John J. Clarke, Jr. Partner john.clarke@dlapiper.com 1251 Avenue of the Americas New York, New York 10020-1104 United States T: +1 212 335 4920 F: +1 212 884 8520
John J. Clarke, Jr. represents issuers and their directors and officers in investigations and litigation involving the securities laws and corporate governance disputes, and represents clients in a variety of litigation matters involving financial institutions and in antitrust and bankruptcy matters. Among other recent matters, he assisted Senator George J. Mitchell in his investigation into the alleged use of steroids and other performance enhancing substances by players in Major League Baseball, including overseeing the preparation of the report resulting from that investigation. He is also a frequent speaker and writer on issues arising under corporate governance and securities laws and has been named a New York Super Lawyer.
Mr. Clarke's experience includes:
Securities and Corporate Governance Litigation
Representing several outside directors of a government sponsored enterprise in securities and stockholder derivative litigation arising from an investigation by the Office of Federal Housing Enterprise Oversight;
Representing a prominent biotechnology firm in securities class action concerning the circumstances surrounding its announcement that the FDA had refused to accept for filing its application for regulatory approval of a groundbreaking cancer therapy;
Representing a Canadian environmental remediation company in securities class action alleging that the defendants failed to disclose adverse developments regarding a government contract;
Representing the outside directors of a bank holding company based in Puerto Rico in consolidated stockholder derivative litigation and related matters arising from a financial restatement;
Representing the former chief executive officer of a bank holding company in successful defense of litigation brought after the FDIC was appointed receiver of the company's bank subsidiaries... INTERESTING
Investigations and Enforcement Proceedings
Representing the former chief executive officer of a reinsurance company in a securities class action and SEC enforcement action concerning accounting for a finite reinsurance transaction;
Representing a special committee of the board of a publicly traded REIT in an internal investigation of alleged GAAP violations;
Representing an international publishing firm in an internal investigation of discrepancies in published circulation figures and in the development and execution of a subsequent voluntary restitution program for advertisers; and
Representing various individuals and publicly traded companies in investigations by the Securities and Exchange Commission, the United States Department of Justice, and self-regulatory organizations, including the New York Stock Exchange, Inc., the National Association of Securities Dealers, Inc., and the Chicago Board Options Exchange.
Financial Institutions Litigation
Representing an underwriting firm in actions asserting an industrywide price-fixing conspiracy to fix the underwriters' discount on certain initial public offerings at a uniform 7 percent;
Representing a brokerage firm in an internal investigation and related proceedings arising from market-timing trading in mutual fund shares;
Representing an underwriting firm in an action alleging an antitrust conspiracy among securities underwriters to illegally restrict retail investors from "flipping" shares purchased in initial public offerings. The Second Circuit affirmed dismissal of the action under the "implied immunity" doctrine; and
Representing an investment bank in an action by a former employee asserting defamation and other claims based on the description of the reasons for his separation from employment that was provided in a Form U-5.
Bankruptcy Litigation
Representing a bank regulatory agency with respect to bankruptcy issues arising in connection with the receivership of a significant thrift and the chapter 11 proceedings of its holding company;
Representing a major airline in an adversary proceeding alleging multi-billion dollar damages for breach of contract and other claims after the failure to confirm a plan of reorganization;
Representing a large steel corporation in various litigation aspects of its chapter 11 cases relating to the debtors’ collective bargaining agreement, retirement benefit plans and pension liabilities.
Admissions
New York United States District Court for the Southern District of New York United States District Court for the Eastern District of New York United States Court of Appeals for the Second Circuit United States Court of Appeals for the District of Columbia Circuit United States Supreme Court
Memberships
American Bar Association, Section of Business Law Association of the Bar of the City of New York Task Force on the Lawyer's Role in Corporate Governance (2005-07) Government Ethics Committee (2004-07)
Publications
New York Law Journal, "Are Securities Class Actions Going Global?" (May 19, 2008) (with Keara M. Gordon)
Securities Litigation Alert, "New York Court Holds that Form U-5 Statements Cannot Be a Basis for Defamation Liability," (April 3, 2007)
Practising Law Institute, "Potential Liabilities in Initial Public Offerings," How to Prepare an Initial Public Offering (2005, 2006, 2007, and 2008)
Securities Litigation Alert, "Delaware Supreme Court Reaffirms the Limits on Director Liability for Alleged 'Oversight Failures,'" (November 14, 2006) (with Gerard Trippitelli)
"Life Sciences Firms Targeted in Securities Class Actions," Financier Worldwide, (2005 Biotechnology Sector Review) (for BIO 2005 Conference)
Memorandum, "In Post-Trial Opinion, Disney Court Reaffirms Deference Granted to Directors Under Business Judgment Rule," August 15, 2005 (with Diane Frankle)
Securities Litigation Alert, "US Supreme Court Defines Plaintiffs' Burden to Plead and Prove 'Loss Causation' in Securities Fraud Cases," (April 21, 2005)
James F. Queenan, Jr., et al., eds., Chapter 11 Theory and Practice (LRP Publications), co-author of Chapter 19, "Collective Bargaining Agreements & Employee & Retiree Benefits."
Seminars
Faculty, Practising Law Institute, How to Prepare an IPO (2005, 2006, 2007, and 2008)
Panelist, "Attorney-Client Privilege in Investigations and Audits," Strafford Publications Teleconference (April 2008)
Speaker, Practising Law Institute Briefing, Royal Dutch Shell: Securities Class Action Settlements Go Global (with John L. Hardiman and Juan Rodriguez), July 17, 2007
Faculty, 11th Annual UCLA Directors' College, Los Angeles (October 2005)
Panelist, Sirius Consulting Group, Implications of US Regulations on European Companies, Paris (May 2005)
Appellate Advocate, The Duty of Good Faith Under Delaware Law, ABA Section of Business Law, 2003 Business & Corporate Litigation Fall Meeting, New York (December 2003)
Panelist, American Conference Institute, 8th Annual D&O Liability Insurance Seminar, New York (May 2003)
Panelist, Converium, 5th Annual Professional Liability Seminar (October 2002)
I think the FDIC needs to get their own house in order prior to opening their mouths at hearings. I read on another site that copied a WSJ post (wsj required subscription to read) that the FDIC is Negative by $8.x billion.
Basically, the FDIC has willfully and intentionally ignored the fact that banks have mismarked their "assets" to overstate their values, it has refused to demand that accounting be done on a strict "mark to market" basis by bank examiners, and indeed, it has backed the "extend and pretend" commercial real estate "rollover" provisions of recent months, all of which is manifestly unsound, intentionally misleading, a consequence of willful refusal to enforce 12 USC Ch 16 Sec 1831o ("Prompt Corrective Action"), and has led to enormous losses being absorbed by the Deposit Insurance Fund that should have never happened.
The result?
THE FDIC IS BROKE.
They are doing nothing more than trying to pull more smoke and mirrors with their actions in this case. A win for WMI would actually hurt the FDIC even more with the bad press(bad for the FDIC, JPM and Dimon) caused from this and ultimately cause the general populace to see them for what they really are....thieves that will not and can not back up their claims of insurance.
Of course, Congress can allot more money for the FDIC, ultimately stealing it from the tax payers.
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