On August 21, the US Court of Appeals for the Second Circuit decided two closely watched appeals regarding the intersection of Financial Industry Regulatory Authority, Inc. rules regarding mandatory arbitration of disputes and contractual forum selection clauses providing for a judicial forum. Goldman, Sachs & Co. v. Golden Empire Schools Financing Authority, et al., Nos. 13-797-cv; 13-2247-cv (2d Cir. Aug. 21, 2014). The Second Circuit’s decision in Golden Empire provides important guidance for broker-dealers and institutional market participants in drafting and interpreting forum selection clauses.
Continue Reading Second Circuit Holds Contractual Forum Selection Clause Supersedes FINRA Mandatory Arbitration Rule

In Parkcentral Global Hub Ltd,. et al. v. Porsche Automobile Holdings SE, et al., Dkt. No. 11-397-cv (2d Cir. Aug. 15, 2014), the US Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ claim under Section 10(b) of the Securities Exchange Act of 1934. In a broad and defense-friendly interpretation of the US Supreme Court’s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), the Second Circuit declined to disturb the presumption against extraterritorial application of US securities laws and held that “a domestic transaction or listing is necessary to state a claim under § 10(b), [but] a finding that . . . transactions were domestic would not suffice to compel the conclusion that the plaintiffs’ invocation of § 10(b) was appropriately domestic.” 
Continue Reading Parkcentral v. Porsche: Second Circuit Opens the Doors of Morrison, and Declines to Apply Section 10(b) to Domestic Securities-Based Swap Transactions

On May 15, the US Court of Appeals for the Second Circuit issued a summary order in a closely watched case regarding the circumstances in which a broker dealer may be compelled to arbitrate with an institutional counter-party which is not a traditional “customer” of the broker-dealer. SunTrust Banks, Inc. et al. v. Turnberry Capital Management LP, 13-CV-2075 (2d Cir., May 15, 2014). The Second Circuit’s decision in Turnberry provides important additional guidance for broker dealers and institutional market participants regarding their respective rights to avoid (or compel) arbitration. 
Continue Reading Second Circuit Holds Mandatory Broker Dealer Arbitration Not Available to Non-Customer

On November 20, US District Judge Paul G. Gardephe of the US District Court for the Southern District of New York issued a decision with potentially significant consequences for attorneys conducting internal investigations and parties seeking to obtain (or shield) disclosure of witness interview notes memorializing such investigations. Gruss v. Zwirn, 09-CV-6441 (S.D.N.Y., November