Skadden Arps partner Jay B. Kasner discusses his legal career and new trends in the securities litigation practice.
Name: Jay B. Kasner
Practice Areas: Litigation, Securities Litigation, Class Action Litigation, Appellate Litigation and Legal Issues, Securities Enforcement and Compliance, Accounting, and Crisis Management
Location: New York
Law School: J.D., Boston University, 1980 (cum laude; Editor, Boston University Law Review; Author, “Minimizing Minimization: Scott V. United States,” Boston University Law Review)
Undergraduate: B.A., Union College, 1977 (magna cum laude)
Quotable, on advice to first year lawyers: “From the very start of your legal career, seek out a mentor who shows integrity and uncompromised ethical standards. These characteristics are of utmost importance and will help you build a firm foundation as a young lawyer.”
Lawdragon: What drew you to your practice?
Jay Kasner: I’ve always had a deep-rooted interest in the law, but it wasn’t until after I graduated from Boston University School of Law and started at Skadden in 1980 that I figured out exactly what I wanted to practice. I started at Skadden during a time when corporate takeovers and proxy fights were at their peak. Guided by some of the best lawyers in the industry, I was fortunate enough to dive right into some of the most complex cases of their kind in securities litigation. I remember a few of the first cases I worked on: one was on behalf of Buffalo Forge Company in its takeover by Ampco-Pittsburgh Corporation and the other was on behalf of Crouse-Hinds Company in an attempted takeover by Internorth, Inc. As a young associate, I spent many long nights in the office learning the complexities of these types of cases. I recall one time, after two nights without sleep, I found myself nodding off in the judge’s chambers of the New York State Supreme Court, Appellate Division. That was the first and last time I let that happen. Late nights aside, I quickly developed a passion for securities law and built a strong foundation in resolving some of the major legal issues that continue to play out in the securities litigation and class action arenas today.
LD: What’s the most interesting thing you’ve done as a lawyer?
JK: Although each case I’ve worked on over the course of my career has resulted in its own set of interesting and useful lessons, among the most interesting were a series of cases I handled following the burst of the Internet bubble in which investors filed claims against major financial institutions alleging losses stemming from false or misleading research reports that were issued. One of these cases — Lentell v. Merrill Lynch & Co. Inc. — was particularly noteworthy in my mind as it resulted in not only a win for our client, but also because the precedent set by the court established a bright-line rule for pleading loss causation that has since been cited hundreds of times. This case, and the other related cases, spanned nearly a decade’s worth of litigation. They were some of the most complex cases on which I’ve worked and required our team to become incredibly well-versed in the concepts and technical structures that were a relatively new market concept at the time.
LD: How has your practice changed since the early part of your career?
JK: Growing up at Skadden and now serving as the head of its securities litigation practice, I have seen our group grow to nearly 80 lawyers worldwide. Over the years, we have expanded our client reach both nationally and internationally and have diversified our experience to serve not only financial institutions, but also the defense of public companies and directors and officers in a broad range of industries — from energy, pharmaceuticals and health care, to retail, technology and automotive. There’s been an uptick in M&A-related litigation that remains an important part of what we do. However, unlike Skadden’s early years, we have grown the litigation practice to now be self-sustaining and not heavily dependent on corporate work.
LD: Is there a case in your career that stands out as a “favorite” or one that is particularly memorable?
JK: The Merrill Lynch v. Dabit case in the U.S. Supreme Court was a particularly memorable one for several reasons. By a unanimous vote, the Supreme Court reversed a prior ruling from the U.S. Court of Appeals for the Second Circuit, ruling that the Securities Litigation Uniform Standards Act of 1998 blocks state law securities class actions brought by holders. Beyond securing a victory for our client, the decision effectively closed a loophole in securities law that could have led to an onset of securities class action litigation in state courts throughout the country had the decision had gone the other way.
It was gratifying to have been involved in a case at the U.S. Supreme Court that helped revise the law in a way that continues to benefit many of Skadden’s clients. After the argument, we arranged to have lunch at a restaurant near the Supreme Court. The clients were there, my family was there, and Skadden lawyers had flown in from all over the country to join us. It was an experience I’ll never forget.
LD: Are there any new or standout trends in your practice area?
JK: With financial crisis cases winding down, I believe we’ll start to see more stock price drop cases — cases where a class of investors will sue a company (and sometimes the board and executives of that company) in which they’ve invested and allege that fraudulent behavior by the company and its leaders led directly to the drop in stock price. Investors and their lawyers will continue to look for new ways of recovery, and with the market on the upswing, it could trigger investors to take alternative action.
Another trend worth noting is an increase in securities cases as a result of corporate crises. Just in 2014, we’ve seen numerous companies face shareholder lawsuits stemming from data breaches, product malfunctions and the like. Companies are more heavily scrutinized for how they handle corporate crises and how they convey their solutions. Investors are closely tied to these issues and have been taking action when their stakes in the companies becomes compromised in any significant way.
LD: Where do you see your practice headed?
JK: It is impossible to predict the future, however the U.S. Supreme Court’s pending decision in Halliburton Co. et al. v. Erica P. John Fund has the potential to change the legal landscape for securities class action litigation. If the Court chooses to accept Halliburton’s bid to overturn the 25-year-old fraud-on-the-market theory, it will effectively be harder to win certification of securities fraud class actions, which will change the legal landscape dramatically. Time will tell how this case impacts the future of our practice at Skadden.
LD: What matters are keeping you busy these days?
JK: I am representing financial institutions in a number of matters related to subprime loans and the credit crisis, such as mortgage-backed securities litigation, securities class and derivative actions, and ERISA-related litigation. Among other matters, I also am advising a broad range of large and small capital companies, directors and officers, and underwriters in myriad issues that arise when the corporation or individual faces securities-, class- or derivative-related claims.
LD: What were/are some of the challenges you or your clients face?
JK: At Skadden, our clients face some of the most challenging, high-stakes, “bet-the-company” securities litigation matters that require our group’s full range of skills in and out of the courtroom. We’re seeing many of our clients face lawsuits arising from the increased regulation of financial institutions, public companies and markets. The outcomes of these cases can be vital to the company’s future, and we recognize that litigation, like any other business problem, requires a creative and innovative approach that fits seamlessly within our clients’ business objectives. We often work with our clients even before their challenges are made public so that we’re able to present the case in a narrative unique to each of them that effectively captures important nuances to counter allegations. That’s a characteristic of our practice that I’m truly proud of and one that our clients appreciate whole-heartedly.
LD: What advice do you have for law students and lawyers who are just beginning their careers?
JK: From the very start of your legal career, seek out a mentor who shows integrity and uncompromised ethical standards. These characteristics are of utmost importance and will help you build a firm foundation as a young lawyer. Strive for excellence in everything you do; work hard and approach every task — even the smallest ones — with dedication and enthusiasm. Take on responsibility early in your career, learn from those around you, ask questions and take every opportunity to learn something new that you can carry with you over the course of your career.