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Global Capital Markets & the U.S. Securities Laws 2020


Speaker(s): David M. Lynn, Edward J. Waitzer, Joan E. McKown, Katayun I. Jaffari, Kristy Robinson, Linda Chatman Thomsen, Linda E. Rappaport, Marty Dunn, Michael S. Sackheim, Nicolas Grabar, Paul Leder, Paul M. Dudek, Thomas W. Yang, Wayne E. Carnall
Recorded on: Apr. 17, 2020
PLI Program #: 278312

David M. Lynn is a partner in the Washington, D.C. Office of Morrison & Foerster LLP and is co-chair of the firm’s Corporate Finance | Capital Markets practice. He served as Chief Counsel of the Division of Corporation Finance at the U.S. Securities and Exchange Commission.

Mr. Lynn is a highly respected securities advisory counsel who provides guidance to companies, underwriters, and other market participants on corporate finance matters and best practices for disclosure and compliance. In addition to being a leading authority on SEC issues, Mr. Lynn is particularly well known in the area of executive compensation disclosure, having co-authored “The Executive Compensation Disclosure Treatise and Reporting Guide.” Mr. Lynn is a recognized expert on the Jumpstart Our Business Startups (JOBS) Act of 2012.

While serving as Chief Cousel of the Securities and Exchange Commission’s Division of Corporation Finance, Mr. Lynn led the rulemaking team that drafted significant revisions to the SEC's executive compensation and related party disclosure rules. Mr. Lynn re-joined the SEC as Chief Counsel shortly after adoption of the Sarbanes-Oxley Act of 2002, and served in that position until 2007. As a result, he was intimately involved in implementing and interpreting the record amount of SEC rulemaking that occurred in the wake of the Sarbanes-Oxley Act. Mr. Lynn initially served on the SEC staff from 1995-2000 as an Attorney-Advisor and subsequently a Special Counsel in the Division of Corporation Finance. While in private practice from 2000-2003, he advised clients on SEC investigations, securities transactions, mergers, and acquisitions and corporate governance.

Mr. Lynn is co-editor of TheCorporateCounsel.net, The Corporate Counsel, and The Corporate Executive, which are widely read sources on securities, governance and corporate law matters. Mr. Lynn also has served as chair of the American Bar Association Business Law Section’s Federal Regulation of Securities Committee, co-chair of the Practising Law Institute’s Annual Institute on Securities Regulation and chairman of the Board of Trustees of the Securities and Exchange Commission Historical Society.

Mr. Lynn received his law degree from the University of Maryland Francis King Carey School of Law, where he serves as a member of the Board of Visitors, and his undergraduate and graduate degrees in economics and finance from Loyola University Maryland.


Martin Dunn is senior of counsel based in Morrison & Foerster’s Washington, D.C. office. Prior to his career in private law, Mr. Dunn spent 20 years at the U.S. Securities and Exchange Commission, having served as Chief Counsel, Deputy Director and Acting Director of the SEC’s Division of Corporation Finance, as a highly respected counselor to public companies. Mr. Dunn “is an immensely respected regulatory expert… He provides high-end securities counseling on regulatory compliance and transactional matters.” as noted in Chambers USA.

Fortune 500 clients turn to Mr. Dunn for his skillful counsel on critical issues they face. He offers a unique insider's perspective and clients admire his ability to apply practical guidance to situations that they face every day. He provides guidance on corporate governance and securities laws to newly formed publicly traded companies as well as to established ones. Mr. Dunn counsels companies through the public offering process, including compliance with the SEC requirements and responses to SEC comments.

In his role with the SEC, Mr. Dunn supervised the Division of Corporation Finance’s Offices of Chief Counsel, Chief Accountant, Mergers and Acquisitions, International Corporate Finance, Rulemaking, Small Business, and Enforcement Liaison. He oversaw many of the SEC’s most significant initiatives on disclosure, governance and capital-raising, including reforming the securities offering process, updating Rule 144, implementing the Sarbanes-Oxley Act, adopting the plain English requirements for prospectuses, implementing electronic proxy delivery, and easing exempt and registered capital formation for small businesses.

Mr. Dunn is ranked by Chambers USA in the area of Securities Regulation: Advisory, noting that he is a “‘preeminent securities lawyer’ and a ‘true expert’ in the field when it comes to advising on SEC regulation and corporate governance issues” (Chambers USA 2016). He has also been named a recommended lawyer by Legal 500 US for Capital Markets in Debt Offerings, Equity Offerings and High-Yield Offerings and is recognized by Who’s Who Legal: M&A and Governance 2019 as a Corporate Governance Lawyer. During his career at the SEC, he was the recipient of numerous awards, such as the SEC Capital Markets Award, SEC Regulatory Award, SEC Law and Policy Award, SEC Chairman’s Award for Excellence, and the Federal Bar Association’s Philip A. Loomis, Jr. Award.

Mr. Dunn is frequently sought after to speak, write and comment on securities law topics. He is co-editor of the widely read newsletter, The Corporate Counsel a premier publication in the field. He is on the Executive Committee of the Northwestern University School of Law’s Securities Regulation Institute, a past Chair of the Northwestern University School of Law’s Ray Garrett Jr. Corporate and Securities Law Institute, and the University of Texas School of Law’s Conference on Securities Regulation and Corporate Law, and has been on the faculty of the ALI CLE’s Regulation D and Private Placements Conference for more than 20 years. Mr. Dunn also speaks frequently as a member of the faculty of the Practising Law Institute.

Mr. Dunn served as Chair of the Nasdaq Listing and Hearing Review Council and he has been an adjunct professor at Georgetown University Law Center and the University of Maryland School of Law.


Ms. Jaffari is a partner in the Business and Finance Department at Ballard Spahr.  Recognized as a leader in the fields of corporate governance and securities, Ms. Jaffari devotes her practice to advising boards of directors with respect to governance matters and handling complex securities transactions for businesses in a variety of industries. Advising clients in deals that have reached the multibillion-dollar range, Ms. Jaffari has broad experience in corporate finance, compliance, and internal investigations, representing special committees of public company boards. Her practice includes business counseling, capital-raising, and mergers and acquisitions. She currently serves, on a pro bono basis, as Special Corporate Counsel, on behalf of Ballard Spahr, to DirectWomen, a nonprofit whose mission is to increase the number of women on corporate boards.

Ms. Jaffari has been named a “Woman of Distinction” by the Philadelphia Business Journal.  She was selected as the “Star Influencer” for SmartCEO’s Centers of Influence Awards.  Ms. Jaffari has been named a Pennsylvania "Super Lawyer" for securities and corporate finance, to SmartCEO’s Legal Elite as a go-to attorney for business legal advice, one of Philadelphia's "40 Under 40" by Philadelphia Business Journal, and one of Pennsylvania's "Lawyers on the Fast Track" by American Lawyer Media.  The Philadelphia Bar Association’s Business Law Section honored her with the Committee of the Year Award and Chair of the Year Award.  Ms. Jaffari also is the recipient of the Adjunct Teaching Award for Excellence in the Classroom, Legal Studies, Fox School of Business and Management at Temple University.

Ms. Jaffari believes in public service and has taken an active role in the community. Honored as a Distinguished Advocate by the Support Center for Child Advocates, Ms. Jaffari has been fulfilling her commitment to pro bono service by representing abused and neglected children for over twenty years.  She is the recipient of the First Judicial District's Roll of Honor by the District's Pro Bono Committee.  In addition, she is active in the Corporate Governance Committee of the American Bar Association’s Business Law Section as a Vice Chair of the Committee and Co-Chair of the Governance and Sustainability Subcommittee and Chair of Diversity in The Boardroom Task Force.  She has also served on and as Chair and Vice Chair of the Board of Governors of the Philadelphia Bar Association where she previously served as Chair of the Business Law Section of the Association among other positions.  She has served on and continues to serve on many non-profit organizations nationally and locally.  She is an adjunct professor at Temple University, Fox School of Business and a member of Beta Gamma Sigma, International Business Honor Society.

Ms. Jaffari is a graduate of George Washington University Law School (J.D.), and she holds degrees from Temple University (M.B.A., with honors, and B.B.A., summa cum laude).

 


Ms. Thomsen, who was the first woman to serve as the Director of the Division of Enforcement at the Securities and Exchange Commission, is a litigator practicing in Davis Polk’s Washington DC office. Her practice concentrates in matters related to the enforcement of the federal securities laws. She has represented clients in SEC enforcement investigations and inquiries, in enforcement matters before other agencies, including the Department of Justice (various U.S. Attorneys Offices) and the Commodities Futures Trading Commission, in investigations and inquiries from self-regulatory agencies, including FINRA, and in internal investigations. These matters, which are typically non-public, have covered a broad range of securities related subject matters, including insider trading, foreign corrupt practices, financial reporting, manipulation and regulatory compliance. Her clients have included major financial institutions, regulated entities, public companies and senior executives.

Ms. Thomsen returned to Davis Polk in 2009 after 14 years of public service at the SEC. While there she held a variety of positions and ultimately served as the Director of Enforcement from 2005 through February 2009. During her tenure as the Director of Enforcement, she led the Enron investigation, the auction rate securities settlements, the stock options back dating cases and the expansion of the enforcement of the Foreign Corrupt Practice Act.

She is a graduate of Smith College (A.B. ’76, Government (High Honors)) and Harvard Law School (J.D. ’79).


Nicolas Grabar’s practice focuses on international capital markets and securities regulation and on the representation of large reporting companies. He plays a primary role in the firm’s work for public company clients, including leading Mexican and Brazilian businesses, sovereigns, and global investment banks, on their biggest and most complex capital markets and financing matters.

Nick is known for creating durable relationships with his clients—including representing the Mexican government for more than 30 years—and is regarded as one of the premier authorities on SEC disclosure and securities reporting matters.

He has extensive experience in international financings in public and private markets, in U.S. securities law and regulations applicable to foreign issuers, and in the regulation of financial reporting. Nick also has experience in the telecommunications and natural resources sectors, and has advised on acquisitions, joint ventures, privatizations, and debt restructuring.

Nick repeatedly has been recognized for his work on behalf of clients, including by The American Lawyer, Chambers Global, Chambers Latin America, Chambers USA, The Legal 500 Latin America, and IFLR1000, among others. In 2016, Latin Lawyer named Nick its “International Lawyer of the Year,” describing him as “an elite dealmaker with a reputation for assisting on novel financing structures that set precedents for others to follow.”

Nick joined the firm in 1984 and became a partner in 1991. From 1985 to 1989, he was resident in the Paris office.

Nick received a J.D., cum laude, from Harvard Law School and a B.A., magna cum laude, from Harvard College.

 


Paul Dudek is counsel in the Washington, D.C. office of Latham & Watkins. Mr. Dudek joins Latham after 23 years as Chief of the Office of International Corporate Finance in the US Securities Exchange Commission’s (SEC) Division of Corporation Finance.

Mr. Dudek’s practice covers all aspects of cross-border capital market transactions involving non-US companies and sovereigns, as well as related regulatory matters.

In his previous role, Mr. Dudek oversaw the Office’s efforts to develop and implement rulemaking initiatives and interpretive policies pertaining to US public and private offerings, listings and other transactions and periodic reporting by foreign private issuers in the US and multinational offerings by foreign and domestic issuers, especially with respect to Regulation S, Rule 144A, Form 20-F and Securities Act and Exchange Act filings by foreign private issuers, the Multijurisdictional Disclosure System (MJDS), American depositary receipts (ADRs) and International Financial Reporting Standards (IFRS).

Mr. Dudek has deep and rich experience in SEC registrations. During his tenure as Office Chief, more than 2,000 foreign private issuers completed their initial registrations with the SEC, including through traditional global or US-only IPOs, privatizations, spin-offs, straight listings and M&A transactions, and many sovereign issuers completed their initial US registered debt offerings. Similarly in that time, numerous foreign corporate and governmental issuers effected a wide range of follow-on capital markets transactions in SEC registered offerings.

Among his recent efforts, Mr. Dudek led various initiatives relating to IFRS, and he helped implement rulewriting and other projects under the Dodd-Frank Act of 2010 and the JOBS Act of 2012, including projects relating to cross-border derivatives transactions, the extra-territorial application of the anti-fraud provisions of the federal securities laws, and amendments to Rule 144A.

Mr. Dudek also served as the Commission’s representative to the Corporate Governance Committee of the Organization for Economic Co-operation and Development (OECD). He completed significant work relating to international organizations, including the International Organization of Securities Commissions (IOSCO) and the Financial Stability Board.

Prior to joining the SEC, Mr. Dudek was in private practice in New York, where he advised a range of foreign and US companies and financial intermediaries on capital markets transactions.

Mr. Dudek was an adjunct professor at Georgetown University Law Center.


Paul Leder has practiced in securities enforcement, compliance, and complex litigation for over thirty years. Mr. Leder represents public companies, banks, broker-dealers, investment advisers, mutual funds, and individuals under investigation by the U.S. Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), the U.S. Department of Justice (DOJ), and other authorities. He helps clients navigate the special challenges created by simultaneous investigations by criminal and regulatory authorities, as well as related civil litigation.

Mr. Leder has led internal investigations on behalf of boards of directors or management involving the Foreign Corrupt Practices Act (FCPA), accounting fraud, and insider trading. He also advises clients on insider trading, disclosure obligations, and internal controls.

Prior to joining Miller & Chevalier, Mr. Leder was the Director of the SEC's Office of International Affairs, where he led a team of 50+ professionals to provide strategic direction for advancing the SEC's interests in specific cross-border cases as well as on broader international policy engagements involving the SEC's enforcement, regulatory, and inspection programs. Earlier in his career, Mr. Leder spent more than a decade at the SEC, starting as a trial attorney in the Division of Enforcement, and later as a supervisor in the Office of International Affairs. During his tenure, Mr. Leder covered a wide range of enforcement and regulatory issues and regularly represented the SEC in international meetings, including those of the International Organization of Securities Commissions, the Financial Action Task Force, and the Organisation for Economic Co-operation and Development (OECD) Working Group on Bribery in International Business Transactions.

Mr. Leder began his legal career as a criminal trial attorney with the Public Defender Service for the District of Columbia. In his pro bono practice Mr. Leder continues to represent persons of limited financial means or otherwise unable to retain qualified counsel.


PricewaterhouseCoopers:

Wayne re-joined the Firm in 2011 as a partner in the National Professional Services Group and supports US and International clients in addressing complex accounting and reporting matters including those that are unique to the SEC regulatory requirements. He is a member of the Firm’s SEC Leadership Team. Wayne was named to the 2013 Global Accounting Power 50 by the International Accounting Bulletin. He is a member of the Board of Directors of the Association of SEC Alumni and the Advisory Board of PLI’s

SEC Institute.

From 1997 to 2007, Wayne was a Partner in the National Professional Services Group where he assisted clients and engagement teams in addressing US GAAP, PCAOB standards and SEC reporting issues primarily for non-US companies. He was also responsible for publishing the Firm’s policy and procedures on matters relating to US GAAP, PCAOB standards and SEC reporting matters relating to non-US companies, and developing training for partners and staff outside of the US. Wayne was a member of the following groups: AICPA International Practices Task Force; PwC Global International Financial Reporting Standards Board; PwC Global 404 Steering Committee. He has worked on many Fortune Global 500 companies.

From 1981 to 1991 Wayne held various positions including senior manager and worked on public and non-public companies in various industries.

US Securities and Exchange Commission – Division of Corporation Finance:

From 2007 to 2011, Wayne was Chief Accountant of the Division of Corporation Finance where he was responsible, in conjunction with other senior officers, for planning and developing polices programs, procedures, and training relating to the financial reporting matters with respect to the work of the Division. He rendered decisions on financial reporting matters relating to the public companies that file with the SEC. He collaborated with the Chief Accountant of the Commission, the Division of Enforcement, and other Divisions and Offices on unique issues and policy matters; worked with other government officials in addressing financial reporting matters. He was responsible for guidance published by the Division on financial reporting matters including the Financial Reporting Manual, guidance for smaller issuers and banks, Compliance and Disclosure Interpretations relating to financial reporting matters, etc. Wayne jointly authorized the issuance of Staff Accounting Bulletins and assisted in drafting a number of Commission rules on a variety of subjects. He worked with the FASB, EITF, PCAOB and IASB in addressing issues of mutual interest. He also served as an observer to the PCAOB’s Standing Advisory Group.

From 1991 t0 1997, Wayne held various positions including Associate Director, Deputy Chief Accountant, Associate Chief Accountant and Staff Accountant.

Publications:

Wayne has published articles in several professional magazines on SEC reporting matters and other accounting/auditing matters including: Accountancy in the UK, Contaduria Publica in Mexico; Der Schweizer Treuhander in Switzerland and The CPA Journal. He is a former member of the Editorial Advisory and Review Board for Accounting Horizons.

Education:

Wayne is a graduate of Alfred University and is a Certified Public Accountant in several states.


Joan McKown has more than 30 years of experience in Securities and Exchange Commission (SEC) enforcement and financial regulatory matters including investigations, exams, internal investigations, and disputes throughout the United States. She has in-depth knowledge of investigatory issues relating to financial fraud, corporate disclosure, corporate governance, accounting, compliance, private equity, FCPA, broker dealer, investment adviser, investment companies, and insider trading. Joan represents corporations, and financial services firms, and their officers, directors, and employees, counseling them to avoid regulatory scrutiny, and when necessary, resolving matters on the best terms possible.

Prior to joining Jones Day in 2010, Joan was the longest serving chief counsel in the Division of Enforcement at the SEC, where she played a key role in establishing enforcement policies and worked closely with Commission and senior SEC staff. Joan literally wrote the book on SEC enforcement when she oversaw creation of the first version of the SEC Enforcement Manual. As chief counsel, she led hundreds of Wells meetings and settlement negotiations. At Jones Day, Joan has extensive experience submitting persuasive Wells submissions, having reviewed thousands of such submissions while on the SEC staff.

Joan is the president-elect of the board of trustees of the SEC Historical Society. She also serves on the Executive Committee of the board of trustees of the Legal Aid Society of the District of Columbia. She frequently speaks and writes on SEC enforcement related topics.


LINDA RAPPAPORT is Of Counsel at Shearman & Sterling LLP in New York City, having been a partner of the firm for over 30 years.  She is a former Practice Group Leader of the Compensation, Governance & ERISA/Private Client Group as well as a founding partner of the firm’s Corporate Governance Advisory Group.  Her practice focuses on all aspects of executive compensation and benefits, including corporate, securities and tax laws, and related corporate governance and regulatory matters. Ms. Rappaport has a special focus on the representation of global, U.S. and non-U.S. companies and their Boards of Directors and Compensation Committees in corporate governance matters, including CEO succession, public disclosure and executive compensation.  She has broad experience in the design and implementation of executive incentive programs, and in the negotiation and preparation of executive employment contracts and severance arrangements, with particular emphasis on the financial services and entertainment industries.  Her practice also encompasses all compensation, benefits and related governance issues associated with corporate acquisitions, divestitures, public offerings, restructurings and bankruptcies.

Active in lecturing, she is the author of numerous articles on a variety of corporate governance and executive compensation issues.

Ms. Rappaport is a founding member and adviser of the firm’s Women’s Initiative for Success, Excellence and Retention (“WISER”).  Her not-for-profit activities have included membership on the boards of the Legal Aid Society, the New York Women’s Foundation, and Wesleyan University. She currently serves on the Boards of Trustees of The New School and as the Chair of the Board of Governors of Mannes College, a music conservatory in New York City.


Mr. Waitzer was Chair of Stikeman Elliott LLP from 1999 to 2006 and remains a senior partner whose practice focuses on complex business transactions.  He also advises on a range of public policy and governance matters.  He is a Professor and the Jarislowsky Dimma Mooney Chair in Corporate Governance and is Director of the Hennick Centre for Business and Law at Osgoode Hall and the Schulich School of Business at York University.  He served (1993-1996) as Chair of the Ontario Securities Commission and (until 1981) as Vice-President of The Toronto Stock Exchange.  He has written and spoken extensively on a variety of legal and public policy issues and serves or has served as director of a number of corporations, foundations, community organizations, editorial boards and advisory groups.  He is a Senior Fellow at the C.D. Howe Institute and the Centre for International Governance Innovation (CIGI) and an inaugural fellow of the American College of Governance Counsel.  Recipient of 2018 Corporate Knights Award of Distinction.  He earned his LL.B. (1976) and LL.M. (1981) from the Faculty of Law, University of Toronto.  Called to the Ontario (1978) and the New York (1985) Bars.


Thomas W. Yang is Managing Director and Associate General Counsel at Bank of America and is co-head of the global team of attorneys that covers the Debt Capital Markets and Equity Capital Markets groups worldwide.  Mr. Yang focuses on both debt capital markets and equity capital markets transactions, as well as U.S. and international regulatory and policy matters affecting the securities industry.  Mr. Yang is the chair of the Primary Markets Committee of the Securities Industry and Financial Markets Association (SIFMA) and is a member of the Corporate Financing Committee of the Financial Industry Regulatory Authority (FINRA).  Prior to joining Bank of America, Mr. Yang was a Director and Counsel in the Transactions Advisory Group at Credit Suisse First Boston from 2000 to 2005 and had practiced law with the firm of Brown & Wood LLP prior to then.


Michael Sackheim is senior counsel in the New York office of Sidley Austin LLP where he concentrates on derivatives regulatory, transactional and enforcement matters.  Michael is a past Chair of the New York City Bar Derivatives Regulation Committee, and he is the managing editor of Futures & Derivatives Law Report (Thomson Reuters, publ.).  Michael is also the co-editor of a new legal treatise, The Virtual Currency Regulation Review (November 2018, Law Business Research Ltd).