Marc D. Powers
Marc D. Powers has led Baker Hostetler’s national Securities Litigation and Regulatory Enforcement practice team since 2004. He has been defending clients in many of the notable cases and matters in this area most of his legal career.
In litigation and securities-related regulatory investigations, there is no substitute for substantial experience and reasoned judgment. Mr. Powers' superior understanding of the securities laws, forged through hundreds of investigations with securities regulators nationwide and complex civil litigations, is coupled with previously successful strategies and tactics. It allows him to aggressively but deliberatively and confidently represent his clients, whether in high profile crisis situations or longer "below the radar" matters, to highly successful conclusions.
Mr. Powers has practiced in securities regulation, litigation and enforcement for over 25 years. He spent the first five years of his legal career as an Enforcement Division attorney and later as Branch Chief at the United States Securities and Exchange Commission. Mr. Powers has spent the last two decades in private practice. He currently defends public corporations, broker-dealers, mutual funds, hedge funds, brokers and their officers, employees and directors in complex securities litigation, and when facing civil and criminal investigations before the SEC, FINRA (f/k/a NASD), CFTC, United States Attorney’s offices and state securities regulators.
Notable Cases
Mr. Powers has represented clients in many of the Country’s most notable cases in the past generation. Mr. Powers is one of the attorneys involved in the firm's representation of the SIPC Trustee, Irving Picard, in the Bernard Madoff Ponzi scheme matter. He works with several teams of attorneys to investigate and/or coordinate strategy for the litigation of Trustee actions involving feeder funds. He also is part of the team of attorneys which has commenced avoidance and breach of fiduciary claims against certain third parties. Earlier, in the mid 1990s, he was deeply involved in the seminal Kidder Peabody case, one of the first, large internal investigations in the investment banking industry. This high-profile matter involved a rogue trader, Joe Jett, who was allegedly involved in a $350 million phantom profits scheme.
Since around enactment of the Sarbanes-Oxley Act of 2002 (SOX), Mr. Powers’ representations have included the Rigas family members of Adelphia Communications, Douglas Faneuil in the ImClone/Martha Stewart SEC and criminal insider trading investigations, class action and criminal trial, Federated Investors in its internal investigation in the market timing and late trading scandal; Lord Conrad Black of Hollinger International in federal civil litigation involving criminal indictment allegations; the Republic of Iraq in a federal civil litigation arising from 9-11 claims; a former CFO in stock options backdating investigations and related derivative actions; the former General Counsel of Refco, the futures and commodity firm, an institutional Trustee in subprime litigation; and a foreign accounting firm in an SEC injunctive action involving allegations of a faulty financial audit.
Mr. Powers has also been appointed by federal courts in New York and New Jersey to serve as Receiver and Special Agent in SEC and CFTC cases involving insider trading and Ponzi schemes. In this capacity, he currently leads a team of Baker Hostetler attorneys serving as Third-Party Examiner in connection with independent settlements by five broker-dealers with FINRA concerning mutual fund sales practices. His team has been retained by New York Life, Prudential Securities, Wachovia (Wells Fargo) and Banorte Securities to work collaboratively with them in reviewing and monitoring their remediation programs for their customers.
Mr. Powers also has extensive experience in commercial litigation in federal and state courts, particularly involving claims of breach of fiduciary duty, breach of contract, tortuous interference with business relations and negligent misrepresentation. He has represented clients in over 100 securities and commercial arbitrations nationwide, before FINRA, NYSE and AAA, and has also served as a FINRA arbitrator.
Other Representative Matters Since 2000
- Representation of former management involved in a triangular merger in dismissal of federal claims of $160 million by defeating retroactive effect of SOX’s securities fraud statute of limitations, both in federal district court (Philadelphia) and before Third Circuit Court of Appeals.
- Defense of Hedge Fund in four year investigations by CFTC, SEC and United States Attorney’s Office (Boston) alleging market timing and late trading, successfully resulting in no charges brought against fund and reimbursement of legal fees by D&O insurance carrier.
- Defense of Senior Portfolio and Risk Manager at Freddie Mac on “swaptions” in three year SEC investigation (D.C.), successfully convincing Staff to drop possible charges.
- Representation of Midwest broker-dealer in alleged affinity fraud of $170 million in church bond offerings before the SEC and FINRA (Chicago), avoiding any criminal liability.
- Representation of Managing Director of Societe Generale/Cowen responsible for Proprietary Trading in internal investigation of PIPEs transactions.
- Representation of a public manufacturing concern in three year SEC investigation (Chicago) involving alleged violations of SOX 404 (internal controls) and stock manipulation, resulting in no charges against company.
- Representation of Compensation Committee Board members of public media company in Executive Compensation issues and dispute, saving company over $30 million in pay packages.
- Representation of NYSE floor brokers’ trade association in SEC comment letters and litigation arising from the proposed Hybrid Market and Archipelago merger, resulting in favorable modifications to trading protocol at the Exchange.
- Representation of Senior VP-Finance and Controller of bankrupt public company in SEC investigation of manipulation and false financial statements, successfully resulting in no enforcement action against clients.
- Representation of Sellers of Aerospace business (Florida) in dispute with public company Purchaser over post-closing escrow adjustments and indemnification claims of $30 million, successfully resulting in complete release of remaining escrow without having to commence litigation.
- Representation of Short Sellers of Bulletin Board company in illegal short squeeze and restructuring by company that had created over $10 million in debit balances for Short Sellers, successfully resulting in cover of positions at minimal cost to clients, imposition of Trading Halt by SEC, and investigation by the agency of manipulative activities.
Mr. Powers has written and spoken extensively both domestically and abroad on securities laws, corporate governance and white collar crime. He has also been featured in diverse publications, such as The American Lawyer, National Law Journal, Investment News and The New York Law Journal. He is frequently quoted in news media and has appeared numerous times on CNBC, Court TV, Bloomberg TV and Radio, the Canadian Broadcasting Corporation and CNN.
Mr. Powers was Co-Chair of the Committee on Securities and Exchanges at the New York County Lawyers’ Association from 1997 to 2002 and served on its Board of Directors from 2002 to 2005. He is a member of the ABA, the Federal Bar Council and SIFMA. For over three years he has served as an appointed member of both the ABA and New York State Bar Presidential Task Forces on the Attorney-Client Privilege. In 2006, Hofstra University School of Law awarded Mr. Powers its Distinguished Alumni Award. He is AV rated by Martindale-Hubbell and has been selected as a Super Lawyer each year from 2006-2009. He is also the recipient of the SEC’s Sustained Superior Performance Award.
Articles Published
- “SEC Already Has Necessary Tools to Punish Hedge Fund Fraud,” Hedge Funds and Private Equity, December 2008
- “Accountants’ Liability,” National Law Journal, April 2007
- “The Erosion of the Attorney-Client Privilege and Work Product Doctrine in Civil and Criminal Investigations,” Wall Street Lawyer, July 2006
- Contributing co-author to Comment Letter by NYS Bar Task Force in March 2006 to U.S. Sentencing Commission on deleterious effects of 2004 Amendment to Sentencing Guidelines on Attorney-Client Privilege Waiver
- “Future of Mutual Fund Governance Rules Remains Unclear,” ABA Securities Litigation Journal, Fall 2005
- “SEC Enforcement Tactics in Light of Sarbanes-Oxley—Brand New World: Has the Pendulum Swung Too Far?,” Material Matters, October 2003
- Contributing co-author to 2002 and 2003 comment letters by Committee on Securities and Exchanges, NYCLA, regarding SEC proposed rules under the Sarbanes-Oxley Act
- Contributing co-author to 1999 comment letter by Committee on Securities and Exchanges, NYCLA, regarding NASD-proposed rule on broker compensation
- Contributing co-author of 1996, 1997-98 Reports of the Subcommittee on SRO Matters, Section of Litigation, ABA, “SRO Disciplinary Actions”