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April 12 — When the Securities and Exchange Commission gets hit with a lawsuit challenging its rules, one of the appellate attorneys the agency turns to is Jeffrey A. Berger.
Berger will argue April 14 for the SEC in the U.S. Court of Appeals for the District of Columbia Circuit, as the agency attempts to fend off a challenge to its Regulation A Plus rule, which expands unregistered offerings.
Berger came to the SEC in 2009 from Mayer Brown, where he worked in the firm's Chicago and Washington offices. He had earlier clerked on the U.S. Court of Appeals for the Sixth Circuit after graduating from the Northwestern University School of Law.
Berger will square off against Robert Toone, an attorney at the Massachusetts Attorney General's Office, in front of Circuit Judges Douglas H. Ginsburg, Karen LeCraft Henderson and David B. Sentelle.
Massachusetts and Montana sued the agency in May 2015, claiming the Reg A Plus rule illegally preempts state law .
The rule expands the SEC's Regulation A exemption for offerings up to $50 million and creates two tiers of offerings that can be sold without registration .
State registration laws are preempted for offerings made under the larger tier, which has a $20 million cutoff, and issuers don't have to register in each state in which their securities are being offered.
Secretary of the Commonwealth of Massachusetts William Galvin, one of the named plaintiffs in the case, told Bloomberg BNA in May that the rule was “a very bold effort at preemption.”
The SEC has countered that it satisfied all necessary administrative procedures when it adopted the rule .
When Berger prepares to defend an agency rule, he leaves no stone unturned.
“You have to invest yourself in the record, which, for a final rule like this, includes not just the proposing release but the adopting release and all the comment letters,” Berger told Bloomberg BNA in a phone interview. “Really immerse yourself in the rule. And that starts well before oral argument.”
He also speaks with the staff who developed and wrote the rule.
And as oral argument approaches, “you almost have to start over from scratch,” Berger said, “with an idea toward what is going to bother or what is going to concern the judges the most during the argument.”
Berger also has a sense of humor about appellate advocacy. In a 2012 article for an American Bar Association publication, he compared badly written appellate briefs full of “disjointed prose and indecipherable legal argument that are accompanied by inapt Latin phrases” to the work of Lionel Hutz, the comically inept attorney voiced by the late Phil Hartman on “The Simpsons.”
Berger's knack for appellate advocacy began in law school, when he and Northwestern classmate Jeffrey L. Oldham paired up to compete in moot court.
They won the school's Julius H. Miner Moot Court Competition in 2002 and competed nationally after that.
“I’m not at all surprised with his successes,” Oldham, now an appellate attorney at Bracewell LLP in Houston who clerked for former Chief Justice William Rehnquist, told Bloomberg BNA in a phone interview. “He’s a very quick thinker, and he’s very polished in the way he talks to judges.”
Several of their classmates told Bloomberg BNA that the two Jeffs vied for the top spot in the class while still maintaining a friendly, supportive relationship — a dynamic that has endured to this day.
When Oldham argued a Supreme Court case in February 2015, Baker Botts, LLP v. ASARCO, LLC, Berger came to watch.
“One of the things I'm happiest about in life,” Berger said, is that he and Oldham became such good friends despite the pressure and competition of law school.
When the pair won the Miner competition, D.C. Circuit Judge David S. Tatel was on the panel that adjudicated the finals.
At the SEC, Berger again successfully argued in front of Tatel when he defended an agency rule imposing restrictions on investment advisers' political contributions.
The panel ultimately threw out a challenge from New York and Tennessee Republicans, although it was Judge Cornelia T.L. Pillard who wrote the August 2015 opinion .
Two of Berger's “personal highlights” at the SEC, he said, are a dispute about a settlement with Citigroup Inc. and litigating the “fraud on the market” theory for securities class actions.
The SEC tried to settle with Citigroup for $285 million over allegations of misconduct in a $1 billion collateralized debt obligation in the lead-up to the financial crisis. Judge Jed Rakoff of the U.S. District Court for the Southern District of New York rejected the deal in November 2011 and held that the alleged conduct was too severe to allow a settlement without an admission of wrongdoing .
After Citigroup and the SEC appealed, Rakoff's rejection was overturned by the Second Circuit in June 2015, which Rakoff said left him with “sour grapes” .
“It raised a lot of novel issues,” said Berger, who worked on the appeal. “It was a really important case for the commission. That was an interesting case to work on.”
Berger also worked on the federal government's amicus brief in Halliburton Co. v. Erica P. John Fund Inc., in which the SEC and the Solicitor General urged the U.S. Supreme Court not to undo a presumption used by securities fraud class action plaintiffs .
The presumption is that investors rely on market price, which reflects the bad conduct that the plaintiffs allege.
The court ultimately found a middle ground, allowing defendants to rebut that presumption earlier in the proceedings 121 SLD, 6/24/14) .
“That was just a really fascinating case to work on,” Berger said.
His work has garnered notice within the agency. In 2012, Berger won the Manuel F. Cohen Award, given to “a rising staff attorney who has displayed outstanding legal ability that resulted in significant benefit to the SEC.”
And outside of work, Berger enjoys distance running and triathlons.
He has raced in the American Council of Life Insurers' Capital Challenge, in which teams from military branches, legislative offices, executive agencies and the media compete and raise money for charity.
Berger has run for the agency's “Team SEC: Our Speed Stops Greed” and “S.E.C. UL8tr.”
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