An experienced litigator with over 20 years of experience in both government and the private sector, Mr. Berry focuses his practice on white collar defense and investigations, internal investigations and securities-related and other high stakes commercial litigation. He most recently served in senior-level positions in the Enforcement Division of the U.S. Securities and Exchange Commission, personally handling significant SEC enforcement matters, including first-chairing a large insider trading jury trial to verdict.
Mr. Berry joined the firm in 2019 from the SEC, where he was Associate Regional Director for the SEC’s Los Angeles office, appointed by SEC Chair Mary Jo White to co-lead that office’s Enforcement staff. In that role, he oversaw the office’s enforcement investigations and litigation, supervising over 100 investigations that led to more than 40 litigated or settled cases. Before taking on that position, Mr. Berry served as the Regional Trial Counsel for the SEC’s Los Angeles office, where he managed the office’s senior trial counsel and oversaw all of the office’s litigated cases. He personally litigated or supervised almost 100 contested SEC enforcement actions in federal district court or in administrative proceedings.
Mr. Berry, in addition to other matters, is currently representing a company and several executive officers in three different government investigations involving special purpose acquisition companies, or “SPACs.” He has also obtained several successful resolutions for his clients since joining the firm:
- Represented a Fortune 500 large infrastructure construction company in an internal investigation and an SEC investigation in connection with the restatement of the company’s financial statements, securing a favorable settlement for the company (where no charges were brought by the SEC against its former CEO or CFO).
- Convinced the SEC to terminate an investigation of a Fortune 100 technology company for statements made by the company’s former CFO in connection with an earnings release.
- Secured minimal penalties and no industry bar for an investment advisor and his advisory firm accused by the SEC of misleading disclosures about the firm’s fee structure.
- Represented Google LLC as the largest creditor in the bankruptcy of Anthony Levandowski, In re Levandowski (N.D. Cal. Bankr.), and as intervenor in the related adversary proceeding against Uber Technologies, Inc., Levandowski v. Uber Techs., Inc. (N.D. Cal. Bankr.).
- Obtained a voluntary dismissal of a shareholder action challenging the accuracy and completeness of a Fortune 100 technology company’s proxy disclosures regarding its executive compensation.
While at the SEC, Mr. Berry worked on a wide variety of cases, including matters involving insider trading, financial and accounting fraud, public company disclosure fraud, cyber-related fraud, investment adviser and broker fraud, offering fraud, and registration and other non-fraud violations. For example, before joining the firm, Mr. Berry:
- First-chaired a $130 million insider trading jury trial to verdict.
- Oversaw the filing of the SEC’s largest insider trading case of 2017, where over $80 million in illicit profits of Chinese traders were frozen.
- Oversaw the SEC’s October 2018 Report of Investigation issuing guidance about public companies’ obligations to take cyber threats into account when crafting their internal controls.
- Supervised multiple cases where the SEC gave settling parties credit for cooperating in SEC investigations, such as a deferred prosecution agreement and reduced monetary sanctions.
- Litigated or supervised cases that generated top SEC judgments in 2016 and 2017.
- Litigated or supervised cases that obtained rulings on important issues of first impression, including limiting the applicability of U.S. v. Newman, interpreting Rule 10b5-1 in insider trading cases, addressing the scope of SEC receiverships and asset freezes, holding that coins issued in an initial coin offering are securities and holding that other novel investments are securities.
- Litigated or supervised 31 emergency actions that sought temporary restraining orders, asset freezes and court-appointed receivers in federal district courts.
- Litigated or supervised 16 contested administrative proceedings before SEC administrative law judges, eight of which went to hearing.
Before working at the SEC, Mr. Berry was a litigation partner in the New York office of Akin Gump Strauss Hauer & Feld, where his practice focused on commercial, real estate and bankruptcy litigation. He also served as a member of the firm’s hiring and pro bono committees. Mr. Berry worked on a variety of matters, including:
- Representing creditor committees in In re Loral Space and Comms. Inc. (Bankr. S.D.N.Y.), In re Lyondell Chemical Corp. (Bankr. S.D.N.Y.), In re Tribune Co. (Bankr. S.D.N.Y.), In re Worldcom, Inc. (S.D.N.Y.) and In re Anchor Glass Container Corp. (Bankr. M.D. Fla.).
- Representing companies and boards in 11 internal investigations.
- Representing the world’s fifth largest steelmaker in a successful defense to an antitrust case (Stanislaus Food Products Co. v. USS-POSCO Industries et al., No. F 09-0560 (E.D. Cal.).
- Representing large private equity and investment firms in securing more than $100 million in judgments against project owners and mezzanine borrowers on two hotel projects in Chicago and Miami (Hotel 71 Mezz Lender, LLC v. Falor, No. 601175/07 (N.Y. Sup. Ct.) and Sobe Mezz Lender, LLC v. Falor, No. 601176/07 (N.Y. Sup. Ct.)) and in securing receivership order due to $55 million loan default (Guggenheim Corp. Funding, LLC v. Access.1 Communications Corp.-NY, No. 602376/08 (N.Y. Sup. Ct.)).
During his career at the SEC and in private practice, Mr. Berry has litigated 26 cases to summary judgment and argued more than 40 dispositive motions and appeals in federal and state trial and appellate courts. Given his experience and background, he is a frequent speaker on securities enforcement and litigation topics.
Mr. Berry earned joint J.D. and M.B.A. degrees from the University of Virginia. He earned his B.S., cum laude, in mechanical engineering and economics from Duke University.
- Author, “SEC May Keep Its Disgorgement Remedy,” Daily Journal, March 2020
- Co-Author, “The SEC May Lose Again in the Supreme Court in Liu v. SEC,” The Recorder, March 2020
- Author, “SEC Faces Several Hurdles In Telegram ICO Case,” Law360, February 2020
- Co-Author, “Planning for CCPA Compliance With Shifting Timelines,” Daily Journal, October 2019
- Author, chapter, SEC Investigations in The General Counsel’s Guide to Government Investigations (publication of Government Investigations & Civil Litigation Institute) (ed. 1.0, 2.0, 3.0 (2017, 2018, 2019))
- Government Investigations & Civil Litigation Institute, The General Counsel’s Guide to Government Investigations, Ch. 8, “SEC Investigations” (2nd edition, 2018)