different investors in different coal companies may be difficult to prove. The companies will likely point out that the investors are not alleged to have controlled any of the acquired companies, either individually or collectively, and if accepted, the claims would represent an expansion of the antitrust laws. Under either claim, any economic analysis of a but-for world would be complicated by competing industry trends and regulations.

Broader Implications for ESG and Antitrust

Certainly, it is possible to imagine ESG efforts that would raise significant antitrust concerns, given that ESG goals often require industry collaboration. Notwithstanding the best intentions, case law has held that an effort to achieve social good through collusion or unlawful agreements does not provide a defense, let alone immunity, to an antitrust challenge. Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679 (1978) (rejecting the argument that safety concerns justified an agreement among engineers not to quote prices before being hired); In Re Processed Egg Prod. Antitrust Litig., 851 F. Supp. 2d 867, 877 (E.D. Pa. 2012) (industry agreement to improve the quality of life for animals may be alleged to increase prices or reduce output).

Government regulation may be an answer when an industry-wide agreement is needed to achieve a societal goal, but it is an imperfect one. The Noerr-Pennington doctrine holds that anticompetitive effects caused by petitioning the government are immune from antitrust liability. The state action doctrine holds that state actors, including state regulatory boards dominated by industry participants, are generally not subject to antitrust scrutiny. A regulator may choose standards that are not ideal for the industry, and unlike voluntary standards, companies cannot opt out of government-enforced regulations.

The heightened scrutiny of ESG means that any ESG effort must be approached with great care and sensitivity toward antitrust. Trade organizations can be alleged to be conduits for sharing sensitive information, and statements about intentions to adhere to policies or standards can be interpreted as signals or invitations to collude, even when made publicly. Accordingly, the compliance rules applicable to trade associations and public announcements of intentions should be observed diligently when the topic is ESG.

Conclusion: A Case to Watch

Finally, while ESG aspirations have not yet been tested as a defense to antitrust claims, there is no basis in antitrust law for targeting ESG goals as inherently suspect or deserving of greater antitrust scrutiny than other industry self-regulatory efforts. Given the controversial nature of ESG, this case will certainly be followed closely.

Twice in the past month, the Federal Trade Commission (FTC) unanimously announced consent decrees that are a strong signal of the current Commission’s intent to investigate private equity transactions aggressively.

• The consent decrees allow the private equity fund JAB Consumer Partners SCA SICAR's National Veterinary Associates to close two recent deals with some divestitures but also impose a series of strict prior notice requirements that are unprecedented in their breadth.
• The announcements come a month after the confirmation of a fifth commissioner that gave the Democrats a 3-2 majority on the FTC.
• As long as Democrats control the majority, private equity firms should be prepared for additional scrutiny and be cognizant of other competition issues that may impact them.

In this client alert, John Roberti, Melissa Maxman, Ronald Wick, David Lisner, and Derek Jackson discuss the potential implications of these rulings for private equity firms and offer insight into how PE firms can be more cognizant of competition and antitrust compliance issues that may pose a potential risk moving forward.  

The Department of Justice’s Antitrust Division is unlikely to be deterred by last week’s trial setbacks.

• Juries acquitted two sets of defendants of antitrust claims involving labor markets.
• The Antitrust Division will continue to pursue labor cases and has three more trials pending.
• The Division is willing to accept some losses in trials as a cost of taking a more aggressive enforcement position.

In this client alert, the authors summarize the recent setbacks, discuss the Division’s labor initiative, and conclude that more aggressive enforcement is on its way.

“Closing Argument: Suggestions for Effective Advocacy,” Hon. Raymond J. Dearie, David R. Marriott, and David Lisner

“Bilateral Trade Impacts of Temporary Foreign Visitor Policy,” Mahmut Yasar, David Lisner and Roderick M. Rejesus