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

Cohen & Gresser lawyers Mark S. CohenDouglas J Pepe, John Roberti, and Daniel Tabak have been named “Litigation Stars” in the 2025 edition of Benchmark Litigation.

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.

Lawdragon has recognized six Cohen & Gresser partners in its 2025 "500 Leading Litigators in America" guide:

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.

Best Lawyers in America recognizes 12 Cohen & Gresser attorneys in its newly-published guide. The prestigious publication—now in its 31st edition—evaluates and selects lawyers through an extensive peer-review process, ensuring that the recognition reflects the consensus of top legal professionals regarding the expertise and abilities of their colleagues within the same geographic and practice areas.

Five C&G attorneys are recognized by their peers as “Best Lawyers” in their respective practice areas:

Seven C&G attorneys are recognized as “Best Lawyers: Ones to Watch” in their respective practice areas:

On July 8, 2024, the United States Court of Appeals for the Second Circuit delivered a significant win to Cohen & Gresser client, Eddystone Rail Co., by reversing a Southern District of New York decision that denied Eddystone’s motion to amend its complaint to assert subsequent transfer claims against lenders to Ferrellgas, the former corporate owner of Bridger Transfer Services, LLC (“BTS”), a contractual counterparty of Eddystone.

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.

The Legal 500 United States 2024 edition has recognized Cohen & Gresser’s New York and Washington, D.C. offices for excellence across multiple categories, including Antitrust LitigationCorporate Investigations and White-Collar CrimeCommercial Litigation, and Securities Litigation. Testimonials included in the guide praise the firm for being a “litigation powerhouse” and for its “devotion to the needs of the clients, its creativity, and its perseverance.”

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. GresserJonathan AbernethyJason BrownS. Gale Dick, Christian EverdellJeffrey Lang, Alisa LuMelissa MaxmanDouglas PepeJohn RobertiDaniel 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.

Cohen & Gresser earned multiple practice area and individual lawyer rankings in the 2024 edition of Chambers USA, receiving high praise for having an “incredible collection of brilliant, hard-working lawyers” who are “focused on providing clear and easy to understand guidance and advice."

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)                                  

Melissa H Maxman

John Roberti

Litigation: General Commercial (NY)

Lawrence T Gresser

Litigation: Securities (NY)

Mark S Cohen

Litigation: White-Collar Crime & Government Investigations (NY)

Jonathan S Abernethy

Jason Brown

Mark S Cohen

Christian R Everdell

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.

Cohen & Gresser's Washington, D.C. lawyers have been recognized in the 2024 Super Lawyers guide.

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:

The C&G lawyers recognized as Washington, D.C. Rising Stars are:

International law firm Cohen & Gresser announced today that Allon Lifshitz, former Deputy Chief of the EDNY Criminal Division, will join the firm as a partner in its New York office. Allon brings over 20 years of experience to the firm, where his practice will focus on white-collar criminal and antitrust cases, as well as government investigations, internal investigations, and complex civil 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.

Cohen & Gresser lawyers Mark S. CohenJohn Roberti, and Daniel Tabak have been selected as “Litigation Stars” in the 2024 edition of Benchmark Litigation. The guide’s “Stars” are identified through Benchmark Litigation’s independent research process as among the preeminent litigation practitioners in the United States. The guide conducts extensive interviews with litigators, dispute resolution specialists and their clients, as well as analysis of the market’s most important cases and firm developments, in selecting its “Stars.” Lawyers included on the list are highly regarded by their peers and possess a strong case record 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.

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

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

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

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

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

Four Paris-based partners have been recognized in the 2024 edition of Best Lawyers in France. Angéline Duffour is recognized for labor and employment law. Muriel Goldberg-Darmon is recognized for banking and finance law, financial institutions, mergers and acquisitions law, and regulatory practice. Loïc Henriot is recognized for criminal defense and litigation. Johannes Jonas is recognized for corporate law. Best Lawyers relies entirely on peer review to determine and recognize professional excellence.
International law firm Cohen & Gresser is pleased to announce that Thomas Shortland has been promoted to partner, and Benjamin Zhu and Louise Le Guilchet have been promoted to counsel.

“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).

The Wall Street Journal featured C&G’s Mark Cohen and Christian Everdell recently in an article that described Cohen & Gresser as a go-to law firm for high profile cases. The article described the firm’s reputation for meticulous and persistent preparation, hard work, and deep knowledge of the law. To learn more, please visit our litigation and digital currency and blockchain technology practice pages.

Cohen & Gresser’s Daniel H Tabak was recently profiled in Financier Worldwide as part of their “Power Players: 2022 Complex Disputes – Distinguished Advisors” special report. As one of ten “Distinguished Advisors” featured in the report, Dan looks back at some of his significant career achievements, shares what motivates him as a lawyer, and highlights several dispute trends that he anticipates seeing more of in 2023.

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.

International law firm Cohen & Gresser is pleased to announce that Mark S. Cohen, Melissa H. Maxman, John Roberti, and Ronald F. Wick have been recognized in Lawdragon’s inaugural 500 Leading Litigators in America 2023 guide. Selection for the guide is based on independent research focused on recent cases and verdicts or settlements, as well as attorney excellence in trials.

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.

Cohen & Gresser’s Joanna K. Chan has been accepted into the National Asian Pacific American Bar Association‘s (NAPABA) Prospective Partners Program, which recognizes senior associates and counsel for their leadership potential within their organizations.

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.

Cohen & Gresser’s Paris office has earned six practice rankings and 13 individual rankings in the 2022 Leaders League guide. Leaders League highlights the firm’s “experienced lawyers” and ability to handle complex, cross-border matters.

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.

Cohen & Gresser lawyers Mark S. Cohen, John Roberti, and Daniel Tabak have been selected as “Benchmark Litigation Stars” in the 2023 edition of Benchmark Litigation. The guide’s “Stars” are identified through Benchmark Litigation’s independent research process as among the preeminent litigation practitioners in the US.

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.

Paris Partners Johannes Jonas, Muriel Goldberg-Darmon, and Loïc Henriot were recognized in the 2023 edition of The Best Lawyers in France. Johannes was recognized for Corporate Law; Muriel for Banking and Finance Law, Financial Institutions, Mergers and Acquisition Law, and Regulatory Practice; and Loïc for Criminal Defense and Litigation.

About The Best Lawyers in France

The Best Lawyers in France were recognized by their peers in the legal industry for their professional excellence in their respective practice areas.

International law firm Cohen & Gresser has been recognized in The Legal 500 United States 2022 guide for “bringing excitement and innovation to the practice of law.” The 2022 guide recognizes more C&G lawyers and practice areas than ever before, including a 58% increase in individual attorney recommendations and new rankings at the practice and “Leading Lawyer” levels.

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
Recognized Individuals:

Antitrust: Civil Litigation/Class Actions: Defense

  • Melissa H Maxman
  • John Roberti
  • Ronald F Wick
Corporate Investigations and White-Collar Criminal Defense

  • Jonathan S Abernethy
  • Jason Brown
  • Mark S Cohen
  • S Gale Dick
  • Jeffrey I Lang
  • Melissa H Maxman
  • Reggie Schafer
General Commercial Disputes

  • Mark S Cohen
  • S Gale Dick
  • Lawrence T Gresser
  • Melissa H Maxman
  • Daniel H Tabak
Securities Litigation: Defense

  • Jonathan S Abernethy
  • Mark S Cohen
  • S Gale Dick
  • Lawrence T Gresser
About The Legal 500:

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.”

International law firm Cohen & Gresser today announced that prominent antitrust litigator John Roberti has joined the firm’s Antitrust practice as a partner in its Washington, D.C. office. John’s arrival is part of the firm’s strategic expansion of its Antitrust & Competition capabilities and will strengthen its ability to provide strategic counsel in all aspects of antitrust litigation and investigations. He will work alongside distinguished antitrust litigators Melissa H Maxman and Ronald F Wick in Washington, D.C., to form a dynamic team of leading antitrust lawyers who are deeply entrenched in many of the most consequential antitrust matters ongoing in the U.S.
International law firm Cohen & Gresser today announced that Andrew Mitchell QC, a distinguished barrister and Queen’s Counsel, has joined the firm’s White Collar Defense & Regulation practice as Of Counsel. He will work closely with all of the firm’s international offices to support clients worldwide in civil and criminal matters relating to financial wrongdoing.
International law firm Cohen & Gresser today announced that leading litigator and trial lawyer Douglas J Pepe will join the firm as a partner in its New York office.

Doug brings over 20 years of experience representing corporations, financial services clients (including hedge funds and private equity funds), law firms, and other clients in complex commercial litigation. His practice focuses on high-stakes securities litigation, legal malpractice cases, insurance disputes, mass torts, class action defense, and legal issues in the blockchain and digital currency space.

“I’ve co-counseled with Cohen & Gresser in the past and am thrilled to be joining a talented team with exceptional trial capabilities, high-quality work, and excellent judgment,” said Doug. “I look forward to building my practice here and to working with my new colleagues around the world on complex commercial disputes, professional liability defense, and blockchain advisory work.”

Doug has successfully litigated tens of billions of dollars in claims involving a wide variety of complex issues, including playing 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.

“I’m delighted to welcome Doug to the firm,” said Lawrence T Gresser, co-founder and global managing partner of Cohen & Gresser. “We know him well and like and respect him very much. He is a first-rate litigator and will be integral in providing elite client service and guidance in areas that are important to our clients, including growing our commercial and securities litigation practices, our professional liability practice, and our blockchain and digital currency group.”

Prior to joining Cohen & Gresser, Doug was a partner at Joseph Hage Aaronson LLC, a preeminent litigation boutique. Doug is a member of the American Law Institute and a fellow of the Litigation Counsel of America. He also serves as a Professorial Lecturer in Law at The George Washington University School of Law, where he teaches blockchain law and technology.

U.S. News – Best Lawyers have once again recognized Cohen & Gresser among the Best Law Firms in the United States. As a testament to the firm’s capabilities and experience, the 2022 guide has honored Cohen & Gresser with multiple Tier 1 rankings in the New York region.

Cohen & Gresser has been nationally ranked as a Best Law Firm in two practice areas – Criminal Defense: White Collar and Commercial Litigation.

Additionally, the firm has been recognized in New York as a Best Law Firm in four practice areas – Criminal Defense: White-Collar, Product Liability Litigation – Defendants, Commercial Litigation, and Litigation – Securities.

The U.S. News – Best Lawyers “Best Law Firms” rankings are based on a rigorous evaluation process that collects data from clients, professional references, and attorneys currently recognized as Best Lawyers.

View the complete results of C&G’s rankings.

Reuters covered the recent summary judgment by the New York Supreme Court to dismiss allegations brought against Goldman Sachs & Co. LLC and two other Wall Street banks in a case alleging a boycott in violation of the Donnelly Act, New York’s antitrust statute.

Cohen & Gresser is pleased to announce that 37 of the firm's New York and Washington D.C.­based attorneys have been named to the 2021 Super Lawyers List across a wide range of practice areas. C&G co-­founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak have also been named to the Super Lawyers list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg has been recognized as one of the top 50 women lawyers in the New York metropolitan area.

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

Cohen & Gresser achieved a significant pro bono victory before the U.S. Court of Appeals for the Tenth Circuit on behalf of the National Women's Law Center ("NWLC") as an amicus in the case of Dr. Rachel Tudor, a professor in the English, Humanities, and Languages Department, of the Southeastern Oklahoma State University. Dr. Tudor is transgender and was explicitly denied tenure and fired by the University when she transitioned from male to female. The appeals court ordered the district court to reinstate her to a tenure position and correctly recalculate her front pay damages award.

While Dr. Tudor had won at trial, she was denied reinstatement by the district judge.  The Tenth Circuit embraced the arguments made in NWLC's amicus brief and found that the district court improperly concluded reinstatement would not be possible due to alleged hostility between Dr. Tudor and Southeastern. Instead, because of the legal presumption in favor of reinstatement and the particularly low risk of extreme hostility between the parties here, the court reversed and ordered that Dr. Tudor be reinstated at the University with tenure.

The Tenth Circuit also rejected Southeastern's cross-appeal in its entirety, relying heavily on the Supreme Court's decision in Bostock v. Clayton County, No. 17-1618, 590 U.S. ___ (2020), which overruled previous Tenth Circuit precedent and held that discrimination against transgender employees is sex discrimination under Title VII. Notably, Cohen & Gresser also represented the NWLC and dozens of other non-profit organizations in drafting and filing their Supreme Court amicus brief in Bostock.

Melissa Maxman led a team from Cohen & Gresser’s Washington D.C. office in advising the NWLC.

In this Law360 profile, John W Gibson discusses his five-year stint as a senior prosecutor and investigations manager in the UK Serious Fraud Office’s bribery and corruption unit, how he uses that experience to understand what matters when engaging with regulators and prosecutors, and how to deploy effective litigation strategy in criminal or compliance matters. (Subscription required.)

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

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

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

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

International law firm Cohen & Gresser has received high praise in Chambers USA 2021 for its “outstanding service” and dramatic international growth that “further strengthens its handling of cross-border proceedings.” Chambers commentary highlights C&G as one of the “biggest [law firm] innovators of the last forty years” and recognizes the firm’s “red-carpet treatment” for clients and “high-quality lawyers” who are “responsive, knowledgeable and service-oriented.”

Ranked Departments:

  • Litigation: General Commercial: Highly Regarded
  • White-Collar Crime & Government Investigations: The Elite

Ranked Lawyers:

Intellectual Property: Patent Litigation: General Commercial Litigation: Securities White-Collar Crime & Government Investigations

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

C&G achieved a Second Circuit victory for our client, Fidelity Brokerage Services, in a contract dispute involving a transfer of assets from a family partnership’s Fidelity brokerage account. The Second Circuit affirmed the District Court’s grant of summary judgment to Fidelity and held that Fidelity was not liable to the partnership for allowing one of the partnership’s members to transfer assets out of the partnership’s Fidelity account.

Cohen & Gresser is pleased to announce that 35 of the firm's New York and Washington D.C.­based attorneys have been named to the 2020 Super Lawyers List across a wide range of practice areas. C&G co-­founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak have also been named to the Super Lawyers list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg has been recognized as one of the top 50 women lawyers in the New York metropolitan area.
U.S. News - Best Lawyers has once again recognized Cohen & Gresser among the Best Law Firms in the United States in its 2021 guide. C&G received national recognition as a Best Law Firm for Criminal Defense: White Collar and Commercial Litigation. The firm was also recognized as a New York Best Law Firm in four practice areas: Criminal Defense: White Collar, Commercial Litigation, Product Liability Litigation – Defendants, and Litigation – Securities.

A D.C.-based C&G team comprised of Melissa H Maxman, Ronald F Wick, and Erica Lai helped secure a victory in the U.S. Supreme Court’s landmark ruling that all workers are protected under Title VII of the 1964 Civil Rights Act regardless of gender identity or sexual orientation.
The Legal 500 has once again recognized Cohen & Gresser in its United States guide. The firm is recognized for its excellence in the following categories:
  • 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
Mark S Cohen is ranked as a “Leading Lawyer” for Securities Litigation: Defense and is described as “an outstanding trial lawyer and strategist who has excellent judgment.” The Legal 500 also notes that “[t]he Cohen & Gresser team does extremely high quality work” and that C&G is “a go-to firm for managing complex disputes.”
A C&G team consisting of Daniel H Tabak, David F Lisner, and Lauren J Salamon achieved a complete dismissal of all claims against our client Fidelity Brokerages Services in a dispute stemming from the acts of convicted fraudster Andrew Caspersen, who allegedly deposited the proceeds of his fraudulent scheme into his trading accounts at Fidelity.

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.

U.S. News & World Report and Best Lawyers have recognized Cohen & Gresser as a National Best Law Firm for white collar criminal defense and as a New York Best Law Firm for white collar criminal defense, commercial litigation, and product liability litigation defense. The Best Law Firms rankings are based on an in-depth review process and recognize professional excellence and strong ratings from clients and peers.
For the eighth consecutive year, Cohen & Gresser has been ranked as a recommended New York law firm by Benchmark Litigation. In addition to the firm’s ranking, firm co-founder Mark S Cohen and partner Daniel H Tabak were individually recognized as Litigation Stars in the publication’s 2020 guide.
We are pleased to announce that 33 of our New York and Washington D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak to its list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg to its list of the top 50 women lawyers in the New York metropolitan area.
Mark S Cohen, Jason Brown, C Evan Stewart, and Thomas E Bezanson were recognized in The Best Lawyers in America's 2020 New York listings. Mark and Jason were recognized for white collar criminal defense; Evan for securities litigation; and Tom for commercial litigation and product liability litigation defense.
The Legal 500 has once again recognized Cohen & Gresser in its United States guide. The firm is recognized for its excellence in the following categories:
  • Corporate Investigations/White Collar
  • Corporate Investigations/White Collar – Advice to Individuals
  • General Commercial Disputes
  • Securities Litigation Defense
The Legal 500 notes that C&G has “impressive cross border capabilities and is often retained by clients in multijurisdictional disputes” and that our disputes team members are “true litigators, focused, and thoughtful - no stone is left unturned.”

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.

Cohen & Gresser announces the expansion of its White Collar Defense & Regulation and Litigation & Arbitration groups in London with the addition of Thomas W Shortland. Tom advises on a broad range of domestic and cross-border disputes including civil, regulatory, and criminal matters. Prior to joining C&G, Tom practiced at Cleary Gottlieb Steen & Hamilton where, between 2015 and 2016, he was seconded to the Bribery & Corruption Division of the UK’s Serious Fraud Office as an Investigative Lawyer.

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.

U.S. News & World Report and Best Lawyers have recognized Cohen & Gresser as a New York Best Law Firm for white collar criminal defense, commercial litigation, and product liability litigation defense. The Best Law Firms rankings are based on an in-depth review process, and recognize professional excellence and strong ratings from clients and peers.
We are pleased to announce that thirty of our New York and Washington, D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founders Mark S Cohen and Lawrence T Gresser to its list of the top 100 lawyers in the New York metropolitan area, and partners Karen H Bromberg and Alexandra Wald as two of its top 50 women lawyers in New York. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in the U.S. receive this honor.
Cohen & Gresser announces the expansion of its London office and White Collar Defense & Regulation group with the appointment of partner John W Gibson. A former UK Serious Fraud Office (SFO) senior prosecutor, John will focus his practice on cross-border corporate investigations and white collar defense. He has over 25 years of experience as a barrister, and advises on all matters relating to law enforcement, regulatory and internal investigation of suspected crimes and regulatory breaches, as well as the defense of companies and individuals. In addition, John has expertise in data strategy and the use of artificial intelligence (AI) in big data litigation and investigations.
Mark S Cohen and Thomas E Bezanson were recognized in Best Lawyers in America's 2019 New York listings – Mark for white collar criminal defense and Tom for commercial litigation and product liability litigation defense. This is the sixth year in a row Mark has been recognized by Best Lawyers, a publication that completes a rigorous survey process, compiling confidential evaluations from top attorneys in their fields.
Daniel H Tabak is quoted in The Wall Street Journal regarding client, Hulk Hogan, and the sale of Gawker.com to Bustle owner Bryan Goldberg.  Dan led Hogan's legal team in the Gawker bankruptcy, which resulted in a settlement entitling Hogan to $31 million plus 45% of the proceeds of the Gawker.com sale.  The gossip news site filed for bankruptcy in June 2016  after a Florida jury awarded Hogan $140 million in his invasion of privacy suit. Photo: Hulk Hogan and Daniel H Tabak
Cohen & Gresser has been recognized in The Legal 500’s 2018 Europe, Middle East, and Africa guide for its work in France in five separate practice areas: Compliance, Employment, Stock Market Litigation, Tax, and IT, Telecoms and the Internet.  Our Paris team is lauded for an "excellent level of service" and for offering "a very good and rare combination of high legal expertise and accurate business understanding."
C&G welcomes the attorneys who joined the firm in 2017. "We’re very fortunate to have added these exceptional lawyers in New York and Paris," said Managing Partner, Lawrence T Gresser.  "We look forward to continuing to build our transactional and disputes practices in all of our offices in 2018."
Twenty-eight of our New York and Washington D.C.-based Cohen & Gresser attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also named C&G co-founding partner Mark S Cohen to its list of the top 100 lawyers in the New York metropolitan area, and partners Karen H Bromberg and Alexandra Wald to its top 50 women lawyers in New York list. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in the U.S. receive this honor.
Mark S Cohen and Thomas E Bezanson were recognized in Best Lawyers in America's 2018 New York listings – Mark for white collar criminal defense and Tom for commercial litigation and products liability litigation defense. This is the fifth year in a row Mark has been recognized by Best Lawyers, a publication that completes a rigorous survey process, compiling confidential evaluations from top attorneys in their fields.
Chambers USA and The Legal 500's United States guides have recognized Cohen & Gresser and a number of the firm's lawyers for outstanding achievements during the past year in the categories of Commercial Litigation, Securities Litigation, Patents, and Corporate Investigations and White Collar Defense.

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. 

Daniel H Tabak led Hulk Hogan's legal team in the Gawker bankruptcy which resulted in Hogan's $31 million settlement with Gawker. The gossip news site filed for bankruptcy in June of 2016 after a Florida jury awarded Hogan $140 million in his invasion of privacy suit.
For the fifth consecutive year, Cohen & Gresser has been ranked as a recommended New York law firm by Benchmark Litigation.  In addition to the firm’s ranking, partners Mark S Cohen, Lawrence T Gresser, and Karen H Bromberg were all individually recognized in the publication’s 2017 guide.
Twenty-two of our New York and Washington, D.C.-based attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also named C&G co-founding partners Mark S Cohen and Lawrence T Gresser to its list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg to both its list of top 50 women lawyers and top 100 lawyers in the New York metropolitan area.

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:

Mark S Cohen and Thomas E Bezanson were recognized in Best Lawyers in America's 2017 New York listings – Mark for white collar criminal defense and Tom for commercial litigation. This is the fourth year in a row Mark has been recognized by Best Lawyers, a publication that completes a rigorous survey process, compiling confidential evaluations from top attorneys in their fields.
Cohen & Gresser is pleased to announce the expansion of the firm's Litigation & Arbitration practice, as partner Ronald F Wick and associate Erica Lai have joined our Washington, D.C. office. Ron's practice focuses on litigation concerning trade regulation, antitrust, and commercial disputes. He was previously a partner in Cozen O'Connor's  Washington, D.C. office. Erica's practice focuses on complex commercial litigation, including antitrust, False Claims Act, administrative law, copyright litigation, and breach of contract. Prior to joining the firm, Erica was a senior associate at Covington & Burling LLP.
The Legal 500 has recognized Cohen & Gresser for its achievements in securities litigation and white collar criminal defense in its recently released 2016 U.S. guide. The guide notes C&G's "outstanding" white collar defense group and its "seasoned securities professionals who are smart, aggressive, and yet user-friendly."

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.

Read more

A recent edition of Law360 reported on the U.S. Supreme Court’s 6-3 ruling which states that laws hostile to class action waivers cannot circumvent the Federal Arbitration Act. In this article, Larry Gresser weighs in on the significance of the decision.
We are pleased to announce that twenty-two of our New York-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in New York receive this honor.
Cohen & Gresser is pleased to announce that the firm and five of its attorneys are recognized in the 2015 edition of Chambers USA, a national ranking guide that recognizes outstanding lawyers and law firms across the United States who are strongly recommended based on in-depth interviews with thousands of lawyers, clients, and industry leaders, with the most weight assigned to client feedback. The final rankings take into account a lawyer's legal ability, professional conduct, client service, commercial astuteness, diligence, and commitment to the profession, among other qualities most valued by clients.
We are pleased to announce that twenty-four C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also named C&G co-founding partner Mark S Cohen to its list of the top 100 lawyers in the New York metropolitan area, and C&G partner Karen H Bromberg to its list of the top 50 women lawyers in the New York metropolitan area. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in New York receive this honor. View all rankings
Cohen & Gresser is pleased to announce the promotion of Mark Spatz to Counsel.
On June 24, 2024, the U.S. Court of Appeals for the Second Circuit decided Packer ex rel. 1-800-Flowers.com, Inc. v. Raging Capital Management, LLC, reversing a district court decision that had held that a shareholder plaintiff bringing short-swing profits claims under Section 16(b) of the Securities Exchange Act of 1934 did not have constitutional standing as a result of the U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez.[1]

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 an article recently published in the New York Law Journal, C&G’s Jeffrey Lang and Luke Appling examine the Department of Justice’s federal civil forfeiture program, an important component of the DOJ’s strategy for disrupting criminal activity, including corporate fraud and other financial crimes, whereby property connected to unlawful activities is subject to seizure. Such forfeiture proceedings pose numerous threats to the property rights of everyone with an interest in the particular property, regardless of culpability. The article presents a focused discussion on the critical issues that property owners and their counsel ought to be aware of at the outset of such an action.
Last week, the UK’s Insolvency Service published statistics on its enforcement activities and outcomes during the last financial year. The Report describes The Insolvency Service’s enforcement activities in the areas of director disqualifications, company enforcement actions, bankruptcy and debt relief matters, and criminal prosecutions. It also illustrates certain enforcement trends in director disqualifications.

In this C&G Client Alert, Thomas Shortland, John Gibson and Ashley Collins:

  1. highlight three trends in director disqualification enforcement which emerge from the Report;
  2. suggest factors that may have contributed to these trends; and
  3. discuss whether these trends are likely to continue.

They also provide some insights on contested disqualification proceedings from recent cases.

In his latest column for the NY Business Law Journal, C Evan Stewart explores the aftermath of the U.S. Supreme Court’s 2019 decision in Lorenzo v. S.E.C.—the “bad sign” referenced in his title—in which the Court undercut its prior clear distinction between primary and secondary liability for securities fraud. He discusses how the Securities and Exchange Commission has tried to push the envelope even further, with varied results.

The United States Federal Trade Commission and the Department of Justice recently took actions that signal their intent to increase antitrust enforcement, particularly in the private equity sector.

  • 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.

In this article for Finascope, Muriel Goldberg-Darmon, Louise Le Guilchet, and Pierre Wolman address the complexity of the new European regulations, Taxonomie and CSRD (Corporate Sustainable Reporting Directive), that strengthen the requirements for companies in terms of extra-financial reporting. They also analyze the risks litigation companies now face as a result of the new regulations.

In his latest column for the Federal Bar Council Quarterly, C Evan Stewart reviews a legal proceeding that he says seemed to capture the New York City of the 1970s and early 1980s more than any other.

In an article for Corporate Disputes, C Evan Sewart discusses a 2022 decision by the Fifth Circuit Court of Appeals to vacate a previous SEC ruling – a decision unique in its willingness to override the authority of the SEC.

In his latest column for the Federal Bar Council Quarterly, C Evan Stewart explains how the Supreme Court tackled – and fumbled – the Sherman Antitrust Act.

In an article for NY Business Law Journal, C Evan Stewart explores the obligation lawyers have to report other lawyers for misconduct, discussing the potential negative implications and ethical complexities that arise from “ratting out” fellow attorneys.  

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.  

Underwood v. Coinbase Global, Inc., et al., a closely-followed putative class action in the Southern District of New York, alleges that Coinbase, a secure online platform for buying, selling, transferring, and storing cryptocurrency, is in violation of the securities laws for selling 79 securities on its platform despite not being registered as an exchange or broker-dealer.

  • 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?
In this client alert, Doug Pepe analyzes the arguments in Coinbase’s recent Motion to Dismiss in Underwood v. Coinbase Global, Inc., et al., explores the key questions they raise, and offers insight into the potential implications for the statutory seller defense in the crypto context.

 

In this article for Finascope, Muriel Goldberg-Darmon, Guillaume Guérin, and Pierre Wolman discuss the Autorité des Marchés Financiers (AMF's) modification of the Investigations Guidelines (Charte de l’enquête et du contrôle) regarding the right to remain silent. They also examine its articulation with a potential obstruction and/or cooperation with the AMF during an investigation.

 
In this bylined article for Forbes, Muriel Goldberg-Darmon discusses the latest trends in the SPAC market in Europe and the U.S. She also examines recent EU recommendations and potential risks regarding the disclosure of information.

In this article for the New York State Bar Association, C. Evan Stewart explores the consequences of lawyers serving as directors of public companies and examines the ongoing criminal trial of USA v. Holmes.

The corporate bankruptcy & insolvency litigation landscape has drastically changed as a result of COVID-19. With government relief packages winding down, the financial impact of the pandemic will increasingly be playing out in bankruptcy and insolvency proceedings. As this picture becomes clear, businesses should understand the key questions and answers necessary to prepare for resulting disputes.

  • 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 this roundtable feature published by Financier Worldwide, Daniel H Tabak joins other bankruptcy and litigation experts from the United States and United Kingdom to answer these questions and more. The panelists discuss recent trends and examine what’s next for businesses that may find themselves navigating bankruptcy and insolvency disputes and what they need to know going forward.

In this bylined article for the New York Business Law Journal, C. Evan Stewart examines three recent federal court decisions related to attorney-client privilege and work product issues to provide a chronological review that should be helpful for litigators addressing these important matters.

The UK Supreme Court recently handed down its hotly-anticipated judgment in the business interruption insurance test case (FCA v Arch and others [2021] UKSC 1). The judgment extends, in certain respects, findings in favour of certain policyholders of business interruption insurance made by the High Court. In this client alert, Jumana Rahman, Thomas Shortland, and Charlotte Ritchie focus on the implications of the Supreme Court judgment for causation issues in insurance law and the wider law and address the consequences of the judgment for various key stakeholders.

In his latest column for Federal Bar Council Quarterly, C Evan Stewart highlights two judicial decisions, one by the Chief Justice of the United States and another by an Associate Justice of the Supreme Court, which serve as bookends to help better understand President Lincoln’s track record on constitutional rights during the prosecution of the Civil War.

Daniel H Tabak and Drew S Dean discuss the opinion of Magistrate Judge Gorenstein of the Southern District of New York in Revive Investing LLC v. FBC Holdings S.A.R.L. After finding that a prior settlement agreement between the defendant and different plaintiffs was valid and contained a release that precluded the claim at issue, Judge Gorenstein recommended the grant of summary judgment to the defendant in a Section 16(b) “short-swing profit” action. Dan and Drew go on to explore the future implications of Judge Gorenstein’s opinion and explain what this will mean for Section 16(b) litigants going forward.

In his latest column for Federal Bar Council Quarterly, C Evan Stewart revisits the U.S. Supreme Court infamous decisions in the Insular Cases.

In this C&G client alert, Jumana Rahman, Thomas Shortland, and Charlotte Ritchie discuss the legal and practical implications of the UK Supreme Court’s recent ruling on the reflective loss principle in Sevilleja v Marex.
In his latest column for Federal Bar Council Quarterly, C Evan Stewart revisits the trial of O.J. Simpson.
Daniel H Tabak and Lauren J Salamon discuss the first case addressing force majeure in the context of government-ordered closures to halt the spread of COVID-19.
In his most recent column for the New York State Bar Association’s NY Business Law Journal, C Evan Stewart considers the context and consequences of the Supreme Court’s ruling on Lorenzo v. S.E.C. and its impact on lawyer liability.
Daniel H Tabak and Drew S Dean discuss the Second Circuit's dismissal of the Section 16 "short-swing profit" claims against the client of an investment advisory firm that was itself subject to Section 16(b) liability in Rubenstein v. Int’l Value Advisers, LLC. They go on to examine the question of whether a family of hedge funds with a combined holding of over 10% of an issuer may similarly avoid short-swing trading liability under Section 16 even if the funds are all managed by the same advisor.

In his latest column for Federal Bar Council Quarterly, C Evan Stewart revisits the infamous Supreme Court ruling on Bush v. Gore.

John W Gibson, Tim Harris, and Patrick Ferguson discuss the enforcement risks created by cum-ex transactions and the implications for jurisdictions, such as the UK, where cum-ex transactions per se have not been carried out, but where dividend arbitrage trades carry a risk of facilitating tax evasion, money laundering, or market abuse.

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."

This article addresses the lower courts’ application of the Supreme Court’s recent class action securities decision in Halliburton Co. v. Erica P. John Fund, Inc., 134S.Ct. 2398, 2412 (2014), which permits defendants to rebut fraud-on-the-market reliance at the class certification stage. The article also provides securities litigators with the lay of the land post-Halliburton.
The Target data breach made headlines across the country and resulted in over 50 purported class action suits against the retailer. This is a warning shot over the bow for other companies. Privacy class actions are on the rise.
Parties often opt for arbitration to obtain confidentiality that is unavailable in court proceedings. This alert addresses two recent decisions that address the confidentiality of proceedings before the Delaware Court of Chancery.  In these cases even the Delaware legislature, the agreement of the parties, and genuine confidentiality concerns could not trump the presumption of open public proceedings.
The recent comScore decision and others allowing privacy cases to proceed in the absence of actual damages may imply that the legal landscape is changing. In fact, comScore suggests that if a lead plaintiff in a purported privacy class action can overcome the standing hurdle by citing statutory damages, then the class certi­fication hurdle may also be manageable.

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.

John Roberti will participate on a panel titled "Who Wants to Be an Ethical Lawyer? A Game Show on Class Action Ethics," as part of the 2024 American Bar Association's Litigation Section Class Actions National Institute.

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?

John Roberti will participate on the “Diversity, Equity, and Inclusion: Neurodiverse Clients and Counsel” panel as part of the third annual Complex LItigation Ethics Conference at UC Law San Francisco.

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.

Mark S. Cohen will host a panel titled "The Art of the Jury Trial: Historic Criminal Trials in the Southern District of New York," presented by The American College of Trial Lawyers, The Federal Bar Council, and The New York Council of Defense Lawyers, on Tuesday, October 15, 2024 at the Daniel Patrick Moynihan United States Courthouse.

Marvin Lowenthal was a speaker at the collaborative round table discussion titled "Don't Let Your AI Control You: Manage AI Trust, Risk and Security" at the Global GRC, Data Privacy & Cyber Security ConfEx. The panel discussed:

  • Building Trust: Ensuring transparency, fairness, and accountability in AI systems to establish trust.

  • Risk Assessment: Identifying potential risks associated with AI, such as privacy breaches, bias, and security vulnerabilities.

  • Security Measures: Implementing robust security measures, including authentication, encryption, and access controls, to protect AI systems.

  • Ethical Considerations: Addressing ethical concerns related to AI's impact on society, values, and human rights.

  • Continuous Monitoring: Regularly evaluating and monitoring AI systems to detect and mitigate emerging risks.

On 13 March 2023, Thomas Shortland spoke at an event run jointly by the Chancery Bar Association and the Judges of the Business and Property Courts (Chancery Division). The purpose of the event was to encourage barristers and solicitor advocates to participate in the Chancery Bar Association’s Litigant in Person Support (CLIPS) Scheme. CLIPS is the Chancery Bar Association’s flagship pro bono scheme run in association with Advocate (the Bar’s national pro bono charity) and with the assistance of members of other specialist bar associations. The scheme provides on-the-day assistance to unrepresented litigants in the daily Interim Applications List in the Chancery Division and in the Business and Property List at Central London County Court. Tom spoke at the event alongside The Honorable Mr Justice Fancourt, Andrew de Mestre KC (4 Stone Buildings) and Emma Horner (4 Stone Buildings).

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.

Erica Lai participated in an alumni panel at the Penn Club of DC. The discussion centered on the current state of diversity and inclusion in the legal industry.
C. Evan Stewart will speak at a Practising Law Institute CLE program, titled “Securities Litigation 2020: From Investigation to Trial.” The program examines the issues that can arise in the most complex securities matters and will update practitioners on the latest best practices and case law.
C Evan Stewart discussed "Human Nature and Securities Disputes" at a New York State Bar Association webcast, titled "Securities Arbitration 2020: Deep Dive."
C Evan Stewart chaired a Practising Law Institute CLE program, titled “Ethics for Commercial Litigators 2020,” which reviewed complex ethical issues and relevant case law arising out of commercial litigation.
Thomas Shortland participated in a panel discussion as part of a seminar run by Practising Law Institute entitled "Cross-Border Trends, Tactics, and Strategic Insights: What European and U.S. Lawyers Should Each Know About Litigating Abroad."  The panel discussion concerned trends in U.S. class actions, how they affect the road ahead for class/group claims in Europe, and the impact of litigation funding on litigation in Europe.
Erica Lai moderated a panel with three lead attorneys from the litigation that enjoined the U.S. Department of Commerce from adding a question to the 2020 decennial census that would have required respondents to identify the citizenship status of every member of their households. Plaintiffs brought claims under the Census Clause of the U.S. Constitution and the Administrative Procedure Act alleging that adding the question would cause a disproportionate undercount in states with high numbers of non-English speakers, immigrants, and people of color, resulting in an inaccurate and incomplete head count. 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 other local minority bar associations.
Erica Lai spoke on a panel with other counsel who represented or spearheaded amici briefs in the trio of watershed Title VII cases before the U.S. Supreme Court in the 2019-20 term:  Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Funeral Homes v. Stephens. The cases address whether Title VII’s prohibition on employment discrimination “because of . . . sex” encompasses discrimination based on sexual orientation or gender identity. The panel discussed the U.S. Supreme Court arguments held earlier in the day. Erica Lai and C&G’s Washington, D.C. office filed a brief on behalf of the National Women’s Law Center and 36 other women’s rights groups answering the question in the affirmative and in support of the employees.

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).