Litigation and Arbitration
The firm handles major cases in federal and state trial and appellate courts, before government agencies, and in a wide variety of domestic and international arbitration settings. Our experience in civil litigation covers a number of substantive areas, including antitrust and unfair competition, bankruptcy litigation and counseling, mass torts, class action defense, commercial disputes, directors and officers litigation, employment, health care litigation, partnership disputes, products liability, real estate and construction litigation, and securities litigation.
Our attorneys have significant experience handling appeals before federal and state appellate courts across the country and regularly represent organizations as amicus curiae in appellate matters presenting legal questions with broad policy implications. The firm has successfully handled appeals in cases where we represented a party in the lower court and in cases where we have specifically been brought in for our appellate proficiency. Many of our attorneys have also clerked for judges on numerous federal district and appellate courts.
With every dispute, in any forum, we offer thoughtful counseling before a decision is made to litigate, and we have substantial experience in negotiating favorable pre-litigation settlements for our clients where appropriate. If pre-litigation settlement is not feasible or advisable, we are skilled at using the pretrial process to put our cases in the best posture for disposition by motion, settlement, or trial. Our litigators are first-rate trial lawyers: we have successfully handled hundreds of trials, arbitration hearings, and administrative procedures in state and federal tribunals across the country and in every major type of arbitration forum. We have an outstanding record in high-stakes, high-profile litigation, including cases involving claimed damages in the hundreds of millions of dollars.
Our trial experience helps us manage the discovery process efficiently and cost-effectively by keeping the focus on the facts that will advance our claims or defenses at trial. That focus — along with our intensity, creativity, and skillful negotiating — helps us settle cases on excellent terms.
Our litigation and arbitration team has been recognized in several leading rankings publications. The Legal 500 described the firm’s strong commitment to client service and praised us as “one of the best mid-sized firms.” It also noted that the firm “differentiates itself by the creativity and flexibility it brings to its work, enabling it to handle disputes across an incredibly wide number of subject areas.” Chambers recognized the firm’s commercial litigation practice as highly regarded, noting that our “level of service is stellar” and our “work product is uniformly superb”; “a great firm with high quality across the board.”
Key Contacts
All Attorneys
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
Vincent focuses on white collar and general criminal law, with a strong emphasis on cross-border cases. He advises and defends corporate entities, public figures, and executives in high-profile political, business, and financial matters, including complex financial criminal cases. Vincent most recently worked on several landmark cases at French law firm Temime. He also assisted former President Nicolas Sarkozy in connection with the “Bygmalion” case.
“Joining Cohen & Gresser represents a natural progression in the development of my clientele and the expansion of my cross-border practice,” said Vincent Desry. “It provides my clients with access to a wider range of experience within a firm that aligns with my ambitions to handle complex, high-stakes international criminal cases. The firm’s strong reputation, both in France and internationally, is an invaluable asset that will support the continued growth of my practice.”
Vincent’s extensive experience significantly enhances the firm’s capacity to support French and international clients across a wide range of white collar areas, including criminal defense, regulatory investigations, and compliance matters. His addition bolsters the firm’s ability to navigate complex, high-stakes cases involving fraud, bribery, corruption, and other financial crimes. In cross-border matters, the Paris office seamlessly collaborates with the firm’s New York, Washington, D.C., and London offices, providing clients with a cohesive, global approach to resolving legal challenges spanning multiple jurisdictions.
Vincent’s addition further augments the collective strength of the Paris team, which includes Johannes Jonas and France Portmann Loy, who specialize in transactional matters; Muriel Goldberg-Darmon, a leader in financial markets and services for both advisory and litigation; Angéline Duffour, who specializes in employment law; and Franck Le Mentec, who focuses on tax law. Together, they provide clients with comprehensive legal support across key practice areas.
“Vincent Desry’s arrival marks a pivotal moment for our Paris office. It strengthens our standing as a distinguished international law firm, renowned for offering top-tier expertise in handling complex cross-border matters,” adds Johannes Jonas, Managing Partner of the Paris office.
About Vincent Desry
Vincent Desry holds a Master's degree in Economic Law from the Institut d'Études Politiques de Paris (Sciences-Po), specializing in Economic Litigation and Arbitration, and an LL.M. from New York University. He is a member of the Paris and New York Bars.
Vincent gained his initial experience at Allen & Overy and Dupond-Moretti & Vey before beginning his career at Cabinet Temime in 2017. On November 1, 2024, he joined Cohen & Gresser as a partner on the White Collar Defense & Regulation team.
About Cohen & Gresser
Cohen & Gresser is an international law firm with an outstanding record of success in high-stakes and high-profile litigation, investigations, and transactional work for our clients, including major financial institutions and companies around the world. Our attorneys have superb credentials and are committed to providing the efficiency and personal service of a boutique law firm along with the quality and attention to detail that are the hallmarks of the best firms in the world. The firm has been recognized in a wide range of publications, including Chambers and The Legal 500.
The Paris office advises a wide range of French and international clients on corporate M&A, capital markets law, regulatory compliance, employment law, tax law and civil, commercial and criminal litigation, including white collar defense. The firm also assists with internal investigations, enquiries, inspections and sanctions before the Autorité de Marchés Financiers and the Autorité de Contrôle Prudentiel, as well as international cooperation with other regulatory bodies (FCA, SEC, etc.) and cross-border investigations (OFAC, FCPA, etc.) conducted by the U.S. Department of Justice (DOJ).
Richard Kovalevsky KC has been named a Leading Partner in the Regulatory Investigations and Corporate Crime (Advice to Corporates) category. Thomas Shortland is recognized as a Next Generation Partner in the Commercial Litigation: Mid-Market category, where Patrick Ferguson is also included as a Recommended Lawyer.
Testimonials included in the guide commend the London team as “one of the most impressive around,” noting that the team is “unwaveringly committed and responsive throughout cases” and “achieves victories that clients can usually only dream about.”
Since opening in 2018, Cohen & Gresser’s London office has delivered top-tier legal services to clients globally across a wide range of disciplines. The team collaborates closely with colleagues in New York, Paris, and Washington, D.C., offering seamless support on complex cross-border matters.
The Legal 500 UK Solicitors guide highlights the best lawyers and law firms in the UK through in-depth research, interviews, and analysis of thousands of submissions.
The “Stars” featured in the guide are recognized through Benchmark Litigation’s independent research as some of the foremost litigation practitioners in the United States. The selection process involves in-depth interviews with litigators, dispute resolution experts, and their clients, along with a thorough review of significant cases and firm developments. Lawyers named as “Stars” are highly respected by their peers and stand out for their impressive case track records and positive client feedback.
Since its inception in 2008, Benchmark Litigation has been the only publication on the market to focus exclusively on litigation in the United States.
- Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar
- Lawrence T. Gresser – Complex Commercial Litigation
- Melissa H. Maxman – Litigation, including White Collar and Antitrust
- Douglas J. Pepe – Complex Litigation, Law Firm Malpractice, Blockchain
- John Roberti – Antitrust & Competition Law, including Litigation
- Ronald F. Wick – Antitrust & Competition Litigation
This year’s Lawdragon guide highlights "the best litigators the U.S. has to offer" across various categories, following an extensive review of a record number of submissions. The guide focuses on lawyers who have made a significant impact, particularly in recent high-profile matters. The selection process includes in-depth analysis of major litigation and the attorneys consistently sought for key cases.
Five C&G attorneys are recognized by their peers as “Best Lawyers” in their respective practice areas:
- Mark S. Cohen – Criminal Defense: White-Collar
- Lawrence T. Gresser – Commercial Litigation
- Jonathan S. Abernethy – Criminal Defense: White-Collar and Litigation - Regulatory Enforcement
- Jason A. Brown – Criminal Defense: White-Collar
- Mark Spatz – Product Liability Litigation - Defendants
Seven C&G attorneys are recognized as “Best Lawyers: Ones to Watch” in their respective practice areas:
- Luke Appling – Commercial Litigation and Litigation - Securities
- Sharon L. Barbour – Commercial Litigation and Criminal Defense: White-Collar
- William E. Kalema – Criminal Defense: White-Collar
- Phoebe King – Criminal Defense: White-Collar
- Barbara K. Luse – Commercial Litigation and Corporate Law
- Alexandra K. Theobald – Commercial Litigation and Corporate Law
- Benjamin Zhu – Criminal Defense: White-Collar
With the financial assurance of a multi-year take-or-pay contract that obligated BTS to make minimum monthly payments regardless of the services it used, Eddystone spent about $170 million to build a transloading facility that transferred oil from railcars to boats. Soon after the Eddystone transloading facility went into operation, BTS and many of its corporate affiliates were sold to Ferrellgas. At the time, BTS’s value was well over $200 million. Within months, though, the transloading arrangement became uneconomical for BTS’s corporate affiliates, so Ferrellgas stripped all of BTS’s assets and sold BTS for $10, causing BTS to default on its remaining obligations to pay Eddystone about $140 million. Eddystone brought an action in Philadelphia in 2017 to recover the fraudulent transfers involved in stripping BTS’s assets.
While the Philadelphia initial transfer action was pending, C&G filed an action for Eddystone in the Southern District of New York in 2019 alleging that Ferrellgas used former BTS assets to pay two groups of lenders, making the lenders subsequent transferees of the fraudulently transferred assets. Significantly, a protective order in the Philadelphia action barred Eddystone from using documents produced in that action in drafting its initial complaint against the lenders.
The Southern District granted the lenders’ initial motions to dismiss the complaint, finding that the complaint did not sufficiently demonstrate that the assets used to pay the lenders derived from former BTS assets. However, the court also rejected all of the lenders’ many additional arguments that the complaint was legally insufficient.
Following the dismissal of the initial complaint in September 2021, Eddystone overcame hard-fought opposition to get the protective order in the Philadelphia action modified in March 2022 to permit it to use discovery from that action to amend its Southern District complaint against the lenders. Eddystone then prepared a proposed amended complaint in April 2022 with charts showing specific cash transfers from BTS to one set of lenders through Ferrellgas and its subsidiaries. The proposed amended complaint also detailed how other specific BTS assets were assigned to corporate affiliates for no consideration at all and how the proceeds from later sales of those assets were transferred to another set of Ferrellgas lenders.
The Southern District nevertheless denied Eddystone leave to file the proposed amended complaint, finding that it would be futile because the factual allegations were still insufficient to show that assets from BTS reached the lenders. The court also found that the three years between Eddystone’s filing of its initial complaint and its request to amend was an undue delay that prejudiced the lenders.
Following oral argument that Judge Gerard Lynch of the Second Circuit called “great,” the Second Circuit reversed the District Court on both of its bases for denying Eddystone’s request to file an amended complaint. First, the Second Circuit found that Eddystone had alleged sufficient details to show that it was plausible that BTS’s assets were later transferred to the lenders. Then, the Second Circuit ruled that the District Court had exceeded its discretion in finding that undue delay and prejudice barred Eddystone’s effort to amend its complaint, finding that the District Court had not identified any prejudice to the lenders and that “Eddystone cannot be penalized for waiting until it received the District Court’s decision granting the motions to dismiss before determining what it needed to do to amend its Complaint, including modifying the protective order in the Pennsylvania litigation.”
The victorious C&G team includes Dan Tabak, Steve Sinaiko, Marvin Lowenthal, Ben Zhu, and Camille Delgado. Melissa Maxman was also part of the team that obtained the modification of the Pennsylvania protective order.
Mark Cohen is once again recognized as a Leading Partner in both Securities Litigation and Corporate Investigations & White-Collar Crime: Advice to Individuals.
The 2024 guide also recognizes Lawrence T. Gresser, Jonathan Abernethy, Jason Brown, S. Gale Dick, Christian Everdell, Jeffrey Lang, Alisa Lu, Melissa Maxman, Douglas Pepe, John Roberti, Daniel Tabak, and Ronald Wick as recommended lawyers.
This 17th edition of The Legal 500 United States guide, which identifies the “true superstars of the profession,” involved a detailed assessment of various factors, including work conducted by law firms over the past 12 months and historically; experience and depth of teams; and client feedback.
Founded in 2002, Cohen & Gresser’s New York office serves as the firm’s headquarters. Our New York attorneys are particularly strong in complex litigation, investigations, and transactions. The firm’s Washington, D.C. office handles a range of commercial litigation and regulatory enforcement actions, with a focus on domestic and foreign antitrust issues.
The firm’s White Collar Defense & Regulation practice is once again ranked in the guide, maintaining its position as one of the “Elite” firms in the Litigation: White-Collar Crime & Government Investigations category. Chambers recognized the firm’s “strong regulatory investigations and enforcement practice,” specifically highlighting its “expert financial services practice which offers particular strengths in FINRA and SEC proceedings.” Client feedback praises the team for its “strong expertise with the DOJ and with prosecutors.”
The Commercial Litigation practice is also ranked in the Litigation: General Commercial: Highly Regarded category, receiving high praise from clients for having a “strong understanding of the client’s needs” and for being “smart, creative and willing to try difficult strategies and aggressive approaches.”
The firm’s Antitrust & Competition practice is ranked in the Antitrust category, with Chambers noting that “Cohen & Gresser houses a strong practice across a range of antitrust disputes [including] sophisticated litigation.” Client feedback praises the team for being “creative and responsive” and having “strong knowledge of antitrust class actions.”
Partners throughout Cohen & Gresser’s US practices also earned individual rankings in the following categories:
Antitrust: Litigation Specialists (DC)
Litigation: General Commercial (NY)
Litigation: Securities (NY)
Litigation: White-Collar Crime & Government Investigations (NY)
Chambers is the world’s leading legal data and analytics provider, highlighting the top lawyers and law firms across the USA based on in-depth research that includes reference feedback, client satisfaction, reputation in the market, peer knowledge, and other discreet independent market sources.
Each year, Super Lawyers identifies outstanding lawyers nationwide and regionally who have attained a high degree of peer recognition and professional achievement. Only 5 percent of lawyers are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars. This latest guide recognizes 100 percent of our D.C. partners and associates.
The C&G lawyers recognized as Washington, D.C. Super Lawyers are:
- Melissa H. Maxman – Antitrust Litigation
- John Roberti – Antitrust Litigation
- Ronald F. Wick – Antitrust Litigation
The C&G lawyers recognized as Washington, D.C. Rising Stars are:
- Derek Jackson – Business Litigation
- Alisa Lu – Business Litigation
Prior to joining Cohen & Gresser, Allon was a federal prosecutor for 14 years in the U.S. Attorney’s Office for the Eastern District of New York. As Deputy Chief, he oversaw more than 100 AUSAs across the Criminal Division’s nine sections. Previously, he served as Chief of the Organized Crime & Gangs Section. As an Assistant U.S. Attorney, Allon prosecuted cases involving a variety of crimes, including foreign bribery, health care fraud, racketeering, securities fraud, money laundering, wire fraud, national security offenses, and public corruption offenses.
“I couldn’t be more excited to join Cohen & Gresser. I have admired the firm for a long time and have been consistently impressed with its growth and success,” said Allon. “The white-collar practice is outstanding, and I look forward to leveraging my experience investigating cross-border white-collar crime, negotiating corporate resolutions, and taking complex cases to trial. I also look forward to applying my experience to the firm’s excellent work in antitrust and civil litigation.”
“Allon is a skilled litigator with proven results. His extensive experience as a federal prosecutor adds new depth and capabilities to the firm’s white-collar, antitrust, and litigation and arbitration practices,” said Lawrence T. Gresser, co-founder and global managing partner of Cohen & Gresser. “On behalf of everyone at the firm, I’m delighted to welcome Allon to the team.”
Before joining the U.S. Attorney’s Office, Allon served as a law clerk to the Honorable Nicholas G. Garaufis, U.S. District Judge for the Eastern District of New York, and as a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison. Allon earned his law degree from Harvard Law School.
Allon is a member of the Federal Bar Council’s Federal Criminal Practice Committee and the American Bar Association’s Antitrust Law and Criminal Justice Sections. He currently serves as Chair of the Constitution & Rules Committee of the United States Tennis Association. He was previously a Lecturer in Law at Columbia Law School.
Read New York Law Journal's coverage here.
Since its inception in 2008, Benchmark Litigation has been the only publication on the market to focus exclusively on litigation in the United States.
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
“Congratulations to Tom, Ben, and Louise on their well-deserved promotions,” said Lawrence T Gresser, global managing partner of Cohen & Gresser. “They are a talented group of lawyers who have demonstrated an extraordinary dedication to client service. All three represent Cohen & Gresser’s core values of excellence, integrity, and respect, and we are pleased to recognize their significant achievements and the impact they have within their practices and at the firm.”
Thomas Shortland – Partner, London
Tom Shortland represents corporations and individuals in a range of commercial and business disputes in the English courts, courts in overseas jurisdictions, and in international arbitrations. He also advises on internal and disciplinary investigations, regulatory proceedings, and financial crime matters. Tom has been recognized in The Legal 500 UK’s guide as a “Rising Star” in Commercial Litigation and as a key lawyer in Regulatory Investigations and Corporate Crime.
Benjamin Zhu – Counsel, New York
Ben Zhu focuses his practice on litigation and white collar defense matters. He has represented corporations and individuals in a range civil and criminal matters, including complex commercial disputes, mass tort litigation, legal malpractice actions, and government investigations. He has been named a Rising Star in New York by Super Lawyers since 2021. Ben is a magna cum laude graduate of the New York University School of Law, where he received the Order of the Coif and was a Notes Editor of the Law Review.
Louise Le Guilchet – Counsel, Paris
Louise Le Guilchet focuses her practice on complex litigation (including general civil and commercial matters, shareholder disputes, and post-acquisition litigation) as well as internal and regulatory investigations. Louise holds a master’s degree in Private International Law and International Trade from the Université Panthéon-Assas and a master’s degree in International Finance from HEC Paris (Grande Ecole).
Financier Worldwide is a leading information source covering corporate finance and board-level business issues. As a leading publisher of news and analysis on this dynamic global market, the organisation is recognised as a valued source of intelligence to the corporate, investment, and advisory community.
Recognized Lawyers
• Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar
• Melissa H. Maxman – Litigation, including White Collar and Antitrust
• John Roberti – Antitrust & Competition Law, including Litigation
• Ronald F. Wick – Antitrust & Competition Litigation
Lawdragon is a legal media company providing news content and editorial features, including guides to the nation’s leading lawyers. This is Lawdragon’s first guide dedicated to attorneys principally representing corporations and other organizations in litigating claims involving Antitrust, Securities, Financial, M&A, Intellectual Property and Patents, Product Liability, Mass Tort, White Collar, Government Investigations, and Energy disputes.
NAPABA is the nation's largest Asian Pacific American membership organization representing the interests of 60,000 attorneys, judges, law professors, and law students. The Prospective Partners Program aims to increase the number of Asian American and Pacific Islander partners at major law firms through introduction, mentorship, and relationship building. Joanna is one of only ten individuals selected for the program and will have the opportunity to receive mentorship and form meaningful connections with peers and industry leaders throughout the program.
Benchmark Litigation provides law firm and lawyer rankings based on extensive interviews with litigators, dispute resolution specialists and their clients, as well as analysis of the market’s most important cases and firm developments.
Leaders League is an independent research and rating agency that provides comprehensive rankings and in-depth analysis of law firms and lawyers. The rankings are based on extensive research by an experienced team of analysts.
Ranked Practice Areas:
• Marketing, communication & digital – Advertising law & marketing
• Media & entertainment – Fashion Law
Ranked Individuals:
• Franck Le Mentec: Wealth management – Wealth tax: regulation and litigation; Tax law – LBO tax
• Guillaume Guérin: Compliance – Compliance program
• Johannes Jonas: Private Equity – Development capital transactions
• Loïc Henriot: Dispute resolution – Litigation with regulators and for listed operations; Compliance – Compliance program; Compliance – International investigation and internal investigation; Dispute resolution – Banking & Finance Litigation; Dispute resolution – Commercial litigation; Labor & Employment – Criminal labor law; Dispute resolution – White collar crime
• Muriel Goldberg-Darmon: Dispute resolution – Litigation with regulators and for listed operations; Compliance – Compliance program; Compliance – International investigation and internal investigation; Private Equity – Development capital transactions; Asset management – Asset management
Established in 2014, Cohen & Gresser’s Paris office provides comprehensive legal services for our clients, including advising on corporate, employment, tax, financial services, white collar defense, and litigation-related matters. Our Paris attorneys work closely with the lawyers in our other offices on cross-border transactions, investigations, and litigation, in order to provide superior service to French and international clients.
About The Best Lawyers in France
The guide highlights C&G’s “elite group of practitioners” and use of advanced machine learning techniques and notes that the firm “handle[s] cases that are every bit as complex and challenging as big, national law firms.” Commentators noted that the firm “punches way above its weight” in litigation and investigation matters.
C&G Co-Founder Mark S Cohen is one of only two lawyers in the United States to be recognized as a “Leading Lawyer” in both Securities Litigation: Defense and Corporate Investigations and White-Collar Criminal Defense. Commentary from The Legal 500 recognizes Mark as a “top-tier advocate” who is “at the top of the profession” and “can litigate with the best of them.”
For the first time, C&G’s Antitrust practice has been recognized in Antitrust: Civil Litigation/Class Actions: Defense for its handling of class action cases concerning allegations of cartel behavior, monopolization, and other exclusionary conducts. The Legal 500 cites the leadership of Melissa H Maxman and the addition of “heavyweight” lawyer John Roberti as key reasons for the practice’s recognition.
C&G is again recognized in the Advice to Individuals and Advice to Corporates categories of the Corporate Investigations and White-Collar Criminal Defense section. The Legal 500 commentary notes that the practice is led by “partners with deep experience who obtain excellent results for clients” and is “well placed to handle transatlantic cases” with offices in New York, Paris, and London, and has “particular expertise in financial crime, antitrust enforcement, public corruption, and tax issues.”
The guide has also recognized C&G once again in the General Commercial Disputes category, praising the practice for showing the “discipline and focus necessary to win a case.” Testimonials from the guide highlight the team’s ability to “handle large and complex matters” with “experienced people, good judgment,” and “better use of technology.”
For the 10th consecutive year, C&G has been recognized in the Securities Litigation: Defense category for the firm’s “expertise in the financial services sector” and “recognized trial expertise” in cross-border and domestic securities litigation and enforcement proceedings. The Legal 500 emphasizes the team’s “strong practitioners” and “attentiveness to clients” in the 2022 guide.
Recognized Practices:
- Antitrust: Civil Litigation/Class Actions: Defense
- Corporate Investigations and White-Collar Criminal Defense: Advice to Individuals
- Corporate Investigations and White-Collar Criminal Defense: Advice to Corporates
- General Commercial Disputes
- Securities Litigation: Defense
Antitrust: Civil Litigation/Class Actions: Defense
- Melissa H Maxman
- John Roberti
- Ronald F Wick
- Jonathan S Abernethy
- Jason Brown
- Mark S Cohen
- S Gale Dick
- Jeffrey I Lang
- Melissa H Maxman
- Reggie Schafer
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
- Melissa H Maxman
- Daniel H Tabak
- Jonathan S Abernethy
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
The Legal 500 analyzes the capabilities of law firms across the world. Its rankings “highlight the practice area teams who are providing the most cutting edge and innovative advice to corporate counsel.”
Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.
Super Lawyers
Jonathan S Abernethy: Criminal Defense: White Collar
Kwaku Andoh: Mergers & Acquisitions
Elizabeth Bernhardt: Business Litigation
Thomas E Bezanson: Personal Injury – Products: Defense
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
Lawrence T Gresser: Business Litigation
Oliver S Haker: Business Litigation
Johannes Jonas: Mergers & Acquisitions
Nicholas J Kaiser: Real Estate
Jeffrey I. Lang: Business Litigation
Melissa H Maxman: Antitrust Litigation
Ellen Paltiel: General Litigation
Nathaniel P T Read: Business Litigation
Bonnie J Roe: Securities & Corporate Finance
Stephen M Sinaiko: Business Litigation
C Evan Stewart: Securities Litigation
Daniel H Tabak: Business Litigation
Scott D Thomson: Business Litigation
Alexandra Wald: Business Litigation
Ronald F Wick: Antitrust Litigation
Rising Stars
Luke Appling: Civil Litigation
Sharon L Barbour: Criminal Defense: White Collar
Drew S Dean: General Litigation
William Kalema: Business Litigation
Sri Kuehnlenz: Civil Litigation
Winnifred A Lewis: Securities Litigation
Marvin J Lowenthal: Criminal Defense: White Collar
Barbara K Luse: Criminal Defense: White Collar
Matthew V Povolny: Business Litigation
Benjamin Zhu: Criminal Defense: White Collar
- Litigation: General Commercial: Highly Regarded
- White-Collar Crime & Government Investigations: The Elite
- Corporate Investigations and White Collar Criminal Defense: Advice to Individuals
- Corporate Investigations and White Collar Criminal Defense: Advice to Corporates
- General Commercial Disputes
- Securities Litigation: Defense
Chambers has recognized Cohen & Gresser in its 2020 USA guide for its achievements in General Commercial Litigation and White Collar Crime & Government Investigations. Chambers commentary highlights the firm's "thoroughness, quality, responsiveness, client care and availability,” noting that "the level of service is stellar, the work product is uniformly superb,” and that C&G is "a great firm with high quality across the board."
Chambers also recognized the following individuals: Jonathan S Abernethy for White Collar Crime & Government Investigations; Karen H Bromberg for Intellectual Property: Patent; Mark S Cohen for Securities Litigation and White Collar Crime & Government Investigations; and Lawrence T Gresser for Commercial Litigation.
Cohen & Gresser's Paris office has been recognized in The Legal 500’s 2020 Europe, Middle East, and Africa guide for its work in seven practice areas: Compliance, Commercial Litigation, Employment, Stock Market Litigation, Tax, White Collar Crime, and IT and Internet. Clients note that the team in Paris “shows great availability and responsiveness” and is “very effective in working through problems and understanding issues to reach reasonable resolutions.”
Cohen & Gresser announces the promotion of Thomas Shortland to counsel in the firm's London office. Tom advises on a broad range of commercial and business disputes, including English High Court litigation, international arbitration, internal investigations, and regulatory proceedings.
- Corporate Investigations/White Collar
- Corporate Investigations/White Collar – Advice to Individuals
- General Commercial Disputes
- Securities Litigation Defense
C&G helped secure a victory in a case alleging that President Trump violated the Foreign Emoluments Clause of the Constitution by accepting benefits from foreign governments without seeking and obtaining congressional consent. C&G represents five legal historians who filed an amicus brief citing extensive historical sources demonstrating that the Founding Fathers shared the plaintiffs’ definition of emoluments. Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, in denying Trump’s motion to dismiss for failure to state a claim, expressly stated that “[t]he Court appreciates the illuminating analysis provided by the amici,” and that “Amici Legal Historians soundly reject the President’s narrow definition of Emolument as inaccurate, unrepresentative, and misleading.”
The National Law Journal published a piece about the importance of our clients’ amicus brief, mentioning Cohen & Gresser’s role, and quoting Washington, D.C. Managing Partner, Melissa Maxman, linked here.
This is the second time a district judge has relied in large part upon our legal historian clients’ brief in construing the Emoluments Clause.
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.
Defunct gossip website Gawker will soon start paying $20 million it owes to shareholders — including founder Nick Denton — court proceedings revealed Wednesday. This action follows a jury's decision last March to award Hulk Hogan $140 million in his invasion of privacy suit against Gawker. C&G's Daniel H Tabak was counsel for Mr. Hogan during these proceedings.
- "Gawker to Start Paying $20M Owed to Shareholders, Founder Nick Denton," New York Daily News.
- "Gawker Founder Nick Denton to Leave Bankruptcy," The Wall Street Journal.
Daniel H Tabak is leading the team representing Hulk Hogan in the bankruptcy case against Gawker and Nick Denton. The following news outlets provided coverage:
Cohen & Gresser is pleased to announce the opening of its fourth office in Washington, D.C. The Washington office will be led by partner Melissa H Maxman, and will handle a range of commercial litigation and regulatory enforcement matters, with a focus on U.S. antitrust issues, criminal and civil litigation, and compliance and regulatory disputes in the federal agencies.
In the year since the Packer district court decision was issued, a consensus of other district courts had come out the opposite way and concluded that TransUnion did not abrogate Second Circuit precedent on the requirements for Article III standing in the Section 16(b) context. The U.S. Securities and Exchange Commission (“SEC”) appeared as an amicus curiae in the Packer appeal to argue that affirming the Packer district court “would eviscerate Section 16(b)” because “few, if any plaintiffs, would be able to demonstrate standing, contrary to Congress’s intent to create a broad cause of action.”[2]
The Second Circuit’s reversal settles uncertainty in Section 16(b) cases that had emerged since the initial Packer decision and gives Section 16(b) plaintiffs the green light to pursue claims (at least in the Second Circuit) unless and until the Supreme Court takes up the question.
Section 16(b) Short-Swing Liability
Congress enacted Section 16(b) in 1934 in response to widespread concern that insiders who “may have [had] access to information about their corporations not available to the rest of the investing public” were able to move quickly in and out of that corporation’s securities and “reap profits at the expense of less well informed investors.”[3]
Once enacted, Section 16(b) created a pathway to require statutory insiders to disgorge the profits they made from short-swing trading. The statute defines insiders as officers, directors and 10% beneficial owners of the corporation.[4] And it defines short-swing trading as the purchase and sale of securities of the corporation at issue when such purchase and sale were made within a six-month period.[5]
One feature of Section 16(b) is particularly relevant here: Section 16(b) does not confer enforcement authority on the SEC but instead “recruits the issuer” or “its security holders” as its “policemen.”[6] Specifically, Section 16(b) permits two types of plaintiffs to pursue relief: (1) the issuer of the security that was traded and (2) a shareholder of that issuer, but only in the event that the issuer fails or refuses to bring the suit within 60 days of a request by that shareholder.[7] Permitting a shareholder plaintiff to bring a Section 16(b) claim in these circumstances recognizes that a company may be conflicted in pursuing claims against its own insiders.
Article III Standing in Section 16(b) Actions
Article III of the Constitution limits federal courts to the adjudication of “cases” and “controversies.” To meet the Article III requirement of a case or controversy, a plaintiff must demonstrate standing by showing “(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”[8] The first requirement of Article III standing—concrete injury-in-fact—ensures that “a litigant [has] a direct stake in the controversy and prevents the [federal] judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders.”[9]
Congress conferred exclusive jurisdiction on the federal courts to hear Section 16(b) claims.[10] Accordingly, if a federal court holds that a Section 16(b) plaintiff does not have Article III standing for failure to show an injury-in-fact (or otherwise), that plaintiff could not then bring the same claim in state court.
A. Second Circuit Law Under Bulldog
The Second Circuit’s leading case on assessing Article III standing and its injury-in-fact requirement for Section 16(b) claims—which predates the Supreme Court’s TransUnion decision—had been Donoghue v. Bulldog Investors General Partnership.[11]
The Second Circuit in Bulldog affirmed a judgment in favor of the shareholder plaintiff, rejecting the defendants’ argument that the plaintiff could not demonstrate any injury to the issuer resulting from that trading.[12] Bulldog explained that Section 16(b)
confer[s] on securities issuers a legal right, one that makes 10% beneficial owners constructive trustees of the corporation with a fiduciary duty not to engage in short-swing trading of the issuer’s stock …. It is the invasion of this legal right, without regard to whether the trading was based on inside information, that causes an issuer injury in fact and that compels our recognition of plaintiff’s standing to pursue a § 16(b) claim here.[13]
Bulldog acknowledged that “[w]hile this particular legal right might not have existed but for the enactment of § 16(b), Congress’s legislative authority to broaden the injuries that can support constitutional standing is beyond dispute.”[14] With this in mind, the Second Circuit drew upon an analogy developed by Judge Learned Hand in a 1951 Second Circuit decision between the harm redressed by Section 16(b) and that redressed by the claim of breach of trusts at common law:
Judge Hand observed that “[n]obody is obliged to become a director, an officer, or a ‘beneficial owner’; just as nobody is obliged to become the trustee of a private trust; but, as soon as he does so, he accepts whatever are the limitations, obligations and conditions attached to the position, and any default in fulfilling them is as much a ‘violation’ of law as though it were attended by the sanction of imprisonment.”
Thus, pursuant to § 16(b), when a stock purchaser chooses to acquire a 10% beneficial ownership stake in an issuer, he becomes a corporate insider and thereby accepts “the limitation[]” that attaches to his fiduciary status: not to engage in any short-swing trading in the issuer’s stock. At that point, injury depends not on whether the § 16(b) fiduciary traded on inside information but on whether he traded at all.[15]
B. The TransUnion Decision
In 2021, TransUnion expanded on prior Supreme Court precedent that had rejected the theory that Article III standing automatically exists where a statute provides for the plaintiff’s standing. As the Supreme Court explained, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.”[16] Congress may “‘elevate’ harms that ‘exist’ in the real world before Congress recognized them to actionable legal status, [but] it may not simply enact an injury into existence.”[17]
Under TransUnion (and certain of its predecessor decisions), federal courts have an independent obligation to decide whether a plaintiff has suffered a concrete harm under Article III even if that plaintiff has statutory standing to sue. [18] What that inquiry requires depends on the type of harm at issue. “[T]raditional tangible harms,” such as when “a defendant has caused physical or monetary injury to the plaintiff”—will “readily qualify.”[19] On the other hand, TransUnion explained, “[v]arious intangible harms can also be concrete. Chief among them are injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. Those include, for example, reputational harms, disclosure of private information, and intrusion upon seclusion.”[20]
The Supreme Court’s application of this principle to the allegations of intangible harm in TransUnion is illustrative: The plaintiffs had brought a class action under the Fair Credit Reporting Act, with some plaintiffs asserting that misleading versions of their credit reports were provided to third-party businesses and others asserting that their credit files contained misleading alerts that were not disseminated to any third parties.[21] The Court held that the first category of plaintiffs, those whose misleading reports were disclosed, had Article III standing because they alleged a concrete injury analogous to the harm associated with the tort of defamation.[22] The second category of plaintiffs, whose credit files were not disseminated to third parties, lacked Article III standing because their claims based on the “retention of information lawfully obtained, without further disclosure” were not analogous to traditional harms.[23]
C. The District Court’s Decision in Packer
The complaint in Packer alleges that the defendants were 10% beneficial owners of a class of 1-800-Flowers.com, Inc. (“1-800-Flowers”) common stock and that they made both purchases and sales of 1-800-Flowers within a six-month period. [24] Packer, another holder of 1-800-Flowers common stock, brought suit on behalf 1-800-Flowers seeking disgorgement of the short-swing profits.[25]
The district court in Packer held that Bulldog did not survive TransUnion, reasoning that
the notion in Bulldog that a violation of Section 16(b) alone sufficiently confers Article III standing upon the issuing corporation or derivative shareholder without more, cannot co-exist with TransUnion’s pronouncement that a statutory violation and a cause of action alone are insufficient to support Article III standing without a showing of concrete harm to the plaintiff. In that respect, Bulldog cannot be squared with TransUnion and TransUnion controls.[26]
The district court acknowledged that for “intangible harms,” the “bedrock of the concrete injury inquiry is whether the alleged injury has a close relationship to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American court.”[27]
As to Packer’s claim, the court concluded that because Packer failed “to point to or articulate any actual reputational harm” or other “actual injury allegations” accruing to 1-800-Flowers, Packer lacked Article III standing under TransUnion.[28]
The Second Circuit’s Decision in Packer
Packer appealed the district court decision. In addition to the parties’ briefs, the SEC filed an amicus brief in support of plaintiff’s position that standing exists. The Second Circuit heard argument on May 6, 2024, and defendants-appellees conceded at the argument that they would necessarily lose if TransUnion did not abrogate Bulldog.
The Second Circuit issued its decision reversing the district court on June 24, 2024. The Second Circuit identified “several errors” with the district court’s decision.[29]
First, the Second Circuit held TransUnion did not abrogate Bulldog because Bulldog’s analysis of the harm in Section 16(b) cases correctly identified, as TransUnion and its predecessors required, “‘a close historical or common-law analogue for the[] asserted injury’ to support constitutional standing.”[30] As the Second Circuit explained:
Just as a common-law fiduciary who deals with the trust estate for his own personal profit must account to the beneficiary for all the gain which he has made, a statutory fiduciary who engages in short-swing trading owes its gains to the corporation under Section 16(b). The deprivation of these profits inflicts an injury sufficiently concrete to confer constitutional standing.[31]
Second, although both the Second Circuit and district court acknowledged that plaintiff Packer did “not base his standing argument on a risk of harm,”[32] the district court suggested that “some courts have framed the concrete harm associated with a Section 16(b) violation as grounded in the risk of harm,” which, in its view, was insufficient under TransUnion.[33] The Second Circuit dispelled any notion that Section 16(b) standing was dependent on a risk of harm theory, explaining that the “concrete injury that confers standing on Packer is, as we recognized in [Bulldog], ‘the breach by a statutory insider of a fiduciary duty owed to the issuer not to engage in and profit from any short-swing trading of its stock.’”[34]
The Second Circuit noted that defendants-appellees’ remaining arguments attacked Bulldog itself, which the Circuit was bound to follow unless vacated en banc or by the Supreme Court. It nonetheless addressed a few of those arguments, including the argument that the defendants-appellees in the Packer case specifically could not be fiduciaries “because they did not exercise control over [the issuer], sit on its board of directors, or trade on inside information.”[35] The Second Circuit in Packer embraced Bulldog’s response to this argument: While Section 16(b) may have been enacted to combat trading on inside information, the legal right enacted to remedy that wrong—imposing a fiduciary duty on 10% shareholders, irrespective of their actual access to information, to eschew any short swing trading—was broader.[36]
Takeaways from the Second Circuit’s Packer Ruling
The Second Circuit’s ruling in Packer should not cause shockwaves among federal courts, particularly because the vast majority of courts addressing the standing issue in the year since the district court decision in Packer have held that TransUnion and Bulldog are reconcilable and that plaintiffs have constitutional standing to assert Section 16(b) claims.[37] However, as the SEC noted, the ramifications of the potential adoption of the Packer district court’s conclusion were possibly huge because requiring a plaintiff to allege “actual reputational harm” flowing from a Section 16(b) breach (as the district court in Packer had) “would undercut Congress’s purpose by making actions to recover short-swing profits almost impossible.”[38]
For Section 16(b) plaintiffs, the Second Circuit will remain a popular venue to file their claims, as they will be assured of getting past the standing question (absent an en banc hearing or Supreme Court intervention) and venue is often present as a result of listing on a New York-based exchange. For Section 16(b) defendants, while the standing argument will not work in the Second Circuit (again, absent en banc or Supreme Court intervention), the remaining toolkit for the procedural and merits-based defense against Section 16(b) claims is otherwise unchanged.
Endnotes:
[1] Packer ex rel. 1-800-Flowers.Com, Inc. v. Raging Cap. Mgmt., LLC, No. 23-367, --- F.4th ----, 2024 WL 3092561 (2d Cir. June 24, 2024) (“Packer Appellate Decision”) (citing TransUnion LLC v. Ramirez, 594 U.S. 413 (2021)).
[2] Br. of the SEC, Amicus Curiae, in Supp. of Pl.-Appellant at 9, Packer ex rel. 1-800 Flowers.com, Inc. v. Raging Cap. Mgmt., LLC, No. 23-367 (2d. Cir. filed June 29, 2023) (ECF No. 50) (“SEC Amicus Br.”).
[3] Foremost-McKesson, Inc. v. Provident Sec. Co., 423 U.S. 232, 243 (1976); see also Kern Cnty. Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 608 (1973) (“The congressional investigations that led to the enactment of the Securities Exchange Act revealed widespread use of confidential information by corporate insiders to gain an unfair advantage in trading their corporations’ securities.”).
[4] 15 U.S.C. § 78p(b).
[5] Id.
[6] Donoghue v. Bulldog Invs. Gen. P’ship, 696 F.3d 170, 174 (2d Cir. 2012) (citing 15 U.S.C. § 78p(b)).
[7] 15 U.S.C. § 78p(b).
[8] TransUnion, 594 U.S. at 423.
[9] United States v. Students Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 687 (1973).
[10] 15 U.S.C. § 78aa(a).
[11] 696 F.3d 170 (2d Cir. 2012).
[12] Id. at 172.
[13] Id. at 179 (cleaned up).
[14] Id.
[15] Id. at 177 (quoting Gratz v. Claughton, 187 F.2d 46, 49 (2d Cir. 1951)) (emphasis and alterations in original).
[16] TransUnion, 594 U.S. at 426 (internal citation omitted).
[17] Id. (internal citation omitted).
[18] Id.
[19] Id. at 425.
[20] Id. (internal citations omitted).
[21] Id. at 432–34.
[22] Id. at 432–33.
[23] Id. at 433–39.
[24] Packer District Court Decision, 661 F. Supp. 3d at 8.
[25] Id. at 8 & 13 n.10
[26] Id. at 17 (emphasis in original).
[27] Id. at 10.
[28] Id. at 14.
[29] Packer Appellate Decision, 2024 WL 3092561, at *4-7. In addition to its substantive analysis, the Second Circuit held that it was error for the district court in Packer to “preemptively declar[e] that our caselaw has been abrogated by intervening Supreme Court decisions,” rather than follow binding precedent until it has been overturned, except in “rare case[s]” unlike the one at hand. Id. at *4-5 & n.36. The Second Circuit further noted that TransUnion’s requirement of a concrete injury for constitutional standing even in the context of a statutory violation derived from an earlier Supreme Court decision, Spokeo Inc. v. Robins, 578 U.S. 330, 340-41 (2016), and that the Second Circuit had already reaffirmed Bulldog after Spokeo, in Klein v. Qlik Technologies, Inc., 906 F.3d 215, 220 (2d Cir. 2018). Packer Appellate Decision, 2024 WL 3092561, at *5.
[30] Id. at *5 (quoting TransUnion, 594 U.S. at 424) (alteration in original).
[31] Id. (internal quotations and citations omitted).
[32] Id. at *6; Packer District Court Decision, 661 F. Supp. 3d at 15 n.13.
[33] Packer District Court Decision, 661 F. Supp. 3d at 13.
[34] Packer Appellate Decision, 2024 WL 3092561, at *6.
[35] Id. at *6 n.55.
[36] Id. The Second Circuit also noted that TransUnion did not require that the statutory right “exact[ly] duplicate” its common-law analogue, so this broadening was not improper. Id. (quoting TransUnion, 594 U.S. at 433).
[37] See, e.g., Roth v. Armistice Cap., LLC, No. 1:20-CV-08872 (JLR), 2024 WL 1313817, at *10 (S.D.N.Y. Mar. 27, 2024) (Rochon, J.) (holding that plaintiff has standing because “breach of trust, by itself, is a concrete intangible injury”); Augenbaum v. Anson Invs. Master Fund LP, No. 22-CV-249 (AS), 2024 WL 263208, at *4 (S.D.N.Y. Jan. 24, 2024) (Subramanian, J.) (holding that Section 16(b) violations “are breaches of trust, which satisfies TransUnion’s search for a traditional injury” (cleaned up)); Microbot Med., Inc. v. Mona, No. 19-CV-3782 (GBD)(RWL), 2024 WL 564176, at *6 (S.D.N.Y. Jan. 30, 2024) (Lehrburger, M.J.) (“Microbot incurs a concrete injury while deprived of the constructive trust’s holdings. Microbot therefore has Article III standing.”), report and recommendation adopted, No. 19-CV-3782 (GBD)(RWL), 2024 WL 964594 (S.D.N.Y. Mar. 5, 2024) (Daniels, J.) (“Because Bulldog determined that § 16(b) plaintiffs suffer concrete harm analogous to the common law injury of breach of trust, Bulldog is compatible with TransUnion’s requirement that a plaintiff has suffered a harm with “a close historical or common-law analogue.” (cleaned up)); Avalon Holdings Corp. v. Gentile, No. 18-CV-7291 (DLC), 2023 WL 4744072, at *6 (S.D.N.Y. July 25, 2023) (Cote, J.) (“[T]he Second Circuit in Bulldog analyzed the harm suffered by a § 16(b) plaintiff and reasoned that it was akin to the common law injury of breach of trust arising from the 10% beneficial owner’s fiduciary duty to the issuer.”); Safe & Green Holdings Corp. v. Shaw, No. 23-CV-2244 (DLC), 2023 WL 5509319, at *2 (S.D.N.Y. Aug. 25, 2023) (Cote, J.) (incorporating Avalon); Revive Investing LLC v. Armistice Cap. Master Fund, Ltd., No. 20-CV-02849 (CMA)(SKC), 2023 WL 5333768, at *8 (D. Colo. Aug. 18, 2023) (“The Court finds that a harm suffered by a Section 16(b) plaintiff is analogous to the common law injury of breach of trust.”).
One decision, Avalon Holdings Corp. v. Gentile, noted that the plaintiff’s “pleadings describe dramatic fluctuations in stock prices caused by the defendants’ trading and illegally obtained profits accruing to the defendants in the millions of dollars,” which established “the concrete harm that Congress elevated to a legally cognizable injury.” 2023 WL 4744072, at *6.
We identified only one decision that followed the Packer district court and concluded that a Section 16(b) plaintiff had no standing. Forte Biosciences, Inc. v. Camac Fund, LP, No. 3:23-CV-2399-N, 2024 WL 2946584, at *3 (N.D. Tex. June 11, 2024). This decision from outside of the Second Circuit (where Bulldog is not binding) did not contain any reasoning, stating only that “Forte does not plead any injury to itself from the alleged section 16(b) violation.” Id. (citing the Packer District Court Decision and TransUnion).
[38] SEC Amicus Br. at 25.
In this C&G Client Alert, Thomas Shortland, John Gibson and Ashley Collins:
- highlight three trends in director disqualification enforcement which emerge from the Report;
- suggest factors that may have contributed to these trends; and
- discuss whether these trends are likely to continue.
They also provide some insights on contested disqualification proceedings from recent cases.
- Last month, the FTC released a new policy statement noting its broadened view of the scope of its power under Section 5 of the FTC Act, signaling that it may find certain private equity rollups violate its interpretation.
- The FTC policy statement came on the heels of a DOJ announcement that it would be increasing the enforcement of Section 8 of the Clayton Act.
- These developments underscore the need for private equity companies to take particular care in observing U.S. competition laws, as there will be greater scrutiny of private equity firms.
In this client alert, Melissa Maxman, Ronald Wick, and Alisa Lu analyze what these actions mean for the future of antitrust enforcement in the private equity sector and provide insight into how PE firms can prepare themselves for continued additional scrutiny.
Reprinted with permission from: NY Business Law Journal, Summer 2022, Vol. 26, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
- Coinbase recently filed a Motion to Dismiss that has significant potential implications for the statutory seller defense in the crypto context.
- In its motion, the company argues that it is not a statutory seller and therefore lacks privity with its customers, absolving it of all liability under the Securities Act and Exchange Act.
- The basis for Coinbase’s motion is contained in its user agreement, which specifically states that when users buy or sell assets on the Coinbase site, they are not buying or selling them "from Coinbase."
- The case presents an interesting question in the context of suits against crypto exchanges: can statutory seller liability be extinguished by a user agreement saying that customers are not transacting with the exchange, even though the exchange maintains the keys and controls the crypto at all times until it is transferred to the customer?
- What are the common issues arising in the corporate bankruptcy and insolvency process in today’s market, and how will those issues complicate bankruptcy litigation?
- How have recent court rulings impacted the corporate bankruptcy litigation space, and how are these issues likely to affect parties going forward?
- What are the most significant factors in reaching as positive an outcome as possible for all parties involved in a bankruptcy dispute?
In his latest column for Federal Bar Council Quarterly, C Evan Stewart revisits the infamous Supreme Court ruling on Bush v. Gore.
In his latest column for Federal Bar Council Quarterly, C Evan Stewart revisits the events that ultimately led to the indictment, conviction, reinstatement, and presidential pardon of attorney I. Lewis "Scooter" Libby, Chief of Staff to former Vice President Dick Cheney.
C Evan Stewart explores the Sarbanes-Oxley protocols and states' ethical standards in his latest column for the NY Business Law Journal.
C Evan Stewart examines the U.S. Supreme Court decisions in the gold clause cases of the 1930s in his latest Legal History column for the Federal Bar Council Quarterly.
C Evan Stewart explores the ethical and legal questions that have challenged attorney-client privilege throughout the years.
Reprinted with permission from: NY Business Law Journal, Winter 2018, Vol. 22, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
In his latest article for the NY Business Law Journal, C Evan Stewart explores the attorney work product doctrine as it relates to investigations by the Securities and Exchange Commission and other government agencies.
This article appeared in NY Business Law Journal, Summer 2018, Vol. 22, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.
C Evan Stewart explores Buck v. Bell in his latest piece for the Federal Bar Council Quarterly.
In an article for the Federal Bar Council Quarterly, C Evan Stewart explores the impact of the Due Process Clause of the Fourteenth Amendment as it relates to the right of economic free will, or "freedom of contract."
Recent arbitration cases, including the “game changer” AT&T Mobility LLC v. Concepcion, suggest new ways a defendant should proceed if the right to arbitrate is at all unclear. Perhaps most import, a defendant should think long and hard about expressly disclaiming the right to arbitrate any claims, even if it seems momentarily advantageous.
A memorandum from in-house counsel advising company employees on how to maintain the attorney-client privilege over their communications with the company’s attorneys, and further explaining the nature of counsel’s relationship with the company and its employees.
This document includes an integrated note with important explanations and drafting tips for creating a letter from a company notifying a potential defendant of its intent to file a lawsuit.
Mr. Stewart opines on the growing consensus that class actions are not always the best means by which to resolve complex litigation.
This interactive program will work through hypotheticals. Participants will learn about navigating practical ethical challenges in class litigation. A primary focus will be on settlements with individual class members, and questions addressed will include:
- What ethical restrictions are there, if any, on defense counsel’s efforts to settle with the named plaintiffs or absent class members on an individual basis?
- What ethical restrictions are there, if any, on plaintiffs’ counsel’s efforts to settle on behalf of individual named plaintiffs against defendants?
- What ethical restrictions are there, if any, on lawyers or non-lawyers seeking to represent absent class members in seeking recovery as part of a class settlement?
Recent years have shown a growing awareness of neurodiversity. The implications are significant for how lawyers interact with one another and their clients, and for judges deciding who is—and is not—well situated to serve as a representative in mass and class actions. This panel will consider these and related issues.
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Building Trust: Ensuring transparency, fairness, and accountability in AI systems to establish trust.
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Risk Assessment: Identifying potential risks associated with AI, such as privacy breaches, bias, and security vulnerabilities.
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Security Measures: Implementing robust security measures, including authentication, encryption, and access controls, to protect AI systems.
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Ethical Considerations: Addressing ethical concerns related to AI's impact on society, values, and human rights.
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Continuous Monitoring: Regularly evaluating and monitoring AI systems to detect and mitigate emerging risks.
Melissa H Maxman moderated an American Bar Association panel during the Class Actions National (Virtual) Institute that examined the ethical challenges and boundaries to class action settlements. The panel explored several themes, including attorney communications with absent class members; potential conflicts of interest between class members; and objectors to class action settlements.
Erica Lai moderated a panel discussion about protecting voter rights amidst the COVID-19 pandemic with three of the attorneys leading this important charge. The panel was put on by the Asian Pacific American Bar Association of the Greater Washington, D.C. Area (APABA-DC), with the support of national and local minority bar associations.
Muriel Goldberg-Darmon, Associée du cabinet Cohen & Gresser à Paris et leader du Chapitre Français du Women’s White Collar Defense Association (WWCDA), a organisé un petit-déjeuner au cours duquel Yousr Khalil & Caroline Fagard, de Forensic Risk Alliance, ont fait une présentation sur l’eDiscovery et Forensic Accounting dans les contentieux et investigations. Des avocates de cabinets français ou internationaux, reconnues pour leur compétence en la matière, ont participé à cet évènement.
(Partner Muriel Goldberg-Darmon, leader of the French Chapter of the Women’s White Collar Defense Association (WWCDA), hosted a breakfast at Cohen & Gresser’s Paris office during which Yousr Khalil & Caroline Fagard from Forensic Risk Alliance spoke about eDiscovery and forensic accounting in litigation and investigations. High-profile female lawyers from major French and international law firms joined the breakfast).
Mark S Cohen participated in a CLE panel titled “Ethical Issues in Jury Trials” at PLI’s annual Trial by Jury. The panel discussed issues including avoiding ethical pitfalls and making ethical decisions, preparing a witness without coaching, dealing with a witness whose story changes or conflicts with other evidence, and issues involved with using jury consultants and investigating jurors.
Lawrence T Gresser participated on a panel titled “Everything You Know Is Wrong: A Strategic Overview of Current Trends in the Two Jurisdictions” at the English-American Litigation Forum. The discussion covered trends and events including Brexit and the election of President Trump and their implications on the business and practice of law.
Key Contacts