Securities fraud cases can be an uphill battle for attorneys representing investors, in part because discovery can only commence once a complaint survives a motion to dismiss. Brian Calandra, a partner at plaintiff securities heavyweight Pomerantz, thrives on the challenge of piecing together facts to develop a viable argument – and his track record bears that out.
Last year alone, Calandra spearheaded two successful securities class actions. In one, he secured a $15M settlement against DouYu International, a Chinese live streaming platform, over alleged omissions during the company’s IPO on the Nasdaq in 2019. In the other, Calandra worked closely with Pomerantz Managing Partner Jeremy Lieberman in securing a partial reversal from the 2nd Circuit over a case dismissed in district court against 22nd Century Group, a biotech company, over their duty to disclose an SEC investigation to investors. In addition, last year Calandra defeated motions to dismiss in cases against Clover Health, a Medicare insurance provider, and Novavax, a biotechnology company.
Calandra, who joined Pomerantz in 2019, was promoted to partner in January of this year.
Lawdragon: Can you describe for our readers the mix of work you do within your practice?
Brian Calandra: The overwhelming majority of my cases are securities fraud class actions. In these cases, institutional investors, large pension funds, labor unions, or insurance companies, or individual “retail” investors bring actions against a corporation and certain of its officers and/or directors on behalf of large groups of investors alleging that they were all similarly harmed, that is, lost money, as a result of violations of state or federal securities laws. I have also worked on class actions alleging consumer fraud and violations of data privacy laws.
LD: What are some aspects about this work that you find professionally satisfying? What keeps you excited about it?
BC: I have always been interested in argumentation and persuasion. As an undergraduate, I studied rhetoric and how arguments are constructed and tested. Before I became an attorney, I spent several years in advertising, crafting messages to persuade consumers to purchase products, start relationships with companies, or simply visit websites.
As a securities litigator, it feels like I practice argumentation and persuasion in its purest form. For a case to move forward at all, I must first persuade a judge (usually a federal judge) that a fraud likely has been committed, at a stage when I have minimal – at best – access to evidence. This difficulty is by design, as the federal judiciary and congress have set the pleading bar for securities fraud class actions extraordinarily high and precluded access to discovery until after a motion to dismiss is resolved. In addition, many federal judges are skeptical of securities fraud claims, and defense attorneys can argue that my case is meritless by citing hundreds of cases that were dismissed and which superficially resemble my allegations.
Being a plaintiffs’ side securities litigator can feel like you are being wrapped in chains, padlocked, stuffed in a bag and dropped in New York City’s East River. On the other hand, it is very satisfying to investigate and collect facts, turn those facts over in your mind, develop arguments that support your claims, and present those allegations and arguments to a judge. I love the nearly physical sensation of finding the right presentation or the strongest argument, what David Foster Wallace (quoting Yeats) called “the click of a well-made box.”
Perhaps that’s the second-best part of my work; the best is receiving a judge’s opinion and finding that you have persuaded her. It’s akin to getting a 100 on a test or a standing ovation for a speech or a musical performance, but even better, because one of the most accomplished members of your profession has taken 20 to 40 pages to explain why and how you persuaded her. When you add that you are doing this work on behalf of defrauded investors – people who are directly or indirectly relying on the integrity of the financial system to support themselves and their families and protect their nest eggs – it is incredibly validating.
LD: Out of all the work you’ve done in your career, what would you say is the most interesting matter you’ve handled?
BC: Two matters stand out, neither of which was a securities fraud class action, which is ironic given that I just breathlessly hyped securities fraud class actions. One case was an international arbitration between two companies concerning a contract dispute, and the other was a pro bono criminal defense of an airport baggage handler accused of drug trafficking.
People make the same excuses whether they have three prior felonies to their name or are the CEO of a billion-dollar Fortune 500 company. Not everyone is punished the same way, to be sure, but being caught in a lie is a breathtaking leveler.
The subject matter of the cases could not have differed more: One was an almost academic matter of contract interpretation, and the other featured wiretaps, weapons, and a “sting” that would not have been out of place on “The Wire.” But these matters were especially interesting because they were litigated over a period of years all the way through a final adjudication.
It is unusual for an action to proceed from the filing of a complaint or indictment all the way through a ruling, given the time and expense involved in litigation. Identifying evidence in discovery and compiling that evidence into a theory of the case that is actually ruled upon by a finder of fact provides you with incredible insight. Seemingly minor decisions early in the process of litigating a case can have major consequences later, and seeing a case develop in the “heat of battle” – so to speak – was fascinating. That experience influences every decision I make in drafting a complaint, opposing a motion to dismiss, or negotiating discovery.
LD: Are there any trends you’re seeing in your practice in terms of the types of matters keeping you busy these days?
BC: For my personal docket, cases involving pharmaceutical companies or companies based in China have receded somewhat and been replaced by cases involving “special purpose acquisition companies,” or “SPACs.”
I do not think this is because pharmaceutical companies have become more transparent about the progress of their drug candidates or that companies based in China have better adjusted to the United States’ securities regime, but rather that many SPACs so brazenly tried to fake it until they made it and were caught before they made it. Although the process of drug development and approval is far from perfect, the need to share detailed information with the FDA makes a situation similar to what happened with Nikola, where a trucking company allegedly had not even developed an operational truck, less likely.
I have also found that employees who leave smaller, less developed companies like the companies SPACs acquire have frequently witnessed, first-hand, the type of improper conduct that underlies or constitutes securities law violations. These former employees frequently have parted ways with their former employers on less than ideal terms, and thus are more willing to describe what they saw. This is very different from witnesses in, say, China, who have serious concerns that they are putting themselves in harm’s way if they disclose corporate malfeasance.
LD: What advice do you have for current law school students?
BC: After your first year, do the maximum amount of clinical work that you can. Also, if possible, intern with a judge and a prosecutor’s office, and work as a research assistant for a professor and a teaching assistant for a legal research and writing class.
You may have guessed that this rather specific advice reflects my own experience. I had worked for 10 years before I went back to law school, and I really threw myself into classes. I asked around about the hardest and most intellectually challenging classes, which at my school included Conflicts of Law, Federal Jurisdiction, and Voting Law. The reading for these classes took up an enormous amount of time and I enjoyed the in-classroom experience of exploring thorny issues, but they did very little to prepare me to actually be a lawyer.
As tautological as it sounds, the best way to prepare to be a lawyer is to do bona fide legal work, and when you work in a clinic you have actual clients on whose behalf you need to advocate. You’re also likely to have to create your own filings, appear before a judge, and interact with an attorney in private practice. Likewise, teaching law students legal writing and analysis, and meeting the demanding needs of a professor trying to get published, are among the best ways to develop your own research and writing skills. Getting to the bottom of Bivens v. Six Unknown Fed. Narcotics Agents, or trying to develop a unifying theory of New York State’s messy conflicts of law jurisprudence can be a lot of fun, but later you may find yourself feeling like you are a step or two behind your colleagues.
Being a plaintiffs’ side securities litigator can feel like you are being wrapped in chains, padlocked, stuffed in a bag and dropped in New York City’s East River.
LD: How would you describe your style as a lawyer? Or, how do you think others see you?
BC: My philosophy has always been to work as enthusiastically as possible and “never say no.” While the latter approach is disfavored by many TED talks, career counselors and self-help books, I have found that people genuinely appreciate it when someone is willing to help and approaches a project with a positive attitude. There have been times when I have spread myself too thin, but being ready and willing has helped me build great working relationships.
LD: There are many high-quality firms out there. What do you try to “sell” about your firm to potential recruits – how is it unique?
BC: Pomerantz is the most collegial organization I have ever been a part of – within or without the law. Its culture flows from the top, where our Managing Partner, Jeremy Lieberman, is unfailingly supportive of the people who work for him. I have worked in other environments where the culture was less supportive and more competitive, even approaching adversarial, and did not find that it necessarily improved the quality of the work.
New hires at Pomerantz, once they show promise, are given the opportunity to take on significant responsibility under the mentorship of others. This can be daunting, but it’s also exhilarating because you are pushed out of your comfort zone quickly and you need to develop techniques for learning and applying what you’ve learned. .
LD: Are you involved in any pro bono or public interest activities?
BC: I graduated law school as the mortgage-backed securities crisis was exploding; large law firms were reducing their headcount and deferring incoming junior associates. I spent my deferral year working for Newark Re-entry Legal Services, or “ReLeSe,” a program developed by Senator Cory Booker when he was the mayor of Newark, New Jersey.
The program was designed to help individuals who had served prison sentences resolve all the legal issues that had been pending before their incarceration or had arisen while they were in jail. For example, an individual sentenced to three years for distribution of narcotics most likely had a suspended driver’s license, unpaid and unadjudicated parking, traffic, and quality of life tickets, and an arrest warrant for unpaid child support. Many ReLeSe clients had multiple arrest warrants in different localities around New Jersey. I would accompany them to municipal, family and county court appearances around the state and resolve each issue.
Two of the many lessons I learned over that year stand out. First, the success of any given appearance squarely depended on whether a judge was receptive to ReLeSe’s value proposition, which was that after having served a period of incarceration, further punishment prevents my client from re-entering society and creates a series of diminishing returns. You find this same variable at virtually every level of law. In securities fraud class actions, for example, the chances of obtaining justice can depend on whether a judge accepts the premise that private enforcement of securities laws serves a public purpose.
Second, people make the same excuses whether they have three prior felonies to their name or are the CEO of a billion-dollar Fortune 500 company. Not everyone is punished the same way, to be sure, but being caught in a lie is a breathtaking leveler and has shown me that people are more alike than different.
LD: If you weren’t a lawyer, what would you be doing now?
BC: I would be a stand-up comedian. I imagine that the thrill of putting your own spin on something true or ridiculous or fun and then making an audience laugh – that laughter would probably feel like the buzz you get when a judge agrees that you have adequately alleged that by electing to speak on a topic, a company took on a duty to make its disclosure complete and accurate, which it violated by failing to disclose that its biggest product was killing underprivileged children while its executives raked in gazillions in ill-gotten gains by dumping tens of millions of shares on unsuspecting investors. Well, I bet it's in the same ballpark, anyway.