The Second Circuit held yesterday that a government agency’s nonpublic, pre-decisional regulatory information does not constitute “property” for purposes of the federal insider-trading and wire-fraud statutes.  The decision in United States v. Blaszczak (2d Cir. Dec. 27, 2022) (“Blaszczak II”) effectively vacated convictions under those statutes for defendants who had traded on nonpublic, market-moving information that had been obtained from a government agency.

In a separate “concurrence” having potentially broader legal ramifications, two members of the panel also expressed concerns (in dicta) about the government’s use of the criminal insider-trading statute to prosecute tipper-tippee insider trading without needing to prove that the tipper received a “personal benefit,” as required under the federal securities laws.

The majority’s ruling on the use of nonpublic governmental information under insider-trading and wire-fraud statutes will likely not affect most insider-trading cases, which generally involve material nonpublic information (“MNPI”) obtained from nongovernmental sources.  But the views expressed in the concurrence, if ultimately adopted by the courts or Congress, could shut down an approach that the government has been using to avoid the potentially complicated “personal benefit” issue, which has generated much litigation in recent years.


Blaszczak II marked the case’s second appearance in the Second Circuit.  When court issued its first decision in Blaszczak I in December 2019, most of the attention had focused on the court’s upholding the government’s use of the criminal statute prohibiting insider trading (18 U.S.C. § 1348) as a way to avoid having to prove that the provider of MNPI had received a personal benefit in exchange for that information or that a tippee had known of the tipper’s receipt of a personal benefit.

Insider-trading cases have traditionally been brought under the general securities-law statute prohibiting securities fraud, 15 U.S.C. § 10(b) (“Title 15”).  An insider or other tipper cannot be held liable for securities fraud under Title 15 unless he or she breached a duty of trust or confidence by using or disclosing MNPI in exchange for a personal benefit.  Similarly, a tippee cannot be held liable for Title 15 securities fraud unless he or she used or conveyed the MNPI knowing that it had been obtained in breach of the tipper’s duty (a standard that includes the tippee’s knowledge of the tipper’s receipt of a personal benefit).

Because the personal-benefit requirement sometimes creates potential difficulties of proof, some prosecutors began to prosecute insider trading under 18 U.S.C. § 1348, which (according to those prosecutors) does not require proof of a personal benefit.  Section 1348 imposes criminal liability on anyone who “knowingly executes, or attempts to execute, a scheme or artifice” either (1) “to defraud any person in connection with” any commodity or any security of a registered issuer or (2) “to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of” any such commodity or security.  The language is derived from the federal mail-fraud and wire-fraud statutes.

            The Blaszczak Case

Blaszczak involved prosecutions of four individuals in connection with alleged schemes to obtain nonpublic information from the federal Centers for Medicare and Medicaid Services (the “CMS”) about reimbursement rates for certain medical treatments.  A CMS employee had allegedly given MNPI to a friend (Blaszczak), a former CMS employee who was then working as a consultant; Blaszczak then passed the information to persons at two hedge funds, who traded on it.  The CMS employee allegedly had received benefits from Blaszczak in the form of free meals, tickets to sporting events, and an offer to join Blaszczak’s firm.

The government charged all defendants with traditional securities fraud under Title 15 and also with violations of § 1348 and the wire-fraud and conversion statutes.  The court’s jury instructions on the Title 15 charge addressed the standard elements – including whether the tipper (the CMS employee) had owed and breached any duty of trust or confidence to his agency, whether he had received a personal benefit for doing so, and whether the tippee defendants had known of the tipper’s breach of duty and receipt of a benefit.  The defendants asked the court to include those same elements in its charge under § 1348, but the court denied the request, requiring the jury to find only that the defendants had knowingly and willfully engaged in “an illegal scheme or artifice” by providing confidential CMS information “to another person for the purpose of buying or selling securities on the basis of that information.”  The charge did not say anything about the tipper’s duty to the agency, his alleged receipt of a personal benefit, or the tippees’ knowledge of either of those things.

The jury acquitted the defendants of Title 15 securities fraud, but convicted them of some combination of violating § 1348 and/or the wire-fraud and conversion statutes.

            Second Circuit’s Initial Decision (Blaszczak I)

The Second Circuit, in a 2-1 decision by Judge Sullivan, affirmed the convictions, holding that the personal-benefit test required for Title 15 securities fraud does not apply to Title 18 securities fraud under § 1348 – or to wire fraud under 18 U.S.C. § 1343.  The court rejected the defendants’ argument that eliminating the personal-benefit requirement from Title 18 securities fraud (and wire fraud) would give the government “a different – and broader – enforcement mechanism to address securities fraud than what had previously been provided in the Title 15 fraud provisions.”  The court concluded that § 1348 was designed to achieve that result.

The court also held that, “in general, confidential government information may constitute government ‘property’ for purposes of” the Title 18 securities-fraud and wire-fraud statutes.  “[G]overnment agencies have strong interests – both regulatory and economic – in controlling whether, when, and how to disclose confidential information relating to their contemplated rules” (here, CMS’s rules about reimbursement rates).  In addition, the court upheld the convictions under the statute prohibiting conversion of federal property (18 U.S.C. § 641), ruling that the government’s confidential information constituted a “thing of value.”

Judge Kearse dissented because she did not consider the agency’s pre-decisional regulatory information to be “property” or a “thing of value” under Title 18.

            The Supreme Court’s Kelly Decision and Its Aftermath

While Blaszczak was working its way through the courts, a separate prosecution arising from the “Bridgegate” scandal was also proceeding.  Bridgegate involved alleged political retaliation by the Governor of New Jersey’s Deputy Chief of Staff and the Deputy Executive Director of the Port Authority of New York and New Jersey (whom the Governor had appointed) against a local mayor who allegedly had thwarted the Governor’s wishes.

According to the government’s allegations, the Governor – a Republican – was up for reelection and wanted to win a large bipartisan victory to promote his presidential aspirations.  The Deputy Chief of Staff sought endorsements from Democratic mayors, including the Mayor of Fort Lee, but the Mayor declined to endorse the Governor.  Supposedly in retaliation for the Mayor’s refusal to cooperate, the Deputy Chief of Staff worked with the Port Authority’s Deputy Executive Director and others to fabricate a “traffic study” that involved closing critical Fort Lee access lanes on the George Washington Bridge, thereby causing traffic to back up and create chaos in Fort Lee.

The government prosecuted the Deputy Chief of Staff and the Port Authority’s Deputy Executive Director on charges of wire fraud, fraud on a federally funded program or entity (the Port Authority), and conspiracy to commit those two crimes.  The jury found the defendants guilty on all counts, and the Court of Appeals for the Third Circuit affirmed.

The Supreme Court unanimously reversed the convictions in May 2020.  The Court held that the statutes at issue prohibited deceptive conduct to deprive the victim of “money or property,” so the government needed to prove not only that the defendants had engaged in deception, but also that property had been an object of their deception.  The realignment of the bridge’s traffic lanes, however, was “a quintessential exercise of regulatory power,” rather than an appropriation of the Port Authority’s property.  And although the scheme had required the use of a public employee’s paid time (which could be considered governmental property), the defendants “never had that as an object.”  “The use of Port Authority employees was incidental to – the mere cost of implementing – the sought-after regulation of the Bridge’s toll lanes,” rather than an effort to deprive the government of its property.

Kelly revitalized the issue that the Blaszczak defendants had raised and on which Judge Kearse had based her dissent:  whether CMS’s confidential, pre-decisional regulatory information was “property” under 18 U.S.C. § 1348 and the wire-fraud statute.  Accordingly, the Supreme Court vacated and remanded the Blaszczak convictions for reconsideration in light of Kelly.

In briefing on remand, the government agreed with the defendants’ argument that the convictions could not stand under Kelly.  The government’s brief stated that the Department of Justice “now” takes the position that “in a case involving confidential government information, that information typically must have economic value in the hands of the relevant government entity to constitute ‘property’ for purposes of 18 U.S.C. §§ 1343 and 1348” and that CMS’s “confidential information at issue in this case does not constitute ‘property’ or a ‘thing of value’ under the relevant statutes after Kelly.”

Second Circuit’s Decision on Remand (Blaszczak II)

The Second Circuit, in a 2-1 decision written by Judge Kearse (who had dissented in Blaszczak I), held that Kelly and “the prosecutorial discretion to which the Executive Branch is entitled” required remanding the Title 18 securities-fraud, wire-fraud, and conversion convictions to the District Court for dismissal.  The majority spent many pages explaining the “broad discretion” that rests with the government to prosecute or not prosecute under federal criminal statutes, but it acknowledged that the judiciary ultimately must decide whether to accept the government’s confession of error.  The majority concluded that, in light of Kelly, the relevant statutes did not apply to the conduct at issue.

The majority stressed that federal fraud statutes such as § 1348 and the wire-fraud statute “are limited in scope to the protection of property rights,” so the government must prove that “the object of the defendants’ fraudulent scheme was money or property.”  Those statutes prohibit “only deceptive schemes to deprive [the victim] of money or property.”  Inasmuch as CMS was the purported victim of its employee’s leak, “defendants could not properly be convicted of violating §§ 1343, 1348, or 641 unless the objective of their schemes and conduct was the money or property of CMS.”

The majority held that CMS’s confidential, pre-decisional regulatory information was not CMS’s “property” here because “CMS is not a commercial entity; it does not sell, or offer for sale, a service or a product.”  Moreover, the planned regulation, even if prematurely disclosed to outsiders, remained “within the exclusive control of CMS”; its disclosure thus had “no direct impact on the government’s fisc,” even if the leak “might well impact CMS’s subsequent regulatory choices.”  The court therefore ruled that “merely obtaining advance information as to what the agency’s preferred regulation would be, and when it would be announced, cannot properly be considered the agency’s money or property or a thing of value that could be ‘convert[ed].’”

The overturning of the convictions underlying Blaszczak I led Judge Walker (joined by Judge Kearse) to write a separate “concurrence” to discuss the fate of another part of the holding of that case:  that criminal liability for tipper-tippee insider trading under § 1348 does not require proof that the tipper received a personal benefit, even though criminal and civil liability for Title 15 securities fraud would require such proof.  That difference struck Judges Walker and Kearse as “odd” because “traditional notions of fair play are offended by the present incongruence in this circuit between civil and criminal deterrence.”  “It should not require fewer elements to prove a criminal conviction than to impose civil penalties for the same conduct.  This asymmetry deserves the further attention of our court, the Supreme Court, and Congress.”

According to Judges Walker and Kearse, the personal-benefit test for Title 15 securities fraud “creates at least some legal distinction between those who gave and obtained tips fraudulently and those who appropriately engaged in the honest disclosure and collection of corporate information.”  Without that limiting principle, “corporate insiders may be more reticent to share information with analysts in the ordinary course of business and analysts who do receive company information may be less likely to act on it for fear of running afoul of § 1348.”

Judge Sullivan, who had written the majority decision in Blaszczak I, dissented on both points.  First, he did not read Kelly as altering the conclusion that nonpublic CMS information was “property” for purposes of § 1348 and the wire-fraud statute.  Second, he objected to the concurrence’s “gratuitous advisory opinion” on whether § 1348 requires a “personal benefit.”  Judge Sullivan opined that the personal-benefit test under Title 15 “is a judge-made rule premised on the statutory purpose of the Securities Exchange Act,” and he saw “no obvious reason to extend that rule to a different statutory provision under Title 18.”  He also observed that § 1348 had been enacted in the wake of the 2008 financial crisis to provide new criminal and civil tools to federal investigators and prosecutors, so “[t]he history and purpose of section 1348 therefore make it far more plausible that Congress did not intend for it to be a mere carbon copy of the Title 15 securities-fraud statute.”


Blaszczak II raises a number of considerations for insider-trading claims in the future.

First, and perhaps foremost, the concurrence could lead the Second Circuit, other courts, or Congress to reevaluate whether the government can use Title 18 to avoid Title 15’s breach-of-duty and personal-benefit requirements.  Title 18 appears to have facilitated insider-trading prosecutions where the government could not prove (or did not want to undertake the burden of proving) that the insider had received a personal benefit in exchange for providing MNPI – or that remote tippees had known about any such benefit.  Blaszczak itself illustrates the difference that the availability of a Title 18 count can make:  the jury acquitted the defendants of Title 15 securities fraud even though it convicted them under Title 18.  Several other courts have relied on Blaszczak I’s ruling to uphold Title 18 counts, but that ruling has now been questioned.

Second, the holding that a government agency’s confidential regulatory information is not its “property” for purposes of Title 18 securities fraud and wire fraud could prevent prosecutions for insider trading under those statutes.  But the decision does not address whether use of or tips about such information could give rise to civil or criminal liability under Title 15.  Moreover, any such misuse of confidential governmental information might now fall within the terms of the STOCK Act (the “Stop Trading on Congressional Knowledge Act”), which Congress enacted in 2012 to clarify that the insider-trading laws apply to members of the legislative, executive, and judicial branches.  The STOCK Act was not at issue in the Blaszczak decisions.

Third, in holding that CMS’s confidential regulatory information was not CMS’s “property” under Title 18, the court contrasted CMS with a commercial entity, for which confidential information might be “its stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who [would] pay money for it.”  The court’s ruling as to CMS thus would not seem to apply where, for example, an employee of a newspaper misappropriates his or her employer’s confidential pre-publication information for trading or tipping purposes (as the Supreme Court held several decades ago).  A similar issue has recently arisen in a wire-fraud prosecution of an employee of an NFT marketplace who traded digital assets based on his knowledge of the NFTs that his employer planned to feature on its home page.

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Photo of Jonathan Richman Jonathan Richman

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and…

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and in landmark non-U.S. collective settlements under Dutch law in the Netherlands. Jonathan’s clients have included Hewlett Packard, Royal Dutch/Shell, Zurich Insurance Group, Halliburton, Waste Management, and Bed Bath & Beyond.

Jonathan writes extensively on topics ranging from securities and insider-trading law, corporate governance and fiduciary issues to non-U.S. law on collective actions. His articles have been published in major legal publications.

Jonathan is the past co-head of the Firm’s Securities Litigation Group.

Class Action and SEC Enforcement Experience

  • Royal Dutch/Shell
  • Global Crossing
  • Waste Management
  • Zurich Insurance Group
  • Vestas Wind Systems A/S (class action only)
  • JBS S.A. (class action only)
  • Henry Schein, Inc. (class action only)
  • YRC Worldwide Inc. (class action only)
  • Bed Bath & Beyond Inc. (class action only)
  • Roka Bioscience, Inc. (class action only)
  • Fifth Street (class action only)
  • Vida Longevity Fund (class action only)
  • Former CEO of Lumber Liquidators (class action only)
  • Individual defendant in Third Avenue securities class actions
  • American General (class action only)
  • Metropolitan Life (class action only)
  • New York Life (class action only)
  • Leucadia/Jefferies merger litigation (class action only)
  • Realty Income/American Realty merger litigation (class action only)
  • ARCP/ARCT III merger litigation (class action only)
  • Aberdeen/Artio merger litigation (class action only)
  • PhotoMedex/LCA-Vision merger litigation (class action only)
  • RCS Capital/Summit Financial merger litigation (class action only)
  • First American/First Advantage merger litigation (class action only)
  • SEC inquiry involving CMBS servicing
  • SEC inquiry involving issuer’s confidentiality notice for internal investigations
  • Various SEC, CFTC, and FINRA inquiries involving trading issues

Shareholder Derivative Litigation

  • Hewlett-Packard
  • Royal Dutch/Shell
  • Brocade Communications Systems, Inc.
  • Halliburton Company
  • Waste Management, Inc.
  • Henry Schein, Inc.
  • YRC Worldwide Inc.
  • Bed Bath & Beyond Inc.
  • Fifth Street
  • Vida Longevity Fund
  • Former CEO of Lumber Liquidators
  • Individual defendant in Third Avenue derivative litigation

Department of Justice Proceedings

  • Royal Dutch/Shell
  • Global Crossing
  • Property and casualty insurers


  • Advising outside directors of for-profit educational institution on litigation and regulatory investigations
  • Providing advice and training sessions for clients on insider-trading issues
  • Representing Financial Oversight and Management Board for Puerto Rico in pending litigation arising from Puerto Rico bankruptcy


  • Author, “Court Preliminarily Enjoins Florida’s ‘Stop Woke Act,’” National Law Review (Aug. 22, 2022)
  • Author, “Blockchain Meets Morrison:  Court Rejects Blockchain Class Settlement Because of Concerns About Adequacy of Representation,” National Law Review (Aug. 16, 2022)
  • Author, “Delaware Supreme Court Allows Use of ‘Reliable’ Hearsay to Support Books-and-Records Demand,” National Law Review (July 20, 2022)
  • Author, “Divided Delaware Supreme Court Decision Highlights Issues About Director Independence in Derivative Actions,” National Law Review (June 30, 2022)
  • Author, “Second Circuit Reverses Dismissal of Securities Claim Alleging Failure to Disclose SEC Investigation,” National Law Review (May 25, 2022)
  • Author, “Ninth Circuit Upholds Delaware-Forum Bylaw That Precludes Assertion of Federal Proxy Claim,” National Law Review (May 13, 2022)
  • Co-author, “SEC Defeats Motion to Dismiss Insider Trading Complaint Alleging Novel ‘Shadow Trading’ Theory, The Corporate Lawyer, vol. 59, no. 3 (Feb. 2022), at 1
  • Co-author, “Seventh Circuit Reverses Dismissal of Derivative Action Based on Forum Clause as Applied to Federal Claim,” National Law Review (Jan. 21, 2022)
  • Author, “California Federal Court Holds U.S. Securities Laws Inapplicable to Unsponsored, Unlisted ADR Transaction Preceded by Purchase of Common Stock Outside the U.S.,” National Law Review (Jan. 10, 2022)
  • Co-author, “SEC Pursues ‘Shadow Trading’ Insider Trading Case,” Corporate Governance Advisor, vo. 29, no. 6 (Nov./Dec. 2021), at 29
  • Co-author, “SEC Investor Advisory Committee Considers Recommendations to Tighten Rules for Insiders’ Trading Plans,” National Law Review (Sept. 7, 2021)
  • Author, “Second Circuit Holds that Accurately Reported Financial Statements Are Not Actionable and that Materiality Has a Half-Life,” National Law Review (Aug. 27, 2021)
  • Author, “First Circuit Adopts Prevailing Standard for Applicability of Federal Securities Laws to Foreign Investors, But Rejects Second Circuit’s Narrower Test,” National Law Review (May 11, 2021)
  • Author, “Second Circuit Upholds Insider Trading Conviction, Finding Sufficient Confidentiality Duty and Personal Benefit,” National Law Review (Apr. 7, 2021)
  • Co-author, “Second Circuit Reaffirms that Federal Securities Laws Do Not Apply to Predominantly Foreign Transactions,” National Law Review (Jan. 26, 2021)
  • Author, “Corporate Scienter Requires Link Between Employees with Knowledge and the Alleged Misstatements,” National Law Review (May 26, 2020)
  • Author, “Delaware Supreme Court Rules that Corporate Charters Can Require Litigation of Federal Securities Act Claims in Federal Court,” National Law Review (Mar. 18, 2020)
  • Author, “California Federal Court Holds that U.S. Securities Laws Apply to Unsponsored, Unlisted ADRs,” National Law Review (Jan. 30, 2020)
  • Author, “Second Circuit Holds that a ‘Personal Benefit’ Is Not Required for Insider Trading Under Criminal Securities Statute,” National Law Review (Jan. 2, 2020)
  • Co-author, “When Passive Investors Drift into Activist Status,” CCR Corp. Deal Lawyers (Nov.-Dec. 2019)
  • Author, “Delaware Supreme Court Rejects Presumption of Confidentiality for Books-and-Records Productions,” National Law Review (Aug. 8, 2019)
  • Author, “Supreme Court Raises Questions About Private Rights of Action Under § 14 of Securities Exchange Act,” National Law Review (Apr. 24, 2019)
  • Author, “Second Circuit Rejects Securities Claims Based on Generic Statements About Ethics and Compliance,” Securities Reform Act Litigation Reporter, vol. 47, no. 1 (April 2019), at 54
  • Author,” Supreme Court Holds that Persons Who Do Not ‘Make’ Misstatements Can Nevertheless Be Liable for Other Securities-Fraud Violations,” National Law Review (Mar. 29, 2019)
  • Author, “The importance of documenting corporate actions: Delaware Supreme Court requires production of emails in books-and-records request,” Westlaw Journal Mergers & Acquisitions (Feb. 2019)
  • Author, “First Appellate Decision Holds that SEC Can Bring Extraterritorial Enforcement Action Based on Conduct or Effects in United States,” National Law Review (Jan. 24, 2019)
  • Author, “Insider Trading for Dummies: Judge Rakoff Tries to Simplify the Law,” National Law Review (Dec. 10, 2018)
  • Co-author, “Fortis Case Confirms Viability of Dutch Settlement Law,” Law360 (July 27, 2018) (with Professor Ianika Tzankova)
  • Author, “Second Circuit Again Holds That Tipper/Tippee Liability Can Arise from a Gift of Inside Information Even Without a Close Personal Relationship,” National Law Review (June 29, 2018)
  • Author, “Supreme Court Rules That Federal Courts Are Not Bound to Give Conclusive Effect to Foreign Governments’ Statements About Their Laws,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Prohibits Stacking of Successive Class Actions Beyond Limitations Period,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Rules That State Courts Can Adjudicate Class Actions Under the Securities Act of 1933,” Securities Arbitration Commentator (April 11, 2018)
  • Author, “Fourth Circuit Upholds Disclosure of Government Subpoena as Evidence of Loss Causation,” National Law Review (Feb. 24, 2018)
  • Author, “Revisiting Preclusion Principles in Derivative Actions,” Law360 (July 28, 2017)
  • Author, “Second Circuit Requires Increased Scrutiny of Securities Class Actions Involving Off-Exchange Transactions,” National Law Review (July 8, 2017)
  • Author, “Dutch Court Denies Approval of Collective Settlement Unless Changes Are Made as to Allocation of Compensation and Fees,” National Law Review (June 19, 2017)
  • Author, “Utah Court Bites Bullet with Dodd-Frank Jurisdiction Ruling,” Law360 (Apr. 13, 2017)
  • Author, “Non-Use Agreement Need Not Precede Disclosure of Confidential Information,” National Law Review (March 21, 2017)
  • Author, “Watch the Napkin: First Circuit Affirms Insider-Trading Conviction,” National Law Review (Feb. 28, 2017)
  • Author, “Dueling Shareholder Class Actions Could Raise Due Process Issues,” Law360 (Jan. 30, 2017)
  • Author, “Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading,” WestLaw Journal: Securities Litigation & Regulation and WestLaw Journal: White-Collar Crime (Dec. 22, 2016)
  • Author, “Rakoff Addresses Tippee Liability in SEC v. Payton,” Law360 (Dec. 2, 2016)
  • Author, “Dutch Collective Actions vs. Collective Settlements,” National Law Review (Oct. 18, 2016)
  • Author, “Judgment Recognition and the Reach of US Securities Laws,” Law360 (Oct. 3, 2016)
  • Author, “Executives Face SOX Disgorgement Uncertainty After Jensen,” Law360 (Sept. 8, 2016)
  • Author, “Wine, Steak and a Taste of the ‘Personal Benefit’ Tension,” Law360 (June 6, 2016)
  • Author, “Proskauer Explains Supreme Court’s Clarification of Jurisdiction Under Securities Exchange Act,” The CLS Blue Sky Blog (May 24, 2016)
  • Author, “Second Circuit Reinforces Liability Standard in Securities Cases Based on Statements of Opinion,” Business Law Today (Mar. 2016)
  • Author, “The Netherlands Returns as a Collective Settlement Forum,” Law360 (Mar. 15, 2016)
  • Author, “How Morrison v. Australia Bank Was Applied in Petrobras,” Law360 (Feb. 16, 2016)
  • Author, “New York Court Certifies Classes in Petrobras Securities Litigation,” National Law Review (Feb. 3, 2016)
  • Author, “Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of ‘Increasingly Vigilant’ Scrutiny,” National Law Review (Jan. 25, 2016)
  • Author, “What To Expect from High Court’s New Insider Trading Case,” Law360 (Jan. 19, 2016)
  • Author, “Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders,” Transaction Advisors (Dec. 2015)
  • Author, “What Jarkesy Means for SEC Admin Court Challenges,” Law360 (Sept. 30, 2015)
  • Author, “A Farewell to Alms? Peppercorn Settlements of M&A Litigation,” National Law Review (Sept. 21, 2015)
  • Author, “Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Proceeding,” com (Aug. 27, 2015)
  • Author, “9th Circuit Rebuffs Newman,” Law360 (July 8, 2015)
  • Author, “Proskauer Discusses Supreme Court’s Omnicare Decision, Clarifying Liability for Statements of Opinion in Registration Statements,” The CLS Blue Sky Blog (Mar. 24, 2015)
  • Author, “U.S. Appeals Court Rejects Bright-Line Test for Extraterritorial Reach of U.S. Securities Laws,” Bloomberg BNA World Securities Law Report, vol. 20, no. 9 (Sept. 2014)
  • Author, “Whistleblower Anti-Retaliation Provision Does Not Apply Outside the U.S.,” Westlaw Journal Securities Litigation & Regulation, vol. 20, issue 9 (Sept. 4, 2014)
  • Author, “So Much for Bright-Line Tests on Extraterritorial Reach of US Securities Laws?,” Harvard Law School Forum on Corporate Governance and Financial Regulation (Sept. 2, 2014)
  • Co-author, “Defending Directors: Cram Sheet,” Wolters Kluwer Law & Business (October 23, 2012)
  • Author, “Delaware Chancery Court Issues Decision on Collateral Estoppel in Derivative Suits,” Westlaw Journal Delaware Corporate, vol. 26, issue 25 (June 25, 2012)
  • Author, “SEC Issues Report on Extraterritorial Reach of U.S. Securities Laws,” VCExperts on-line publication (June 2012)
  • Co-author, “Fraud? Foreign Purchase? Forget It! ‘Foreign-Cubed’ and Other Foreign-Issuer Cases After Morrison,” of Secs. & Commodities Reg., vol. 44, no. 4 (Feb. 23, 2011)
  • Author, “Supreme Court Clarifies Statute of Limitations in Securities-Fraud Actions,” Derivatives Financial Prods. Rpt., 11, no. 10, at 23 (June 2010)
  • Author, “Transnational Class Actions and Judgment Recognition,” Class Action Litigation Report (June 25, 2010)
  • Co-author, “Pushing the Limits of U.S. Securities Laws: ‘Foreign-Cubed’ (‘F-Cubed’) Cases,” 42 SRLR 10 (March 8, 2010)
  • Co-author, “Assignees Have Discovery Obligations When Asserting Assignors’ Claims,” Journal of Payment Systems Law (June/July 2005)
  • “Punitive Damages: Past, Present and Future,” International Commercial Litigation (July/August 1995)
  • Co-author and editor, Takeovers: Attack and Survival (1987)
  • Co-author, “New Life for State Takeover Statutes?,” New York Law Journal (July 27, 1987)
  • Co-author, “Damages in Defamation Actions,” Damages in Tort Actions (1985)
  • “Facial Adjudication of Disciplinary Provisions in Union Constitutions,” Yale Law Journal (1981)


  • Practising Law Institute: “ESG 2022: What It Means for Boards, Management, and Counsel” (June 1, 2022) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2021: What It Means for Boards, Management, and Counsel” (webcast, June 24, 2021) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2020: What It Means for Boards, Management, and Counsel) (webcast, July 24, 2020) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG and Promoting Corporate Sustainability” (New York, June 25, 2019) (full-day program; program chair and panel chair)
  • The Mason Judicial Education Program, Symposium for Judges: Securities Class Action Litigation (Arlington, VA, May 5, 2019)
  • The Mason Judicial Education Program, Symposium for Judges: The Economics of Corporate & Securities Law (San Diego, April 12-14, 2018)
  • ABA Section of Litigation: “Recent Developments in Securities Class Actions” (webinar, May 11, 2017)
  • Professional Liability Underwriters Society D&O Symposium: “Behaving Badly: The Non-U.S. Corporate Scandal Wave” (New York, February 9, 2017)
  • New York State Bar Association International Section: “Hot Topics in Cross-Border Securities Litigation” (São Paulo, October 16, 2015)
  • Proskauer Hedge-Fund Breakfast Seminar on Insider Trading (New York, Feb. 5, 2015)
  • CLE International’s 9th Annual Class Action Conference: “Collective Proceedings Abroad: Evolving Approaches & Attitudes” (Washington, D.C., October 2013)
  • Practising Law Institute: “Handling a Securities Case: From Investigation to Trial and Everything in Between” (New York, April 2012)
  • Institutional Investor Educational Foundation: Corporate Governance Roundtable Forum (New York, December 2011)
  • Institutional Investor Educational Foundation Amsterdam Roundtable: “The Netherlands and the Future of European Securities Litigation” (The Hague, September 2011)
  • Summer Institute on Law & Government, American Univ. Washington College of Law: “Securities Class Actions – An Update” (Washington, D.C., June 2010)
  • ABA Section on Litigation Annual Conference: “Global Class Actions: Lasting Peace or Ticking Time Bombs?” (New York, April 2010)