STEPHEN L. ASCHER, Partner Full Bio New York Office Office: (212) 891-1670 Fax: (212) 891-1699 Email: sascher@jenner.com

Jenner & Block Partners Stephen L. Ascher, Andrew H. Bart, Marc B. Hankin, Susan J. Kohlmann, Andrew Weissmann and Richard F. Ziegler were selected for inclusion in the New York Super Lawyers - Metro Edition list for 2009, a peer-reviewed guide to the top five percent of attorneys in New York.

Mr. Ascher was named for his work in Securities Litigation and Criminal Defense: White Collar, General Litigation.  Currently, Mr. Ascher is representing several financial institutions in a wide variety of disputes arising out of the ongoing crisis in the credit markets.  Many of those matters concern swaps, collateralized debt obligations, and other derivative transactions.  Mr. Ascher also represents the Examiner in the bankruptcy of Lehman Brothers Holdings Inc., in which the Examiner was appointed to investigate, among other things, the corporate governance of a company that suffered the largest bankruptcy in history.  Over the course of his career, Mr. Ascher has tried a number of major cases, including matters for clients charged by the Securities and Exchange Commission and the government.

Mr. Bart was listed for his work in Intellectual Property Litigation, Business Litigation, and Entertainment & Sports.  An experienced commercial litigator with extensive trial experience, Mr. Bart focuses on litigation in the entertainment industry, especially intellectual property issues and contractual disputes.  He has handled matters that have resulted in precedent setting decisions in copyright law, the law of privacy and publicity and artist-label relations.  He has also handled and tried a variety of other complex commercial cases, ranging from securities litigation and SEC proceedings to partnership and joint venture disputes to a wide variety of contractual disputes.

Mr. Hankin was named for his work in Bankruptcy & Creditor/Debtor Rights.  Mr. Hankin has served as counsel to numerous secured creditors, including the secured bank groups in the Exide Technologies and The Warnaco Group Chapter 11 cases, and his debtor representations include Spiegel and Eddie Bauer’s Chapter 11 cases, Grapes Communications’ prepackaged Chapter 11 case and Merrill Corporation’s financial restructuring pursuant to a Section 3(a)(9) exchange offer.  He also has significant experience in international insolvency cases, and has served as counsel to the Guangdong Provincial Government as the beneficial owner of Guangdong Enterprises Group, a Hong Kong window company, and Nam Yue Group in Macau in their out-of-court restructurings.

Ms. Kohlmann, Chair of the Unfair Competition, False Advertising and Lanham Act Practice, was named for her work in Intellectual Property Litigation, General Litigation, and Class Action/Mass Torts.  Ms. Kohlmann has litigated a broad array of high profile disputes, including a case involving world-renowned artist Andy Warhol's estate.  She recently successfully represented the Estate of Elaine Steinbeck in the Second Circuit Court of Appeals in a dispute involving termination rights under the U.S. copyright laws.  She is currently representing Viacom in its copyright infringement lawsuit against YouTube and Google.

Mr. Weissmann, Co-Chair of Jenner & Block’s White Collar Defense and Investigations Practice, was listed for his work in Criminal Defense: White Collar.  A former Director of the Enron Task Force, Mr. Weissmann represents U.S. and foreign corporations and executives in connection with criminal and civil investigations, including representation before the Department of Justice, the Securities and Exchange Commission, and state and local authorities.  Mr. Weissmann recently secured a $431 million award for STMicroelectronics N.V. in an auction-rate securities suit before the Financial Industry Regulatory Authority (FINRA) against Credit Suisse Securities (USA) LLC.  This award was one of the largest, if not the largest, award ever made by FINRA.

Mr. Ziegler was recognized for his work in Business Litigation and Corporate Governance & Compliance.  Mr. Ziegler is Managing Partner of the Firm's New York office and a Co-Chair of both the Complex Commercial Litigation Practice and the International Arbitration Practice.  Since joining Jenner & Block two years ago, he has handled numerous major commercial disputes, led four international arbitrations and represented clients with multi-billion dollar claims against financial institutions arising from the credit crisis. In the governance and compliance arenas, Mr. Ziegler has advised boards of directors on compliance and stockholder matters and conducted internal investigations.  Prior to joining the Firm, Mr. Ziegler served as Senior Vice President, Legal Affairs and General Counsel at the 3M Company.

Over 45 attendees gathered at Jenner & Block’s New York office for a breakfast seminar titled "The Search for Culprits and Recoveries in the Credit Crisis,” which discussed the potential criminal and regulatory fallout as well as civil litigation issues arising out of the credit crisis.  Partners Stephen L. Ascher, Thomas C. Newkirk, Andrew Weissmann and Richard F. Ziegler spoke along with Joseph J. Floyd, Vice President and Managing Director, and James M. Lukenda, CIRA, Managing Director, both of Huron Consulting Group.

Mr. Ziegler opened the first panel, titled “The “Enronization” of the Credit Crisis: Potential Criminal and Regulatory Liability for Inaccurate Valuations and Market Assurances,” by mentioning some of the root causes and effects of the current credit crisis.  “Credit default swaps enabled market participants to tremendously leverage exposure to the mortgage market,” said Mr. Ziegler, which ultimately grew to an estimated $50-$60 trillion market.  Swap sellers were allowed to take on huge derivatives risk without the need to post any reserves, and the market lacked transparency, he said, and so when the real estate market declined, the consequences were tremendously magnified.  According to Mr. Ziegler, former General Counsel at 3M Company, the current climate indicates “a failure of enterprise risk management by the economic system as a whole, as well as on an individual financial institution level.”

Mr. Floyd utilized recent examples of companies affected by the credit crisis to discuss whether the situation was the result of “culpability, or the confluence of market chaos,” that is, “did people do things that were wrong or did we end up in a situation where there was irrational behavior, a collapse of the system and systemic risk?”  While it seems that there were a number of market forces at play, he said, it is important in analytical assessment to gauge culpability and to identify compliance and valuation issues.

Fundamentally, the situation at Enron and other scandals do not truly compare to what we know now of the current situation, said Mr. Weissmann, who is the former Director of the Enron Task Force.  He said, we may see “disclosure issues being investigated and prosecuted or one-off products, but I don’t think we’ve seen anything that suggests that there was criminality at the core of the problem.”  To the extent that it can be determined now, the crisis deals more so with public disclosure issues, he stated, and not fundamental corruption on Wall Street.

Among the key players within the crisis, Mr. Newkirk discussed the role of credit rating agencies, which play key roles in the credit market. According to Mr. Newkirk, formerly Associate Director of Enforcement with the U.S. Securities and Exchange Commission, the credit ratings agencies provided ratings for securities that turned out ultimately to not be what they appeared to be, due in part to credit default swaps. Due to the current situation, he predicts that “we are going to see perhaps some legislation or discussion with respect to the credit rating agencies and how their models work, when Congress undertakes a comprehensive look at all participants in the financial markets and how they are regulated.”

The second panel, titled “Recovering Credit Crisis Losses: Civil Liability for Structured Finances Investments; Credit Default Swaps--Parties and Counterparties; Clawing Back Executive Pay,” discussed the civil fallout of the current credit crisis.  Mr. Ascher discussed that the fundamental issue with collateralized debt obligations (CDOs) is that while they were “originally developed as a way of reducing risk; they were instruments that would help to diversify, hedge and otherwise reduce risk,…they have ended up multiplying risk.”  CDOs are special-purpose vehicle created for the purpose of issuing notes, he said, and these notes are divided into different “tranches” or classes, based upon their risk factor.  However, according to Mr. Ascher, within a synthetic CDO or a hybrid CDO structure, the transaction has been leveraged to a much larger extent because of unfunding in the upper-most tranche; thus, the structure produces the same amount of income with much less actual funding.

Credit default swaps (CDS), said Mr. Lukenda, is a contract in which for a series of payments from the buyer, the seller guarantees a pay-off if a credit instrument encounters a specified credit event or goes into default.  The notional value of CDS has grown from $900 billion in 2000 to $62 trillion in 2007, which is an 81% increase over 2006, according to Mr. Lukenda, yet the underlying net value remains in question.  If derivatives contracts are not collateralized or guaranteed, the creditworthiness of the counterparties determines the value of the entities, he said, and within these counterparties, “[the question remains of] who is going to be the buyer and who is going to be the seller.”

There has been an intense spotlight on executive pay, said Mr. Ziegler, including the Troubled Assets Relief Program’s (TARP) “Claw back” requirement, which indicates that if the performance metrics that are used to award incentive compensation are proven to be materially inaccurate then the financial institution subject to TARP must have a provision for recovery.  In comparison to SOX, “TARP’s Claw back, whether advertently or otherwise, is much broader than the SOX provision,” he stated, with a key difference being that SOX provides that the SEC only has standing to enforce the provision, while TARP allows for financial institutions and derivative shareholders to enforce the provision.

Please click here to view the program materials.

Jenner & Block Partners Stephen L. Ascher, Andrew H. Bart, Susan J. Kohlmann and Andrew Weissmann were selected for inclusion in the New York Super Lawyers - Metro Edition list for 2008, a peer-reviewed guide to the top five percent of attorneys in New York.

Mr. Bart and Ms. Kohlmann were listed for Intellectual Property Litigation. For two decades Mr. Bart has focused on litigation in the entertainment industry, especially intellectual property issues and contractual disputes. He has handled matters that have resulted in precedent setting decisions in copyright law, the law of privacy and publicity and artist-label relations.Ms. Kohlmann has litigated a variety of intellectual property matters, particularly in the areas of trademark and copyright. Recently, she successfully represented the heirs of novelist John Steinbeck’s widow, Elaine Steinbeck, in front of the U.S. Court of Appeals for the Second Circuit in a case in which the Court held that the rights of the heirs could not be terminated.

Mr. Ascher was named for his work in Securities Litigation. Recently, he defended a securities trader who was indicted as part of the largest insider-trading prosecution in the last twenty years.  He also represented a mutual fund executive in the first federal trial involving securities claims relating to “market-timing.”

Mr. Weissmann, who was named for Criminal Defense: White Collar, is a nationally-recognized white collar litigator. He represents U.S. and foreign corporations and executives in connection with criminal and civil investigations, including representation before the Department of Justice, the Securities and Exchange Commission, and state and local authorities.  Mr. Weissmann served as Director of the Enron Task Force, overseeing the prosecution of over 30 individuals in connection with the company’s collapse.

During the May 22 Corporate Secretary Think Tank, New York-based Partner Stephen L. Ascher and Dawson Horn, Assistant General Counsel of Altria, provided the over 50 corporate secretaries and senior level in-house legal executives with their views on the biggest challenges facing today’s corporations and directors and officers in relation to the ever changing law of attorney-client privilege.

Mr. Ascher told the attendees about the profound and sometimes devastating impact of the changes in privilege law in this era of increased prosecutorial scrutiny.  For example, Mr. Ascher described a case involving an in-house lawyer who was indicted, partly based on issues relating to document productions and his company's assertion of the attorney-client privilege during an investigation.  Mr. Ascher also noted a case in which some company personnel who voiced vehement opposition to their company's underlying fraudulent conduct were indicted notwithstanding their opposition to it.

Ultimately, "it looks like the government is saying that if you know of wrongdoing in an organization, you should resign or you will face the distinct possibility of being indicted," Mr. Ascher commented.

Mr. Dawson took the attendees through a series of hypothetical scenarios in which the issue of privilege become increasingly more complex and less clear-cut. Mr. Dawson concluded that it is important for in-house counsel to take steps for protecting privilege including such as engaging outside counsel early in the process. "Courts will typically look more skeptically at inside counsel alleging privilege, rather than outside counsel," he said.

After short presentations by Mr. Ascher and Mr. Dawson the attendees engaged in a lively discussion of the various challenges they face on a daily basis with regard to privilege. The discussion, which was emceed by Brendan Sheehan, executive Editor of Corporate Secretary magazine was wide ranging and drew on the experience as the attendees, Mr. Ascher as outside counsel and Mr. Dawson as an experienced in-house counsel.

Pictured, top:  Mr. Horn and Mr. Ascher address the attendees.

Pictured, Middle: Following their presentation, Mr. Ascher discusses some of the session topics with a group of attendees.

Pictured, bottom:  Following the discussion, attendees at the Think Tank engaged in a lively question & answer session with the panelists.