The private fund industry is more in the public eye than ever before.  Private capital and private markets have experienced massive growth over the last two decades, substantially outpacing the growth of public equity. We have witnessed that trend continue during the past year, and have worked with our clients to navigate the greater uncertainty that results with greater litigation risk and regulatory scrutiny.  And as predicted, the ride seemed to get a little bumpier in the second half of 2019, with several events suggesting that litigation and regulatory risks have ratcheted higher.  With that backdrop, we are pleased to present our Top Ten Regulatory and Litigation Risks for Private Funds in 2020.

1. Unicorns – The Re-Set

In March 2019, Bloomberg dubbed 2019 the “year of the tech unicorns.”  While that turned out to be true, it was not always for the positive reasons predicted.  Rather, 2019 seemed to be the year that investor sentiment may have shifted from bullish to somewhat bearish, as near-daily negative press was published on some of the highest profile unicorns and former unicorns (now public). This shift may lead to increased litigation in the private fund space. If the bearish sentiment persists, longer term systemic issues could surface affecting unicorns, others seeking unicorn status, and investors.  Highly valued but unprofitable companies have limited options.  They need to develop a path to profitability before running out of cash, raise more capital, or close up shop.  With the recent travails of certain high profile unicorns and the disappointing stock prices of certain former unicorns, raising more capital may prove difficult for some unicorns.  In the coming year, the market should prepare for the prospect of down rounds and diminished expectations on returns for certain unicorns.  Weaker performers may get edged out of the market, with some sold to strategics and some facing liquidation.  If more unicorns falter, investors should be aware of the possibility for regulatory scrutiny and private litigation, particularly for those funds that also hold a director seat.

2. Increased Restructuring and Reorganization on the Horizon

Heading into 2020, private equity firms are sitting on record levels of dry powder, and many are anticipated to target distressed businesses.  While distressed assets have delivered poor returns recently, they are known to perform well during economic downturns, which many expect to occur within a couple of years.  Distressed assets and other businesses that come under acute pressure in a decreased liquidity environment present particular litigation risk.  With diminished access to capital, fewer IPOs and closing credit windows, portfolio companies running low on cash may be faced with the possibility of restructuring or reorganizing, which may in turn increase litigation exposure for both funds and fund managers.  For example, officers and directors, including fund managers with board seats on portfolio companies, may be subject to greater scrutiny and face a greater risk of exposure if those companies are at or near the “zone of insolvency.”  Under this doctrine, which many jurisdictions employ in some variation, portfolio company asset transfers could result in liability for officers and directors if they impair repayment of debt.  Private equity firms that choose to invest in (or that already own) distressed assets should consider the risks inherent in such investments, especially in a challenged liquidity environment that may result in the restructuring and reorganization of those assets.  Distressed businesses–and the anticipation of distress–may become a key driver of deals in the coming year, but for many, they may also be a key driver of litigation.

3. Valuation Continues to Be A Focus

Fund managers may face increasing scrutiny over valuations from both regulators and private fund investors. First, as noted above, recent events (both leading up to, and following, IPOs) have raised questions concerning valuations of unicorns. At a minimum, regulators and investors are likely to take a hard look at all parties involved in unicorn valuations that may have been too optimistic in hindsight. This is particularly true given the fact that private fund investors often play a key role in establishing the valuation of portfolio companies. Second, SEC Enforcement will continue to investigate and bring actions against private fund advisers regarding valuations. We expect to see the SEC continue its past approach to valuation cases: rather than challenging the actual valuations adopted by a fund adviser, it will typically bring an action focused on a failure to use the valuation methodology the adviser has disclosed to its investors or, as in the Deer Park settlement from last year, failure to maintain appropriate compliance policies and procedures relating to valuations. In light of the SEC’s recent proposed amendments to the Advertising Rule, Enforcement is also likely to focus on valuation and performance claims, particularly claims regarding performance based on unrealized gains, in marketing materials. The proposed amendments include a provision that would prohibit an adviser from presenting performance results in advertising materials in a manner that is not “fair and balanced.” Third, we expect that the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) will continue to raise questions regarding valuations during exams. OCIE has made clear that it will focus on fund advisers that rely on third-party vendors, including vendors that provide valuation services. We expect that OCIE will look closely at the due diligence performed by an adviser when selecting a vendor to provide such services. OCIE will also likely continue to question advisers who rely on credit facilities and their effect on internal rates of return. We have seen OCIE raise questions regarding disclosure of this practice in exams of private fund advisers and expect that to continue this coming year. And finally, especially in the event of an economic downturn, credit funds may be fielding questions about their valuation of credit holdings as defaults, and the risk of defaults, increase.

4. Private Credit Risk in a Softening Market

Private credit lenders face dual challenges in 2020.  First, they face an increasing risk of future defaults on current deals, as the credit cycle continues to mature and the global economy softens (even though the domestic economy remains solid).  At the same time, strong financial covenants—a typical first line of defense against borrower defaults—are becoming increasingly uncommon, with approximately 65-70 percent of recent credit deals being “cov-light” or “cov-loose” as deal terms migrate toward the syndicated market.

Both challenges increase risk for private credit lenders in 2020.  Defaults on older deals may require the exercise of creditor remedies in conjunction with (or in lieu of) a restructuring solution.  On newer deals, the lender’s lack of information (e.g., due to liberal EBITDA add-backs) and narrowed recourse (e.g., due to lists of excluded assets from collateral packages) may inspire jockeying between lender groups prior to a default, and litigation over the scope and enforceability of security interests when an event of default occurs.

Many private credit lenders anticipate at least some increase in restructuring activity in a changing economic environment with fewer covenant and collateral protections.  It will be important for private credit lenders to identify and navigate risks of borrower default or inter-lender litigation as early as possible.

5. Cryptocurrencies and Other Digital Assets – A Continuing Alphabet Soup of Regulation

While cryptocurrencies and digital assets continue to make headlines, the regulatory landscape remains murky.  In October 2019, the SEC, FinCen, and the CFTC issued a joint statement asserting that each had jurisdiction to bring cases “involving digital assets” under the anti-money laundering (“AML”) and counter-terrorism financing provisions of the Bank Secrecy Act.  The statement underscores how each of these regulators is simultaneously pushing to expand its jurisdiction in these areas without meaningful coordination.  The CFTC has never brought an anti-money laundering case (under the Bank Secrecy Act or otherwise).  Further, in a case recently affirmed on appeal by the Second Circuit, the court suggested the SEC’s books and records rules requiring broker-dealers to report potentially suspicious transactions under the Bank Secrecy Act grant the SEC jurisdiction to bring enforcement actions, signaling expansion of the SEC’s jurisdiction over AML cases.

Enforcement actions surrounding Initial Coin Offerings (ICOs) appear to have peaked now that the SEC has clamped down on several massive fraud schemes.   However, while the SEC has provided some guidance regarding how to distinguish blockchain-linked assets that are securities from those that are not, this area will continue to evolve.  Even though the SEC has taken the view that ICOs are generally subject to regulation as securities and that some cryptocurrencies (such as bitcoin and ether) are not, this does not alleviate the regulatory risks for either type of blockchain-linked investment.  Although the SEC may not assert jurisdiction over certain cryptocurrencies as securities, cryptocurrencies and other digital assets are subject to increasing state regulation, for example, by the New York State Department of Financial Services (“DFS”).  Fund managers investing in digital assets should carefully consider the applicable regulatory scheme and prepare for varying degrees of legal scrutiny, depending on the regulator du jour.

6. Anti-Money Laundering and Sanctions Enforcement Continued Priority in Private Funds Space

AML and sanctions issues should be top of mind for private funds going into 2020, thanks to new guidance from OCIE, the DOJ, the Treasury’s Office of Foreign Assets Control (“OFAC”), and recent court decisions. In January 2020, OCIE announced its 2020 Exam Priorities, which included–as they have for the last several years–a continued review of broker-dealers and investment companies for compliance with AML requirements. The SEC’s continued focus on AML affects even those private funds that are not subject to a mandatory AML program rule, due to enhanced scrutiny facing fund affiliates, counterparties, and institutions that custody funds.  Potential areas for examination could include compliance with new beneficial ownership requirements, books and records requirements, and suspicious activity reporting.

The focus on AML is an area of global interest, reflected most recently in Europe with implementation of the 5th Money Laundering Directive (“MLD5”). MLD5 brings a wider range of entities into the scope of the EU AML rules and tightens up requirements for firms’ customer due diligence processes. Much like the SEC’s focus, these changes include new beneficial ownership verification requirements and will require firms to report discrepancies in customer information they hold to the Companies House (in the UK).

Over the last five years, the amount of AML penalties imposed globally has been steadily rising, to more than $8 billion in 2019.  In contrast to prior years, less than half of those fines were levied against banks, signaling that AML enforcement is expanding to other types of financial services firms.  In December 2019, the DOJ revised its policy for business organizations regarding voluntary disclosures of sanctions violations, signaling a continued push towards self-disclosure.  In May 2019, OFAC released new compliance guidance that suggests for the first time that companies, including private funds, have an affirmative obligation to maintain effective sanctions compliance programs.  Finally, a recent federal court decision vacating an OFAC penalty against ExxonMobil, on the grounds that the company lacked fair notice that its conduct was prohibited, suggests that we might see an increase in litigation and a corresponding shift in some of OFAC’s enforcement strategies.

7. Ongoing Focus on Cybersecurity and Privacy

In 2019, OCIE initiated a third round of cybersecurity-focused examinations of registrants with a focus on (i) governance and risk management; (ii) access rights and controls; (iii) data loss prevention; (iv) vendor management; (v) training; and (vi) incident response. These examinations are a continuation of an ongoing focus on cybersecurity that began in early 2014. Further, OCIE stated in its 2020 Exam Priorities that it will continue to prioritize cyber and other informational security risks across the entire examination program. Given the significant amount of Commission attention devoted to cybersecurity related issues in recent years, we expect that OCIE staff will refer significant deficiencies to the SEC’s enforcement staff.

The increased focus on cybersecurity and privacy has also extended to the state enforcement level. Notably, the California Consumer Privacy Act of 2018 (“CCPA”) became operative on January 1, 2020 and requires qualifying businesses to enable consumers to know about and control the information collected about them. Because the CCPA defines consumers and businesses broadly, investment funds and their managers may be considered “qualifying businesses” and information that they collect and use about their employees, job applicants, investors, and prospective investors (including KYC information) residing in California could be subject to the CCPA.

Outside of the US, the UK Financial Conduct Authority (“FCA”) has blazed a trail in the area of operational resilience as more firms under its supervision are embracing and leveraging technology to deliver services. The FCA’s focus in this area means firms’ arrangements for business continuity and robust cyber-attack deterrents are a top priority for the regulator. Large fines have been levied by the FCA in response to operational outages and cyber-attacks in recent years, which have put cyber-attack resilience into sharp focus. There will be further consultation in this area following the Prudential Regulatory Authority (“PRA”) and FCA’s joint Discussion Paper in December focusing on operational resilience. Firms that have multi-jurisdictional operations should take note that regulators globally are becoming increasingly focused on cybersecurity-related issues.

8. Increased Scrutiny on Alternative Data Use by Fund Managers

The use of alternative data, such as geolocation data, web scraping, satellite data, credit card transactions and other data sets, continues to expand among fund managers seeking an edge in making investment decisions. With increased use has come increased attention from regulators, along with the potential for liability on material non-public information (“MNPI”) and other theories. At the SEC, OCIE has publicly identified alternative data among its 2020 Exam Priorities, and we expect the SEC to examine fund managers’ compliance and control functions surrounding their diligence process for alternative data vendors, protections against the receipt of personally identifiable information, and potential MNPI considerations involving alternative data. New laws like the CCPA give consumers broad rights over their personal information that may complicate managers’ use of alternative data sources.  Amid the broader focus on data privacy, there has been increased scrutiny of the integrity of consumer geolocation data.  In 2018, the FCC announced an investigation concerning all of the major mobile carriers and their practices for safeguarding customers’ geolocation information. Since then, enforcement actions on the part of various regulatory and enforcement agencies concerning geolocation data collection and sharing practices have led also to civil litigation, including several consumer class actions in various jurisdictions across the country.

9. Regulatory and Enforcement Uncertainty In an Election Year

The 2020 election promises to portend continued uncertainty surrounding regulatory enforcement as well as legislation. Over the past three years, the SEC’s enforcement activity relating to asset managers has continued apace (and has not slowed as much as some predicted), but the composition of the Commission may change dramatically in the coming year. Enforcement typically views conduct through the lens of hindsight, and depending on the outcome of the election, a new administration may take a more aggressive approach when evaluating past conduct.

2020 promises to bring consideration of a number of potential sweeping changes in the regulation of private fund managers both through congressional action and agency administrative action. With respect to the former, in recent months, the U.S. Senate has seen the introduction of Senator Elizabeth Warren’s (D-MA) Stop Wall Street Looting Act, as well as the Private Fund Board Disclosure Act of 2019 and the Investment Adviser Alignment Act in the U.S. House of Representatives.

Meanwhile at the SEC, the past several months have seen significant changes proposed to both the advertising and cash solicitation rules under the Investment Advisers Act, as well as proposed revisions to the definition of an “accredited investor” under the Securities Act and applicable to private placement offerings. Additionally, the SEC’s rulemaking agenda indicates that the agency’s Division of Investment Management is considering recommending changes to the custody rule under the Investment Advisers Act. The results of the 2020 election may push these efforts dramatically—in one direction or another.

10. Fiduciary Obligations Overlay: Fees, Expenses, and Potential Conflicts

OCIE and the Division of Enforcement are always focused on accurate disclosures of fees, expenses, and conflicts of interest, and this year promises to be no different. Following the SEC’s recent Interpretation Regarding Standards of Conduct for Investment Advisers, OCIE has reiterated that it will focus on whether advisers are complying with their fiduciary obligations to clients. Specifically, “whether RIAs [Registered Investment Advisers] provide advice in the best interests of their clients and eliminate, or at least expose through full and fair disclosure, all conflicts of interest which might incline an RIA, consciously or unconsciously, to render advice which is not disinterested.” In particular, OCIE has prioritized examinations of private fund managers advising private funds side-by-side with separately managed accounts, BDCs or registered investment companies, and will also scrutinize private fund managers’ disclosure of fees and expenses and use of affiliated service providers. While we have seen a decrease in the number of Enforcement actions against private funds generally, that has not been true for matters involving fees and expenses. In the past year, the SEC brought numerous actions against advisers to private funds for undisclosed fees as well as cases involving undisclosed conflicts involving affiliated entities. Private fund advisers should thus ensure that fees received in any form and from all sources are disclosed, correctly calculated, and correctly offset against management fees if required by provisions in fund agreements. OCIE is also focused on increasing the number of examinations, so the chances of undergoing an exam are higher compared to years past—particularly for private fund managers that have never been examined or have not recently been examined.

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Photo of Margaret A. Dale Margaret A. Dale

Margaret Dale is a trial lawyer and first-chair litigator handling complex business disputes across a wide variety of industries, including: consumer products, media and entertainment, financial services, telecommunications and technology, and higher education. She is a former vice-chair of the Litigation Department, and…

Margaret Dale is a trial lawyer and first-chair litigator handling complex business disputes across a wide variety of industries, including: consumer products, media and entertainment, financial services, telecommunications and technology, and higher education. She is a former vice-chair of the Litigation Department, and heads the Department’s Data Privacy and Cybersecurity Practice Group. Margaret has been recognized since 2017 in Benchmark Litigation’s Top 250 Women in Litigation.

Margaret’s practice covers the spectrum of complex commercial disputes, including privacy and data security matters, as well as disputes involving M&A, intellectual property, bankruptcy and insolvency, securities, corporate governance, and asset management.

Margaret regularly counsels clients before litigation commences to assess risk, adopt strategies to minimize or deflect disputes, and resolve matters without going to court.

Margaret is a frequent writer, including authoring a regular column on corporate and securities law in the New York Law Journal. She also serves as the lead editor of Proskauer’s blog on commercial litigation, Minding Your BusinessShe also authored the chapter titled “Privileges” in the treatise Commercial Litigation in New York State Courts (Haig, 5th ed.), as well as the chapter titled “Data Breach Litigation” in PLI’s Proskauer on Privacy.

Margaret maintains an active pro bono practice advocating on issues relating to women, children and veterans. She serves on the Board of Directors of CFR (Center for Family Representation), VLA (Volunteer Lawyers for the Arts), JALBC (Judges and Lawyers Breast Cancer Alert), and the City Bar Fund.

Photo of Michael R. Hackett Michael R. Hackett

Mike Hackett is a partner in the Litigation Department and Co-Head of the Asset Management Litigation practice. An experienced litigator and trial lawyer, Mike’s practice focuses on complex commercial litigation, with a particular emphasis on asset management, financial services, M&A, shareholder, and life…

Mike Hackett is a partner in the Litigation Department and Co-Head of the Asset Management Litigation practice. An experienced litigator and trial lawyer, Mike’s practice focuses on complex commercial litigation, with a particular emphasis on asset management, financial services, M&A, shareholder, and life sciences disputes.

A significant portion of Mike’s practice concerns disputes and regulation involving private funds, including private equity, venture capital, hedge, real estate and private credit funds, as well as their sponsors, partners, investors, portfolio companies, and officers and directors. Mike’s experience representing private fund clients runs the gamut, from control contests within advisers, to disputes between limited partners and general partners, to representation of investment advisers in connection with regulatory examinations, investigations and enforcement matters. Mike routinely represents funds, fund sponsors, portfolio companies, and their officers and directors, including in significant post-closing M&A disputes.

Mike also litigates high-stakes commercial disputes in the life sciences and financial services areas, including for established pharmaceutical and biotechnology companies, emerging and innovative start-ups, asset managers, and other private capital investors, in areas such as M&A, breach of contract, indemnification, fraud, contested earnouts and royalties, securities and capital markets, and corporate governance.

Mike has been recognized by Chambers USA and was named a “Rising Star” by Massachusetts Super Lawyers.

Photo of Timothy W. Mungovan Timothy W. Mungovan

Tim Mungovan is the Chair of Proskauer.  He is also the immediate past chair of the Firm’s Litigation Department and head of the Securities Litigation practice.

His practice is focused on securities, commercial litigation, governance, and bankruptcy-related matters. He has a national reputation…

Tim Mungovan is the Chair of Proskauer.  He is also the immediate past chair of the Firm’s Litigation Department and head of the Securities Litigation practice.

His practice is focused on securities, commercial litigation, governance, and bankruptcy-related matters. He has a national reputation for advising sponsors of private investment funds (hedge, private equity, private credit and venture capital) in a wide variety of matters, including litigation, governance, securities, fiduciary obligations, and regulatory enforcement.

Chambers USA describes Tim as “an extraordinary lawyer who is a fierce and very talented litigator. He is extremely knowledgeable, responsive and client-oriented.” Best Lawyers in America lauds Tim’s experience, integrity, work ethic, communications and courtroom skills. Tim has been listed in the “Top 100 Lawyers” in Massachusetts, and Benchmark Litigation has continually recognized Tim as a Litigation Star in Massachusetts.

Over the last six years, Tim has been the lead litigator representing the Financial Oversight and Management Board for Puerto Rico in the historic restructuring of Puerto Rico’s debts. The scale and complexity of this restructuring has resulted in one of the most active litigation dockets in the U.S. Almost every aspect of the litigation involved matters of first impression in part because the restructuring is governed by the Puerto Rico Oversight, Management, and Economic Stability Act, which was enacted for Puerto Rico in 2016.  The track record of success speaks for itself:  in the more than 150 lawsuits filed, Tim and the Proskauer team have prevailed in almost 95% of the cases.

Tim is recognized nationally for his experience in private fund litigation and disputes, having focused on the industry for more than 25 years.  As part of that focus, Tim created and is the lead editor of Proskauer’s blog on Private Equity litigation, The Capital Commitment.

Photo of Joshua M. Newville Joshua M. Newville

Joshua M. Newville is a partner in the Litigation Department and a member of Proskauer’s White Collar Defense & Investigations Group and the Asset Management Litigation team.

Josh handles securities litigation, enforcement and regulatory matters, representing corporations and senior executives in civil and…

Joshua M. Newville is a partner in the Litigation Department and a member of Proskauer’s White Collar Defense & Investigations Group and the Asset Management Litigation team.

Josh handles securities litigation, enforcement and regulatory matters, representing corporations and senior executives in civil and criminal investigations. In addition, Josh advises registered investment advisers and private fund managers on regulatory compliance, SEC exams, MNPI/insider trading and related risks.

Before joining Proskauer, Josh was senior counsel in the U.S. Securities and Exchange Commission’s Division of Enforcement, where he investigated and prosecuted violations of the federal securities laws. Josh served in the Enforcement Division’s Asset Management Unit, a specialized unit focusing on investment advisers and the asset management industry. His prior experience with the SEC provides a unique perspective to help asset managers manage risk and handle regulatory issues.

Photo of Seetha Ramachandran Seetha Ramachandran

Seetha Ramachandran is a partner in the Litigation Department, and a member of the White Collar and Asset Management Litigation practices. An experienced trial and appellate lawyer, Seetha has conducted 10 criminal jury trials, argued 10 appeals before the U.S. Court of Appeals…

Seetha Ramachandran is a partner in the Litigation Department, and a member of the White Collar and Asset Management Litigation practices. An experienced trial and appellate lawyer, Seetha has conducted 10 criminal jury trials, argued 10 appeals before the U.S. Court of Appeals for the Second Circuit, and handled ancillary civil proceedings in forfeiture cases.

Seetha is a leading expert in anti-money laundering (AML), Bank Secrecy Act, economic sanctions and asset forfeiture matters. Her practice focuses on white collar and regulatory enforcement defense, internal investigations, and compliance counseling. She represents banks, broker dealers, hedge funds, private equity funds, online payment companies, and individual executives and officers in high stakes and sensitive matters. Seetha has deep experience representing institutions and individuals in financial penalty phase of criminal and regulatory matters, and is often retained to litigate forfeiture and restitution claims on behalf of victims and third parties in criminal cases, as well as handling these issues for individual defendants.

Seetha served as a federal prosecutor for nearly 10 years, including as Deputy Chief in the Asset Forfeiture and Money Laundering Section (AFMLS), Criminal Division, U.S. Department of Justice. She was the first head of DOJ’s Money Laundering & Bank Integrity Unit, where she supervised DOJ’s first major AML prosecutions, and oversaw all of the Criminal Division’s AML cases. In that role, Seetha coordinated closely with state and federal banking regulators, including FinCEN, the OCC and the New York State Department of Financial Services, giving her deep experience with how these agencies work together, especially in matters involving civil and criminal liability. Her work developing and charging criminal cases under the Bank Secrecy Act (BSA) formed the model for AML enforcement that regulators and prosecutors follow today.

Seetha also served as an Assistant U.S. Attorney for the Southern District of New York for nearly six years, in the Complex Frauds, Major Crimes and Asset Forfeiture units where she investigated and prosecuted white-collar cases involving a wide range of financial crimes, including bank fraud, mail and wire fraud, tax fraud, money laundering, stolen art and cultural property, and civil and criminal forfeiture cases.

Seetha is a frequent speaker and prolific author on topics including enforcement trends in the financial services industry, OFAC sanctions, effective AML programs and asset forfeiture.

Photo of Jonathan M. Weiss Jonathan M. Weiss

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the…

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the fourth largest jury award in the history of the State of Arizona (over $110 million), and has significant appellate experience briefing and arguing appeals in both state and federal courts across the nation.

Jonathan has been recognized as a “Rising Star” by Southern California Super Lawyers every year since 2011, and was recognized by Legal 500 U.S. in their 2015 leading lawyers in appellate litigation edition, noting his “incredibly dedicated” advocacy on behalf of his clients. Jonathan has also spent considerable time on pro bono matters, for which he has been honored by Public Counsel among other organizations.

In addition to his busy practice, Jonathan has taught courses on Ninth Circuit appellate advocacy throughout Southern California and has lectured at several universities nationally, including Harvard Law School, UCLA Law School, the University of Illinois and the University of Pittsburgh. Jonathan is also a member of the Pacific Council on International Policy.

Photo of James Anderson James Anderson

Jim Anderson is a litigator and trial lawyer. His practice focuses on complex commercial litigation involving leading technology and pharmaceutical companies, as well as private equity, private credit, and venture funds. Jim leverages his technological background and expertise to represent clients in high-stakes…

Jim Anderson is a litigator and trial lawyer. His practice focuses on complex commercial litigation involving leading technology and pharmaceutical companies, as well as private equity, private credit, and venture funds. Jim leverages his technological background and expertise to represent clients in high-stakes business and intellectual property disputes.

Jim has experience litigating cases for clients in the life sciences, biotech, software, consumer electronics, and financial services industries.  Jim has also handled lawsuits for venture and hedge funds, and real estate clients.   He has litigated cases in courts throughout the United States, as well as before the International Trade Commission and Patent Trial and Appeal Board.  He has also represented foreign and domestic companies in disputes before international arbitration tribunals under ICC and CPR Rules.

In addition to his commercial litigation practice, Jim counsels and advises private equity and private credit clients in fund-fund, lender-sponsor, and portfolio company disputes.  Jim leverages his courtroom experience to help these clients navigate regulatory and litigation risks.

Jim also advises clients on intellectual property strategy spanning the full range of patent, trademark, and trade secret protections. He has developed and maintained intellectual property portfolios in a broad range of industries, including consumer products, medical devices, machining and fabrication equipment, and semiconductor devices. Jim is registered to practice before the USPTO.

Jim also maintains an active pro bono practice. He has received awards for his work on behalf of victims of domestic violence and abuse.

Jim has a background in Mechanical Engineering, with a focus on energy, power, and fuel cell technologies. Prior to his career at Proskauer, Jim served as a judicial intern in the U.S. District Court for the District of Connecticut and represented clients with the UConn Intellectual Property and Entrepreneurship Law Clinic.

Photo of William D. Dalsen William D. Dalsen

Will Dalsen is a senior counsel in the Litigation Department. His practice focuses on complex commercial litigation, with a particular emphasis on private credit, private equity, venture capital and hedge funds. Will is highly regarded for his deep knowledge of the private credit…

Will Dalsen is a senior counsel in the Litigation Department. His practice focuses on complex commercial litigation, with a particular emphasis on private credit, private equity, venture capital and hedge funds. Will is highly regarded for his deep knowledge of the private credit fund industry and ability to resolve disputes for both sponsors and portfolio companies. He provides counseling regarding creditor rights, lender liability, sponsor liability, operating company disputes, control rights and regulatory compliance and investigations.

He advises funds, fund sponsors, investment advisers, and institutional and individual investors. In addition, he has represented public and private corporations in contractual disputes, business tort cases, and government investigations.

Will leads all phases of the litigation process, including pre-suit investigations, negotiating discovery disputes and arguing discovery motions, managing expert discovery, preparing and arguing dispositive motions, and preparing witnesses for trial. He has elicited deposition testimony from numerous witnesses on topics ranging from corporate finances to document preservation.

Prior to joining Proskauer, Will served for two years as a law clerk to Judge Susan Phillips Read of the New York State Court of Appeals, drafting bench memoranda and assisting with opinions in a variety of civil and criminal matters. In law school, Will was Editor in Chief of the Wisconsin Law Review and served as a judicial intern to the Honorable Shirley S. Abrahamson, Chief Justice of the Wisconsin Supreme Court.

Photo of Adam L. Deming Adam L. Deming

Adam Deming is an associate in the Litigation Department and a member of the firm’s Appellate and Product Liability groups, and Asset Management Litigation team. He focuses on complex commercial litigation in federal and state courts, covering a broad spectrum of business disputes…

Adam Deming is an associate in the Litigation Department and a member of the firm’s Appellate and Product Liability groups, and Asset Management Litigation team. He focuses on complex commercial litigation in federal and state courts, covering a broad spectrum of business disputes touching on corporate governance, fiduciary obligations, financial services, securities and insolvency. Adam has also represented clients in appeals spanning various areas, including consumer products, life sciences, bankruptcy, labor relations, patent and constitutional law.

Prior to joining Proskauer, Adam served as a law clerk to the Honorable Patty Shwartz on the United States Court of Appeals for the Third Circuit. Adam was also an associate in the New York office of an international law firm. Adam graduated cum laude from the University of Pennsylvania Law School, where he was the managing editor of the Journal of Constitutional Law and an Arthur C. Littleton Fellow instructor in legal writing.  Before law school, Adam was a Teach for America Corps Member in New Orleans, Louisiana, where he taught middle school English for three years.

Photo of Christina H. Kroll Christina H. Kroll

Christina Kroll is an associate in the Litigation Department, where her practice focuses on complex commercial litigation.

Christina has experience with every stage of litigation, including experience in drafting and responding to complaints, all aspects of discovery, drafting motions, and preparing witnesses for…

Christina Kroll is an associate in the Litigation Department, where her practice focuses on complex commercial litigation.

Christina has experience with every stage of litigation, including experience in drafting and responding to complaints, all aspects of discovery, drafting motions, and preparing witnesses for examinations.  Additionally, Christina has experience with alternative dispute resolution and has participated in mediations, arbitrations, and a judicial reference trial.

Christina is also experienced in conducting highly sensitive and confidential internal investigations.

During law school, Christina served as a judicial extern to the Honorable Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.

Photo of Hena M. Vora Hena M. Vora

Hena M. Vora is an associate in the Litigation Department and a member of the Asset Management Litigation practice and Products Liability group. Her practice encompasses a range of complex civil and commercial litigation matters, including securities litigation, partnership disputes, and consumer products.…

Hena M. Vora is an associate in the Litigation Department and a member of the Asset Management Litigation practice and Products Liability group. Her practice encompasses a range of complex civil and commercial litigation matters, including securities litigation, partnership disputes, and consumer products.

Hena has experience with various stages of litigation, including pitching clients, coordinating discovery, drafting dispositive motions and trial memoranda, and preparing witnesses for depositions and trial. She also has experience conducting highly sensitive and confidential internal investigations.

Hena maintains an active pro bono practice and has been awarded for creating a partnership between Proskauer’s Boston office and Minds Matter Boston, through which she helps high school students from low-income backgrounds achieve college readiness and success.

Hena earned her J.D. from Emory University School of Law, where she received the Pro Bono Publico honor and a Transactional Law Certificate. In addition, she was a national competitor on the Moot Court Society and served as president of Emory’s South Asian Law Students Association. While at Emory, Hena served as judicial intern for Judge Denny Chin at the U.S. Court of Appeals for the Second Circuit.