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Above Board: Developments in DEI Litigation and Enforcement

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The podcast also provides practical guidance on conducting thorough audits of DEI initiatives and maintaining compliance with evolving legal standards as well as best practices for managing corporate DEI programs amidst legal challenges and ensuring consistency in DEI communications and disclosures.

<p>Above Board: Developments in DEI Litigation and Enforcement</p>

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<p><span>Scott Lesmes chairs Morrison Foerster’s Public Company Advisory & Governance practice, </span>and is a partner in the firm's Capital Markets practice<span>. </span>Scott focuses his practice on counseling clients with respect to corporate and securities matters. He advises publicly-listed companies and boards of directors on a broad range of securities regulation and corporate governance issues and has substantial experience in dealing with restatements and internal control concerns.</p><p>Scott also counsels issuers and underwriters in the public offering process and in corporate compliance matters involving SEC reporting and disclosure requirements.</p><p>Prior to his career in private law, Scott served as in-house counsel at two public companies. He worked extensively in establishing corporate compliance programs and policies, including those related to insider trading, Section 16, and corporate disclosure while serving as Chief Legal Officer for Allied Capital Corporation, a NYSE-listed business development company, as well as Deputy General Counsel/Chief Securities Counsel for Fannie Mae, a financial services company. Scott draws on his significant in-house experience to provide valuable perspective in his role as an outside advisor. </p><p>Scott has received nationwide recognition for excellence in capital markets law. <em>Legal 500 US</em> recognizes Scott as "a key partner in the team [for debt offerings]" and acknowledges his "capital markets expertise. <em>IFLR1000</em> distinguishes Scott as "highly regarded" in the areas of Capital markets: Debt and Capital markets: Equity, and U.S. News'<em> Best Lawyers</em> identifies him as a leading lawyer in Securities/Capital Markets Law.</p><p>Scott currently serves as chair of Morrison & Foerster’s Practice and Opinion Review Committee, and as a co-chair of Practising Law Institute’s Annual Disclosure Documents program.<br><br></p>

Scott Lesmes

Partner

<p>Haima Marlier is co-chair of Morrison Foerster’s Securities Litigation, Enforcement, and White Collar Defense Group and of its Fintech practice. Drawing on her experience as a former Securities and Exchange Commission Senior Trial Counsel, Haima represents public and private companies, financial services providers, and executives, directors, and other individuals in SEC, CFTC, Financial Industry Regulatory Authority (FINRA), state securities regulator, and internal investigations, as well as in related litigation. She has more than 20 years of experience litigating in federal, state, and administrative courts, leading complex negotiations, and representing her clients in mediation. She also counsels clients regarding securities enforcement developments, trends, and risk mitigation.</p><p>Before joining the firm, Haima spent nearly a decade in the SEC’s Division of Enforcement. While at the SEC, Haima served as lead counsel on a number of prominent enforcement litigations and investigations involving public companies, registered investment advisers, broker-dealers, banks, and individuals in matters arising under the federal securities laws. She has also worked closely with foreign securities regulators, numerous U.S. Attorney’s Offices, and FINRA.</p><p>Haima serves on the board of trustees of the SEC Historical Society, a nonprofit dedicated to preserving the knowledge and history of financial regulation; mentors Penn State students of color who aspire to become lawyers; and is a member of the board of directors of, and a volunteer running coach for, Girls on the Run New Jersey, a nonprofit dedicated to inspiring girls to recognize their inner physical and emotional strength. She maintains an active pro bono practice.</p><p>Haima has been recognized by <em>Crain’s New York Business</em>’ Notable Women in Law and Notable Diverse Leaders in Law; <em>The Legal 500 USA</em> as a recommended lawyer in Securities Litigation: Defense, Investigations and White Collar Criminal Defense, and Fintech; the <em>Securities Docket’s </em>Enforcement Elite; and the <em>New York Law Journal</em> for her efforts in the diversity and inclusion space.</p><p>Haima received her J.D. from Boston College Law School and her B.A. from the Pennsylvania State University.</p><h4>Selected Significant Representations:</h4><h5>Cybersecurity</h5><ul><li>Successfully resolved an SEC investigation into a global technology solutions company’s cybersecurity risk disclosures and disclosure controls, policies, and procedures, with an acknowledgment by the SEC of the client’s significant remediation and cooperation.</li><li>Representing a global tech service management company in an SEC inquiry into its cybersecurity incidents and disclosures.</li><li>Represented numerous public companies and other clients in the SEC’s SolarWinds cybersecurity enforcement sweep.</li><li>Advising numerous public companies and SEC-registered firms on the efficacy of their cybersecurity disclosure controls and procedures and the materiality of cybersecurity incidents.</li><li>Represented a major technology company in an internal investigation into its cybersecurity statements and controls, policies, and procedures.</li></ul><h5>Fintech & Crypto</h5><ul><li>Represented a nonprofit foundation supporting a major blockchain, as well as two of its senior individuals, in an SEC investigation, with a complete termination letter issued by the SEC.</li><li>Successfully resolved an SEC crypto investigation into anti-money laundering and other compliance and monitoring programs on behalf a former senior bank executive.</li><li>Representing a leading cryptocurrency exchange platform in responding to SEC, CFTC, and state attorney general subpoenas and other requests for information.</li><li>Obtained a successful federal court settlement for a venture capital fund in a securities class action concerning an unregistered digital token offering.</li><li>Advising numerous Fintech companies, from startups to mature organizations, on securities enforcement compliance best practices and enforcement risk mitigation.</li><li>Represented a private investor in an SEC investigation related to a reverse merger involving a cryptocurrency company with no action taken by the SEC.</li></ul><h5>Artificial Intelligence</h5><ul><li>Representing a major tech company in an SEC investigation focused on AI-related disclosures and policies.</li></ul><h5>Accounting & Financial Reporting</h5><ul><li>Represented the former Chief Operations Officer of a major NASDAQ-listed food distributor in SEC and special committee investigations, with a complete termination letter issued by the SEC, as well as in related Delaware Court of Chancery litigation, which was favorably resolved.</li><li>Successfully resolved SEC and special committee investigations into related-party transaction disclosures and accounting issues, as well as related shareholder litigation, on behalf of a former CEO of a NASDAQ-listed company.</li><li>Represented an audit committee of a public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li><li>Represented a leading public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li></ul><h5>Other Securities Enforcement Matters</h5><ul><li>Represented the former CEO of a major company listed on the New York Stock Exchange in an SEC insider trading investigation with no action taken by the SEC.</li><li>Represented an individual in an SEC investigation concering the “pay-to-play” rule.</li><li>Represented a private investment fund in a COVID-19 related SEC insider trading investigation with no action taken by the SEC.</li><li>Represented a broker-dealer in a for-cause FINRA examination into anti-money laundering and other issues.</li><li>Represented a leading international company in government investigation into pharmaceutical drug pricing.</li><li>Represented a biotech company in a Massachusetts Securities Division investigation concerning securities registration exemptions and representations to investors regarding securities registration with no action taken by the state regulator.</li><li>Obtained a successful resolution for a pre-IPO biotech company in a wrongful termination lawsuit brought by a co-founder and former CEO terminated by the board of directors.</li><li>Represented the SEC in all stages of federal and administrative proceedings, including at trial and on appeal, in matters involving violations of the federal securities laws.</li></ul>

Haimavathi Marlier

<p>Carrie H. Cohen is global co-chair of the Investigations + White Collar Defense practice group as well as co-chair of the firm’s State + Local Government Enforcement team and DEI Strategy + Defense group. Prior to joining the firm, Carrie served as an Assistant U.S. Attorney in the Southern District of New York (SDNY) and as Chief of the Public Integrity Bureau of the New York State Attorney General’s Office.</p><p><span>As a former federal and state prosecutor, Carrie routinely advises and represents corporations, boards, and c-suite executives in government-facing investigative and regulatory matters with a particular focus on state and local government matters. Carrie’s extensive trial experience and distinguished record of success in high‑stakes, white collar defense and securities matters cement her position as a leading lawyer in these practice areas, and she is often called upon as trial counsel for particularly sensitive matters. Carrie’s trial and white collar expertise have been recognized by a variety of organizations including <em>Chambers USA</em>, which describes her as “. . . a terrific trial lawyer with great judgment and timing, [who] knows how to present complex cases in a digestible way.” Carrie also routinely prepares clients who are called to testify before Congress and state and city legislatures and works on matters that involve multijurisdictional investigations and significant media attention.</span></p><p>While serving in the SDNY, Carrie investigated and tried public corruption, investment fraud, and securities cases, including obtaining the first convictions of former New York State Assembly Speaker Sheldon Silver. She also served as Chief of the Public Integrity Unit in the Criminal Division in the New York State Attorney General’s Office and as an Assistant Attorney General in the Civil Rights Bureau, where she received the Louis J. Lefkowitz Memorial Award for outstanding service.</p><p dir="ltr">Carrie is a recognized industry expert in public corruption and state and local government actions. Carrie is an Adjunct Professor at the University of Pennsylvania Law School, where she teaches a seminar on Public Corruption and the Law. Among other appointments, Carrie has served and presented written public reports as Special Counsel to the New York City Council, Special Independent Counsel to the City of Rochester, and Counsel to the California Department of Justice as well as being part of the Monitorship team appointed by the U.S. Department of Justice for the global Odebrecht corruption matter. She also was appointed by Governor Kathy Hochul to the Metropolitan Transit Authority Inspector General’s Board and now serves as its Acting Chair as well as having been appointed by the Chief Judge of the United States District Court for the Eastern District of New York as Counsel to the Court’s Grievance Committee.</p><p dir="ltr">Carrie serves on multiple bar committees and task forces as part of her effort to promote the public interest through criminal justice reform. She was appointed Chair of the New York State Bar Association’s Task Force on Domestic Terrorism and Hate Crimes, whose report was adopted by the House of Delegates in June 2020 and as a member of the New York State Bar Association’s Task Force on Racial Injustice and Police Reform and Task Force on Wrongful Convictions. As a leader of the Bar, Carrie serves as a Vice President and Trustee of the Federal Bar Council and President-Elect of its Inn of Court and was appointed Co-Chair of the Federal-State Judicial Advisory Council as well as prior service as a Vice President of the New York City Bar, Chair of its Executive Committee, and member of its Nominating Committee. Carrie also is a member of the Board of Directors of Volunteers of Legal Service, an organization that provides pro bono legal services to the New York community, and was appointed by the SDNY to its Criminal Justice Act Panel to serve as counsel to indigent defendants in federal criminal cases. In 2023, Carrie was appointed as a board member for the Beyond #MeToo Working Group to advance its mission of challenging workplace harassment, discrimination, and misconduct and promoting best practices for workplace inclusion and corporate diversity.</p><p dir="ltr">Carrie has long been dedicated to advancing women in the legal profession, both in the United States and globally. She co-chairs Morrison Foerster’s Women’s Strategy Committee, a group that works with firm leaders to ensure the advancement of women remains a strategic priority, and serves as a member of the New York City Bar’s Cyrus R. Vance Center for International Justice, where she spearheads a professional development program for women lawyers in Latin America and South Africa. She is also a member of the Women’s Forum of New York, which is comprised of a diverse group of recognized leaders in their respective fields who are proactive in the advancement of women.</p><p dir="ltr">Carrie co-authored the acclaimed New York State Bar Association report adopted by the American Bar Association “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR” and the follow-up report adopted by the House of Delegates “The Time is Now: Achieving Equality for Women Attorneys in the Courtroom and in ADR.” She serves on the Steering Committee of the When There Are Nine Scholarship Project, which she founded with other alumnae from the United States Attorney’s Office for the Southern District of New York to honor the late Justice Ruth Bader Ginsburg by providing law school scholarships and mentorship to the next generation of women leaders.</p><h4>Representative Matters</h4><ul><li><strong>Public Corruption/Government Representation</strong>. Represent elected and appointed public officials, public entities, and individuals doing business with the government in a variety of public corruption-related matters with a focus on public-facing reports.<ul><li>Special Independent Counsel to the New York City Council related to investigations of certain Council Members for misconduct and corruption.</li><li>Special Counsel to the MTA related to an examination of time, attendance, and overtime, which included presenting a public report to the MTA Board.</li><li>Representation of the California Department of Justice’s Office of the Attorney General in leading and conducting an independent review of its public release of confidential personal information associated with firearms permit holders and applicants, which included the preparation and release of a public report.</li><li>Trial counsel for Rochester Mayor Lovely Warren for campaign finance charges; Hon. John A. Michalek for public corruption offenses; Hon. Sylvia Ash for obstruction of justice charges.</li></ul></li><li><strong>Financial Institutions/Securities Matters</strong>. Represent banks and other financial institutions in investigations of regulatory and consumer-related matters. Represent corporations and individuals in a variety of criminal investigations and regulatory matters involving federal and state securities laws.</li><li><strong>FCPA</strong>. Represent corporations in FCPA investigations. Service on the DOJ-appointed Monitorship team in the criminal prosecution of Odebrecht.</li><li><strong>Workplace Misconduct</strong>. Conduct investigations for corporations and boards related to workplace misconduct and #MeToo issues and provide related advocacy and legal advice.</li><li><strong>Cybersecurity</strong>. Conduct investigations of cybersecurity incidents and represent companies in related government and regulatory matters concerning disclosure of data breaches, theft of intellectual property, and other issues.</li><li><strong>RICO/Civil Fraud/Commercial Litigation</strong>. Represent a wide variety of public and private corporations in civil fraud, RICO, and commercial litigation including at trial. Represent UPS at trial in SDNY case brought by the New York State Attorney General’s Office and the City of New York alleging illegal transportation of untaxed cigarettes.</li></ul>

Carrie Cohen

<p>Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:</p><ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul><p>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.</p><p>Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:</p><ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul><p>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.</p><p>He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.</p><h4>Federal Contractor Experience</h4><ul><li>Defended numerous      OFCCP audits, including closing audits with a finding of no violations      against a major accounting firm, a language learning software provider,      and a technology consulting company</li><li>Obtained complete      dismissal of a significant OFCCP complaint against a large aerospace and      space transport company</li><li>Performed mock SCA      audits for various contractors</li><li>Led labor and      employment diligence for $1 billion acquisition of international security      firm</li><li>Developed and      overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed      subcontractor status for numerous companies to determine OFCCP coverage,      including for a large semiconductor manufacturer</li><li>Conducted E-Verify      and I-9 audit for a national dispute consulting contractor</li><li>Performed “single      entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay      equity audits for contractors, including for a software and consulting      company</li><li>Obtained DOL      approval under the SCA for self-funded fringe benefit program of an aviation      and space contractor</li><li>Advised a multinational      package delivery company on establishing program to conduct denied party      screening under lists maintained by OFAC and BIS while minimizing risk of      discrimination claims and compliance with background check laws</li><li>Advised a global      coffee and coffeehouse chain on establishing hiring processes to avoid      discrimination claims while complying with ITAR/EAR</li><li>Developed business      ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education      association against claims by former employers of two executives alleging      breach of restrictive covenants and theft of trade secrets and      confidential information</li><li>Obtained      preliminary injunction enforcing a noncompetition agreement and other      restrictive covenants against a former senior sales executive of a      technology firm</li><li>Led internal      investigation of sexual harassment claims against COO of a public real      estate firm</li><li>Advised a global      food manufacturer in avoiding litigation while terminating employee      threatening whistleblower claims based on employer’s confidential      information</li><li>Defended former      senior executives of a global manufacturer of performance fabrics against      allegations of misappropriation of trade secrets and breach of      noncompetition agreements</li><li>Advised an entrepreneur      in creating startup while minimizing risk of his former employer pursuing      enforcement of restrictive covenants </li><li>Assisted a property      management firm in navigating internal investigation of whistleblower claims      related to alleged fraud, ethics violations, and sexual harassment by      senior executive</li><li>Won motion for      reconsideration convincing court to grant summary judgment in gender      discrimination and retaliation case against a large DC employer </li><li>Obtained terminating      sanctions and attorneys’ fees and costs for discovery violations in a      discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software      company in claims by former executive alleging breach of his employment      agreement</li><li>Advised a company      board in navigating termination of CEO and successfully defended CEO’s      breach of contract and wage claims</li><li>Defended numerous      EEOC charges, including against a national event planner, a multinational      professional services company, and an operator of research and development      centers for the government</li><li>Defended and      settled over 30 unfair labor practice charges against a national call      center operator</li><li>Negotiated new      collective bargaining agreements with four separate unions in bankruptcy      of an international maritime shipping company</li><li>Awarded pro bono      achievement award for defending a non profit in litigation and several      administrative audits before the EEOC and state agencies related to a      former employee’s whistleblower and discrimination claims, including      defending multiple onsite investigations</li><li>Oversaw validation      of pre-employment tests for a national food service distributor</li></ul><p>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.</p><p dir="ltr"><span dir="ltr">Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.</span></p><h4>Rankings</h4><ul><li>Recommended for Government Contracts – <em>Legal 500 US</em> 2019 </li></ul>