Ken Herzinger is the Deputy Chair of the White
Collar, Investigations, Securities Litigation and Compliance Group and a partner in the San Francisco office. Ken was an attorney in the Enforcement Division of the U.S. Securities and Exchange Commission prior to joining private practice. His
practice focuses on SEC investigations and enforcement actions, internal
investigations, and securities class actions.
Ken has nearly 20 years of experience as a securities litigator and has handled every type of securities law matter, including accounting and financial reporting, internal control over financial reporting (ICFR), disclosure controls and procedures, the Foreign Corrupt Practices Act (FCPA), insider trading, and Dodd-Frank and SOX whistleblower retaliation claims.
SEC and Regulatory: As a former SEC Enforcement attorney, Ken has successfully represented corporations, officers and directors, financial institutions, broker-dealers, auditors, and government municipalities in dozens of high profile investigations and enforcement proceedings by the SEC, U.S. Attorney's Office, PCAOB, and self-regulatory organizations such as FINRA.
Internal Investigations: Ken has also conducted numerous global and domestic internal investigations for public and private companies and audit committees regarding a myriad of issues including accounting fraud, internal control over financial reporting (ICFR), disclosure controls and procedures, the FCPA, insider trading, and whistleblower retaliation claims.
Securities Class Actions: Ken has also represented officers and directors and public companies in many high stakes securities class actions. He has tried cases in federal and state court and in arbitration proceedings, and was a member of the trial team which obtained a defense verdict in one of only several securities class action jury trials in the country to be tried to verdict.
He frequently lectures on and provides training for publicly traded companies and directors and officers on regulatory matters, corporate governance, and compliance.
Ken's clients include: Broadcom Corporation, Charles Schwab, Chesapeake Energy Corporation, McAfee, Oracle Corporation, SandRidge Energy, Walmart, and Western Union.
Ken's notable SEC and internal investigation representations include the following matters:
- Successfully represented CFO of a software company in connection with SEC investigation arising out of restatement of financial statements.
- Successfully represented numerous publicly traded technology companies in connection with parallel DOJ and SEC investigations of alleged insider trading schemes.
- Represented Audit Committees of publicly traded financial services company in connection with internal investigations of whistleblower retaliation claims.
- Successfully represented investment broker in connection with SEC investigation of alleged investor fraud.
- Successfully represented financial services company in connection with SEC investigation of alleged financial statement accruals and tax issues.
- Represented numerous individuals in DOJ and SEC insider trading matters.
- Represented numerous publicly traded companies in connection with international internal investigations of alleged violations of the Foreign Corrupt Practices Act in Latin America.
- Represented numerous publicly traded Fortune 100 companies in connection with international internal investigations of alleged accounting irregularities in Canada, China, Japan, Latin America, Europe and the US.
- Successfully represented numerous publicly traded companies in connection with SEC investigations of whistleblower retaliation claims.
- Represented numerous government municipalities in connection with SEC investigations of accounting and disclosure issues.
Ken's securities litigation matters include the following cases:
- In re Oracle Securities Litigation
- In re Chesapeake ERISA Class Actions
- In re SandRidge Energy ERISA Class Action
- In re Chesapeake Energy Corp Securities Litigation
- Metropolitan v. PricewaterhouseCoopers LLP
- In re Retek Securities Litigation
- Furman v. Walmart Derivative Litigation
The Second Circuit recently considered the extraterritorial application of the U.S. securities laws in the private securities class action context, bringing some clarity to an area of the law that is increasingly important given the globalization of financial markets.
In re Petrobras Securities, 862 F.3d 250 (2nd Cir. 2017), was an appeal of a class certification order in a securities class action related to an alleged multi-year money-laundering and kickback scheme involving Petróleo Brasileiro S.A. (“Petrobras”), the Brazilian state-owned oil and gas company. The district court had certified two classes of investors who purchased Petrobras American Depository Shares (ADS) and debt securities, and who brought misrepresentation claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 against Petrobras, its subsidiaries, and its underwriters. Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), held that the anti-fraud provisions of the securities laws have no extraterritorial effect, and as a consequence apply only to transactions in securities that occur on a U.S.-based exchange or that are otherwise “domestic.” Petrobras ADS shares satisfied the first requirement, but the company’s debt securities are traded over-the-counter, not on a U.S. exchange. Prior decisions had limited “domestic” transactions to ones where (1) the purchaser “incurred irrevocable liability within the United States to take and pay for a security . . . or to deliver a security” or (2) “legal title to the security . . . transferred in the United States” (see, e.g., Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 68 (2d Cir. 2012)), but how this test implicated the standards for class certification was not clear. READ MORE
On Wednesday July 12, 2017, in his first public speech as Chairman of the SEC, SEC Chairman Jay Clayton laid out a set of eight priorities that will guide his SEC Chairmanship. He said his priorities are consistent with and complimentary to the seven “core principles” set forth in President Donald Trump’s February 3, 2017 executive order regarding the regulation of the U.S. financial system.
The overarching themes in Chairman Clayton’s speech are that he is focused primarily on capital formation, modernizing the trading and markets system, and he favors a disclosure and market-based approach to federal securities regulation . Given the kind words for former Chair Mary Jo White and multiple references of areas of agreement, it is difficult to determine how much of a shift one can expect from the Commission under Chairman Clayton. Nevertheless, the following are a few key takeaways from the speech.
On May 24, 2017, the SEC for the first time brought charges based on allegations of insider trading on confidential government information. The alleged insider trading scheme involved tips related to three announcements by the Center for Medicare & Medicaid Services (“CMS”) regarding non-public rate changing decisions affecting the stock of issuers in the healthcare industry.
The complaint alleges that from May 2012 to November 2013, Christopher Worrall, a health insurance specialist in the Center for Medicare (“CM”), the CMS component that administers Medicare’s national payment systems and determines Medicare reimbursement rates, tipped his long-time friend David Blaszczak about internal deliberations and planned actions of CMS. Blaszczak is a consultant specializing in healthcare policy issues and a former CMS employee. READ MORE
On March 30, 2017, a bipartisan group of Senators introduced a bill called “Stronger Enforcement of Civil Penalties Act of 2017” (the “SEC Penalties Act”) to “crack down on Wall Street fraud” that would significantly increase civil monetary penalties in SEC enforcement actions up to $1 million per violation for individuals and $10 million per violation for entities, or three times the money gained in the violation or lost by the victims. Currently, the maximum civil monetary penalties in SEC enforcement actions are $181,071 per violation for individuals and $905,353 per violation for entities.
The SEC Penalties Act raises the maximum penalties under all three penalty tiers, would tie penalties to the scope of harm and associated investor losses, triple the maximum penalty caps under each tier for recidivists who have been held criminally or civilly liable for securities fraud within the preceding five years, and provide the SEC with authority to seek disgorgement of ill-gotten gains in SEC administrative actions (currently disgorgement is only available in federal district court actions). The legislation would not alter the current three-tier penalty structure or the standards for establishing a penalty under each tier, and does not define how administrative law judges and federal district courts should interpret the “each act or omission” language in the penalty statutes.
In a comprehensive tour of the Private Securities Litigation Reform Act’s (“PSLRA”) safe-harbor provisions, on November 22, 2016, a federal court in Massachusetts dismissed a shareholder class-action lawsuit against Neovasc, Inc. In holding that Neovasc’s ultimately faulty predictions concerning the outcome of a trade secrets lawsuit fell within the PSLRA’s safe harbor, the court rejected the plaintiff’s attempts to import a scienter requirement into the safe-harbor inquiry, among other things, and dismissed the complaint without leave to amend.
This putative class-action came on the heels of a $70 million jury verdict against Neovasc in May 2016. In that case, a jury found that Neovasc misappropriated certain trade secrets from CardiAQ Valve Technologies after CardiAQ had severed its manufacturing relationship with Neovasc, and Neovasc had patented a competing product. Neovasc’s stock price fell approximately 75 percent when the jury verdict was announced. Shortly after the verdict and stock decline, shareholders filed the class action, alleging securities fraud under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The plaintiff alleged, among other things, that prior to the verdict, Neovasc CEO Alexei Marko mischaracterized the lawsuit as “baseless,” and that Neovasc had misstated that the suit was “without merit” in the company’s SEC filings.
In what the SEC called “the first federal jury trial by the SEC against a municipality or one of its officers for violations of the federal securities laws,” a jury in the U.S. District Court for the Southern District of Florida found the City of Miami and its former budget director, Michael Boudreaux, guilty of securities fraud for misrepresentations related to three municipal bond offerings in 2009. Both Defendants are expected to appeal the jury decision.
In a heavily redacted decision issued on April 5, 2016, the SEC approved the claim of one whistleblower and denied the claim of another for providing information related to an unidentified enforcement action. The SEC awarded $275,000 to the primary claimant (Claimant 1) but offset that amount by the monetary obligations due related to a separate Final Judgment. Although the April 5 order was heavily redacted, the publicly available information confirms that the $275,000 award was based on a percentage of the monetary sanctions from both the SEC case and a related criminal action. This is the first time an SEC order has required a tipster to spend whistleblower proceeds to settle a court-ordered debt.
The leaders of the Securities and Exchange Commission (“SEC” or “Commission”) addressed the public on February 19-20 at the annual SEC Speaks conference in Washington, D.C. The presentations covered an array of topics, but common themes included the Commission’s ongoing effort to carry out the rulemaking agenda set forth in the Dodd-Frank Wall Street Reform and Consumer Protection Act, its increasing focus on cyber issues including its use of new technology to surveil and root out harmful practices in the modern and increasingly-complex market, and its continued focus on the conduct of gatekeepers. From a litigation and enforcement perspective, key takeaways from the conference include the following:
SEC Chair Mary Jo White began her remarks by touting the “unprecedented number of enforcement cases” brought by the Commission in 2015, which produced “an all-time high for orders directing the payment of penalties and disgorgement”—a trend that she stressed would continue in 2016. READ MORE
On the eve of the much anticipated release of Star Wars: The Force Awakens, the SEC approved Overstock Inc.’s plan to issue digital shares. The online retailer plans to issue company stock via bitcoin blockchain–an enormous database running across a global network of independent computers that tracks the exchange of money. Just as the original Star Wars movies released in the late 1970s and early 1980s signaled a monumental shift in special effects in film, Overstock’s plan to issue digital shares may herald a significant shift in the way securities are distributed and traded in the future.
On September 2, 2015, the North American Securities Administrators Association (NASAA) filed an amicus brief siding with Montana and Massachusetts in a bid to overturn the SEC’s new capital-raising rule, titled Regulation A but commonly referred to as Regulation A+. The NASAA, a non-profit association of state, provincial, and territorial securities regulators in the United States, Canada, and Mexico, includes securities regulators from all 50 states and the District of Columbia. The organization’s purpose is to “protect investors from fraud and abuse in connection with the offer and sale of securities.”