Corporate Defense and Disputes

Important developments in U.S. securities law, white collar criminal defense, regulatory enforcement and other emerging issues impacting financial services institutions, publicly traded companies and private investment funds

David Picon

David Picon

Partner

David A. Picon is a seasoned advocate for financial services firms, as well as public and private companies. He is a partner in the Litigation Department and a trial lawyer who has led dozens of trials and arbitration hearings, primarily for financial services firms. David’s practice covers a range of matters, including complex securities issues, fraudulent transfer actions, alleged Ponzi schemes, and contract and employment-related disputes. He is also co-chair of the Financial Services Group and a member of the Corporate Defense Group.

David appears in numerous judicial and administrative forums and represents financial services firms in investigations brought by the SEC, FINRA and other regulatory bodies. He also has broad experience in defending companies and directors in shareholder derivative actions and breach of fiduciary duty claims by shareholders.

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U.S. DOL Issues Final Rule Defining Fiduciary Investment Advice

Today, the U.S. Department of Labor released its highly-anticipated Final Rule and Exemptions addressing when a person providing investment advice with respect to an employee benefit plan or individual retirement account is considered to be a fiduciary under the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. The new rule is … Continue Reading

DOL Open to Changing Fiduciary Proposal, But Some Press for it to be Scrapped

As we wrote about here, in April the Department of Labor issued its highly anticipated, re-proposed regulation addressing the standard of care for broker-dealers and other financial professionals who provide retirement investment advice. Since its release, the proposed rule has come under fire from critics who maintain that the DOL proposal, while well intentioned, will ultimately … Continue Reading

The Battle Lines Continue to Form Over the DOL’s Fiduciary Proposal

Earlier this month, the Securities Industry and Financial Markets Association (“SIFMA”) released its “Proposed Best Interests of the Customer Standard for Broker-Dealers” – an alternative to the U.S. Department of Labor’s (“DOL”) proposed regulation addressing the standard of care for broker-dealers and other financial professionals who provide retirement investment advice.  Unlike the DOL’s proposed rule, … Continue Reading

FINRA CEO Criticizes DOL Fiduciary Proposal (Again)

Last week, Richard Ketchum, Chairman and CEO of the Financial Industry Regulatory Authority (“FINRA”), doubled-down on his recent criticism of the U.S. Department of Labor’s (“DOL”) proposed regulation addressing the standard of care for broker-dealers providing retirement investment advice. Speaking at FINRA’s annual conference, Chairman Ketchum said that, while he supports a “best interests of … Continue Reading

FINRA Chairman: SEC Should Lead on Uniform Fiduciary Standard

On May 1, 2015, Richard Ketchum, Chairman and CEO of the Financial Industry Regulatory Authority (“FINRA”), reaffirmed his support for a uniform fiduciary standard for broker-dealers. Testifying before the House Financial Services Committee, Chairman Ketchum emphasized that the U.S. Securities and Exchange Commission (the “SEC”) – and not the U.S. Department of Labor (the “DOL”) … Continue Reading

SEC Approval of New FINRA Public Arbitrator Rule Imposes New Limits on the Pool of Potential Public Arbitrators

The SEC recently approved FINRA’s proposed new rule changes to the definitions of public arbitrator (FINRA Rules 12100(u) and 13100(u)) and non-public arbitrator (FINRA Rules 12100(p) and 13100(p)), after receiving over 300 comment letters in addition to two letters from FINRA responding to the comment letters.  The new rule significantly limits the pool of potential … Continue Reading

FINRA Cybersecurity Report Highlights Risks, Best Practices

On February 3, 2015, the Financial Industry Regulatory Authority (“FINRA”) issued its Report on Cybersecurity Practices. Reinforcing FINRA’s emphasis on protecting investor information, the report discusses the results of a recent industry-wide cybersecurity examination and presents a list of principles and best practices to guide the industry’s cybersecurity efforts going forward. 2014 Cybersecurity Examination Last year, FINRA … Continue Reading

OCC No Longer Issuing Anti-Money Laundering Recommendations

Office of the Comptroller of the Currency (“OCC”) examiners stated on Monday that they will no longer make recommendations on how banks can better comply with anti-money laundering (“AML”) regulations.  Rather, the policy change designates all AML problems either as matters requiring attention or as violations of law.  Thus, all AML problems could see enforcement … Continue Reading

SEC Examination Priorities in 2015 to Focus on Transparency Issues and the Early Detection of Potential Fraudulent or Other Illegal Activity

On January 13, 2015, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) announced its 2015 examination priorities for investment advisers, broker-dealers and transfer agents.  These priorities emphasize the importance of transparency and seek to identify, through enhancements in technology, potential illegal activity by focusing on the following key areas. Protecting Retail Investors and Investors … Continue Reading

FINRA’s New Background Investigation Rule Will Likely Increase Firms’ Costs and Potentially Increases Exposure for Firms in Customer Disputes

Recently, the SEC approved FINRA’s proposed new Rule 3110(e) relating to background investigations of registered persons.  FINRA Rule 3110(e), which replaces NASD Rule 3010(e) and goes into effect on July 1, 2015, streamlines and clarifies the rule language by providing that “each member shall ascertain by investigation the good character, business reputation, qualifications and experience … Continue Reading

Firms Have Roadmap for Expanding Litigation of Customer Disputes After Second Circuit Holds Forum Selection Clauses Trump FINRA’s Mandatory Arbitration Rule

In the recent decision, Goldman Sachs & Co. v. Golden Empire Sch. Fin. Auth., 764 F.3d 210 (2d Cir. 2014), the Second Circuit held that nearly-identical forum selection clauses in broker-dealer agreements between the broker-dealers/underwriters of auction rate securities (“ARS”) and the public financing authorities who issued the ARS superseded the Financial Industry Regulatory Authority, … Continue Reading
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