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LITIGATION MANAGEMENT SUPERCOURSE
Financial Services
CLE SuperCourse

7.0 CLE Hours

Approved by the State of New York CLE Board (Transitional and Nontransitional)
Course BUS2443

100% Free of Charge to Attorneys

Space is limited. Please register in advance. Breakfast and Lunch Included.


Friday, September 20, 2013



The City Bar Building
42 West 44th Street
New York, NY


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Friday, September 20 - Opening Statements
9:00a - 9:05a
NETWORK CHAIR
James Miller
Akerman Senterfitt (Miami, FL)

9:05a - 9:10a
SEMINAR CHAIRS
John Worden -- Schiff Hardin (San Francisco, CA)
Larry Polk - Suthermand Asbill & Brennan (Atlanta, GA)
 
Session I
9:10a - 9:30a
THE CONTINUED EROSION OF OVERBROAD CLASS ACTIONS - THE SUPREME COURT 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). And this past term, the Supreme Court made more sweeping changes to class actions.
9:30a - 9:50a
ROLLING THE DICE: SHOULD NON-MEMBER REGISTERED INVESTMENT ADVISORS (RIA'S) VOLUNTARILY AGREE TO FINRA ARBITRATION OR LITIGATE IN COURT
Jeff Hines
Goodell DeVries Leech & Dann (Baltimore, MD)
Recent FINRA guidance allows non-member RIAs to voluntarily participate in FINRA arbitrations, however, the decision of whether to proceed with FINRA carries benefits as well as risks. This presentation will discuss the pros and cons of RIAs voluntarily participating in FINRA arbitrations.
9:50a - 10:10a
TRADITIONAL AND ALTERNATIVE PRODUCTS: SUITABILITY AND SUPERVISORY ISSUES
Kathy Klock
Akerman Senterfitt (West Palm Beach, FL)
Alternative products are attractive to investors as alternatives to conventional products with less favorable returns, but are often complex and opaque to customers as well as the registered representatives and advisors who present them. These factors can lead to inappropriate recommendations and claims of failure to disclose material facts. This presentation will focus on suitability and supervision issues relating to alternative products as well as traditional products, including heightened supervisory and compliance procedures for complex products.
10:10a - 10:30a
RECENT DEVELOPMENTS IN FEDERAL PREEMPTION OF STATE SECURITIES LAW CLAIMS
Duris Holmes
Deutsch Kerrigan & Stiles (New Orleans, LA)
Federal law such as the Securities Litigation Uniform Standards Act (“SLUSA”) and the National Securities Markets Improvement Act (“NSMIA”) provides important limitations on the application of state securities laws. The Supreme Court may soon further clarify the scope of federal preemption under these acts. This presentation will address this important federal litigation, and its use in preventing state court actions arising from investments in covered securities, including private placements.
10:30a - 10:50a
REGULATORY ISSUES AND TRENDS FOR INVESTMENT ADVISORS
John Dickey
Dykema (Dallas, TX)
The SEC continues to set new market-wide priorities and program area-specific initiatives to regulate investment advisors and broker dealers. The SEC's new priorities include fraud detection and prevention, conflicts of interest, technological issues, and the registration and compliance of private equity fund advisers.
 
Refreshment and Coffee Break
 
Session II
11:20a -11:40a
DEVELOPMENTS IN CANADIAN CLASS ACTIONS: IMPLICATIONS FOR U.S. CAPITAL MARKET PARTICIPANTS
Sean Boyle
Blake Cassels & Graydon (Vancouver, Canada)
2012 was an important year for securities class actions in Canada. It was distinguished by three important appellate decisions and a number of lower court decisions signaling an increasing maturity of Canada’s secondary market liability regimes. Sean Boyle a litigation partner at Blakes in Vancouver, B.C. will discuss these recent developments and the implication for U.S. capital market participants.
11:40a - 12:00p
FINRA ARBITRATION: DEVELOPMENTS IN DISCOVERY
Matt Fischer
Snell & Wilmer (Phoenix, AZ)
FINRA continues to tweak the discovery rules and the discovery guide for customer and industry arbitrations. New rules for non-party discovery, including subpoenas and orders, went into effect February 2013. On the horizon: guidance on e-discovery issues, modifications for product cases, and other amendments.
12:00p - 12:20p
FINRA ARBITRATION: EVOLUTION OF PANEL SELECTION
Anthony Soukenik
Sandberg Phoenix & von Gontard (St. Louis, MO)
The FINRA Panel selection process is once again changing; qualifications for Public Panelists is tightening; and the absence of a mandatory Industry Panelist requires compensating adjustments in how parties present their FINRA arbitration cases. Learn helpful tips as how to navigate the new selection rules and how to present your compliance testimony from the view of a Public Arbitrator.
12:20p - 1:00p
PANEL: CHIEF COMPLIANCE OFFICERS UNDER SIEGE
Moderator: Stacie Hartman
Schiff Hardin (Chicago, IL)
Recently, the responsibilities of Chief Compliance Officers have increased, as has their importance within the C-suite. Particularly through new regulations under Dodd-Frank, regulators have been focusing their sights on CCOs, making them more accountable than they had been previously. This panel will address risks that CCOs face and provide tools to help CCOs deal with these new challenges. With discussion by:

Brian Rubin - Sutherland Asbill & Brennan (Washington, DC)
Andrew M. Shainberg - Guardian Life Insurance (New York, NY)
 
Session III - Lunch Break-Out Sessions
1:00p - 2:00p
TRACK A:
RECENT DEVELOPMENTS IN SECURITIES LIABILITIES OF ATTORNEYS, CPA'S AND OTHER PROFESSIONALS
Moderator: Judy Burnthorn
Deutsch Kerrigan & Stiles (New Orleans, LA)
Room: EVARTS

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.

1:00p - 2:00p
TRACK B:
FINRA ARBITRATIONS
Moderator: John Worden
Schiff Hardin (San Francisco, CA)
Room: TWEED

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.

1:00p - 2:00p
TRACK C:
WHITE COLLAR CRIME
Moderator: Jack Sharman
Lightfoot Franklin & White (Birmingham, AL)
Room: CARTER

A break-out session on white collar crime issues in the securities industry (insider trading, other financial fraud, Ponzi schemes, hedge funds, etc.)

1:00p - 2:00p
TRACK D:
LITIGATING CUSTOMER DISPUTES
Moderator: Cory Braddock
Snell & Wilmer (Phoenix, AZ)
Room: CHOATE

The group will discuss successful litigation strategies for customer dispute cases. Discussion topics will include: (1) when not to compel arbitration; (2) selecting the optimal arbitration panel; (3) presenting your case to the Panel during pre-hearing motions and pre-hearing briefs; and (4) litigating against sympathetic parties.
 
Session IV
2:00p - 2:20p
THE CONTINUED EROSION OF RULE 10B-5
Alain Baudry
Maslon Edelman Borman & Brand (Minneapolis, MN)
Janus Capital Grp., Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011) held that private parties only have 10b-5 claims against a “maker” of the statement. Evolving caselaw teaches that a defendant can be a "maker" of a statement if he or she has "ultimate authority over the statement or the statement can be attributed --explicitly or implicitly- to that defendant. We will explore the implications of these tests for corporate insiders, who participate in the preparation of corporate filings, and to securities professionals who prepare offering documents.
2:20p - 2:40p
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.
2:40p - 3:00p
REGULATORY AND ENFORCEMENT ACTIONS ARISING FROM FIDUCIARY RELATIONSHIPS
Jim McLoughlin and John Fagg
Moore & Van Allen (Charlotte, NC)
In the last year, DOJ, FINRA, the SEC, DOJ, and DOL have brought high profile regulatory, enforcement and criminal actions based on abuse by a fiduciary or disclosure of a fiduciary’s information. We will explore the government’s theories of prosecution, the large fines and federal prison sentences imposed, as well as steps that can be taken to avoid this widening dragnet.
3:00p - 3:20p
DATA BREACH AND CYBER LIABILITY
John Speer
Bass Berry & Sims (Memphis, TN)
The explosion of electronic data containing confidential information has pushed data security to the forefront of financial institution concern. Data security was once the exclusive domain of the information technology department. Now bank officers and directors are responsible for data privacy policies and practices. How financial institutions respond to data breaches to minimize their risks and considerations regarding insurance coverage for data breach costs will be discussed.
3:20p -3:40p
18 U.S.C. 1519: THE CHANGING FACE OF OBSTRUCTION
John Mitchell
Thompson Hine (Cleveland, OH)
In federal criminal prosecutions, the government has been employing obstruction-related offenses to backfill weak cases with increasing frequency. 18 U.S.C. 1519 is one of the many weapon that prosecutors now employ to expand the government’s ability to charge allegedly obstructive behavior against individuals and corporations. Understanding the way that this statute’s application differs from other obstruction-related offenses is critical to avoiding unwanted governmental scrutiny, particularly in the financial services industry.
 
Closing Statements
3:40p - 3:45p
NETWORK CHAIR
James Miller
Akerman Senterfitt (Miami, FL)
 

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

WHY IS THIS SEMINAR FREE OF CHARGE?

The Network of Trial Law Firms, Inc. is a not-for-profit membership association. It is the 10th largest law firm association in the world with 6,000 attorneys practicing with 23 law firms in 135 offices in the U.S. and Canada.

The goal of the Network’s 23 member law firms is to provide their clients with high-quality legal representation through advances in education, technology, business and science. The Network sponsors activities to accomplish that goal, including research and study of advances in the state-of-the-art of legal representation, and sponsors continuing legal education seminars such as this one for corporate and outside counsel and insurance industry professionals. Our CLE programs aid in the dissemination of new information and effective techniques and technologies to attorneys and insurance professionals.

Since 1993 we have conducted more than 60 CLE seminars. And more than 100 non-accredited continuing legal education videos are posted online at http://trial.com/cle/index.html and are available for free.

The Network believes that high-quality live CLE can be provided free-of-charge to attendees and therefore looks solely to its participating member law firms for financial support in the production of its CLE programs. For that reason, attendees are never charged for any aspect of the CLE programs produced by the Network. For a list of all Network CLE programs, and links to agendas, course book materials, PowerPoint presentations, please see http://trial.com/programs/index.htm.