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Expert Witness 2018

Author(s): Brian A. Herman
Practice Area: Litigation
Published: Jun 2018
ISBN: 9781402431883
PLI Item #: 220552
CHB Spine #: H1100

With a focus on financial institutions, Brian A. Herman counsels clients in civil and class action litigation in US state and federal court. He represents banks, broker-dealers, hedge funds, investment advisers, and other complex businesses. Brian also advises clients facing examinations by the US Securities and Exchange Commission (SEC), self-regulatory organizations, state regulators, and other regulatory agencies. Clients also turn to Brian for guidance with internal examinations and enhancing their business practices.

Brian’s practice spans litigation matters involving contract disputes, lending practices, mergers and acquisitions, loan servicing and foreclosure practices, residential mortgage-backed securities (RMBS), collateralized debt obligations, mutual funds, Ponzi schemes, and consumer protection.

Prior to joining Morgan Lewis, Brian served as a law clerk to Judge Ruth Abrams of the Massachusetts Supreme Judicial Court. 


Representing a hedge fund advisor in connection with a regulatory investigation arising from restatement of net asset value.

Obtained a significant AAA arbitration award on behalf of management team of investment advisor in stock-put dispute.

Counsel for residential mortgage-backed securities trustee in federal court action alleging breach of contract and breach of fiduciary duties arising from alleged conflicts of interests.

Counsel to a leading financial institution in numerous matters arising out of litigation and regulatory inquiries concerning document execution, foreclosure, and other debt collection practices. Advise in development of business practices to comply with state and federal law, and on regulatory settlements and consent orders.

Counsel to transaction parties and their financial advisors in numerous class actions alleging breaches of fiduciary duties in connection with mergers and acquisitions. Represent clients in various venues including Delaware, New York, California, Nevada, and Minnesota. Mr. Herman has obtained dismissal or very favorable settlements in many of these actions.

Successfully defended through trial a leading financial institution in an action challenging the validity of loan obligations.

Representing a foreign investment company in cross-border business-tort litigation concerning a terminated transaction.

Obtained summary judgment on behalf of leading technology company in an international licensing dispute.

Representing a leading financial institution against claims by a loan investor challenging the servicing of a portfolio of mortgage loans.

Lead counsel to leading financial institution in a series of "mass actions” pending in New York and New Jersey alleging improprieties in mortgage origination, servicing, foreclosure, and loan modification processing. Defend claims sounding in contract and fraud, and for violations of various state consumer protection statutes, as well as TILA and RESPA. Many of the actions have been dismissed.

Representing leading financial institution in New York False Claims Act action.

Representing a biotech company in transaction-related litigation in Delaware Court of Chancery.

Lead counsel to a leading financial institution in actions brought by county recorders challenging practices concerning the recording of assignments of mortgages.

Representing a Russian financial institution in litigation concerning a series of transactions.

Representing a foreign bank executive in a class action seeking damages incurred by victims of an alleged Ponzi scheme.

Represented a Russian media company in an international dispute concerning licensing rights.

Counsel for a leading membership services provider in litigation against a major online retailer alleging breach of a marketing agreement.

Represented a leading financial institution in an action brought by a former executive seeking damages under an employment agreement.

Obtained dismissal of a class action against a leading credit card issuer and debt collector alleging violations of consumer protection statutes arising from an alleged failure to send periodic statements.

Represented multiple clients in class actions and derivative suits arising from alleged stock option backdating. Many of the actions have been settled on favorable terms, and one class action has been dismissed with prejudice.

Represented a large broker-dealer in a nationwide class action alleging breaches of fiduciary duty in connection with mutual fund revenue sharing. Mr. Herman negotiated a favorable settlement on behalf of his client.

Represented a hedge fund advisor in civil litigation arising out of the devaluation of portfolio tied to the housing crisis. Mr. Herman negotiated a favorable settlement on behalf of his client.

Represented a multinational company in defending intellectual property and competition claims brought by a foreign competitor arising from a sale and licensing agreement.

Obtained dismissal on behalf of a broker-dealer and bank in a nationwide class action challenging disclosures concerning bank-deposit sweep programs.

Represented a large retailer in a class action seeking damages concerning the alleged failure to comply with FACTA in its credit card processing.

Served as a member of the trial team on behalf of an international credit card association in antitrust litigation brought by the Department of Justice concerning card issuing and membership rules and association governance.

Counsel for multiple underwriters in a series of coordinated class actions arising out of the initial public offering of various securities. The actions resulted in a favorable settlement for the defendants.

Counsel to broker-dealers in regulatory matters concerning various practices including mutual fund market timing, revenue sharing, insider trading, mark-ups, and alleged fraud.


  • Member, New York State Bar Association
  • Member, Association of the Bar of the City of New York
  • Staff Member, Journal of International Economic Law
  • Listed, "Rising Star," New York Super Lawyers (2011–2013)


  •     New York
  •     Massachusetts


  •     Clerkship to Justice Ruth Abrams of the Supreme Judicial Court of Massachusetts (1998 - 1999)


  •     University of Pennsylvania Law School, 1998, J.D.
  •     Brandeis University, 1995, B.A.