New York partner Marc Powers was profiled in the September 25, 2009, edition of Securities Law360 for his role as leader of the firm's national Securities Litigation and Regulatory Enforcement practice. Click to read the full article (courtesy of Law360).
Powers has practiced in securities regulation, litigation and enforcement for more than 25 years. He spent the first five years of his legal career as an Enforcement Division attorney and Branch Chief in the New York office of the Securities and Exchange Commission. He currently defends public corporations, broker-dealers, mutual funds, hedge funds, brokers and their officers, financial services firms and investment advisers in securities regulatory compliance, civil litigation and regulatory investigations.
Asked about his most challenging cases, Powers said, "The challenges of the best attorneys is to recognize the key issues and manage a client's expectations properly as to likely results and legal expenses. Too many attorneys promise an unrealistic result or cost just to secure the representation. This is a disservice to the client and unworthy of our profession." Powers went on to recount some of his most challenging cases, including "keeping Doug Faneuil, the key witness in the Martha Stewart case, out of jail . . . developing a successful strategy last summer to extricate investors caught in a manipulative short squeeze orchestrated by a bulletin board company and nominees without exposure to over $10 million in debit balances accruing in their accounts was very rewarding . . .[and] convincing the SEC staff attorneys this year that their SOX 404 investigation of a public company should be closed out without any charges being filed against the company."
Commenting on the aspects of law in his practice area that he feels are in need of reform, Powers said: "I sit on the ABA Task Force on Attorney-Client Privilege. We attack and reform the 'culture of waiver' that has devolved over the past decade where corporations seek to curry favor with criminal prosecutors by waiving their attorney-client privilege and work product protections in government investigations. This is extremely dangerous for our society, where clients and their employees need to be able to receive and rely upon unabridged legal advice by conveying all relevant facts and information to their attorneys."
Asked where he saw the next wave of cases in his practice area coming from, Power said, "As the economy gets worse, litigation rises. People who have incurred losses in the market or lost their jobs are more willing to sue, not less so. The Investor Protection Act of 2009 should help some of them. That act imposes fiduciary duties upon broker-dealers, similar to those existing duties for investment advisers. Thus, brokers will no longer be able to defend against lawsuits and customer complaints by claiming they are mere 'order takers.' I see customers pouncing on this new standard in the act, to be expanded upon by the SEC through rulemaking, and the proposed heightened payments to whistle blowers for uncovering fraud."
Finally, asked what advice he would give to a young lawyer interested in his practice area, Powers said, "To be truly successful, you need to have a passion. For justice, for the client itself/himself. For the fight against adversaries, whether private litigants in court or defending the client's conduct with securities regulators. Clients know it when you have it. The best attorneys are those that have passion in their bellies and heart, a complete understanding and experience with the securities laws and regulation, can argue persuasively, and a will to always win."