Insights
The new Chambers and Partners Europe rankings have been published and BLD remains the leader in the Insurance category for Germany in 2024: Band 1 status for the firm and a special mention for five BLD lawyers.
Chambers highlights “an excellent insurance practice with a particular focus on representing the interests of large national and international insurance companies.” Service lines from D&O to product liability cases, including global product recall, and cyber insurance are all mentioned. In addition to these claims-related activities, Chambers also speaks to BLD’s excellent reputation in the fields of regulatory and contract law advice as well as product development.
Testimonials include praise for its regional coverage – “BLD is ideally positioned to handle contentious mandates” – another client calls BLD “the strongest team in Germany with market leaders in all areas”.
Five BLD lawyers were recognized for their performance – Dr. Reinhard Dallmayr, Björn Seitz, Dr. Joachim Grote, Bastian Finkel and Dr. Martin Alexander.
Congratulations to all at BLD.
#BLD #Chambers #Rankings #Insurance
National Firm Now in 41 Offices across the United States
Our North American alliance firm Wilson Elser announced today that it has opened a new office in Indianapolis, Indiana.
The Indianapolis office together with the firm’s Merrillville, Indiana location will service clients across the entire state. Wilson Elser now has 41 offices in the United States.
Heading up the new office is Joseph V. Macha, an experienced trial attorney and former managing partner of the Indianapolis office of Foley Mansfield. Joining him from the same firm is associate Thomas J. Flynn. Justin Hazlett, a 20-year veteran of the Office of the Indiana Attorney General will join the office on August 21 as Of Counsel.
“We’re expanding our Midwest presence at the request of our clients,” said David Holmes, the firm’s Midwest Region Managing Partner. “The new Indianapolis office will expand the presence of Wilson Elser’s best-in-class national network of defense litigators and nationally recognized trial bench to serve our clients in this region.”
“The firm’s enhanced presence in Indiana headed by Joe is a double win for Wilson Elser. Together with the Merrillville office, Indianapolis will command a generous share of business in Indiana and serve as a strategic extension of our nearby Chicago office,” said Wilson Elser Chair Daniel J. McMahon.
Macha said he was excited to join Wilson Elser for its national stature and size. “It is good for my team to be with a firm that is growing in Indiana and nationwide. We look forward to using our years of trial experience and knowledge of Indianapolis to better serve the firm and its clients.”
The attorneys primarily will handle complex environmental liability, general liability and product liability matters.
About the Indianapolis Team
Joseph V. Macha
Joseph Macha is an experienced trial attorney with a practice focused in civil litigation, including product liability, toxic tort, environmental law, and drug and medical device litigation. He has been first chair for more than 20 jury trials in state and federal courts and handles bench trials and arbitrations as well.
Macha has represented clients before regulatory agencies and in litigation on issues pertaining to the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). His product liability work includes cases relating to drugs and medical devices, heavy equipment and a range of defect cases. Macha also has been involved in multidistrict litigation (MDL) and mass tort cases.
A National Board of Trial Advocacy (NBTA) Board Certified Trial Specialist, Macha is one of fewer than 2,000 attorneys in the United States to hold this certification. He also is a member of the American Board of Trial Advocacy, an esteemed invitation-only group.
Macha earned his J.D. degree in 1994 from Western State University College of Law, his B.A. degree in 1987 from Loyola Marymount University, and a B.S. degree in 1984 from Santa Clara University.
Thomas Flynn
Thomas Flynn has represented numerous high-profile Fortune 500 companies in various class action suits, with a focus on asbestos and talc claims. He has defended dozens of suits in various areas of law, including but not limited to toxic tort/mass tort, complex litigation (including multi-forum litigation), environmental law, product liability and general civil litigation.
Flynn earned his J.D. degree in 2019 from the University of Notre Dame Law School and his B.A. degree in 2015 from Indiana University Bloomington.
Anjali Das (Partner-Chicago, IL), in the third article in a series published by Westlaw and Reuters Legal News, provides an in-depth exposition of the state of laws vital to the security of private information under the Illinois Biometric Information Privacy Act (BIPA) and responds to questions regarding insurance coverage for BIPA claims. In light of concerns over the potentially astronomical damages that may be available under the law, Anjali advises companies to pay close attention to their insurance coverage and be aware of policy provisions that have been interpreted to limit or exclude coverage for BIPA claims.
Read the article in full here – https://bit.ly/3O9FCKQ
Wilson Elser is at the forefront of Cyber Security & Data Privacy. Our practice attorneys keep abreast of the latest trends and their implications for our clients. Indeed, several of our attorneys are considered authorities on this dynamic area of law.
In this series of podcasts, four of our senior Cyber Security & Data Privacy Practice attorneys discuss trends and developments in areas critical to our clients and the broader business community.
In the second installment of the series, we hear from Anjali Das, Co-Chair of the firm’s Cyber Security & Data Privacy Practice, offer her perspectives on data breach class actions, how they proceed and what they cost.
Anjali Das (Partner-Chicago, IL) was quoted in ““Cyber Insurers Track Privacy Exposures,” which appeared in the July 12, 2023, posting of Business Insurance. Increased privacy claims surrounding the collection and sharing of data by companies are reverberating through the cyber insurance sector as underwriters and policyholders take steps to stem losses. Anjali noted that in this environment, “Motions to dismiss are not readily granted … courts are allowing cases to move into discovery to learn more about the new wave of claims and suits, some of which are based on arcane language in the Video Privacy Protection Act (VPPA),” a federal statute enacted in 1988. “The recent wave of litigation has courts … wrestling with the role of VPPA in the modern world,” she said. One attraction of the VPPA to plaintiffs is that it provides for statutory damages of up to $2,500 per violation, and a concern for insurers is that cyber insurance often contains provisions for defence costs, and class-action suits can be lengthy, potentially making insurers responsible for what could be substantial defence costs.
Read the article in full here https://bit.ly/3PXCm83
Wilson Elser is at the forefront of Cyber Security & Data Privacy. Our practice attorneys keep abreast of the latest trends and their implications for our clients. Indeed, several of our attorneys are considered authorities on this dynamic area of law.
In this series of podcasts, four of our senior Cyber Security & Data Privacy Practice attorneys discuss trends and developments in areas critical to our clients and the broader business community.
In the fourth and final podcast of the series, Jana Farmer, a partner in Wilson Elser’s White Plains, New York, office, provides her perspectives on State data privacy laws, from exemptions to private rights of action.
Is the crypto industry in the United States dead? In the absence of formal legislation regulating the crypto industry in the United States, the Securities and Exchange Commission (SEC) has taken matters into its own hands and is singlehandedly going after crypto firms for violating federal securities laws by failing to register their activities with the SEC. The SEC’s aggressive stance against the industry has ratcheted up following criticism for its failure to act quickly enough to stop the death spiral of FTX last year. The latest crypto firms caught in the crosshairs include two of the largest, Binance and Coinbase, which are the subjects of recent SEC enforcement actions.
In recent years, the SEC, under the leadership of Chairman Gary Gensler, has repeatedly taken the position that crypto assets1 constitute “securities” subject to regulatory oversight by the Commission under the test set forth in the U.S. Supreme Court case, SEC v. W.J. Howey Co.,328 U.S. 293 (1946). Specifically, the SEC contends that crypto assets are “investment contracts” in which persons invest money in a “common enterprise” and reasonably expect to receive profits derived from the managerial or entrepreneurial efforts of others. Meanwhile, the crypto industry and its leaders have denounced this classification in the absence of specific regulation or guidance.
SEC’s Suit against Coinbase
On June 6, 2023, the SEC filed suit against Coinbase, Inc. (Coinbase) and its parent company, Coinbase Global Inc. (CGI) for violating federal securities laws.2 Coinbase is a Delaware corporation founded in 2012 that operates a crypto asset trading platform that services U.S. customers. A wholly owned subsidiary of CGI, Coinbase is registered with the SEC and trades under the ticker symbol “COIN” on the Nasdaq Global Select Market. The SEC’s lawsuit contends that Coinbase is operating as an unregistered securities exchange, broker and clearinghouse in violation of the Securities Exchange Act of 1934 (Exchange Act). In addition, the SEC contends that CGI is jointly and severally liable as a “control person” under the Exchange Act.
Background
By way of background, Coinbase operates one of the largest global trading platforms that allows customers to buy, sell and trade crypto assets. Coinbase reportedly services more than 108 million customers accounting for billions of dollars in daily trading volume. As explained by the SEC, crypto asset trading platforms enable customers to purchase and sell crypto assets for fiat currency (legal tender issued by a country) or for other crypto assets. These platforms typically possess and control the crypto assets deposited and/or traded by their customers and, thus, function as a central depository.
Similar to traditional securities exchanges, Coinbase’s platform (1) lists names, ticker symbols, prices, market cap and trading volume for crypto assets; (2) enables customers to place various buy/sell orders; (3) matches buy/sell orders through an electronic automated matching system; and (4) settles customer trades in exchange for fees charged by Coinbase.
Since 2021, Coinbase has offered “Coinbase Prime,” which is akin to prime brokerage services marketed to institutional clients for digital assets. Prime routes orders to the Coinbase platform and to third-party platforms so that customers have access to the broader crypto marketplace.
Since 2017, Coinbase has offered “Coinbase Wallet,” which is made available to both retail and institutional customers. Wallet routes customer orders through third-party decentralized trading platforms or decentralized exchanges (DEXs) to access liquidity outside of the Coinbase trading platform. Unlike orders to buy or sell crypto assets placed through the Coinbase platform or Prime, Coinbase does not maintain custody over the crypto assets traded through Wallet. Instead, these crypto assets are “self-custodied” by customers who hold the private keys.
According to the SEC, all of the crypto assets made available for trading on the Coinbase platform, Prime and/or Wallet are “securities” within the meaning of the Howey test discussed above.3 In particular, the SEC claims that these “Crypto Asset Securities [were] offered and sold … as an investment contract and thus a security.” For each of these assets, “statements by the crypto asset issuers and promoters have led investors reasonably to expect profits based on the managerial or entrepreneurial efforts of such issuers and promoters.” Further, “This was investors’ reasonable expectation whether they acquired the Crypto Asset Securities in their initial offering, from prior investors, or on crypto asset trading platforms, including the Coinbase Platform (or through Prime or Wallet).”4
The Complaint
According to the Complaint, the function of “exchanges,” “broker-dealers” and “clearing agencies” are typically carried out by separate legal entities that are independently registered and regulated by the SEC. This regulatory oversight is designed to protect investors from manipulation and fraud. In addition, registered entities must comply with SEC record-keeping and inspection requirements. Here, Coinbase purportedly violated securities laws by failing to register as a national securities exchange, broker and clearing agency for transactions involving the purchase, sale and trading of crypto asset “securities.”
The SEC also claims that the Coinbase “Staking Program” constitutes the unregistered offer and sale of securities in violation of the Securities Act of 1933. Staking is a consensus mechanism or protocol used by a blockchain to validate transactions involving digital assets. The two most popular consensus mechanisms are known as “proof of work” and “proof of stake.” Under the latter protocol, crypto asset owners who commit or “stake” their assets can obtain a reward or payment.
Coinbase allegedly markets its Staking Program to customers as an investment with an expected rate of return of up to 6.00% APY. Under the Howey test for securities, participants in the Staking Program (1) invest money in the form of eligible crypto assets; (2) participate in a common enterprise with Coinbase (e.g., the Staking Program); (3) reasonably expect to profit from their participation in the Staking Program; (4) are merely “passive” investors, based primarily on Coinbase’s efforts, which are essential to the success or failure of the enterprise.
SEC’s Suit against Binance
The same week the SEC filed suit against Coinbase, on June 5, 2023, it filed a separate enforcement action for securities law violations against Binance, which operates one of the largest international crypto asset trading platforms; its U.S. affiliates BAM Management and BAM Trading; and Changpeng Zhao (Zhao), the founder, principal owner and CEO of these entities.5 Similar to the suit against Coinbase, the SEC alleges that the Binance entities were operating unregistered national securities exchanges, broker-dealers and clearing agencies for crypto assets that are securities. However, unlike the case against Coinbase, the SEC also accuses the Binance entities and Zhao of engaging in widespread nefarious activities to defraud customers and investors, reminiscent of similar allegations against FTX and its founder, Sam Bankman-Fried.
For instance, in 2019, Binance created BAM Management and BAM Trading to launch its U.S. trading platform ostensibly created to comply with U.S. laws and regulations. U.S. customers were supposedly barred from trading on Binance’s international platform. According to the SEC, defendants allowed “VIP” U.S. customers to circumvent these restrictions by masking their U.S. IP addresses to access the international trading platform in addition to forgoing Know Your Customer (KYC) documentation, which is a lynchpin of U.S. banking regulation.
In addition, the SEC Complaint highlights defendants’:
- Lack of oversight over how U.S. customers’ crypto assets are stored, secured and transferred (and potentially diverted and commingled)
- Internal controls deficiencies identified by auditors with respect to custody of digital assets
- Use of two Zhao-controlled entities (Merit Peak and Sigma Chain) as “market makers” to create liquidity for crypto assets traded on the platforms, creating a conflict of interest
- Ongoing control by Binance and Zhao of BAM’s U.S. operations and lack of independence
- Manipulative “wash trading” to artificially inflate the volume of trading activity on the platforms and price of crypto assets.
Shortly after filing its Complaint, the SEC filed an emergency motion in court seeking a temporary restraining order to freeze assets held by the defendants for U.S. customers. In support of its motion, the SEC contends that:
- There is lack of transparency regarding the custody and control more than $2.62 billion in customer assets deposited, held or traded on the U.S. platform
- Binance and Zhao have admitted their intent to circumvent U.S. laws and regulatory compliance
- Binance and Zhao continue to maintain control over U.S. customers’ crypto assets
- BAM’s lack of internal controls or trading data confounded auditors’ ability to verify that the company was fully collateralized for customers’ crypto assets
- Binance and Zhao followed a pattern and practice of commingling customer funds and moving funds outside the United States.
For now, it remains to be seen whether the Binance saga unfolds in the same vein as the collapse of FTX.
Conclusion
The lack of clear federal legislation in the United States regarding crypto assets means that this industry will remain subject to the whims of various state and federal regulators for the foreseeable future. For instance, earlier this year, the Federal Reserve, the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) issued a Joint Statement acknowledging the “crypto-assets risks to banking organizations.”6 These agencies continue to assess safety and soundness concerns with banking services “that are concentrated in crypto-asset-related activities or have concentrated exposure to the crypto-asset sector.” Meanwhile, in May 2023, the New York Attorney General proposed legislation to tighten regulation of the cryptocurrency industry to protect consumers and investors.
In contrast, other countries are at the forefront of crypto legislation. According to PwC, the “European Union is at advanced stages of finalizing the new Markets in Crypto-Assets Regulation. In the United Arab Emirates, Dubai authorities are setting up the world’s first authority focusing solely on virtual assets. Switzerland has integrated one of the more mature regulatory framework for digital assets.”7
For now, the lack of an established regulatory framework in the United States, in addition to the aggressive stance taken by the SEC and other regulators against the crypto industry, may cause a flight to safety and predictability in crypto-friendly nations. Meanwhile, U.S. companies in this space should take heed of the risk of engaging in issuing, selling and/or trading unregistered crypto assets that may be viewed as securities.
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1 The SEC broadly defines crypto assets to include digital assets, tokens, cryptocurrencies, virtual currencies, and digital coins issued and/or transferred using blockchain or distributed ledger technology.
2 SEC v. Coinbase, Inc., et al., Case No. 1:23-cv-04738 in the U.S. District Court for the Southern District of New York.
3 These crypto assets specifically include those traded under the following ticker symbols: SOL, ADA, MATIC, FIL, SAND, AXS, CHZ, FLOW, ICP, NEAR, VGX, DASH, and NEXO.
4 SEC v. Coinbase, Inc., Complaint, par. 126.
5 SEC v. Binance Holdings Limited, et al., Case No. 1:23-cvo-01599 in the U.S. District Court for the District of Columbia.
6 Federal Reserve, FDIC and OCC Joint Statement on Crypto-Asset Risks to Banking Organizations (January 3, 2023).
7 PwC Global Crypto Regulation Report 2023 (December 19, 2022).
Wilson Elser is recognized in The Legal 500 United States 2023 in the following three practice areas.
Insurance: Advice to Insurers Tier 4
Wilson Elser’s Insurance Practice is headed by James Stankowski (Partner, California); professional liability specialist Thomas Quinn (Partner, New Jersey); Price Collins (Partner-Texas), who specializes in handling coverage determinations, claims, settlement negotiations and bad faith avoidance; and Michael Duffy (Partner, Chicago), who advises on coverage, extra-contractual liability and reinsurance matters. Key lawyers also recognized are Jonathan Meer (Partner-New York) and Kate Tammaro (Partner, New Jersey).
Cannabis Tier 4
Wilson Elser’s Cannabis Law Practice co-chair Ian A. Stewart works with insurance companies on new policy forms and underwriting practices, while co-chair Dean A. Rocco assists ancillary businesses and financial institutions that work with cannabis companies on regulatory compliance. All key lawyers are based in Los Angeles.
The Legal 500 testimonials:
“They have industry knowledge in a relatively newer market that other firms don’t possess.”
“Ian Stewart has the most knowledge out of every cannabis attorney I have spoken to. He recognized potential coverage issues and is able to assist in creating contracts that enable our company to navigate around them.”
“They have built an excellent practice across the industry and indeed across their firm, they are very knowledgeable and practical.”
Shipping Litigation & Regulation Tier 3
Wilson Elser’s Admiralty & Marine Practice is routinely sought by international group Protection & Indemnity clubs and major cruise lines for casualty response work. The New Orleans–based team is headed by longstanding maritime law specialist Antonio Rodriguez, who has extensive experience in matters involving collisions and other significant shipping and pollution casualties. Providing support are Jake Rodriguez and Mike Harowski. Working across the firm’s Houston and New Orleans offices, Kent Adams covers catastrophic personal injury, offshore, maritime, insurance and environmental matters. John Bridger (Of Counsel, Houston) handles a range of civil and maritime litigation. Key lawyers named are Otis Felder (Partner, Los Angeles), Raymond Perez (Partner, White Plains, NY), Ronald White (Of Counsel, Houston) and Daniella Gauer (Associate, Miami).
The Legal 500 Testimonials:
“Jake Rodriguez impresses with his knowledge of maritime law and practice, and his judgment and skill in litigation strategy.”
“Jake Rodriguez’s knowledge, skill and abilities are at a high level when compared to other firms. Clients are also impressed with his responsiveness to enquiries.”
The Legal 500 research is based on feedback from 300,000 clients worldwide, submissions from law firms, interviews with leading private practice lawyers and data from a team of researchers experienced in the legal market. The Legal 500 was published June 7, 2023.
About The Legal 500
https://www.legal500.com/c/united-states/
Wilson Elser announced it is again certified a Gold Standard Firm by the Women in Law Empowerment Forum (WILEF). The WILEF recognizes women attorneys from the largest law firms and corporate law departments in the United States, London and Paris.
The organization’s highest honor, Gold Standard Certification, requires a U.S. law firm to have a total of at least 300 practicing attorneys and to meet certain mandatory criteria for women and women of color. This initiative is the centerpiece of the WILEF’s continued commitment to being the change agent for women in law firms to rise within the firm as business developers and leaders.
“Wilson Elser is proud to be again named a WILEF Gold Standard certified law firm,” said Carolyn O’Connor, Chair of Wilson Elser’s Women Attorneys Valued & Empowered (WAVE) Employee Resource Group. “Gold Standard certification is proof that Wilson Elser is committed to diversity and equity in all ranks of firm leadership.”
Angela Russell, Chair of the firm’s Diversity & Inclusion Committee, added, “Wilson Elser is a leading national law firm for many reasons, and our efforts to advance the next generation of women attorney leaders is an important one.”
Learn more about the Women in Law Empowerment Forum as well as Wilson Elser’s WAVE and related initiatives.
Wilson Elser’s practice areas and attorneys were ranked in five department categories and eight individual categories in the prestigious Chambers USA 2023 Guide.
In this year’s rankings, the firm maintained all of its 2022 firm and individual rankings, and added three firm and two individual attorney rankings. Chambers USA is the leading legal directory, ranking the top lawyers and law firms across the United States. The legal rankings are based on in-depth market analysis and independent research, all conducted by a dedicated team of Chambers researchers.
The Chambers USA 2023 rankings for Wilson Elser
Five firm practice rankings:
Texas – Insurance
Nationwide – Cannabis Law
NEW! New Jersey – Insurance
NEW! Nationwide – Transportation: NTSB Specialists
NEW! Nationwide – Transportation: Shipping/Maritime: Litigation (outside New York)
Eight individual attorney rankings:
Price Collins – Texas – Insurance
Thomas Quinn – New Jersey – Insurance
Dean Rocco – Nationwide – Cannabis Law: Western United States
Ian Stewart – Nationwide – Cannabis Law: Western United States
Thomas Tobin – Nationwide – Transportation: NTSB Specialists
Antonio Rodriguez – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
NEW! Jake Rodriguez – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
NEW! Michael Harowski – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
On May 1st, Alexander Holburn celebrated its 50th anniversary with specialty coffee booths, a champagne toast, and remarks from Managing Partner, Chris Hirst. A momentous occasion for the firm and a testament to its success over the past five decades.
Chris spoke to ‘Business in Vancouver’ about the secret of their success over the last fifty years in an article published on Monday.
‘Looking back with grace and gratitude, while looking forward with optimism and determination’.
It’s with this spirit that law firm Alexander Holburn proudly celebrates its 50th anniversary by highlighting the very people who’ve brought this landmark occasion to fruition.
“It is pretty incredible to reflect on, and I think the reason for our longevity is because of our strong culture of support, mentorship, empathy and independence,” says managing partner Chris Hirst.
Hirst attributes some of the firm’s longevity to founding partners William (Bill) Holburn, K.C. and Stuart Lang, who, along with Hirst’s predecessor Bruno De Vita, K.C., helped set a standard of professionalism and excellence that continues to permeate across the firm today. The partnership also has a voice in shaping the firm, and there is an atmosphere of collaboration and leadership that makes people feel appreciated and encouraged to do their best.
Those hallmark qualities are brought to bear when looking at the firm’s retention and recruitment numbers: 20 per cent of Alexander Holburn’s employees have been with the company for 25-plus years, while a further 40 per cent of the team has spent the majority of their careers – at least 10 years – with the firm.
“It has always been about our people, our shared experience, and our commitment to one another. I hope that is why others wish to join us and why I expect we have a culture of ‘lifers,’” says partner and director of associate and student programs Christine York, who’s been with the firm for 27 years.
With longevity comes growth. The firm opened a Toronto office in 2019 and now has a small footprint in Kelowna as well. This growth includes a breadth of services and areas of expertise: insurance law, business law, real estate, construction law, mergers and acquisitions, class actions, wills and estates, defamation, aviation, strata and police law, to name just a few.
This is a firm that has quite literally overseen tens of thousands of cases over its storied history and whose clients range from large multinational organizations with complex legal issues to small and medium sized businesses at all stages. Clients have come to expect legal advice on par with large international firms while retaining the attention to client care and commitment that comes with a smaller firm.
So, what’s next?
“We’re always looking for ways to improve our service delivery and stay on top of trends and innovations,” Hirst says when looking ahead to the next 50 years.
“But some things are going to stay the same. We are always focused on getting the fundamentals right, continuing to build on a team of best-in-class lawyers and support staff and bringing them together with the goal of delivering outstanding legal and client service.” To learn more about Alexander Holburn and its suite of legal services, visit ahbl.ca. ‘
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