PHILLIPSON & URETSKY, LLP'S PRACTICE AREAS INCLUDE:
Securities Litigation, Arbitration & Regulatory Enforcement
Most cases fall into one of two distinct categories: (1) A government proceeding, which is either criminal or regulatory in nature; or (2) a private proceeding, known as a “civil” proceeding. When the SEC, Department of Justice or some other government agency is not actively involved in the litigation, and instead two or more private parties are engaged in a dispute, it is a private civil dispute. While some of these cases are heard before courts, a substantial amount of securities litigation is actually conducted through the arbitration process.
In fact, FINRA’s securities arbitration forum is the most widely used dispute resolution method used by the securities industry. Securities arbitrations can, at times, seem quite similar to courtroom trials, but with a few crucial differences. Discovery is more limited, three arbitrators are selected instead of several more jurors, and the traditional courtroom rules do not apply. The most common example is a “customer complaint,” where an investor or group of investors sues their brokerage firm claiming that certain transactions were either unsuitable, unauthorized, or that various other securities laws and stock-trading rules were violated. The process begins with the customer's attorney filing what is known as a Statement of Claim, after which the accused brokerage firm or other defendant to the securities arbitration submits an Answer or Motions. The parties then engage in the discovery process, which often requires that the arbitrators decided motions. The arbitration panel is itself selected early on in the case. Finally, unless the case settles, there is an arbitration hearing at one of FINRA's hearing offices, where evidence is presented, testimony is taken, opening and closing arguments are made, much like at trial.
In addition, there is a subset of FINRA arbitrations that do not involve customers suing brokerage firms, but rather involve firms suing other firms or brokers. These are known as “intra-industry arbitrations” and usually involve requests for injunctive relief. That is, when a broker leaves one firm for another, they often take the clients they formerly serviced with them to their new firm. The former firm views these clients as its clients, while the broker views these clients as the broker's clients. This dispute is often resolved by FINRA arbitrators in expedited arbitration proceedings.
Our attorneys focus on defending securities brokers, broker-dealers, executives, and other financial advisors involved in all types of securities arbitrations.
FINRA member brokerage firms are required to report customer complaints against registered Financial Advisors, and these “marks” on BrokerCheck (and on your Form U4 or Form U5 and with the CRD) can pose a significant negative impact to your reputation and business success. When those complaints are false or without merit, the repercussions on your relationships with existing and potential clients can be unjust, unwarranted and ruinous.
FINRA expungements are governed by FINRA Rule 2080 (“Obtaining an Order of Expungement of Customer Dispute Information from the Central Registration Depository System”) and FINRA Code of Arbitration Procedure For Customer Disputes Rule 12805 (“Expungement of Customer Dispute Information Under Rule 2080”). Among other things, in order to obtain an expungement, you must be able to demonstrate that:
(A) the claim, allegation or information is factually impossible or clearly erroneous;
(B) the registered person was not involved in the alleged investment-related sales practice violation, forgery, theft, misappropriation or conversion of funds; or
(C) the claim, allegation or information is false.
The standards are high, but so are the stakes when it comes to your professional reputation. Phillipson & Uretsky, LLP is knowledgable and experienced in handling expungements on behalf of financial professionals. If you are a Financial Advisor and have questions regarding disclosures that appear on your Form U4, Form U5 or on FINRA’s BrokerCheck, please give us a call to discuss whether the expungement process may be appropriate.
The attorneys at Phillipson & Uretsky, LLP are experienced in the defense of securities fraud matters, whether in the context of litigation, arbitration or regulatory enforcement actions; not only that, but we are good at what we do.
Founding partners Jonathan C. Uretsky and Faun M. Phillipson have spent the entirety of their careers defending a variety of matters involving allegations of securities fraud. Essentially, securities fraud may include claims or charges of manipulation or deception affecting the purchase or sale of a security and usually includes the misrepresentation or omission of material information. These cases often also involve claims of churning, suitability, overconcentration and unauthorized trading. The two primary federal laws governing the securities industry, ostensibly to serve and protect the investing public, are the Securities Act of 1933 and the Securities and Exchange Act of 1934. We say “ostensibly” because, in our experience, the federal and state common law claims and statutory actions often are used as a sword, rather than a shield.
If you have been accused of, or find yourself named in a legal matter that involves, securities fraud, mail fraud, wire fraud, telemarketing fraud, internet fraud or any other violations of state or federal securities laws, you will want to take these allegations very seriously and contact an attorney who knows what he or she is doing. Phillipson & Uretsky, LLP is the cutting-edge firm that gets results.
White Collar Crime
While criminal law is often portrayed on television as involving murders and assaults, white collar crime constitutes a substantial portion of all criminal law cases in the country. White collar cases are actually defined more by what they lack rather than by any true characteristic. That is, white collar crimes do not involve physical violence. They almost always involve financial matters. White collar crime is a term generically linked to any number of various offenses including stock promoter fraud, “pump and dumps,” market manipulation, wash trading, money laundering, insider trading, embezzlement, securities fraud, Racketeer Influenced and Corrupt Organizations Act (RICO) offenses, accounting and many other financial crimes.
In some respects, white collar crimes are similar to any other type of crime. The rights that are in place to protect “regular” criminal defendants apply equally to white collar criminal defendants.
With that said, the nature of the prosecution is almost always different in the white collar context. Most notably, white collar offenses are often raise far more complicated legal issues. The prosecutions are often brought by the U.S. Attorney's Office, which is part of the United States Justice Department. To the extent that white collar crime prosecutions are brought by the local authorities, it is more often by the state Attorney General than by the local District Attorney's Office. Some of the more notable recent white collar crime cases involved Bernie Madoff, Jeffrey Skilling, and Richard Scrushy.
Unlike other criminal cases, which can go to trial fairly quickly, investigations into white collar crime can take several years, and follows a remarkably convoluted process. For example, it is critical to understand that white collar criminal defendant may be one of the targets of a criminal investigation, and have no idea the investigation is underway until it is too late, and formal charges are filed. In the interim, they may even be asked to give testimony by other agencies in parallel proceedings, for example pursuant to an SEC subpoena. Even if a person believes that they are only a “witness,” and not the “target” of an investigation, experienced white collar defense attorneys should be consulted, especially before having any dealings with law enforcement officers.
Our attorneys focus on defending individuals and companies, from executives to stock promoters to others accused of white collar crime involved in all types of white collar criminal proceedings and forums.
PULLP is known in the U.S. and Canada as a law firm specializing in serving the needs of small cap and micro cap companies. These small businesses face the sudden pressure to operate and report as public companies even though their internal resources are often not quite sufficient to the task. Our attorneys have particular expertise in the microcap area, and have assisted microcap public companies with tasks as diverse as implementing a basic set of corporate guidelines and procedures to defending federal lawsuits against toxic, predatory lenders seeking to convert on usurious notes. We partner with our clients to achieve client goals. We find that officers of microcap companies often would like to spend more time running their business and less time dealing with SEC regulations or auditor issues. We allow a busy CFO or CEO to use their time building a business and making money for investors while we take care of legal, regulatory and compliance matters. Most crucially, we are well attuned to how to manage large legal risks subject to the constraints of a typical microcap company’s limited budget.
Our litigators are commercial trial lawyers at the core, and are called upon by national and global companies and financial institutions, and their directors and officers, to navigate effectively through all sorts of business disputes. We deliver an unmatched ability to field a team of uniquely skilled litigators without the shackles of bureaucracy experienced at much larger firms. While we understand that pursuing a trial or appeal may be the only avenue of recourse in certain matters, our litigators recognize that there are often multiple solutions to any given business controversy. We employ practical and insightful case solutions in addition to progressive billing strategies to achieve our clients' goals. Our clients appreciate that we staff matters leanly, but appropriately. We also pride ourselves in employing the latest technology in evidentiary presentation, electronic discovery, and case management. We typically match our skills in our matters against, or in tandem with, the nation's largest law firms.
Our corporate and transactional practice covers a wide range of commercial contract matters, including drafting, negotiating and reviewing employment, consulting and severance agreements, as well as manufacturing, supply and distribution agreements. Our commercial contracts practice group works with various clients, from SEC registered investment advisers to environmental consultants to international suppliers and distributors. We are experienced in contract drafting and review, and provide practical solutions to difficult contractual negotiations.
As part of its comprehensive finance and banking practice, PULLP represents financial institutions in a broad range of litigation matters. Our lawyers represent commercial banks, mortgage companies, credit card companies, consumer loan companies, and other lenders in court and in other dispute resolution forums. We defend them against business and consumer account claims, lender liability claims, breach of privacy claims and an array of statutory claims (including class actions), and assert their rights in such matters as commercial collection and adversary proceedings in bankruptcies. Whether representing financial institutions as plaintiffs or defendants, our goal is to pursue the course that is in our client's best interests. We are vigorous advocates at trial, and yet are frequently able to reach a favorable settlement of issues at early stages. A key value-added aspect of our counsel is that we thoroughly understand the banking industry. Our many collective years of working with financial institutions enable us to effectively understand our clients' businesses and their problems and to present complex, technical financial issues understandably to juries of non-specialists. This institutional knowledge is frequently a major advantage to our clients in what can be emotional disputes in which we assert their rights against borrowers, or defend them against class action claims aimed at securing a settlement from "deep pockets" defendants.
Our labor and employment law practice focuses solely on the representation of employers exclusively in the full range of litigation matters that can arise out of the employer-employee relationship. We have successfully handled a variety of alleged violations of federal and state laws, internal fraud and fraud charges, theft of trade secrets, securities violations and financial crime investigations, restrictive covenants and protection against unfair competition, workplace training, white collar, government enforcement and general employment litigation claims and cases.
We provide legal advice to the boards of directors of companies of all sizes, including audit committees and special committees, and advise individual directors and officers on their legal obligations under federal and state laws and regulations. Our involvement ranges from attendance at meetings to ensure that appropriate legal requirements are considered, to special situations such as conducting corporate-wide investigations and advising special committees of independent directors as to their fiduciary obligations in connection with the negotiation of the sale of a business to inside investors.
Our lawyers represent large and small public and private companies in a variety of industries, including, among others, chemicals, computers, consulting, cosmetics, e‑commerce, electronics, entertainment, engineering, financing, gaming, medical services, medical devices, merchandising, mineral extraction, pharmaceutical, retailing, securities, textile industries and specialized transportation. In each area, we use our understanding of our clients’ businesses to better serve their needs. We regularly assist clients who engage in mergers, asset and stock acquisitions, and sales in these and other industries. Our representation of clients in these transactions often leads to continuing work in the negotiation and review of key commercial contracts and other general corporate legal work.
PULLP represents clients in all aspects of litigation in Bankruptcy Court. Our attorneys are savvy in prosecuting and defending the wide array of claims that can and do arise in the course of a case under the Bankruptcy Code. We have counseled clients in bankruptcy litigation impacting a variety of industries, including financial and professional services, real estate, healthcare, industrial, manufacturing, retail, technology, transportation and agriculture, among others.
Directors & Officers Liability
In today's business climate, directors and officers need to make certain that all their insurance policies are well suited to their individual concerns and that they are adequately protected should an issue arise. Staying on top of what is available in the marketplace is important to securing adequate coverage. We assist clients in evaluating, negotiating and enforcing their directors and officers, cybersecurity, fiduciary, employment practices and other management liability insurance policies. Our clients range from large corporations to small, private and not-for-profit entities, as well as boards of directors seeking assistance with their insurance programs. We provide independent advice – meaning we have no financial stake in the amount of insurance you buy or in the insurers you select. Our only interest is in helping you obtain the broadest protection possible.
Errors & Omissions Liability
Consultants, insurance brokers, accountants, attorneys, investment advisors and other professionals are held to a high standard of care when providing client services. Our clients often come to us with problems before the filing of a lawsuit. PULLP works with licensed professionals to manage these problems early and then provide an aggressive litigation defense when necessary. We represent licensed professionals in errors & omissions as well as malpractice litigation.
Intellectual Property Litigation
The successful management of a copyright ownership and/or infringement dispute requires not only a thorough understanding of the distinctiveness of federal copyright law (including the numerous defenses available to alleged copyright infringers), but also its interaction with related federal laws (such as trademark) and numerous state laws, including those governing ownership of works of expression, the creation of security interests and the protection of so called "bare" ideas or works of expression which have not yet been "fixed in a tangible medium."
Class Actions and Shareholder Derivative Suits
Class Action securities litigation is a multifaceted and highly specialized area of practice. The cases essentially come in two forms: class actions and shareholder derivative claims. Both are, collectively, referred to as class securities claims. These cases typically involve high stakes and sensitive matters. Class securities claims present the risk of substantial damage awards and adverse publicity, along with other exposure. Our attorneys have successfully defended clients in securities class actions. Specifically, we have represented public and private companies as well as directors and officers, and even their corporate counsel. We have significant experience applying the recent leading Supreme Court decisions applying securities laws, such as Dura Pharmaceuticals v. Broudo, Merrill Lynch v. Dabit, Tellabs v. Makor Issues & Rights, Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., Morrison v. National Australia Bank Ltd., Matrixx Initiatives, Inc. v. Siracusano and Janus Capital Group, Inc. v. First Derivative Traders.
We typically wage an aggressive defense to class claims of securities violations. This includes investigating the facts, interviewing the witnesses, filing motions to dismiss, motions to stay and/or stage discovery, and when appropriate, we vigorously oppose class certification. Moreover, we always work with our clients’ directors and officers insurance carriers to ensure that we are following guidelines and following agreed to litigation plans.
Construction Related Liability
We represent clients in all phases of construction projects, including contract negotiations, finance, management claims, arbitration and litigation. We understand the fundamentals of construction law and litigation, such as scope-of-work disputes and construction failures. We strive to remain current with regard to significant new developments in the law such as multiple prime contracting and architect's and construction manager's liabilities. The firm has had experience with respect to surety's liability for consequential damages, lender liability, contractors' claims against their insurance carriers, and delays and disruptions.
Our lawyers have successfully argued numerous appeals and our clients benefit from our knowledge and experience based on many years of acting as trial and appellate counsel. We handle both state and federal appeals, as well as challenges to arbitration awards where appropriate.
Investment Fund Litigation
PULLP works closely with a number of leading private investment and management groups which provide financing solutions for high potential small-cap and micro-cap enterprises. These funds specialize in helping companies quickly gain the financial assistance they need, either through new small business loans or consolidating existing business loans and extending the term. PULLP helps these funds work with the underlying companies' management teams to realize continued growth. When necessary, PULLP takes appropriate action through the court system to protect these funds' loans and investments.
Call Phillipson & Uretsky, LLP at (212) 571-1255 to learn more.