Jonathan S Abernethy
Partner, New York
Jonathan S Abernethy
Partner, New York
Jonathan Abernethy represents clients in white collar criminal and regulatory investigations, internal investigations, and complex commercial litigation. He is an expert on the Foreign Corrupt Practices Act (FCPA), having handled significant FCPA matters as a prosecutor and in the private sector. Jon also represents companies and individuals in sensitive investigations and prosecutions involving securities fraud, money laundering, wire and mail fraud, public corruption, antitrust, commodities fraud, health care fraud, and other white collar matters. He has extensive experience with various U.S. Attorney’s Offices, the Department of Justice, the SEC, the CFTC, the New York Attorney General’s Office, and the Manhattan D.A.’s Office.
Jon has been recognized in Chambers USA‘s white collar crime and government investigations category each year since 2015. Clients describe Jon as having “excellent judgment” and “a really nice mix of individual and corporate experience which allows him to be really flexible depending on the engagement.” He has been further described as “a zealous advocate” who “has a great approach with clients and is committed to getting the best results for them.” He is also recognized in The Legal 500‘s United States coverage for corporate investigations and white collar criminal defense, and has been described as “very sharp.” Jon is recognized by Super Lawyers as one of the top 100 lawyers in the New York metropolitan area and has been named one of New York’s Super Lawyers for white collar criminal defense each year since 2010. He has been recognized in the Best Lawyers in America’s guide in 2021 and 2022 for white collar criminal defense in New York.
Prior to joining the firm, Jon served as an Assistant U.S. Attorney in the Southern District of New York, where he was a lead prosecutor on FCPA, money laundering, and financial fraud cases, and practiced at Fulbright & Jaworski.
Jon is a graduate of Stanford University and Columbia Law School, where he was a Harlan Fiske Stone Scholar. He served as a Law Clerk to the Honorable Ronald L. Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania. Jon is a frequent lecturer and has written articles for the New York Law Journal, the ABA Securities Litigation Journal, and other publications.
Jonathan Abernethy represents clients in white collar criminal and regulatory investigations, internal investigations, and complex commercial litigation. He is an expert on the Foreign…
Education
Columbia Law School (J.D. 1996); Stanford University (B.A., with highest honors, 1991)
Bar Admissions
New York State; Massachusetts State; U.S. District Courts for the Southern and Eastern Districts of New York; U.S. Court of Appeals for the Second Circuit
Activities and Affiliations
Member, Criminal Law Committee, International Bar Association
Member, New York City Bar Association, White Collar Crime Committee
Member, New York Council of Defense Lawyers
Member, Federal Bar Council
Member, New York State Bar Association (Committee on White Collar Criminal Litigation)
Elder, First Presbyterian Church of Brooklyn
FCPA Matters
Won a motion to dismiss an FCPA complaint brought by the SEC against a former investment analyst for hedge fund Och-Ziff who had been charged with FCPA anti-bribery and books and records violations relating to mining investments by Och-Ziff in Africa.
Represented two energy companies in FCPA investigations relating to their operations in several countries in West Africa.
Represented an engineering and construction company in an investigation relating to potential FCPA violations in the Middle East.
Led FCPA and anti-corruption due diligence for an energy company on an acquisition target in Mexico.
Led FCPA and anti-corruption due diligence for a mining company on an acquisition target in West Africa.
Other White Collar, Regulatory, and Internal Investigations Matters
Representation of former Wynnefield Capital hedge fund analyst Peter Black in SEC v. Obus, an insider trading case brought by the SEC in the Southern District of New York, in which the jury returned a unanimous defense verdict after a two-week trial.
Representation of an individual in connection with criminal and regulatory investigations into the setting of LIBOR rates.
Representation of the audit committee of a multinational company in connection with an internal investigation relating to revenue recognition.
Representation of a hedge fund in an investigation by the New York County District Attorney’s Office into its trading practices.
Served as pool counsel for several employees in wire and mail fraud investigations by the U.S. Attorney’s Offices for the Southern and Eastern Districts of New York.
Represented a celebrity extortion victim in a case prosecuted by the Manhattan District Attorney’s Office.
Significant Prosecution in the U.S. Attorney’s Office
Served as a lead prosecutor in an FCPA case involving a bribery scheme in connection with a state-run privatization program in Azerbaijan, which resulted in the conviction of Frederic Bourke in July 2009 in one of the few FCPA cases ever tried.
Six C&G attorneys have been recognized by their peers as a “Best Lawyer” in their practice areas:
- Jonathan S. Abernethy – Criminal Defense: White-Collar
- Thomas E. Bezanson – Commercial Litigation and Product Liability Litigation – Defendants
- Jason A. Brown – Criminal Defense: White-Collar
- Mark S. Cohen – Criminal Defense: White-Collar
- Mark Spatz – Product Liability Litigation – Defendants
- C. Evan Stewart – Litigation – Securities
- Luke Appling – Commercial Litigation and Litigation – Securities
- Sharon L. Barbour – Criminal Defense: White-Collar
- William E. Kalema – Criminal Defense: White-Collar
- Alexandra K. Theobald – Commercial Litigation
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.”
C&G’s Commercial Litigation practice is once again ranked in Litigation: General Commercial: Highly Regarded. The practice is recognized for being “regularly sought after by individuals and corporates for representation in securities class actions and derivative matters, as well as various shareholder and product litigation.” Clients note that the team is comprised of “litigators that you don’t want to mess with” and is one that “you can rely on.”
C&G’s White Collar Defense & Regulation practice is ranked in Chambers USA for the ninth consecutive year. The practice maintains its position as one of the “Elite” firms in Litigation: White-Collar Crime & Government Investigations. Chambers highlights the practice’s “talented pool of litigators with a wealth of government experience” and its “international presence” as key reasons for its continued ranking. Commentary from the guide notes that the practice is “a substantial player in the New York white-collar world” that has “burst onto the scene with strong former prosecutors” and “good results for their clients.”
Ranked Departments:
- Litigation: General Commercial: Highly Regarded
- Litigation: White-Collar Crime & Government Investigations: The Elite
District of Columbia
Antitrust: Litigation Specialists
New York
Litigation: General Commercial
Litigation: Securities Litigation: White-Collar Crime & Government Investigations- Jonathan S. Abernethy – Criminal Defense: White-Collar
- Thomas E. Bezanson – Commercial Litigation and Product Liability Litigation: Defense
- Jason A. Brown – Criminal Defense: White-Collar
- Mark S. Cohen – Criminal Defense: White-Collar
- Evan Stewart – Litigation – Securities
- Sharon L. Barbour – Criminal Defense: White-Collar
- Winnifred A. Lewis – Commercial Litigation
- Alexandra K. Theobald – Commercial Litigation
- 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
- Litigation: General Commercial: Highly Regarded
- White-Collar Crime & Government Investigations: The Elite
Mark S Cohen, Jonathan S Abernethy, Jason Brown, C Evan Stewart, and Thomas E Bezanson were recognized in The Best Lawyers in America‘s 2021 New York listings. Mark, Jonathan, and Jason were recognized for white collar criminal defense; Evan for securities litigation; and Tom for commercial litigation and product liability litigation defense. Additionally, Sharon L Barbour, Winnifred A Lewis, and Nicole Dhir were recognized in the New York list of The Best Lawyers in America: Ones to Watch. Sharon was recognized for white collar criminal defense; Winnifred for commercial litigation; and Nicole for commercial litigation and securities litigation.
- 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.
- Corporate Investigations/White Collar
- Corporate Investigations/White Collar – Advice to Individuals
- General Commercial Disputes
- Securities Litigation Defense
Chambers has again recognized C&G for its excellence in General Commercial Litigation, Securities Litigation, and White Collar Crime & Government Investigations. Chambers notes C&G’s “strong commitment to client service” and “top-quality advice,” labeling the firm as “outstanding.”
Chambers also recognized the following individuals: Jonathan S Abernethy for White Collar Crime & Government Investigations; Karen H Bromberg for Intellectual Property: Patent; and Mark S Cohen for General Commercial Litigation, Securities Litigation, and White Collar Crime & Government Investigations.
A Cohen & Gresser litigation team led by Mark S Cohen and Jonathan S Abernethy recently won a major victory in a high profile Foreign Corrupt Practices Act (FCPA) case on behalf of client, Vanja Baros, a former investment analyst with hedge fund Och-Ziff (one of the world’s largest publicly traded hedge funds). In July, a federal court in New York dismissed the SEC’s entire complaint against Baros and his co-defendant, and the SEC recently declined to appeal the court’s decision, which is therefore final.
Global Investigations Review (GIR) has nominated Cohen & Gresser for its Most Important Court Case of the Year award for C&G’s major victory in a high profile FCPA case on behalf of a former investment analyst with international hedge fund Och-Ziff. A federal court in New York dismissed the SEC’s entire complaint against our client and his co-defendant, and the SEC declined to appeal. Mark S Cohen and Jonathan S Abernethy led the C&G team, which also included S Gale Dick, Colin C Bridge, and Reggie B Schafer.
- Corporate Investigations/White Collar – Advice to Corporates
- Corporate Investigations/White Collar – Advice to Individuals
- General Commercial Disputes
- Securities Litigation Defense
Chambers has recognized Cohen & Gresser in its 2018 USA guide. The firm is recognized for its excellence in General Commercial Litigation, Securities Litigation, and White-Collar Crime & Government Investigations.
Chambers notes that C&G is "a very high-quality firm" with "very smart, very capable people who are very dedicated to their clients," and that C&G attorneys "have great judgment and are excellent lawyers."
Chambers also recognized the following individuals:
Jonathan S Abernethy for White-Collar Crime & Government Investigations, Karen H Bromberg for Intellectual Property: Patent, and Mark S Cohen for Securities Litigation and for White-Collar Crime & Government Investigations.
A recent ruling in favor of Cohen & Gresser client Peter Black marked the end of one of the longest SEC's trials in history. AmLaw's Litigation Daily recognized this victory by naming Mark S Cohen as a "Litigator of the Week".
On Friday, May 30, 2014, a Cohen & Gresser trial team led by Mark S Cohen and Jonathan S Abernethy won a major trial victory on behalf of its client, Wynnefield Capital Inc. analyst Peter Black, in an insider trading case brought by the SEC.
Chambers USA ranked Cohen & Gresser's White Collar Defense group and listed its Securities Litigation group as a Recognized Practice. In its analysis, Chambers USA commented that the firm is "[n]oted for its litigation capabilities across the full spectrum of industry sectors" and has a "[r]espected white-collar crime and government investigations practice."
Mark S. Cohen is ranked in the White-Collar Crime & Government Investigations category, has been described as being an "effective advocate and very effective at counseling a client through a very difficult investigative process." Jonathan S Abernethy, also ranked in the White-Collar Crime & Government Investigations category, received praise for his "excellent knowledge of the law."
Cohen & Gresser is defending an individual accused of participating in an insider trading scam in a long-standing case brought by the SEC. Law360 covered the beginning of the trial and Partner Mark S. Cohen’s opening statement.
- The Revised Policies will place increased pressure on companies and could result in substantial shifts in how companies need to investigate potential employee misconduct.
- Failure to disclose misconduct early in an investigation could result in companies facing the possibility of a guilty plea or indictment, rather than a deferred or non-prosecution agreement.
- To receive full cooperation credit, companies will need to assess several new strategic considerations, including the timing of disclosing hot documents and whether to claw back compensation from employees who engaged in misconduct.
- 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.
This C&G Client Alert examines the proposed Insider Trading Prohibition Act recently unanimously approved by the Financial Services Committee of the U.S. House of Representatives. If the bill becomes law, it would simplify an inherently complex legal area, but might also lead to regulators and prosecutors bringing more insider trading cases.
Jonathan S Abernethy, S Gale Dick, and Christian R Everdell authored an article examining the Department of Justice's (DOJ) new policy discouraging DOJ attorneys from "piling on" multiple penalties against companies for the same misconduct.
This article first appeared on the website of the Criminal Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
In July 2017, a United States appeals court threw out the convictions of two men charged with Libor manipulation, because key evidence was derived from testimony that had been compelled in the United Kingdom, in violation of their rights under the US Constitution, with potentially broad implications for furture cross-border investigations. The Court of Appeals for the Second Circuit in New York ruled in US v Allen that the Fifth Amendment priviledge against self-incrimination extends to testimony compelled by other soverign governments. This article exmines the Allen ruling and its likely implications.
The SEC has recently signaled a renewed focus on the investigation and prosecution of accounting fraud with the creation of a Financial Reporting and Audit Task Force. The Task Force will use sophisticated computer algorithms to mine financial filings looking for potential irregularities. The SEC is expected to take a close look at companies particularly in the technology sector, and at revenue recognition. The article examines recent public statements and SEC enforcement actions that help provide clues to the SEC’s renewed focus in this area.
South Korea’s equivalent to the FCPA is the Foreign Bribery Prevention Act or FBPA for short. Although passed more than 15 years ago, it was rarely used—until now. Recent activity under the act is an encouraging sign that Korea may be stepping up its enforcement activity.
Recent court decisions concerning the interplay of the FCPA and personal jurisdiction over foreign nationals provide guidance for corporate counsel on FCPA risks. The bottomline—adopt, maintain, and continually update robust compliance and training programs throughout the organization, set the proper tone at management levels throughout the company, and, as appropriate, insist that third party intermediaries with whom the company works follow those same policies.
The long arm of U.S. law can be seen clearly in recent enforcement of the Foreign Corrupt Practices Act or FCPA, a criminal law prohibiting bribery of non-U.S. government officials. Companies whose operations even remotely touch the U.S. and who therefore could come within the FCPA’s jurisdiction should consider implementing anti-corruption compliance programs to prevent, detect, and remediate violations. Such programs can be a key mitigating factor in U.S. regulators’ decisions whether to bring an enforcement action or in the penalties sought if an action is brought.
Last year saw a sharp increase in investigations targeting the illicit flows of funds through financial institutions. In three prominent enforcement actions in 2012—against ING, Standard Chartered Bank and HSBC—prosecutors and regulators extracted massive fines for conduct ranging from intentional concealment of illicit transactions to ineffective monitoring.
The Guide addresses several key issues arising from the FCPA on which multinationals have long sought guidance, including (i) the elements of an effective anti-corruption compliance program; (ii) gifts and entertainment expenses; (iii) facilitating payments; (iv) the FCPA's broad definition of "foreign official"; (v) successor liability when a company merges with or acquires another company that has committed acts of bribery; and (vi) FCPA jurisdiction over foreign companies that do not trade on U.S. exchanges.
Examining how FCPA whistleblowers have been incentivized and the impacts this rewards structure may have on ‘business as usual’.
Examining the Dodd-Frank and US Foreign Corrupt Practices Acts and ways in which companies can institute and augment compliance programs to mitigate the risks they pose.
The implications of the Galleon ruling in terms of white collar defense - specifically the growing use of wiretapping during insider trading investigations.
- Recent trends in multi-jurisdictional criminal and regulatory investigations and prosecutions;
- The practical issues companies face during multi-jurisdictional investigations;
- What Asian or Korean companies can learn from recent investigations and debarment cases;
- Recent World Bank cases and their impact on Korean companies;
- Multilateral development bank (MDB) investigative trends.
- Supply Chain Disruptions and Third Party Risks
- Increase in Government "Touch Points"
- Multilateral Development Banks and UN Investigations
- Strategies to Avoid Risk as M&A Activity Increases
- Multi-National Companies: Implications for Compliance Professionals
Mark S Cohen and Muriel Goldberg-Darmon served as guest lecturers at the Université Paris I – Panthéon Sorbonne for the 2017 fall semester. They taught a course titled “U.S. White Collar Criminal Law” to students in the Master 2 (JD equivalent) program. The course covered the fundamental principles of U.S. criminal law and a review of the key participants in white collar criminal practice. The course also covered substantive white collar issues, such as FCPA, banking, and finance-related issues. Jonathan S Abernethy and Christian R Everdell served as visiting lecturers. Reggie B Schafer served as the course’s teaching assistant.
- Handling multi-jurisdictional approaches to privileged communications in the aftermath of the recent UK decision in Eurasian Natural Resources Corporation Ltd. and The RBS Rights Issue Litigation.
- Identifying potential cultural challenges and local laws that may impede an effective investigation and prevent a one-size-fits-all approach to designing internal processes and procedures within multinational organizations.
- Implementing best practices when preparing for and coordinating effective internal investigations across international lines.
Jon participated in a panel at the IBA’s 20th Annual Transnational Crime Conference in Lisbon, Portugal. The panel, entitled “The Right to Silence When Everyone Else Is Talking,” examined the right against self-incrimination from the perspective of several countries in a world of increased cross-border information sharing between investigators, regulators, and prosecuting authorities.
Experiential legal learning platform AltaClaro has partnered with international law firm Cohen & Gresser, LLP to host a live online panel to discuss current trends in anti-money laundering enforcement. The panel is complimentary for in-house counsel, white-collar and regulatory attorneys, and compliance professionals.
This course will examine the legal principles surrounding extraterritorial application of U.S. criminal law and its limitations. It will also cover methods U.S. prosecutors use to gather evidence overseas, as well as general principles of law concerning extradition of foreign nationals.
Jon participated in this panel at Deloitte’s 10th Annual U.S. Anti-Money Laundering (AML) Conference at Fordham Law School in New York.
C&G partner Jonathan S Abernethy will speak at the 2014 Annual Conference of the International Association of Korean Lawyers (IAKL) at Fordham Law School in New York City. Mr. Abernethy will be a panelist on the Conference’s Anti-Corruption Panel, and will address, among other subjects, recent trends in FCPA enforcement and how companies can mitigate risks through effective compliance programs and procedures.
Drawing prominent members of the white–collar bar, this panel addresses current issues relating to government investigations and compliance, public integrity, and the Foreign Corrupt Practices Act