McDermott Will & Schulte, a global law firm

Howard was included in Washingtonian’s “Washington’s Top Lawyers” list and has been recognized by Chambers USA, The Legal 500 US and Benchmark Litigation as a leading individual in the securities regulation area.

He is a member of American Bar Association Sections on Litigation, Corporation, Finance and Securities Law and a fellow of the Litigation Counsel of America. He is also a director and former president of the Association of Securities and Exchange Commission Alumni Inc.

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• Has represented the largest New York State Stock Exchange (NYSE) specialist and leading Nasdaq market-making firms, national retail brokerage firms and their management and representatives, and public companies and their officers and directors. For example, before the SEC and in private litigation, represented the Special Committee of the Board of Directors of a Fortune 100 technology company in connection with a worldwide investigation of allegations of stock option backdating and earnings manipulation. Before the SEC, he has represented hedge funds in insider trading inquiries, fund administrators in alleged improper NAV calculations, the CEO of one of the world’s largest food processing companies in an SEC proceeding involving proxy disclosure, and the CEO of a leading market-maker in connection with allegations of fraud and inadequate supervision.
• Has been involved in many complex accounting cases. While at the SEC, he served as trial counsel in the SEC’s first successful fully-litigated accounting case, which involved a shifting of quarterly earnings based on improper recognition of sales and an improper accounting of inventory (SEC v. Aydin Corp.). Involvement in complex accounting matters before the SEC and the DOJ has included representation of one of the largest energy companies in connection with allegations of improper revenue recognition of wash trades.

SRO Investigations and Proceedings

• Has represented numerous securities professionals in regulatory investigations conducted by NASD (now FINRA) and the NYSE, American Stock Exchange (AMEX), Chicago Board Options Exchange (CBOE), and various other exchanges. Has represented many of the largest securities firms, including Goldman Sachs & Co., Knight Securities, Spear, Leeds & Kellogg, First Options of Chicago, BTIG, Lek Securities Corporation and CRT. Has represented market professionals in connection with allegations that include failure to supervise, violation of option trading rules, improper clearing, trading irregularities, and reporting violations. Also has successfully assisted numerous issuers in connection with Nasdaq delisting proceedings.

NYSE and FINRA Investigations

• Represents a major clearing firm in a joint NYSE and FINRA investigation dealing with the supervision of direct access order flow, appropriate surveillance for various types of potentially violative trading practices, including “spoofing,” wash sales and marking the close, portfolio margin issues, and anti-money laundering compliance.

Lek Securities Corporation

• Represented Lek Securities Corporation, a clearing member of the NYSE, in connection with two enforcement trials commenced by the FINRA Department of Market Regulation. One trial involved 13 separate counts of alleged violations of NYSE Rules and the other action involved failure of the broker-dealer to have adequate supervising procedures in violation of AML regulations.

Appellate Experience

• Represented Goldman Sachs and The Royal Bank of Scotland in security matters before the 2d Circuit. Has appeared before the federal circuit courts of appeal to argue cutting-edge issues related to securities and corporate litigation and has represented the Securities Industry and Financial Markets Association (fka Securities Industry Association) (collectively, SIFMA) in appearances as amicus curiae in cases of industry-wide significance.
• Appellate success requires innovation, experience, and careful investment of resources. Has received many significant favorable appellate decisions, including matters on behalf of Duke Energy (2d Circuit), First Options of Chicago, Inc. and Spear, Leeds & Kellogg, L.P. (11th Circuit), the State of Hawaii Insurance Commissioner (9th Circuit) and Herbalife (9th Circuit).

The Royal Bank of Scotland Group/NatWest

• Won dismissal on statute of limitations grounds in 2d Circuit for The Royal Bank of Scotland Group, as successor to National Westminster Bank PLC, of a suit brought by investors alleging fraud in connection with loans related to tax shelter scheme known as Bond Linked Issue Premium Structure, or BLIPS.

Securities Civil Litigation and Arbitration Cases

• Has successfully represented a wide range of clients, including the largest broker-dealers (Goldman Sachs, Knight Securities and BTIG), clearing firms (Spear, Leeds & Kellogg, Pershing), investment companies (Vanguard, Federated), investment banks (Royal Bank of Scotland, Lehman Brothers), fixed-income trading firms (Greenwich Capital), and Fortune 500 public companies (Duke Energy, Comverse Technology) in class action, derivative, and other types of cases in federal and state courts, and before FINRA, NYSE, CBOE and American Arbitration Association (AAA) arbitration forums involving, among other things, claims of securities fraud, breach of fiduciary duty, trading improprieties, RICO violations, antitrust violations, inadequate compliance and supervision, fraud in connection with private and public offerings, market structure issues, and accounting irregularities. The following are some of the significant cases in which he has participated:

Goldman Sachs – Walrus Master Fund Limited Litigation

• Represented Goldman Sachs in a FINRA Dispute Resolution arbitration brought by hedge fund Walrus Master Fund Limited and Adam D. Sender in 2011. The statement of claim requested more than $60 million in damages and alleged that claimants suffered losses resulting from liquidating securities positions to meet risk calls during the October 2008 financial crisis. The arbitration award denied all of the claimant’s claims and assessed forum fees against the claimant, handing Goldman Sachs a resounding victory.

LaSalle Bank

• Won a very significant award from a panel of nationally recognized, independent accountants. The arbitration arose out of a top-tier domestic bank’s purchase of LaSalle Bank, the U.S. banking subsidiary of ABN AMRO, whose books included approximately $4 billion in commercial real estate loans. After the sale, the purchasing bank triggered a purchase price adjustment provision, asserting that it was entitled to an approximately $300 million purchase price reduction and, as a result, withheld approximately $100 million of the purchase price from ABN AMRO. The parties contested several areas of valuation and accounting practices before the arbitration panel, including the $4 billion valuation of commercial real estate loans, accounting and tax treatment for bad debt reserves, and the appropriateness of certain insurance coverage policies. The arbitration panel rejected the purchasing bank’s arguments for a $300 million purchase price reduction and instead rendered a verdict in ABN AMRO’s favor on virtually all issues.

Gonzales v. National Westminster Bank plc; Abrams v. National Westminster Bank plc

• Secured the dismissal of two federal fraud actions against National Westminster Bank plc on statute of limitations grounds. The cases arose from loans that had been provided in 2000 by National Westminster in connection with a tax shelter strategy invested in by two wealthy individuals who claimed to have lost more than $17 million and $7 million, respectively. In granting the motions to dismiss, the court agreed that the tax shelter strategy and the associated alleged fraud had been widely covered in the media, in government investigations and in other litigations as of 2003, if not earlier. Accordingly, the Court concluded that the plaintiffs were on notice of the alleged fraud more than two years before the filing of the amended complaints, and thus the actions were time-barred under the New York statute of limitations for fraud claims, which must be brought within six years of the occurrence or two years from when plaintiff has notice of the claim. Both cases have been appealed to the Second Circuit.

Vynerib v. BTIG

• Represented BTIG in an action filed in the Supreme Court of New York County by a former Senior Vice President of Axiom Capital Management, Inc. (“Axiom”). Plaintiff alleges that BTIG breached a client referral agreement between BTIG and Axiom. Plaintiff seeks declaratory relief as a third party beneficiary of the agreement, an accounting, and a constructive trust, as well as damages for breach of contract, quantum meruit/unjust enrichment, and promissory estoppel/reliance.

Last Atlantis Litigation

• SRZ secured the dismissal of all federal securities claims against Goldman Sachs Execution & Clearing, L.P. and SLK-Hull Derivatives LLC (collectively, the “Goldman Defendants”) in a case brought by “direct access” brokerage customers who used arbitrage trading strategies in an attempt to take advantage of price discrepancies in the options markets. The plaintiffs alleged the Goldman Defendants and the other options specialists also named as defendants violated their duty of “best execution” by refusing to execute orders promptly and executing proprietary trades for the specialists‘ own accounts ahead or instead of the plaintiffs’ orders. The Goldman Defendants moved for summary judgment on the plaintiffs‘ federal securities fraud claims on the ground that they had made no misrepresentations concerning the duty of „best execution,” and the court held that the asserted misrepresentations the plaintiffs had culled from the defendants‘ web site either did not apply to options specialists at the Goldman Defendants or were mere inactionable puffery. The court declined to dismiss similar federal claims against three other specialist defendants.

Knight – Libertas Litigation

• Represented Knight Capital Group’s broker-dealer subsidiary and Knight’s former head of fixed income in complex litigation in various venues stemming from our clients’ prior association with a $500 million hedge fund. Secured favorable settlement for our clients in a $60 million federal court suit alleging misappropriations by the former CEO of the hedge fund. Previously obtained a $6 million award related to client’s sale of his partial ownership of the hedge fund business in multi-day arbitration evidentiary hearing. Successfully confirmed arbitration award and obtained orders restraining judgment debtors’ ability to use or deplete assets. Following a multi-day state court hearing, obtained prejudgment remedy requiring adversary to deposit more than $4 million with court as security for our client’s claim for redemption of his hedge fund investment. Successfully prosecuted multi-day state court bench trial to hold adversary in contempt for violating temporary restraining orders. Successfully moved to dismiss related federal securities law claims brought by hedge fund investors.

Lancelot Funds/Tom Petters Litigation

• Represented RBS Citizens, N.A. bank and various other entities affiliated with the Royal Bank of Scotland in actions filed in the United States District Court for the District of Colorado, in Colorado state court, and in Illinois state court by various hedge funds managed by Agile Group, LLC and Sky Bell Asset Management, LLC for approximately $65 million of losses those funds claim to have suffered on investments in the Lancelot Investors Fund hedge funds. The Lancelot funds provided financing to a purported consumer electronics brokerage operation run by Minnesota businessman Thomas Petters, who was later convicted of running a $3 billion Ponzi scheme. The plaintiffs alleged statutory and common law claims based on their alleged reliance on assertedly false statements that the plaintiffs claim the bank made to them concerning the due diligence the bank conducted on the Lancelot funds, to which the bank was a lender. The matter was resolved amicably.

Complex Systems, Inc. v. The Royal Bank of Scotland 

• Represented The Royal Bank of Scotland N.V. (formerly known as ABN AMRO Bank N.V.) (“RBS”) in an action filed in the U.S. District Court for the Southern District of New York by its former software vendor. The vendor alleges that RBS lost all previously licensed rights in and to the vendor’s software after RBS divested certain US-based businesses to a third party. Plaintiff has asserted multiple claims, including copyright infringement, breach of contract and trade secret misappropriation, and is seeking significant monetary damages and an injunction.

Medical Assets, LLC v. Emmet A. Larkin Co., Inc.

• Successfully represented a West Coast-based clearing firm in an NASD (now FINRA) arbitration brought by a bio-venture capital firm from which $15 million worth of securities, on deposit with the clearing firm, had allegedly been converted by a foreign business partner. The case raised novel issues regarding the application of the “safe harbor” under UCC § 8-115 for transfers by securities intermediaries such as clearing firms. Following more than 40 hearing sessions, the panel of arbitrators unanimously dismissed all claims against the clearing firm.

Weiss, Peck & Greer, L.L.C. v. National Discount Brokers

• Represented National Discount Brokers, a former division of Deutsche Bank, in an NASD (now FINRA) arbitration proceeding against it involving more than $12 million in losses resulting from a correspondent firm’s failure to cover a large short position in a highly volatile stock. The case raised significant issues regarding the responsibility of clearing firms and Nasdaq market-makers with respect to monitoring the risk exposure of correspondent firms. At the conclusion of several weeks of hearing sessions during which the clearing firm, represented by a major Wall Street law firm, called the former director of the SEC’s Division of Enforcement as an expert witness, the panel unanimously dismissed all claims against National Discount Brokers.

Options Industry Antitrust/Securities Litigation

• Represented Goldman Sachs & Co. affiliate, First Options of Chicago, Inc., the largest equity options trading specialist firm, in class action litigation alleging that the national options exchanges and their members conspired to restrict the listing of options to a single exchange. Served as liaison counsel for the specialist firm and market-maker defendants and for certain settling market-makers.

Cambridge Partners Litigation

• Represented Goldman Sachs Execution & Clearing, L.P. in a lawsuit and arbitration brought by a court-appointed receiver and investors who lost more than $40 million in Cambridge Partners, a hedge fund clearing client. The New Jersey state court granted the client’s motion to compel arbitration. The arbitration was resolved favorably.

Duke Energy Securities Litigation

• Represented Duke Energy and its officers and directors in an internal investigation relating to the recognition of revenues on “wash” trades in electrical power and gas derivative securities and related SEC and DOJ investigations and securities class action lawsuits filed in New York and North Carolina. Secured an early victory for Duke Energy in the New York action by successfully moving the federal court to dismiss the class action in its entirety on the pleadings. Also successfully defended the dismissal on appeal to the Second Circuit Court of Appeals.

NatWest Securities Litigation

• Represented National Westminster Bank Plc and its investment banking subsidiaries in connection with eight lawsuits filed in both state and federal courts by the purchasers of $450 million of high-yield bonds that financed a steel mill in Thailand. Plaintiffs have alleged fraud and misrepresentation in connection with a Rule 144A offering.

Brandon v. Taylor Financial Group, Inc.

• Represented Pershing, a division of Donaldson, Lufkin & Jenrette Securities Corporation, in an NASD (now FINRA) arbitration proceeding brought by an investor who claimed that his broker, to whom Pershing provided securities clearing services, committed fraud and made unsuitable trades that caused millions of dollars of losses in the investor’s accounts. The arbitration panel granted pre-hearing motion to dismiss all claims against Pershing.

Nasdaq Market-Makers Antitrust Litigation

• Represented a leading broker-dealer (Goldman Sachs Execution & Clearing, L.P., formerly Spear Leeds & Kellogg, L.P.) in the Nasdaq market-makers securities litigation involving allegations of collusion relating to quote activity in the over-the-counter market. Served as one of three liaison counsel for the 35 largest over-the-counter market-makers in connection with the SEC and DOJ investigations and 20 class actions. This case was resolved favorably on behalf of the client.

Performance Specialist Group, LLC Class Action

• Represents Performance Specialist Group, an NYSE specialist, in a class action against the NYSE and all the NYSE specialists filed in Manhattan federal court. The plaintiffs allege that the NYSE and the specialist firms violated the securities laws through such practices as “front-running,” “trading ahead,” „inter-positioning,” and “freezing” the specialists’ books, causing millions of dollars of losses to those people who traded on the NYSE.

Allegheny International Litigation

• Represented Goldman Sachs Execution & Clearing, L.P. and Mario Gabelli and his funds, in separate suits against the officers and directors of the multinational conglomerate Allegheny International, Inc. (Allegheny); its accountants, KPMG Peat Marwick; and its investment banker, Dillon Read & Co. The plaintiffs alleged that, in reliance on fraudulent financial statements and income projections, they were induced to make a significant investment in Allegheny, which entered bankruptcy soon thereafter. Numerous accounting and auditing issues were raised in the case, focusing primarily on whether Allegheny’s assets (including real estate) and liabilities were properly reflected on its financial statements under generally accepted accounting principles, and on whether Peat Marwick’s audit procedures were sufficient and appropriate under generally accepted auditing standards. These matters were successfully resolved for the clients.

Greenwich Capital v. Citibank Mortgage

• Successfully represented Greenwich Capital, one of the largest fixed-income securities dealers, in connection with a disputed trade involving the sale of a $250 million pool of home loan mortgages.

Herbalife Securities Litigation

• Represented Herbalife International, Inc., a California-based corporation that markets weight-control products, food and dietary supplements, and personal care products worldwide, as well as Herbalife’s CEO and CFO, in connection with a class action lawsuit filed in the U.S. District Court for the Central District of California alleging violations of federal securities laws. Plaintiffs alleged that the company issued overly optimistic earnings projections and that its financial statements overstated earnings. The action was dismissed for failure to allege sufficient facts in the complaint. The decision was affirmed by the U.S. Court of Appeals for the 9th Circuit.

Oxford Tender Offer Litigation

• Represented Oxford Residential Properties I Limited Partnership and several of its affiliates in connection with litigation brought in the U.S. District Court for the Central District of California arising from a management tender offer. The case involved a derivative action brought by a unit holder of one of the partnerships who, among other things, challenged the adequacy of the tender offer materials and sought to enjoin the tender offer and obtain from the partnership the list of unit holders. The court did not require the partnership to disclose the list, and the tender offer was successfully completed.

Haft v. Haft

• Represented the international accounting firm of Arthur Andersen & Co. in connection with a myriad of lawsuits arising over the control of Dart Group and other corporations and partnerships owned by members of the Haft family. Arthur Andersen was the accounting firm for the Hafts and the related companies.

Farmers Group Litigation

• Represented defendant PaineWebber in a class action, arbitration proceeding and PHLX proceeding arising out of alleged violations of the PHLX and OCC options exercise rules. The class action was dismissed based on defendants’ motion, the arbitration panel rendered judgment for defendants after a full hearing, and the PHLX proceeding was amicably resolved.

Geodyne Securities Litigation

• Represented defendant PaineWebber in a class action brought by investors of hundreds of millions of dollars in oil and gas drilling programs. The investors claimed they purchased the securities based on misleading disclosures and false financial information. The action was dismissed with prejudice.

Oxford Securities Litigation

• Represented Oxford Corporation and its affiliates in an action brought by investors in real estate limited partnerships that developed and built garden apartments. Plaintiffs filed actions in New York and Michigan, alleging false and misleading disclosures in the offering materials and improper financial statements. The matter was successfully resolved after defendants’ motion to dismiss was granted.

Brantley Capital Corporation Investigation

• Represented closed-end mutual fund Brantley Capital Corporation and certain of its current and former directors in connection with an SEC investigation into portfolio valuation and other issues involving the fund and its former management. Also represented the fund in a federal class action filed by fund shareholders in Manhattan federal court, and represented the fund in an earlier derivative action that was filed in the same court but was later voluntarily dismissed.

Securities and Exchange Commission v. Kenneth D. Pasternak and John P. Leighton

• Successfully represented Kenneth Pasternak, the former CEO of Knight Securities, L.P., the largest Nasdaq market-making firm, in connection with an action brought by the SEC in New Jersey federal court. The SEC alleged in its complaint, filed on Aug. 8, 2005, that Joseph Leighton, one of Knight’s institutional sales traders, overcharged the firm’s institutional customers in executing their orders to purchase or sell Nasdaq securities during 1999 and 2000. The SEC claimed that Mr. Pasternak, as CEO, and John Leighton, Joseph’s brother and supervisor, participated in and aided and abetted Joseph’s alleged violations of the securities laws. After a 14-day bench trial, the court concluded that the SEC failed to prove that Joseph committed any fraud and completely cleared Mr. Pasternak of any wrongdoing.

Comverse Technology, Inc. Investigations and Litigation

• Represented the Special Committee of the Board of Directors of Comverse Technology, Inc. in connection with allegations of stock option backdating and earnings manipulation. Conducted worldwide internal investigations on behalf of the Comverse Special Committee, dealing with both the SEC and the Office of the U.S. Attorney for the Eastern District of New York. After criminal charges were filed against former senior executives of the company, the DOJ singled out the thoroughness and speed with which the internal investigation was conducted. Also represented the Special Committee in related derivative litigation brought in federal and state courts against current and former officers and directors of the company.

Strategic Income Fund Litigation

• Represented Goldman Sachs Execution & Clearing, L.P. and certain of its predecessors (collectively, GSEC) in a federal court lawsuit brought by Strategic Income Fund and its investors in federal district court and in related state court and CBOE arbitration proceedings—all arising out of GSEC’s liquidation of assets that had been transferred to the fund manager’s account as collateral for its options trading program. Successfully moved to dismiss the federal court complaint alleging $22 million in compensatory damages and obtained an affirmance of the dismissal from the 11th Circuit. Also successfully defended a four-day CBOE arbitration hearing that had been commenced by two plaintiffs who did not pursue the 11th Circuit appeal. Finally, successfully moved to dismiss the state court claims subsequently brought by the remaining federal plaintiffs and obtained an affirmance of that dismissal on appeal.

Bear, Stearns Securities Corp. Prime Brokerage Litigation

• Utilizing his experience in the areas of securities clearing and prime brokerage, represented SIFMA, as amicus curiae, in the appeal of a bankruptcy court ruling that held a prime broker liable for alleged fraudulent transfers made by one of its hedge fund clients in the form of margin payments and other deposits into its prime brokerage account.

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• Washingtonian magazine– one of Washington’s “Top Lawyers” in the securities area
• Washingtonian magazine’s listing of the 800 Top Lawyers, described by the publication as “Washington’s best– the top one percent”
• Lawdragon – named one of the “500 Leading Lawyers in America”
• Lawdragon – named a “Leading Lawyer” in a list that represents less than one percent of the legal profession and is determined based on a combination of independent research and peer reviews
• Lawdragon 500 Leading Litigators in America

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