Douglas J. Pepe is a partner in Cohen & Gresser’s New York office. His practice focuses on litigating complex commercial matters on behalf of corporate and institutional clients, defending major law firms in high-stakes legal malpractice cases, and blockchain law.
Throughout his career, Doug has litigated tens of billions of dollars in claims involving a wide variety of complex substantive and procedural issues, including the securities laws and RICO Act; fiduciary, contractual and pre-contractual liability; corporate, class action and derivative litigation; legal malpractice and sanctions defense; and insurance subrogation, mass tort, aircraft disaster and terrorism litigation. He has extensive experience in large multiparty disputes and played a leading role on the Court-appointed Executive Committee charged with directing the subrogation and property damage claims arising out of the 9/11 terrorist attack, which were successfully resolved in a $1.2 billion settlement approved by the United States Court of Appeals for the Second Circuit.
Doug is recognized by The Legal 500 in the general commercial disputes category. The guide notes that Doug “is a lawyer’s lawyer. The best law firms in the country turn to Doug when facing systemic and sensitive risks to their firms.”
Doug is also a Professorial Lecturer in Law at The George Washington University School of Law, where he teaches blockchain law, technology, and cybersecurity. He is a member of the American Law Institute, the preeminent independent organization in the US producing scholarly work to clarify, modernize, and otherwise improve the law. Doug has authored numerous articles and book chapters on complex commercial litigation issues that have been cited in legal treatises, law reviews and other professional journals, and the commentaries to the New York Civil Practice Law and Rules. He speaks regularly on blockchain-related legal issues.
Before joining the firm, Doug practiced for 20 years at Joseph Hage Aaronson LLC, one of the country’s preeminent litigation boutiques. Before that, he was an associate at Fried, Frank, Harris, Shriver & Jacobson LLP, where he practiced in both the Corporate and Litigation departments, working principally in the fields of Mergers & Acquisitions, White Collar Criminal Investigations and Securities Litigation. Doug also served as a law clerk for United States District Judge Faith S. Hochberg of the United States District Court for the District of New Jersey. He is a graduate of Columbia Law School, where he was a James Kent Scholar.
Douglas J. Pepe is a partner in Cohen & Gresser’s New York office. His practice focuses on litigating complex commercial matters on behalf of…
Columbia Law School (J.D., Chancellor Kent Scholar, 1999); State University of New York at Buffalo (B.A., summa cum laude, 1996)
New York State; New Jersey State; U.S. Supreme Court; U.S. Courts of Appeals for the Second Circuit, Ninth Circuit and Federal Circuit; U.S. District Courts for the Southern District of New York, Eastern District of New York, and District of New Jersey
Activities and Affiliations
Senior Fellow, Litigation Counsel of America
Member, American Law Institute
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
- Damir Cefo, Intellectual Property Litigation
- 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
As Doug writes, the implication of the analysis conducted in this case is that XRP can be freely traded on secondary markets like Coinbase, Kraken and Bitstamp without complying with the requirements of the Securities Exchange Act of 1934, which is a “devastating blow to the SEC’s position in secondary market exchange cases.”
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- The SEC action directly raises the question whether the tokens at issue qualify as unregistered securities, with significant implications for whether the platforms that facilitate trading in those tokens are potentially exposed to legal liability as unregistered securities exchanges.
- While Coinbase is not named in the SEC's complaint as an unregistered securities exchange, the nine tokens mentioned in the complaint were all traded on Coinbase, leaving it unclear what, if any, consequences will result from the SEC’s enforcement action for Coinbase.
- These are also the first cases to allege “tippee” liability for insider trading in the crypto sphere -- a "tippee" being a person who receives and trades on information obtained by someone else (the "tipper") in violation of the tipper's duty to a third party.
In addition, while the DOJ brought the criminal case under the wire fraud and conspiracy statutes, the SEC asserted its claims under the securities laws – marking the first time the SEC has alleged insider trading in violation of securities laws in the crypto context. The SEC action directly raises the question whether the tokens at issue qualify as unregistered securities, with significant implications for whether the platforms that facilitate trading in those tokens are potentially exposed to legal liability as unregistered securities exchanges.
- 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?
- Chairman Gensler's speech provides new insight into the approach the SEC will be taking in each of these three key areas.
- We can expect inbound regulatory efforts in each of the three areas he addressed, with potential SEC-CFTC coordination on exchange registration requirements, and some form of regulation or increased enforcement efforts with respect to stablecoins and tokens.
- The SEC clearly intends to step up regulation and enforcement in these areas and, in particular, seems to be set on mandating registration for crypto trading platforms.
- The Response Document highlights the government’s post-Brexit push to drive transformational growth in the UK’s FinTech space through cryptoassets and DLT and confirms its plans to enact legislation to recognise stablecoins as a valid means of payment by bringing them into the existing regulatory perimeter.
- The Treasury’s move to make stablecoins a valid means of payment is the first in an array of measures set to be implemented to secure the UK’s status as “the world’s preeminent financial centre” and “a global hub for cryptoasset technology and investment.”
- The proposed changes should be seen as an effort by the UK to remain relevant in the FinTech space following its exit from the European Union and the damage to its reputation as an attractive business environment that accompanied it.
- In conjunction with other agencies, the FSOC will study the risks and impact of digital assets and explore the possibility of creating a Central Bank Digital Currency in the United States.
- The order directs the executive agencies to explore creating a digital version of the U.S. dollar that could be used to facilitate digital transactions while still being controlled by the U.S. Department of the Treasury.
- President Biden expressed concern about the impact of cryptocurrencies on the integrity of the financial system.