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LITIGATION MANAGEMENT SUPERCOURSE
FINRA CLE
SuperCourse

Friday, September 14, 2012



The Sofitel Hotel
45 West 44th Street (Bet. Fifth and Sixth Avenues)
New York, NY


Program Coursebook (PDF)

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eCoursebook (mobi)
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Our application to the New York State CLE Board is currently pending.
This course is not eligible for Illinois MCLE credit.



Friday, September 14 - Opening Statements
9:00a - 9:05a
NETWORK CHAIR
Roger McCleary
Beirne Maynard & Parsons (Houston, TX)
9:05a - 9:10a
FINRA CLE SUPERCOURSE SEMINAR CHAIRS
John Worden -- Schiff Hardin (San Francisco, CA)
Stacie Hartman -- Schiff Hardin (Chicago, IL)
 
Session I
9:10a - 9:30a
FINDERS KEEPERS? RISKS OF UNREGISTERED BROKER-DEALERS
Brian Miller
Akerman Senterfitt (Miami, FL)
Unregistered finders are important cogs in efforts to raise capital, but they come with risks when they engage in “broker-dealer” activities. Brian Miller, Chair of the Securities Litigation Practice at Akerman Senterfitt, will outline current regulations and responsibilities, discuss the finder exception from registration, distinguish finders from broker-dealers, trends in enforcement, penalties for using unregistered broker-dealers, and considerations when working with finders.
9:30a - 9:50a
DEVELOPMENTS IN CANADIAN SECURITIES CLASS ACTION LAW: IMPLICATIONS FOR U.S. COMPANIES
Sean Boyle
Blake Cassels & Graydon (Canada)
In direct contrast to the decision of SCOTUS in Morrison v. National Bank of Australia, Sean K. Boyle, a litigation partner at Blakes in Vancouver, B.C., will discuss recent developments in Canada’s securities class action law, including the trend to expand Canada’s securities law’s extra-territorial reach.
9:50a -10:10a
THE GOVERNMENT AND YOU: FOR WHOM THE WHISTLE BLOWS
Stacie Hartman
Schiff Hardin (Chicago, IL)
Dodd-Frank ushered in new whistleblower provisions for the SEC and CFTC. Stacie Hartman will discuss the serious consequences that can result from the Commissions’ new laws and regulations, as well effective internal compliance programs to counteract Dodd-Frank incentives to report to the Government before giving the company a full opportunity to investigate and deal with problems on its own.
10:10a - 10:30a
LESSONS LEARNED FROM LENDER LIABILITY LITIGATION
Joe Cohen
Beirne Maynard & Parsons (Houston, TX)
As interest rates soared in the late 1970's, and the price of oil dropped in the early 1980's, troubled borrowers adopted a new strategy: preemptive lender liability suits against banks. Financial institutions responded by adopting practices to limit exposure. Though arbitration clauses limit jury exposure in many cases, a number still make their way to the courthouse. Joe Cohen has represented financial institutions for more than 30 years, and will share winning strategies for defending lender liability cases.
10:30a - 10:50a
GETTING TO KNOW YOU: FINRA'S NEW SUITABILITY RULES
Larry Polk
Sutherland Asbill & Brennan (Atlanta, GA)
Implemented July 9, 2012, FINRA’s revised Know-Your-Customer and Suitability rules require firms to use reasonable diligence in opening and maintaining every account, and to obtain essential facts concerning every customer. FINRA’s guidance on these rules introduce several new obligations on broker dealers, such as the suitability of investment strategies and hold recommendations, along with new supervisory requirements. Larry Polk, who represents registered reps and broker-dealers in in FINRA arbitrations as well as state and federal courts, will discuss these changes and offer best practices for compliance with the rules.
 
Refreshment and Coffee Break
 
Session II
11:20a - 11:40a
EXPANDING LIABILITY FOR FINANCIAL PROFESSIONALS
Jeff Hines
Goodell DeVries Leech & Dann (Baltimore, MD)
Documents don't always tell the tale. Trial lawyer Jeff Hines will discuss the difference between discretionary, non-discretionary, and Hybrid accounts and the proposed Uniform Professional Standard.
11:40a - 12:00p
SECURITIES LIABILITIES OF ATTORNEYS, CPA'S AND OTHER PROFESSIONALS
Judy Burnthorn
Deutsch Kerrigan & Stiles (New Orleans, LA)
Secondary participants in securities transactions such as CPAs, accountants, appraisers and other professionals, although not considered "sellers" or primary violators, nonetheless have been joined in securities lawsuits as aiders and abettors. SCOTUS appeared to have abolished that practice in Central Bank of Denver (1994), but the Circuits have split on “scheme liability”. Judy Burnthorn will discuss the current state of the law, and the potential for securities liability on the part of such secondary players.
12:00p - 12:20p
THE CONTINUED EROSION OF OVERBROAD CLASS ACTIONS - THE 9TH CIRCUIT TAKES ACTION
Scott O'Connell
Nixon Peabody (Boston, MA)
The permissible scope of class actions has been substantially narrowed. In-house counsel should be incorporating class-waiver arbitration provisions which are now presumptively valid (Concepcion). Classes defined by extrapolation and data models have been dealt a death-blow rendering them vulnerable to Daubert challenges (Walmart). Efforts to pursue state court class actions will increase because failure in federal court will not bar re-litigation in state court (Bayer).
12:20p - 1:00p
PANEL: CHALLENGES AND OPPORTUNITIES WITH PARALLEL PROCEEDINGS IN COURT AND ARBITRATION
Moderator: Joel Hoxie
Snell & Wilmer (Phoenix, AZ)
Case strategy and pleadings; jurisdiction anddiscovery; and case resolution from the perspective of the defendant (e.g.,securities issuer, fund manager, life insurance company) and the broker-dealer/FINRA respondent in arbitration. Tools for responding parties to likelihood of a successful resolution despite the complications involved in parallel forum litigation.

Presentations By:

David King
Bass Berry & Sims (Nashville, TN)

Scott Garley
Gibbons (New York, NY)
 
Session III - Lunch Break-Out Sessions
1:00p - 2:00p
TRACK A:
FINRA ARBITRATIONS
Moderator: John Worden
Schiff Hardin (San Francisco, CA)
Room: Trocadero

As FINRA arbitration awards get bigger and bolder, including punitive damages, litigants have been trying to undo the previously undoable – vacate those awards by motion under the Federal Arbitration Act or applicable state statute. Every day brings us a new case decision and a new tactic. The group will discuss recent developments in this area and real war stories as well as related strategies for challenging or affirming FINRA arbitration awards. With Discussion By:
Kyle Dufrane - Dykema (Detroit, MI)
Clint Corrie - Beirne Maynard & Parsons (Dallas, TX)
William Wright - Deutsch Kerrigan & Stiles (New Orleans, LA)

1:00p - 2:00p
TRACK B:
THE COMPULSORY ARBITRATION CLAUSE AND FEDERAL CLAIMS FOR RELIEF
Moderator: John Vaught
Wheeler Trigg O'Donnell (Denver, CO)
Room: Odeon

Trial lawyer John Vaught will analyze the 2ndCircuit case of In re American Express Merchants’ Litigation and its conclusion that arbitration clauses that attempt to compel arbitration may not be enforceable to bar the litigation of claims under federal law, in that case, the federal antitrust laws.

1:00p - 2:00p
TRACK C:
SEC AND FINRA ENFORCEMENT ACTIONS
Moderator: Brian Rubin
Sutherland Asbill & Brennan (Washington, DC)
Room: St. Germain

Brian Rubin, formerly Deputy Chief Counsel of Enforcement at NASD and Senior Enforcement Counsel with the SEC, will lead a discussion on the current hot issues in SEC and FINRA enforcement actions and provide tips on handling investigations.

1:00p - 2:00p
TRACK D:
MEDIATING SECURITIES CLAIMS
Moderator: Bruce Friedman
Bingham McCutchen (Santa Monica, CA)
Room: Orleans

Timing, preparing for, presentation and conduct of mediation, including selection of a mediator, analysis of damages, insurance and structuring of settlements. With Discussion By:
Peter Critchell - Chartis Insurance (New York, NY)
Brian Miller - Akerman Senterfitt (Miami, FL)
Larry Polk - Sutherland Asbill Brennan (Atlanta, GA)

1:00p - 2:00p
TRACK E:
CUSTOMER DISPUTES - THE ROAD LESS TRAVELED
Moderators: Cory Braddock and Matt Fischer
Snell & Wilmer (Phoenix, AZ)
Room: Monmatre

Matthew Fischer and Cory Braddock will discuss opportunities to prevail in customer dispute cases by veering from the ordinary path. Discussion topics will include: (1) when not to compel arbitration; (2) taking an aggressive approach with a sympathetic claimant; and (3) when and how to seek an award of attorneys’ fees and costs.With Discussion By:
Kathy Klock - Akerman Senterfitt (West Pam Beach, FL)
 
Session IV
2:00p - 2:20p
DUTIES OF PUBLIC COMPANIES TO DISCLOSE SEC INVESTIGATIONS
Jim McLoughlin
Moore & Van Allen (Charlotte, NC)
Trial lawyer Jim McLaughlin provides an analysis of the recent, post-financial-crisis case law and whether those cases change the consensus guidance on public disclosure of SEC investigations.
2:20p - 2:40p
EFFECTIVE MOTIONS AND PRESENTATIONS BEFORE THE FINRA ARBITRATION PANEL
Anthony Soukenik
Sandberg Phoenix & von Gontard (St. Louis, MO)
Practical advice for motion and "day of" presentations from an arbitrator who has handled more than 100 cases, 25 as chair, and who has represented claimants, respondents and employee brokers.
2:40p - 3:00p
LITIGATING AGAINST FINRA AND THE SEC
Brian Rubin
Sutherland Asbill & Brennan (Washington, DC)
Do the regulators have a “home court” advantage? Brian Rubin, formerly Deputy Chief Counsel of Enforcement at NASD and Senior Enforcement Counsel with the SEC, will provide an overview of the regulatory litigation process as well as results from the recently released Annual Sutherland SEC/FINRA Litigation Study. Discussion will reveal how often judges award the monetary sanctions and suspensions demanded by the prosecutors, and how likely it is that charges will be dismissed and a settlement discount given.
3:00p -3:20p
DISCOVERY IN FINRA CUSTOMER ARBITRATION PROCEEDINGS: A VIEW FROM ONE YEAR AFTER THE REVISED DISCOVERY GUIDE
Richard De Palma
Thompson Hine (New York, NY)
Effective May 16, 2011, FINRA substantially amended the Discovery Guide (and related sections of the Customer Code) in customer arbitration proceedings, purportedly to make the process simpler and smoother. One year after implementation, critics of the revised Discovery Guide abound on both sides of the bar. This discussion will focus on key changes, issues in the first year of implementation, impact of the Discovery Task Force on future amendments, and whether the stated goals of the revision have been met.
3:20p -3:40p
ARBITRATION CLAIMS BY SOPHISTICATED INVESTORS: A PROFITABLE INVESTMENT
Jeff Wild
Lowenstein Sandler (Roseland, NJ)
Most companies and other savvy investors assume that their sophistication is a bar to recovery after an investment or deal goes bad. But even ultra-sophisticated investors can make FINRA and other arbitration a very profitable investment. Learn how.
 
Closing Statements
3:40p - 3:45p
NETWORK CHAIR
Roger McCleary
Beirne Maynard & Parsons (Houston, TX)
 

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Seminar Agenda
FRI SEPT 14 7:30a Continental Breakfast and Program Registration
FRI SEPT 14 9:00a Opening Statements
FRI SEPT 14 9:10a CLE Session I
FRI SEPT 14 10:50a Coffee and Refreshment Break
FRI SEPT 14 11:20p CLE Session II
FRI SEPT 14 1:00p CLE Session III - Working-Lunch Break-Out Sessions
FRI SEPT 14 2:00p CLE Session IV
FRI SEPT 14 3:40p Closing Statements