ALI-ABA

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What You Will Learn

This annual advanced course of study, comprising 12 full hours of instruction, is designed for outside and in-house counsel, members of the accounting profession, compliance officers within the securities and commodities industries, members of government agencies, and others who have a current interest in securities litigation. The presentations primarily examine issues confronted by the trial practitioner. However, attention also is directed to strategies used to avoid litigation and to litigation management techniques. While the level of instruction is advanced, sufficient attention is given to fundamentals so that the course also is valuable to the new attorney.

This year’s presentation includes discussions of the continuing effects of Sarbanes-Oxley on securities litigation, the emerging role of the states in securities enforcement, and recent cases and investigations relating to mutual funds and their affiliates. Instruction is by lecture and panel discussion. Time is reserved throughout the program to address written questions submitted by the registrants.

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Planning Chairs

Peter M. Saparoff, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston

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Faculty

James N. Benedict, Milbank, Tweed, Hadley & McCloy LLP, New York

David C. Boch, Bingham McCutchen LLP, Boston

Glen DeValerio, Berman DeValerio Pease Tabacco Burt & Pucillo, Boston

Thomas J. Dougherty, Skadden, Arps, Slate, Meagher & Flom LLP, Boston

Robert C. Friese, Shartsis Friese LLP, San Francisco

Christian M. Hoffman, Foley Hoag LLP, Boston

Jack B. Jacobs, Justice, Delaware Supreme Court, Wilmington, Delaware

Elizabeth M. McGeever, Prickett, Jones & Elliott, P.A., Wilmington, Delaware

Douglas M. McKeige, Bernstein Litowitz Berger & Grossmann LLP, New York

Joan E. McKown, Chief Counsel, Division of Enforcement, Securities and Exchange Commission, Washington, D.C.

Christian J. Mixter, Morgan, Lewis & Bockius LLP, Washington, D.C.; former Chief Litigation Counsel, Division of Enforcement, Securities and Exchange Commission

Thomas C. Newkirk, Jenner & Block LLP, Washington, D.C.; former Associate Director, Division of Enforcement, Securities and Exchange Commission

William H. Paine, Wilmer Cutler Pickering Hale and Dorr LLP, Boston

Brian E. Pastuszenski, Goodwin Procter LLP, Boston

Walter G. Ricciardi, Deputy Director, Division of Enforcement, and District Administrator, Securities and Exchange Commission, Boston

Sherrie Raiken Savett, Berger & Montague, P.C., Philadelphia

Patrick J. Sharkey, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston

Michael D. Torpey, Orrick, Herrington & Sutcliffe LLP, San Francisco

Samuel J. Winer, Foley & Lardner LLP, Washington, D.C.

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Program Schedule

Thursday, May 4, 2006

• 7:30 a.m. Registration and Continental Breakfast
• 8:30 a.m. Introductory Remarks and Course Overview
• 8:45 a.m. SEC Enforcement Developments 2005 — Ms. McKown and Messrs. Ricciardi, Saparoff, and Sharkey; Commentators: Messrs. Friese, Mixter, Newkirk, and Winer
• Introduction
• Core Program Areas
• Financial fraud, issuer disclosure, and executive compensation
• Insider trading
• Regulated entities, SROs, and hedge funds
• "Bottom of the market" and offering fraud
• Current Initiatives
• Gatekeepers: auditors, lawyers, and boards of directors
• Senior executives: being accountable
• Risk-based investigations
• Process
• Sanctions and settlements
• Coordination with other regulators and criminal authorities
• Practical advice on how to deal with the Staff and get your points across to the Commission effectively
• Ethics, Professional Liability and Professional Responsibility Issues
• 11:00 a.m. Networking Break
• 11:15 a.m. SEC Administrative Trials; State Securities Investigations — Messrs. Mixter and Winer; Commentators: Ms. McKown and Messrs. Friese, Newkirk, Ricciardi, and Saparoff
• SEC Administrative Trials
• Amendments to rules of practice and their impact
• Analysis of fiscal year initial decisions
• Discussion of the course of a typical administrative proceeding
• Future trends
• State Securities Investigations
• The impact of more active state enforcement efforts
• Coordination of state and federal securities enforcement
• State securities enforcement as another layer of regulation
• 12:15 p.m. Lunch Break
• 1:30 p.m. Takeovers: Litigation Developments in Contested Deals and Proxy Battles; Recent Delaware Decisions — Mr. Dougherty and Ms. McGeever; Commentator: Justice Jacobs
• Recent developments in takeovers, derivative litigation, and proxy contests
• Delaware decisions on corporate governance, mergers and acquisitions, and going-private transactions
• Standards of judicial review
• Practice pointers: Count of Chancery; Delaware Supreme Court
• Ethics and professional responsibility issues
• 2:15 p.m. Networking Break
• 2:30 p.m. Conducting Internal Investigations: Best Practices; Criminal Implications — Mr. Friese; Commentators: Ms. McKown; and Messrs. Newkirk, Pastuszenski, and Ricciardi
• Complications where alleged fraudulent conduct gives rise to involvement of civil and criminal authorities
• Parallel proceedings
• Representing the company
• Representing the individuals
• Fifth Amendment issues
• Markedly different definitions of "cooperation" by civil/criminal authorities
• Understanding the prosecutorial focus: factors considered by the Department of Justice and other prosecutors
• Ethics and professional responsibility issues
• 3:30 p.m. Broker-Customer Securities Arbitrations: How To Handle Them Effectively and Successfully — Mr. Boch; Commentator: Mr. Saparoff
• The ten critical steps of the arbitration process: case evaluation; selection of the forum; statement of the claim; response to the statement of claim; selection of arbitrators; discovery process; pre-hearing exchange; mediation; the hearing; the post-hearing process
• The elements of claims brought by customers, including churning, unsuitability, unauthorized trading, misrepresentations, and failure to recommend a sale
• Use of experts: how to get the most out of your expert; how to cross-examine your opponent’s expert
• Damages theories, including calculating damages in a down market
• Investment advisor/mutual fund and money management cases
• Research/investment banking conflict of interest cases
• When are arbitrators interested?
• 4:45 p.m. Questions and Answers
• 5:00 p.m. Adjournment for the Day

Friday, May 5, 2006

• 8:00 a.m. Continental Breakfast
• 8:30 a.m. Class Actions, Derivative Suits, Mutual Fund Litigation, and Other Civil Proceedings — Mss. McGeever and Savett and Messrs. Benedict, DeValerio, Dougherty, Hoffman, McKeige, Paine, Pastuszenski, Saparoff, and Torpey; Commentator: Justice Jacobs
• Overview: the new trends
• Lead plaintiff/lead counsel issues; pre-filing investigations; state court filings:
• institutional investors
• Impact of Sarbanes-Oxley; use of SOX disclosures
• Securities Litigation Uniform Standards Act (SLUSA): removal issues
• Interplay of civil proceedings: with criminal proceedings, internal investigations,
• SEC proceedings, and PCAOB proceedings
• New theories of liability under Rule 10b-5; use of 10b-5(a) and (c); direct vs. indirect
• liability
• Recent trends in motions to dismiss/pleading standards in Rule 10b-5 and §11 cases
• Due diligence defense after WorldCom
• Developments re "Safe Harbor"
• Discovery considerations: how effective is the stay?
• Class certification
• Loss causation
• SOX statute of limitations
• Litigation involving mutual funds and investment advisers
• Damages
• Settlement and settlement administration issues; regulatory components; Fair Funds
• Recent settlement data
• Changes to D&O insurance; severability
• Impact of insolvency and bankruptcy issues
• Contribution and indemnification
• Derivative cases: new Delaware decisions
• ERISA litigation
• Compensation cases
• Ethics and professional responsibility issues
• 10:45 a.m. Networking Break
• 11:00 a.m. Class Actions, etc. (continued)
• 12:00 noon Lunch Break
• 1:15 p.m. Class Actions, etc. (continued)
• 3:00 p.m. Questions and Answers; Closing Remarks
• 3:15 p.m. Adjournment

Total 60-minute hours of instruction: 12

Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter

Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments; development of proficiency in performance of intricate and complex legal tasks within a narrow area

Level of Instruction: Advanced

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Here's what registrants have said about this course:

Mr. Saparoff put together an extraordinarily qualified roster of speakers and organized an extremely informative course. As always, this was a very high-quality course—insightful and valuable to me. Thank you!

This was by far the best CLE I have ever attended. The content and materials were excellent. I will immediately be able to take advantage of the information that I learned, and my clients will benefit. The panel was excellent!

I have practiced law for more than 20 years and I have not seen a better faculty. The speakers were competent, engaging and focused. The information was valuable. I expect that I will be using what I learned here a great deal.

As a state securities regulator, I took this course for two purposes: (1) to get a broad overview of securities litigation beyond blue sky law and (2) to prepare to enter the private sector as a securities litigator. The course has done an outstanding job with respect to both goals. I was very satisfied and look forward to future ALI-ABA seminars. Thank you.

I rely on the insight and updates provided by these ALI-ABA courses to keep me in touch with the industry and what it is doing. This course offered a balance of government and industry with the light-hearted but constructive input of the judiciary.

Oftentimes my attendance at ‘CLE’ seminars is out of obligation and my time at the conferences is spent fighting back the yawns, wishing for a crossword puzzle and watching my watch. What a refreshing change to have a conference where staying awake is not an issue. Kudos to the panel and ALI-ABA. A dynamic, well-informed panel provided informative, up to date discussion with a touch of humor and I, for one, appreciate their efforts.

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