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 is valuable to the new attorney as well.

 

This year's presentation includes discussions of litigating with the SEC, internal investigations, the continuing role of the states in securities enforcement, and recent developments in securities class action litigation. 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 P. Bergers, District Administrator, U.S. Securities and Exchange Commission, Boston

David C. Boch, Bingham McCutchen LLP, Boston

Peter A. Chavkin, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York

Frances S. Cohen, Bingham McCutchen LLP, Boston

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

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

Steven W. Hansen, Bingham McCutchen LLP, Boston

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, U.S. Securities and Exchange Commission, Washington, D.C.

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

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

Richard D. Owens, Latham & Watkins LLP, New York; former Chief, Securities Fraud Unit, U.S. Attorney's Office, Southern District of New York

Brian E. Pastuszenski, Goodwin Procter LLP, Boston

Bette J. Roth, Mediator, Newton, Massachusetts

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

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

Jeffrey J. Szafran, Managing Director, Huron Consulting Group LLC, Boston

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

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

ALI-ABA Staff Attorney: Thomas M. Hennessey, Assistant Director, Office of Courses of Study

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Note: The discussions include at least one full hour on ethics and professional responsibility issues, accepted as such by most, but not all, MCLE jurisdictions.

Program Schedule

Thursday, June 7, 2007

• 7:30 a.m. Registration and Continental Breakfast
• 8:30 a.m. Opening Remarks and Course Overview
• 8:45 a.m. SEC Enforcement Developments 2006-07 - Ms. McKown and Messrs. Bergers, Saparoff, and Sharkey; Commentators: Messrs. Mixter, Newkirk, Owens, and Winer
• * Core Program Areas: Financial fraud, issuer disclosure, and executive compensation, including backdating of options; FCPA; Regulated entities and hedge funds; Elder fraud
• * Current Issues: Issuer penalties; Suing attorneys and other gatekeepers; Auditor independence; E-mail retention and production; Payment to mutual funds by vendors
• * 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--Gatekeeper Role: Duty to report securities violations under state and federal law
• 11:00 a.m. Networking Break
• 11:15 a.m. Litigating with the SEC's Division of Enforcement; State Securities Investigations - Messrs. Mixter and Winer; Commentators: Ms. McKown and Messrs. Bergers, Newkirk, Owens, and Saparoff
• * How the SEC Conducts Litigation: District Court proceedings; Administrative trials; Litigating an administrative proceeding; Analysis of fiscal year initial administrative decisions; Future trends
• * State Securities Investigations: The effect 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. Conducting Internal Investigations: Best Practices and Criminal Implications - Mr. Hansen; Commentators: Justice Jacobs; Ms. McKown; and Messrs. Bergers, Chavkin, Newkirk, Owens, Pastuszenski, and Szafran
• * Investigations on Behalf of a Corporation: Defining the mission: Who is the client and what is the purpose of the investigation? Will client commit to full cooperation? Structuring the investigation: scope and direction; How broad? Should evidence outside company be sought? Responding to a "whistle-blower" or a shareholder complaint; Investigations where conduct of senior management and/or members of the board of directors is at issue
• * Independence of Investigation
• * Cooperation with the Government: Should government be approached before inquiry is undertaken? What is required to be viewed as cooperating? Mitigating the negative consequences of cooperation; Privilege and work product; Preservation of privilege; Selective waiver; Joint defense agreements; What are the benefits of cooperating?
• * Considerations in Conducting the Investigation: Preservation of documents; Electronic data issues; Ethical obligations when advising employees with whom you want to speak; Should information be provided to a witness in advance? Role of counsel for witness; Notes and interview memoranda; Form of report
• * Defending an Internal Investigation: Representing an individual; To cooperate or not to cooperate; Fifth Amendment considerations; Preparing for the interview; Access to documents and other information
• * Investigation on Behalf of a Special Litigation Committee: How does it differ from other investigations?
• * Independent Monitors
• * Obligation To Reform the Company in the Future
• * Ethics and Professional Responsibility Issues
• 2:30 p.m. Networking Break
• 2:45 p.m. Broker-Customer Securities Arbitrations and Mediations: How To Handle Them Effectively and Successfully - Mr. Boch; Commentator: Ms. Roth
• * 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; Mediation; Pre-hearing exchange; Hearing; Post-hearing process
• * The Elements of Claims Brought by Customers, including churning, unsuitability, unauthorized trading, misrepresentations, and failure to recommend a sale
• * New Theories, New Respondents: Dual registrants; Investment advisors and mutual funds
• * Damages Theories
• * The Mediation Option (process overview, considerations, benefits):
• * Timing possibilities: pros and cons of early intervention (pre-discovery) vs. an end-game mediation (using postponed hearing dates)
• * Selecting the right mediator for the dispute (considerations include the client's emotions, the complexity of the dispute, the mediator's background, perceptions of neutrality)
• * Mediation strategies: preparation (identifying client's interests, identifying key issues to use in negotiation, deciding whom and what to bring to the mediation session), the approach to negotiation (how to evaluate the present proposals, what to share with mediator, how to keep the process moving forward), reaching resolution and memorializing the agreement
• 4:00 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
• 4:45 p.m. Questions and Answers
• 5:00 p.m. Adjournment for the Day

Friday, June 8, 2007

• 8:00 a.m. Continental Breakfast
• 8:30 a.m. Class Actions, Derivative Suits, Mutual Fund Litigation, and Other Civil Proceedings - Mss. Cohen, McGeever, and Savett and Messrs. Benedict, DeValerio, Dougherty, Hoffman, McKeige, Pastuszenski, Saparoff, and Torpey; Commentator: Justice Jacobs
• * Overview: The new trends
• * Lead Plaintiff/Lead Counsel Issues; Pre-Filing Investigations; State Court Filings; Institutional Investors; Confidential Sources
• * Decline in the Number of Cases
• * Increase in the Settlement Value
• * Decline in the Earnings Case
• * Effects of Sarbanes-Oxley
• * Securities Litigation Uniform Standards Act (SLUSA) and 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; Scheme/Manipulation Allegations
• * 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: Is it becoming more difficult?
• * Loss Causation: Has Dura made a difference?
• * SOX Statute of Limitations
• * Litigation Involving Mutual Funds and Investment Advisers
• * Accountants' Liability
• * Options-Related Claims: Contours, potential venues, potential defenses
• * Damages
• * Settlement and Settlement Administration Issues; Regulatory Components; Fair Funds
• * Recent Settlement Data
• * Changes to D&O Insurance; Severability
• * Effect of Insolvency and Bankruptcy Issues
• * Contribution and Indemnification; Actions To Enforce Advancement
• * Derivative Cases: New Delaware decisions
• * Section 220 Demands for Documents: What is a "proper purpose"? What is share ownership requirement?
• * ERISA Litigation
• * Compensation Cases
• Ethics and Professional Responsibility Issues
• 10:30 a.m. Networking Break
• 10:45 a.m. Class Actions, Derivative Suits, Mutual Fund Litigation, and Other Civil Proceedings (continued)
• 12:00 noon Lunch Break
• 1:15 p.m. Class Actions, Derivative Suits, Mutual Fund Litigation, and Other Civil Proceedings (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:

The course was excellent. I very much enjoyed and appreciated (somewhat to my surprise) the balanced perspectives of the panels, and I thought the speakers did a very good job of respecting one another's time at the microphone. The written materials are invaluable. I found the program very helpful and informative.

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!

Very good course; comprehensive materials. The faculty was well prepared and showed dedication and interest in the seminar and in their desire to transmit their knowledge to the attendees.

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.

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