How can I protect my business from conduct risk? The U.S. Attorney in Manhattan recently announced a number of charges against two former executives of American Realty Capital Properties, Inc. ("American Realty"), a real estate investment trust ("REIT"), for their role in a 2014 accounting scandal. Brian Block, the former chief financial officer ("CFO"), is facing six criminal counts for securities fraud, conspiracy and the making of false statements. Lisa McAlister, the RE

By Jeffrey M. Haber What anticompetitive business actions are considered unfair? Amidst the recent commotion surrounding the wildly elevated prices of certain products sold by Mylan Pharmaceuticals ("Mylan"), New York State Attorney General Eric Schneiderman is investigating whether the drug company has unfairly limited competition. Although Mylan has been accused of profiteering before, this time the product involved is EpiPen®, the emergency injector used for extreme emerge

By Jeffrey M. Haber How has Turing managed to get into even more trouble after last year's bombshell? It is difficult to imagine Martin Shkreli ("Shkreli") being shamed even more than he already has been, nor Turing Pharmaceuticals AG ("Turing") having its reputation further blackened by more bad news. Nonetheless, this is exactly what's happening. After last fall's commotion surrounding pricing discrepancies, Nancy Retzlaff ("Retzlaff"), once looked at as the most likely can

By Jeffrey M. Haber On September 20, 2016, the Securities and Exchange Commission (“SEC”) announced that it awarded more than $4 million to a whistleblower who provided original information about a fraud that resulted in the recovery of monetary sanctions. Since 2011, the SEC has awarded more than $111 million to 34 whistleblowers pursuant to the agency’s whistleblower program. The SEC did not identify the whistleblower. By law, the SEC protects the confidentiality of whistl

By: Jeffrey M. Haber It is a fact of life that many securities brokers and financial advisors will be the subject of one or more customer complaints during his/her career. To be sure, some of those complaints will be justified. However, many of them will not be. In those latter instances, innocent brokers and financial advisors will have a blemish on his/her record that can be cleared only through an expungement proceeding. Expungement is essentially a three-step procedure. F

By Jeffrey M. Haber, a partner at Freiberger Haber LLP On May 31, 2016, the Appellate Division, First Department, issued MP Cool Investments Ltd. v. Forkosh, 2016 NY Slip Op. 05944, a case involving allegations of fraud in connection with the production and sale of a commercial heating and ventilation system by an Israeli-based company. In the decision, the First Department unanimously affirmed the motion court’s dismissal of the plaintiff’s fraud claims because they were not

By Jeffrey M. Haber On August 30, 2016, the Securities and Exchange Commission (“SEC”) announced that it awarded a company insider $22.5 million for providing “detailed” information about a “well-hidden fraud at the company where the whistleblower worked.” Though not disclosed by the SEC, news outlets reported that the company involved was Monsanto Co. The $22.5 million award is the second-largest the SEC has awarded a whistleblower since the program’s inception in 2011. Amo

By Jeffrey M. Haber, a partner at Freiberger Haber LLP On September 1, 2016, the Commodity Futures Trading Commission (“CFTC” or the “Commission”) announced that it was seeking comment on proposed amendments to the rules governing the Commission’s whistleblower program, its authority to administer the program and issue whistleblower awards, and its authority to implement anti-retaliation enforcement measures. The amendments, if adopted, will make the CFTC’s whistleblower prog

When parties negotiate the terms of a contract, they cannot account for every contingency or event that may affect performance. To be sure, they try. But, it is simply not possible to account for every occurrence that might arise during the course of the contract. This inability, therefore, gives the parties wide latitude in the performance and enforcement of their contractual obligations. Underlying this discretion is the duty to act in good faith and with fair dealing.

By Jeffrey M. Haber New York, NY (Law Firm Newswire) August 10, 2016 - The Legal 500 USA, a leading legal ranking and referral guide, has again recognized Mr. Haber, co-founding partner of Freiberger Haber LLP, for his work as a plaintiff’s attorney in securities litigation. Mr. Haber was identified in the 2016 edition as a “recommended” lawyer in the “Dispute Resolution: Securities Litigation – Plaintiff” category. Mr. Haber was also “recommended” in the 2011–2012 and 2014–2

By Jeffrey M. Haber How many awards has the Commodity Futures Trading Commission ("CFTC") made under its whistleblower program? The CFTC awarded a whistleblower $50,000, the second such award this year. The $50,000 award comes on the heels of a $10 million award earlier in 2016, the largest award under its program to date. Authority Under the Dodd-Frank Act The whistleblower award program created under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank

By Jeffrey M. Haber What is a FINRA arbitration? The Financial Industry Regulatory Authority ("FINRA") issued a Regulatory Notice in July 2016 reminding member firms that customers have a right to request arbitration "at any time." In addition, the self-regulator stated that customers do not forfeit their right to a FINRA arbitration by signing an agreement that calls for another venue. The notice also reiterated that FINRA members cannot require registered representatives an

By: Jeffrey Haber In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”) to combat illegal and fraudulent conduct on Wall Street and promote compliance with the federal securities. The Dodd-Frank Act contains whistleblower provisions that authorize the Securities and Exchange Commission (“SEC” or the “Commission”) to pay substantial cash rewards to whistleblowers that voluntarily provide the SEC with informa

In the commercial world, parties to a transaction often allocate the risk of economic loss in the event the transaction is not fully executed by including a sole remedy clause in their agreement. New York courts have long upheld such contractual provisions. However, as the First Department of the New York Supreme Court, Appellate Division, recently held, there are exceptions. One such exception pertains to a party’s grossly negligent conduct. As explained in Morgan Stanley M

Did Tesla violate securities laws by not disclosing a fatal accident? In May, the driver of a Tesla Model S was killed after colliding with a truck while the Autopilot feature, which is designed to assist drivers in steering, braking and avoiding collisions, was engaged. Since October 2014, Tesla Motor Co. has installed autopilot software in all of its cars, even though the feature is still being tested in a public beta. Now, the Securities and Exchange Commission ("SEC") is

By Jeffrey M. Haber The False Claims Act (“FCA” or the “Act”) prohibits businesses and individuals from defrauding the government by knowingly presenting, or causing to be presented, a false claim for payment or approval. Currently, violations of the Act can result in a judgment equal to three times the losses sustained by the government, plus civil penalties of $5,500 to $11,000 for each false claim. The Act rewards whistleblowers (also known as “relators”) who successfully

By Jeffrey M. Haber An agency relationship occurs when a principal gives legal authority to an agent to act on the principal’s behalf when dealing with a third party, and obtains the agent’s consent to be subject to the principal’s control. See Restatement (Third) of Agency §1.01. An agency relationship is a fiduciary one, meaning the agent, acting within the scope of his/her authority, has to act in the best interests of the principal. Under such circumstances, the acts an

By Jeffrey M. Haber New York, New York — July 21, 2016 Jeffrey M. Haber, Esq., an attorney with over twenty-five years of experience litigating complex matters on behalf of institutions and individuals at law firms having a national practice, is proud to announce the opening of his new law firm, The Law Office of Jeffrey M. Haber. The Law Office of Jeffrey M. Haber is dedicated to the representation of corporations, small businesses and high net worth individuals involved in