Risk Update

Information Clashes and Conflicts — SEC Client Identity Data / Confidentiality Fight Continues, Special Master Bias Concerns Beaten

(I’m curious to see if they start going to bank and payment processors to get this data, or even “recruiting laterals.”) “SEC, Covington dig in their heels as judge weighs US demand for client names” —

  • “A federal judge on Wednesday urged the U.S. Securities and Exchange Commission to resolve its dispute with law firm Covington & Burling over the agency’s demand for the names of 300 clients affected by a cyberattack on the firm.”
  • “The SEC sued Covington in January to force the prominent Washington-based firm to identify public company clients whose information was accessed or stolen in the breach. The hack was carried out by the Chinese-linked Hafnium cyber-espionage group, according to court filings, and the SEC said it needed the client names to probe for securities law violations associated with the attack.”
  • “Covington, represented by law firm Gibson, Dunn & Crutcher, has resisted the subpoena, arguing that its clients are confidential and identifying them would run afoul of legal ethics standards and constitutional privacy protections.”
  • “U.S. District Judge Amit Mehta called the SEC’s request “concerning” at Wednesday’s hearing, but also appeared skeptical that he had the legal authority to block the agency’s demand.”
  • “Mehta told an SEC lawyer that the subpoena puts Covington in the “very awkward position” of having to identify its clients to an enforcement agency without evidence of wrongdoing.”
  • “The SEC has said the client identities are necessary to investigate potential insider trading associated with the hack and to ensure that the companies affected made required disclosures.”
  • “The judge appeared to search for a resolution short of a court order, asking Hansen if the SEC could narrow its demand to only clients that had private information material to investors accessed during the cyberattack.”

(Curious, I tried to identify the brother and his oeuvre. IMDB reported about 30 individuals with the surname.) “AMC Shareholder Case Judge Refutes Special Master Bias Concerns” —

  • “A lawyer deputized to assist in shareholder litigation over preferred equity units issued by AMC Entertainment Holdings Inc. doesn’t appear to have any conflicts of interest, a Delaware judge said Wednesday.”
    “Amato is reviewing a tidal wave of letters from AMC retail investors writing to oppose a legal settlement allegedly worth more than $100 million.”
  • “Zurn, writing for Delaware’s Chancery Court, said the risk of retaliation by Hollywood elites against Amato’s brother, who allegedly works as a film editor, is too remote to justify removing her from the case. “I can envision no set of circumstances” in which her recommendations “could so anger Hollywood’s entertainment industry that it would blacklist” him, the judge said.”
  • “Nor does Amato appear to have any conflicts of interest stemming from her past work as co-counsel with one of the lawyers for the investors leading the litigation, Zurn found. But the judge said she would wait to formally reject that argument until Amato submits an affidavit stating that she’s unbiased.”
  • “The motions didn’t fully back up the assertions about Amato’s brother or say where the information came from—they simply flagged film industry work by someone sharing a last name with her—but Zurn said she had taken the claims at face value.”
  • “The settlement—worth more than $100 million at current trading prices, according to recent court filings—would resolve claims that the APE conversion reflects a complex corporate engineering scheme aimed at unfairly sidelining ordinary shareholders. AMC would get to move ahead with its recapitalization plan, while each owner of common stock would receive an additional share for every 7.5 they hold.”

Further, from the ruling: “RE: In re AMC Entertainment Holdings, Inc. Stockholder Litigation” —

  • “The second motion alleges Special Master Amato may not be impartial with regard to Mark Lebovitch, Esq., of Bernstein Litowitz Berger & Grossmann LLP, who has entered his appearance on behalf of plaintiffs in this case. The motion asserts Special Master Amato and Mr. Lebovitch worked together on In re Globe Specialty Metals, Inc. Stockholders Litigation, C.A. No. 10865-VCG (Del. Ch.).”
  • “A review of that docket indicates that indeed, Special Master Amato’s firm and Mr. Lebovitch’s firm served as co-lead  counsel for the plaintiffs in that case, and both Special Master Amato and Mr. Lebovitch entered appearances.”
  • “The motion states that Special Master Amato’s co-representation of lead plaintiffs with Mr. Lebovitch in that matter, which concluded nearly seven years ago, “raises reasonable questions regarding her impartiality.”
  • “I interpret the motion as seeking disqualification under Rule 2.11(A)(1).”
  • “Special Master Amato’s past representation in In re Globe Specialty Metals does not give rise to an objective appearance of bias in favor of Mr. Lebovitch or his clients. Serving as co-lead counsel in a case nearly seven years ago creates no logical concern that Special Master Amato would favor Mr. Lebovitch or his clients in her recommendations in this matter.”
  • “The fact that the movant ‘has no way of knowing if both parties have been communicating outside this court’ does
    not change that result. One could say this of any judicial officer and any other person, but absent any reason to think such communications exist and that such communications are of such a nature that would create or reflect a bias, this unknown does not contribute to the objective appearance of bias.”