Justin Lichterman, a senior associate in the San Francisco office, is a member of the Intellectual Property group. He focuses his practice on complex commercial and intellectual property litigation for technology and other public and private companies.
Mr. Lichterman has extensive experience in high stakes litigation at both the trial and appellate court levels, representing clients in both jury and bench trials in federal and state courts across the country. He has represented numerous technology clients in all forms of civil litigation, including private party disputes, class actions, and governmental agency enforcement actions, as well as in prelitigation guidance. He defended clients in patent and trade secret lawsuits, cases involving the intersection of patent and antitrust law, and disputes concerning complex technology products or transactions. He has appeared in diverse cases in numerous jurisdictions, including complex bankruptcy-related adversary proceedings, international and FINRA arbitrations and other matters in federal and state courts.
Mr. Lichterman has defended many companies and their directors and senior officers against allegations of securities fraud brought by private investors and the Securities and Exchange Commission. He has assisted clients with internal and regulatory investigations concerning alleged wrongdoing in the securities and corporate compliance and governance environment. His experience in corporate governance litigation includes defending claims of breach of fiduciary duty under Delaware, California and other state laws, merger cases and shareholder disputes in both private and publicly-traded companies. He understands the business and regulatory concerns of his clients, and how to accommodate them in the litigation environment. His clients include leading technology and Fortune 500 companies, and he has represented, among others, NVIDIA Corporation, Oracle Corporation, Facebook, Morgan Stanley, Levi Strauss & Co., Logitech, and PricewaterhouseCoopers.
Mr. Lichterman has extensive appellate experience. He served as lead or co-counsel in several cases in the federal and California courts of appeals, including responsibility for oral argument in the Ninth Circuit. He has also represented clients in the United States Supreme Court.
Mr. Lichterman spent time as a prosecutor in a Trial Unit of the San Francisco District Attorneys' Office, where he first chaired several criminal jury trials to verdict.
Prior to joining Orrick in 2004, Mr. Lichterman was an associate with the San Francisco office of Clifford Chance US LLP. Before joining Clifford Chance, he served as a judicial clerk for the Honorable Arthur P. Roy on the Colorado Court of Appeals.
Today, the Solicitor General filed a motion asking the Supreme Court to dismiss the Securities and Exchange Commission’s petition for a writ of certiorari in SEC v. Bartek. As noted in a previous blog post, the Bartek petition focused on when the limitations period under 28 U.S.C. § 2462 begins to accrues, a question that was answered in Gabelli.
However, the petition also presented a second question: whether director and officer bars and injunctive relief constituted penalties. Although the Supreme Court was unlikely to take up that question at this juncture, the government’s decision to dismiss the petition perhaps signals a view that Gabelli will not have a significant adverse impact on the SEC’s civil enforcement activities. Certainly, Gabelli’s impact can be minimized if, as expected, Mary Jo White is confirmed as the next SEC Chair and follows through on her commitment to the Senate Banking Committee to “aggressive” pursuit of wrongdoers.
In Gabelli v. SEC, a unanimous Supreme Court held that the statute of limitations for “penalty” claims in governmental enforcement actions begins to run from the date of the underlying violation of the law, not when the government discovers or reasonably should have discovered the misconduct. Gabelli has important implications for the Securities and Exchange Commission (“SEC”) and all governmental agencies because it limits the sanctions available to the agency for conduct that occurred more than five years before it commences a civil enforcement action. Opinion.
Gabelli involved the application of 28 U.S.C. § 2462, which provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture … shall not be entertained unless commenced within five years from the date when the claim first accrued[.]” In 2008, the SEC sought civil penalties from Mark Gabelli, a mutual fund portfolio manager, for alleged violations of the Investment Advisers Act in connection with alleged market timing issues. Gabelli successfully moved to dismiss the penalty claims as time-barred under Section 2462 because the complaint was filed almost six years after the alleged misconduct. On appeal, the Second Circuit reversed, reasoning that in cases of fraud the statute of limitations does not begin to run until the SEC discovered (or reasonably could have discovered) the wrongful acts. The Supreme Court disagreed, holding that “a claim based on fraud accrues—and the five-year clock begins to tick—when a defendant’s allegedly fraudulent conduct occurs.” Read More
Today, the Supreme Court granted a petition for certiorari in Gabelli v. Securities and Exchange Commission (11-1274). In the appeal from a Second Circuit opinion, the Court will decide whether a governmental claim for penalties accrues on the date that the underlying violation occurs, or when the SEC discovers (or reasonably could have discovered) the violation, for purposes of the 5-year statute of limitations for governmental penalty actions embodied in 28 U.S.C. s. 2462. The precise question presented is:
“When Congress has not enacted a separate controlling provision, does the government’s claim first accrue for purposes of applying the five-year limitations period under 28 U.S.C. s. 2462 when the government can first bring the action for a penalty?”
The Second Circuit, in an opinion adopting the SEC’s position, held that the discovery rule applies to SEC enforcement actions rooted in fraud. Under that rubric, the SEC could bring an enforcement action within five years of learning about a fraud, which, in many cases, can be far more than five years after the underlying violation occurred. The Supreme Court’s decision to take the case follows closely on the heels of the Fifth Circuit’s August 7, 2012 decision in SEC v. Bartek, previously discussed here. In Bartek, the Fifth Circuit held that the statute of limitations for penalties in SEC enforcement actions began to run on the date of the underlying in violation, and that the discovery rule does not apply to 28 U.S.C. s. 2462. The Bartek decision therefore created a clear Circuit split that the Supreme Court is poised to resolve next term.
In SEC v. Bartek, filed August 7, 2012, the Fifth Circuit held that the discovery rule does not apply to 28 U.S.C. § 2462, the statute of limitations governing penalties in SEC civil enforcement actions, thus affirming a district court’s grant of summary judgment in favor of the defendants. Under the Fifth Circuit’s ruling, the SEC’s claims for penalties accrue on the date of the violation, not on the date that the SEC discovers the violation. This opinion creates a circuit split after the Second Circuit’s decision in SEC v. Gabelli, 653 F.3d 49 (2d Cir. 2011), which held that the discovery rule applied to Section 2462, and increases the likelihood that the Supreme Court will weigh in on the issue. Read More