Justia Professional Malpractice & Ethics Opinion SummariesArticles Posted in U.S. 2nd Circuit Court of Appeals
Securities and Exchange Commission v. Gabelli, et al.
Plaintiff, the SEC, appealed from a judgment dismissing its complaint against Marc J. Gabelli, the portfolio manager of the mutual fund Gabelli Global Growth Fund (GGGF or the Fund), and Bruce Alpert, the chief operating officer for the Fund's adviser, Gabelli Funds, LLC (Adviser). The SEC's complaint charged defendants with failing to disclose favorable treatment accorded one GGGF investor in preference to other investors. As a preliminary matter, the court limited its jurisdiction to the SEC's appeal. The court held that the complaint adequately stated claims against Alpert for violations of Section 17(a) of the Securities Act of 1933, 15 U.S.C. 77q(a), and Section 10(b) of the Securities Exchange Act, 15 U.S.C. 78j(b). The court also held that the SEC's prayer for civil penalties survived defendants' motions to dismiss and must be reinstated where the court found that at this stage in the litigation, defendants have not met their burden of demonstrating that a reasonably diligent plaintiff would have discovered this fraud prior to September 2003. The court further held that the complaint sufficiently plead a reasonable likelihood of future violations and thus reversed the district court's dismissal of the SEC's prayer for injunctive relief. Accordingly, the court granted the SEC's appeal in all respects, dismissed the cross-appeals for want of appellate jurisdiction, and remanded for further proceedings. View "Securities and Exchange Commission v. Gabelli, et al." on Justia Law
United States v. Ferguson, et al.
This criminal appeal arose from a "finite reinsurance" transaction between American International Group, Inc. (AIG) and General Reinsurance Corporation (Gen Re). Defendants, four executives of Gen Re and one of AIG, appealed from judgments convicting them of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission. Defendants appealed on a variety of grounds, some in common and others specific to each defendant, ranging from evidentiary challenges to serious allegations of widespread prosecutorial misconduct. Most of the arguments were without merit, but defendants' convictions must be vacated because the district court abused its discretion by admitting the stock-price data and issued a jury instruction that directed the verdict on causation. View "United States v. Ferguson, et al." on Justia Law
International Strategies Group v. Ness
Plaintiff appealed from a judgment granting defendant's motion to dismiss as untimely plaintiff's complaint, which alleged breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, and conspiracy to commit those three offenses. At issue was whether the district court properly ruled that tolling of the untimely claims, on the basis of defendant's continuing concealment, was unwarranted. The court affirmed and held that the lawsuit, commenced on April 2004, arose from an injury suffered no later than June 2000 and therefore, was barred by the applicable statute of repose, Conn. Gen. Stat. 52-577. The court also held that plaintiff could not seek the safe harbor of equitable estoppel due to its failure to recognize that it was required to pursue its action. Accordingly, the court affirmed the judgment of the district. View "International Strategies Group v. Ness" on Justia Law
United States v. MacKay, et al.
Petitioners appealed from a Memorandum and Order and Final Order of Forfeiture entered by the district court dismissing their petition for an ancillary hearing and rejecting their claim as beneficiaries of a putative constructive trust in defendant's forfeiture assets. At issue was whether the remission provision of 21 U.S.C. 853(i) precluded the imposition of a constructive trust in petitioners' favor and whether imposing a constructive trust would be consistent with a forfeiture statutory scheme provided by section 853. Because the court concluded that section 853(i) did not preclude, as a matter of law, recognizing a constructive trust and because a constructive trust was not inconsistent with the forfeiture statute, the court vacated the Final Order of Forfeiture and remanded the case to the district court to consider whether, pursuant to Vermont law, a constructive trust should be recognized in favor of petitioners. View "United States v. MacKay, et al." on Justia Law
In re: Teligent, Inc.; Savage & Assoc., P.C. v K&L Gates LLP
K&L Gates LLP ("K&L Gates") filed a motion to lift two protective orders prohibiting disclosure of communications made during mediation. Savage & Associates, P.C. ("Savage") filed a cross-motion to enjoin K&L Gates from raising questions about the validity of certain provisions of a settlement agreement as a defense to malpractice in a related action. At issue was whether the district court properly denied both K&L Gates' motion and Savage's cross-motion. The court held that the district court did not err in the denial of K&L Gates' motion where K&L Gates failed to demonstrate a compelling need for the discovery, failed to show that the information was not otherwise available, and failed to establish that the need for the evidence was outweighed by the public interest in maintaining confidentiality. The court also held that the district court did not err in holding that K&L Gates was not barred from asserting a defense challenging the validity of any provision of the settlement agreement in connection with the related malpractice action currently pending against the law firm.
In re Kristan Peters
Kristan Peters, an attorney admitted to the bars of both New York and Connecticut and formerly a partner at the law firm of Dorsey & Whitney, appealed from an order of the Committee on Grievances for the United States District Court for the Southern District of New York ("Grievance Committee") suspending her from practicing law before that court for a period of seven years. The Grievance Committee found that she had engaged in misconduct which involved instructing a junior attorney to deface transcripts ("Brackett allegation") and violating a confidentiality order ("Confidentiality Order allegation"). At issue was whether the Grievance Committee's failure to hold an independent hearing, and its reliance on a prior sanctions hearing in the underlying litigation, violated her due process rights and the district court's local rules. Also at issue was whether the two charges of misconduct now at issue did not, as a matter of law, support the Grievance Committee's imposition of discipline. The court held that Peters was not provided adequate prior notice of the Brackett allegation or adequate opportunity to cross-examine witnesses. The court also held that evidence concerning the Confidentiality Order allegation was not adequately developed during that prior proceeding so as to permit the Grievance Committee to forego an independent evidentiary hearing in the present matter. Therefore, the court vacated the Grievance Committee's suspension order and remanded the matter for the further proceedings.