Clients select Willkie’s premier Securities Litigation & Enforcement practice for the deep litigation experience and regulatory knowledge of our lawyers, located coast-to-coast and abroad. With more than 100 attorneys, the practice groups include leading securities litigators and trial attorneys, senior veterans of the Securities and Exchange Commission, former enforcement officials of the United States Attorney’s Office and the Department of Justice, and other lawyers with front-line regulatory experience. For years, our litigation and enforcement practices have been recognized by both Chambers and Legal 500 as industry standouts.
Our experience is broad and includes:
- Defense of issuers, underwriters, and auditors in securities class actions
- IPO-related securities litigation
- Regulatory enforcement
- Bankruptcy litigation related to complex securities instruments
- Investigations & corporate governance
- Financial reporting
- Insider trading
- Regulated & unregulated funds
- Mergers & acquisitions
- Trading & markets
Securities Litigation
Willkie’s securities litigators have obtained precedent-setting victories in courts across the nation in sophisticated securities disputes and shareholder class actions. The practice group regularly represents issuers, underwriters, and auditors in significant securities class actions and has amassed important victories for clients in securities fraud cases, cases arising out of corporate transactions, internal and government investigations, and the restructuring of distressed companies.
Among other things, we have been at the vanguard of the recent wave of “busted IPO” cases, retained by investment banks to grapple with the fallout from the Supreme Court’s Cyan v. Beaver County decision in 2018. We have advanced innovative arguments in this quickly evolving area of the law.
The practice group also regularly appears in both Delaware and New York courts in litigations involving mergers and acquisitions.
- Successfully resolved a securities class action on behalf of CBS arising from allegations of sexual misconduct by former CBS CEO Les Moonves. After winning dismissal of 17 of the 18 alleged misstatements and all of the individual defendants except Moonves in 2020, we successfully persuaded the court to bifurcate discovery starting first with class certification issues in 2021 and then obtained a favorable settlement in 2022.
- Achieved a significant win, obtaining dismissal of a derivative action against the independent directors of Wells Fargo. The case arose out of alleged failures by Wells Fargo and its Board to comply with several consent orders issued by banking and other federal regulators in the aftermath of its high-profile 2016 customer account fraud.
- Representing more than 30 underwriters to Uber’s IPO in securities class actions in the Northern District of California and California Superior Court. Successfully obtained dismissal of the underwriters in the state court action on the basis of the exclusive federal forum selection clause in Uber’s corporate charter—the decision is the first to apply an exclusive federal forum provision in a company’s charter to non-signatories, such as the underwriters.
- Secured the dismissal of a putative securities class action against nationwide beauty chain Ulta Beauty Inc. and its top executives arising from allegations that the company reshelved returned, used products and sold them as new.
- Represented Facebook, Inc. and its officers and directors in multidistrict and international securities litigations filed in connection with Facebook’s IPO.
- Represented Liberty Tax, Inc. in multiforum securities and derivative litigation arising from alleged conduct of Liberty’s founder and controlling stockholder, John Hewitt.
- Represented Lehman Brothers Holdings, Inc. in litigation concerning repurchase claims arising out of Lehman’s sponsorship of RMBS trusts in the largest RMBS trial in history. Obtained ruling that the RMBS Trustees’ claims, originally asserted in an amount of $37 billion, would be estimated at Lehman’s requested amount of $2.38 billion.
- Achieved dismissal of two class actions against Xerox arising out of Xerox’s terminated transaction with Fujifilm Holdings Corporation and its settlement of other litigation relating to the Fuji transaction.
- Represented Bettina Whyte, the agent appointed for the Puerto Rico Sales Tax Financing Corporation (COFINA), in a first-of-its kind adversary proceeding commenced to resolve a key gating issue in the bankruptcy proceedings for the Commonwealth of Puerto Rico, the largest-ever municipal bankruptcy. The litigation resolved ownership of nearly $20 billion of Puerto Rico tax revenue used to secure bonds issued by COFINA.
- Represented Goldman Sachs & Co. and other underwriters in securities class action over a $12 billion offering of General Electric Co. stock.
- Represented Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC and 14 other underwriters in state and federal securities class action litigation filed in connection with ADT’s IPO. Successfully resolved claims for all 16 of Willkie’s underwriter clients who were given full releases and will pay nothing under the terms of the settlement.
- Represented Clovis Oncology in class, derivative, and regulatory securities matters in the Districts of Colorado and Delaware.
- Represented Goldman, Sachs & Co., Morgan Stanley, and several other underwriters in a purported securities class action litigation filed in connection with Blue Apron’s IPO.
- Secured jury verdict for accounting firm in case arising out of alleged misrepresentations in sports team financial statements.
Securities Enforcement
Willkie’s securities enforcement practice leverages the strengths of Willkie’s powerhouse asset management practice, including our private equity and broker-dealer lawyers, and our elite securities and white-collar litigators to provide comprehensive representation in a wide range of enforcement matters. Led by two former senior leaders from the Securities and Exchange Commission’s Division of Enforcement, the group has successfully represented clients (including prominent asset management firms, broker-dealers, public companies, accounting firms, and self-regulatory organizations, as well as individuals such as executives, managers, employees, and directors) facing regulatory investigations and inquiries from the SEC, DOJ, FINRA, CFTC, DFS, and various state Attorneys General offices, as well as regulators in the United Kingdom.
The group has particular experience in emerging areas of regulatory focus, including cybersecurity, decentralized finance platforms and cryptocurrency, and ESG disclosure. We also have extensive experience in the areas that are established enforcement priorities, such as investment adviser and investment company conflicts and disclosure concerns, public company disclosures, accounting-related issues, insider trading, and broker-dealer compliance.
As sample of our experience includes:
- Represented the world’s largest equity derivatives clearing organization registered with the SEC and CFTC in enforcement proceedings brought by both agencies, and in post settlement remediation.
- Defended Clovis Oncology Inc. and its CEO in SEC and DOJ investigations related to Clovis’s regulatory update announcement in November 2015 concerning the company’s developmental lung cancer drug rociletinib. Obtained a declination from DOJ against the company and its employees and negotiated a favorable SEC resolution, which enabled the company to continue operations and resulted in no bars against any of its officers.
- Represented a Big Four accounting firm in various litigations and regulatory inquiries relating to financial reporting and disclosure by General Electric Company in connection with several high-profile accounting issues at GE.
- Represented a hedge fund and its founder, in connection with settling an SEC investigation concerning the application of the investment company registration rules for the fund's investments in digital assets.
- Represented a registered broker-dealer in an SEC investigation concerning certain Regulation ATS rules in connection with its ATS offering trading for NMS and blockchain securities.
- Represented the co-founders and co-CEOs of a major financial services company in an SEC investigation concerning disclosures about revenue and execution quality which resulted in no individual charges.
- Represented Deerfield Management Company in an SEC resolution based on alleged use of political intelligence. After criminal charges were filed against three current or former Deerfield analysts, Willkie successfully negotiated a resolution with the SEC based on allegations that it failed to establish, maintain, and enforce policies and procedures designed to prevent the misuse of nonpublic information.
- Represented large broker-dealers in SEC investigations and settled enforcement actions involving undisclosed mark-ups and alternative trading systems.
- Represented family office hedge fund in an SEC investigation into fraud and non-fraud allegations concerning an affiliated broker-dealer.
- Defended investment banking firm in an SEC investigation concerning potential kickbacks to other financial institutions for business referrals. The SEC terminated its investigation with no enforcement action and closed the matter.
- Represented a consumer finance company in a non-public SEC investigation into its disclosures. Following completion of an initial document production and a proffer presentation to the SEC, we received a notice of declination indicating the SEC closed its investigation without recommending any action against our client.
Experience
Organizationally, the practice group’s activities revolve around eight practice areas.
Accountants Liability
The firm represents seven of the eight largest accounting firms as well as the accounting profession’s main professional association, the American Institute of Certified Public Accountants, and its newly formed association regarding audits of the financial statements of public companies, the Center for Audit Quality. The group defends the accounting profession in federal securities litigation and class actions, as an amicus participant before the highest-level federal and state courts, in federal bankruptcy proceedings, in SEC and other governmental investigations and proceedings, and in congressional and regulatory testimony.
Audit Committee Investigations & Corporate Governance
The practice group literally wrote the book — Accounting Irregularities & Financial Fraud: A Corporate Governance Guide — on the proper conduct of investigations into accounting improprieties on behalf of audit committees and other special committees of boards of directors. The practice group has been called upon to assist in many of the highest-profile audit committee investigations, including those involving Enron, Xerox, Dell, HealthSouth, the City of San Diego, Fannie Mae, and Cendant. The group has earned accolades for its accomplishments in efficiently uncovering financial fraud — for example, its groundbreaking investigation into accounting fraud at Cendant Corp. was described in a Fortune magazine cover story as "remarkable." The group’s clients in this area include a former Chairman of the U.S. Senate’s principal investigative committee. The group’s membership is regularly called upon to publish articles, speak at conferences, and otherwise assist with improvements to audit committees and corporate governance generally.
Financial Reporting
The mainstay of the practice group’s activity is the defense of public companies, accounting firms, investment banks, officers, directors, audit committees, and boards of directors in securities litigation and enforcement proceedings arising out of financial reporting. The depth of the group’s experience in financial reporting gives it a significant advantage against almost any adversary — civil or govern— as the practice group’s experience brings to the fore a level of legislative and regulatory knowledge often not shared by the other participants.
Regulated & Unregulated Funds
With an asset management practice headed by the SEC’s former Director of the Division of Investment Management, the firm brings particular depth and experience to litigation and proceedings involving asset management, including hedge funds. The firm is positioned to provide in-depth experience particularly in matters involving the Investment Company Act of 1940 and the Investment Advisers Act.
Insider Trading
Much of the practice group’s recent activities and efforts have been devoted to handling governmental investigations into insider trading. The group’s client base includes a large number of hedge funds and other focal points of governmental attention, and the group has defended numerous investigations involving so-called "expert networks" and alleged improper use of corporate secrets and confidences. Practice group members active in this area include several former prosecutors from the United States Attorney’s Office for the Southern District of New York. One practice group member’s recent investigative efforts involving insider trading have been profiled in James Stewart’s 2011 book, Tangled Webs.
Mergers & Acquisitions
The practice group regularly appears in both Delaware and New York courts in litigations involving mergers and acquisitions. Recent M&A litigations include those involving Kenneth Cole, J. Crew, MacAndrews & Forbes, and Allied World.
Regulatory Enforcement
With membership that includes senior former enforcement veterans of the SEC, the group’s enforcement practice brings an unparalleled depth of experience to a wide spectrum of enforcement proceedings. These include enforcement proceedings brought by the SEC, FINRA, the PCAOB, and other regulatory bodies both within and outside the United States. The experience of the group’s enforcement veterans includes regulatory investigations involving public companies, hedge funds, audit committees, boards of directors, broker-dealers, commercial banks, and accounting firms. The group has particular experience in structured finance, derivatives, credit default swaps, other mortgage-related instruments involved in the financial crisis, broker-dealer compliance, and investigations into trading practices.
Trading and Markets
This area of the group’s practice focuses on trading rules, derivatives, alternative trading systems, hedge funds, and broker-dealer regulations and compliance. Clients include major securities firms, equity and options market-making desks, securities and derivatives markets, electronic and internet-based trading systems, and hedge funds. The group has been particularly active in investigations by the SEC, FINRA, and securities exchanges.