text:
Argued and Submitted Jan. 13, 1986.
Susan B. Titus, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
J. Frank McCabe, Goorjian & McCabe, San Francisco, Cal., for defendant-appellant.
Before POOLE and BEEZER, Circuit Judges, and JAMESON,* District Judge.
Appellant Leonard G. Greene appeals his conviction for armed robbery under 18 U.S.C. Secs. 2113(a), 2113(d). Appellant contends that the district court erred in denying his motion to suppress evidence which had been seized from his motel upon his purported consent, because that consent was the direct result of an illegal warrantless arrest. He also contends that the district court should have dismissed his indictment under the Speedy Trial Act, 18 U.S.C. Sec. 3161(h)(1)(H) because it took U.S. officers twenty-three days to transport him from Huntsville, Alabama, the place of arrest, to the Northern District of California, the place of trial. We affirm.
On December 5, 1984, police officers in Huntsville, Alabama received information from a local prostitute, who had given Huntsville police reliable information in the past, that she had received currency with red stains on it from two white males the day before. This money was given to her to buy drugs for one of the men and for "sexual services." When the informant went to purchase drugs for the shorter man with the stained money, the drug dealer expressed a reluctance to accept the bills. She told the police that she had been in the men's motel room and had observed a pistol and wads of red-stained money; one man was very large and the other was about 5'6"', 160 lbs. with a ruddy complexion; and that they were driving a small red car with out-of-state license plates. The informant said that she had used some of the red-stained money to pay for her motel room. She then referred police to the manager of the motel. The Huntsville police and the FBI later paid the informant $700 for providing this information.
At the motel, police obtained ten five-dollar bills stained with red. They checked the serial numbers of these bills and determined that the money was not "bait money" from a reported robbery. The bills were returned to the motel manager.
The next day, the manager of another motel in Huntsville, the Hillcrest Motor Court, called the police to report that she believed that the occupants of room number 5 were bank robbers. She based her conclusion on the fact that she had found, in a trash can outside room number 5, a green jacket, a black cap, a pair of brown gloves, a cardboard back to a legal pad containing what appeared to her to be radio frequencies for the FBI, police, and sheriff's departments, and a yellow sheet of paper which appeared to contain a diagram of a bank. She described a red and white Rambler automobile the occupants were driving which had out-of-state plates. The Huntsville police then contacted the FBI, and officers and agents from both departments went to the motel to interview the manager, and, if possible, to talk to the occupants of room number 5.
When the officers and agents arrived at the motel they observed two men in a red and white Rambler pulling out of the parking spot in front of room number 5. The officers prevented the Rambler's exit with the police cars. The officers then approached the occupants and told them to "put their hands on the headliner." When appellant, who was driving, did not immediately comply, the officers drew their weapons and ordered him to put his hands on the roof. The appellant and his companion, Thomas Clarke, were ordered out of the car and were frisked for weapons. The officers discovered concealed weapons on both men. Officers also observed a sawed-off rifle in plain view in the back seat of the car. The police then informed the men that they were under arrest for carrying concealed weapons.
Immediately after his arrest, Greene signed a consent form allowing the officers to search his motel room, room number 5. During the search police discovered money marked with red dye and a money wrapper with stamps of First Enterprise Bank. The FBI agents then discovered that Greene and Clarke fit the description of the bank robbers who had robbed the First Enterprise Bank in Berkeley, California on November 19, 1984. The two men thereafter were transferred to federal custody.
On December 14, 1984, Greene was charged in a one-count indictment with armed robbery and was ordered removed to the Northern District of California. He did not arrive in the Northern District until January 6, 1985, twenty-three days later. A superceding indictment charged Greene and Clarke with the armed robbery of the First Enterprise Bank in Berkeley.
Appellant moved to suppress the evidence seized during the search of his motel room in Huntsville. He argued that the search was the direct result of an illegal warrantless arrest because the police lacked probable cause to believe that he had committed a bank robbery. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). After conducting evidentiary hearings, the district court concluded that the police had probable cause to arrest appellant for bank robbery when they arrived at the motel.
The ultimate conclusion of presence or absence of probable cause is a mixed question of law and fact. Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1629-30, 10 L.Ed.2d 726 (1963); United States v. Alfonso, 759 F.2d 728, 741 (9th Cir.1985). The underlying facts as found by the district court are to be accepted unless clearly erroneous. The court's ultimate conclusion, however, is reviewed de novo. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Alfonso, 759 F.2d at 741. The test for probable cause is whether "facts and circumstances within the officer's knowledge * * * are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." Michigan v. De Fillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964); Alfonso, 759 F.2d at 741.
We conclude that the police did not have probable cause to arrest appellant when they first arrived at the Hillcrest Motor Court. The information provided by the manager of the Hillcrest Motel on the day of the arrest did not identify the occupants in room number 5 as the two men the informant had described at a different motel the previous day. While both informants had described a red car with out-of-state license plates, this common thread of connection, in a city the size of Huntsville, is too tenuous to support a conclusion that when the officers and agents pulled into the motel parking lot, they had probable cause to believe that the occupants of the red Rambler had committed an offense.
But although the police, at the moment of the stop, lacked probable cause to arrest appellant, we conclude that they possessed sufficient information to justify a Terry stop. An officer may make a brief investigatory stop of a moving vehicle if, under the totality of the circumstances, the officer knows of articulable facts leading to a reasonable or founded suspicion that the individual stopped may be or has been engaged in criminal activity. United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985); see United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975).
The facts of this case support such a stop. The informant had described two white men, one large, one short, who drove a red car with out-of-state license plates and who were in possession of red-stained money. The motel manager at the Hillcrest described a diagram of a bank and a list of radio frequencies suggesting that the occupants of room number 5 might either have committed a bank robbery or might be planning such a robbery. These occupants drove a red and white Rambler with out-of-state license plates. While not amounting to probable cause, these facts sufficiently established founded suspicion of criminal activity justifying the investigatory stop of appellant's car.
The fact that the officers told the men to put their hands on the car's headliner and then drew their weapons when appellant failed to comply did not necessarily transform the stop into an arrest. A valid stop does not become an arrest merely because law enforcement agents momentarily restrict a person's freedom of movement. United States v. Jacobs, 715 F.2d 1343, 1345 (9th Cir.1983). Nor will the use of force in making the stop convert the stop into an arrest "if it occurs under circumstances justifying fears for personal safety." Id. at 1345-46 (quoting United States v. Beck, 598 F.2d 497, 501 (9th Cir.1979) ). See United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983). The informant told the police that she had seen a pistol in the motel room of the two men she had described. These circumstances justified the officers' actions in drawing their weapons and ordering both men out of the car.
Once out of the car, the officers were justified in frisking appellant. Police are entitled to take steps to assure that the person stopped is not armed. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). Finally, "[f]ounded suspicion to stop for investigatory detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop." United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984). It was during the frisk of appellant that the police discovered that he was armed. This discovery independently gave the officers probable cause to arrest appellant for possession of a concealed weapon, a violation of state law. Given that this arrest was legal, we affirm the district court's order denying appellant's motion to suppress. See Robins v. Harum, 773 F.2d 1004, 1008 (9th Cir.1985) (district court may be affirmed on any basis fairly supported by the record).
[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an * * * indictment with the commission of an offense shall commence within seventy days from the filing date * * * of the * * * indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
18 U.S.C. Sec. 3161(c)(1). Under the Act, delay resulting from transportation of a defendant from another district shall be excluded in computing the time within which the trial of an offense must commence, but "any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable." 18 U.S.C. Sec. 3161(h)(1)(H). The government contends that under Sec. 3161(c)(1) the exclusion section for transportation of appellant is not triggered until his initial appearance before a judicial officer in the Northern District of California. Under the circumstances present here this issue of statutory construction need not be addressed because even if the excess travel is included, appellant was still tried within the time period mandated by the Act.
It took the government twenty-three days to transport appellant to the Northern District of California, and the district court excluded all twenty-three days in calculating the maximum trial date. This exclusion, along with other exclusions attributable to various pretrial motions, resulted in a maximum speedy trial date of April 30, 1985. Even if thirteen of the twenty-three days are presumed unreasonable under Sec. 3161(h)(1)(H) and thus included in the 70-day time limit for the commencement of trial, the maximum allowable trial date would be April 17, 1985. Because appellant was tried on April 8 and 9, 1985, he was still tried within the temporal limits set by the Act.

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[ Footnote * ] Together with No. 77-754, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Daniel, also on certiorari to the same court.
A pension plan entered into under a collective-bargaining agreement between petitioner local labor union and employer trucking firms required all employees to participate in the plan but not to pay anything into it. All contributions to the plan were to be made by the employers at a specified amount per week for each man-week of covered employment. To be eligible for a pension, an employee was required to have 20 years of continuous service. Respondent employee, who had over 20 years' service, was denied a pension upon retirement because of a break in service. He then brought suit in Federal District Court, alleging, inter alia, that the union and petitioner trustee of the pension fund had misrepresented and omitted to state material facts with respect to the value of a covered employee's interest in the pension plan, and that such misstatements and omissions constituted a fraud in connection with the sale of a security in violation of 10 (b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b-5, and also violated 17 (a) of the Securities Act of 1933. Denying petitioners' motion to dismiss, the District Court held that respondent's interest in the pension fund constituted a "security" within the meaning of 2 (1) of the Securities Act and 3 (a) (10) of the Securities Exchange Act because the plan created an "investment contract," and also that there had been a "sale" of this interest to respondent within the meaning of 2 (3) of the Securities Act and 3 (a) (14) of the Securities Exchange Act. The Court of Appeals affirmed. Held: The Securities Act and the Securities Exchange Act do not apply to a noncontributory, compulsory pension plan. Pp. 558-570.
(a) To determine whether a particular financial relationship constitutes an investment contract, "[t]he test is whether the scheme involves [439 U.S. 551, 552] an investment of money in a common enterprise with profits to come solely from the efforts of others." SEC v. W. J. Howey Co., 328 U.S. 293, 301 . Looking separately at each element of this test, it is apparent that an employee's participation in a noncontributory, compulsory pension plan such as the one in question here does not comport with the commonly held understanding of an investment contract. With respect to the investment-of-money element, in such a pension plan the purported investment is a relatively insignificant part of the total and indivisible compensation package of an employee, who, from the standpoint of the economic realities, is selling his labor to obtain a livelihood, not making an investment for the future. And with respect to the expectation-of-profits element, while the pension fund depends to some extent on earnings from its assets, the possibility of participating in asset earnings is too insubstantial to bring the entire transaction within the Securities Acts. Pp. 558-562.
(b) There is no evidence that Congress at any time thought noncontributory plans were subject to federal regulation as securities. Nor until the instant litigation arose is there any evidence that the SEC had ever considered the Securities Act and Securities Exchange Act to be applicable to such plans. Accordingly, there is no justification for deference to the SEC's present interpretation. Pp. 563-569.
(c) The Employee Retirement Income Security Act of 1974, which comprehensively governs the use and terms of employee pension plans, severely undercuts all argument for extending the Securities Act and Securities Exchange Act to noncontributory, compulsory pension plans, and whatever benefits employees might derive from the effect of these latter Acts are now provided in more definite from through ERISA. Pp. 569-570.
POWELL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined, and in all but the last paragraph of Part III-A of which BURGER, C. J., joined. BURGER, C. J., filed a concurring opinion, post, p. 570. STEVENS, J., took no part in the consideration or decision of the cases.
Lawrence Walner and Peter J. Barack argued the cause and filed a brief for respondent in both cases.
Fn [439 U.S. 551, 553] Briefs of amici curiae urging reversal were filed by William H. Smith, D. Bret Carlson, and Stephen R. Kroll for the American Bankers Assn.; by Stanley T. Kaleczyc and Robert W. Blanchette for the Chamber of Commerce of the United States; by Peter G. Nash and George J. Pantos for the ERISA Industry Committee; and by Paul S. Berger, Melvin Spaeth, and Gerald M. Feder for the National Coordinating Committee for Multiemployer Plans.
Briefs of amici curiae urging affirmance were filed by Bruce K. Miller for the Gray Panthers; and by Arthur L. Fox II for PROD et al.
Lawrence J. Latto filed a brief for the American Academy of Actuaries as amicus curiae.
This case presents the question whether a noncontributory, compulsory pension plan constitutes a "security" within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 (Securities Acts).
The collective-bargaining agreement initially set employer contributions to the Pension Trust Fund at $2 a week for each man-week of covered employment. 2 The Board of Trustees of the Fund, a body composed of an equal number of employer and union representatives, was given sole authority to set the level of benefits but had no control over the amount of required employer contributions. Initially, eligible employees received $75 a month in benefits upon retirement. Subsequent collective-bargaining agreements called for greater employer contributions, which in turn led to higher benefit payments for retirees. At the time respondent brought suit, employers contributed $21.50 per employee man-week and pension payments ranged from $425 to $525 a month depending on age at retirement. 3 In order to receive a pension an employee was required to have 20 years of continuous service, including time worked before the start of the plan.
The meaning of "continuous service" is at the center of this dispute. Respondent began working as a truckdriver in the Chicago area in 1950, and joined Local 705 the following year. When the plan first went into effect, respondent automatically received 5 years' credit toward the 20-year service requirement because of his earlier work experience. [439 U.S. 551, 555] He retired in 1973 and applied to the plan's administrator for a pension. The administrator determined that respondent was ineligible because of a break in service between December 1960 and July 1961. 4 Respondent appealed the decision to the trustees, who affirmed. Respondent then asked the trustees to waive the continuous-service rule as it applied to him. After the trustees refused to waive the rule, respondent brought suit in federal court against the International Union (Teamsters), Local 705 (Local), and Louis Peick, a trustee of the Fund.
The petitioners moved to dismiss the first two counts of the complaint on the ground that respondent had no cause of action under the Securities Acts. The District Court denied the motion. 410 F. Supp. 541 (ND Ill. 1976). It held that respondent's interest in the Pension Fund constituted a security within the meaning of 2 (1) of the Securities Act, 15 U.S.C. 77b (1), and 3 (a) (10) of the Securities Exchange Act, 15 U.S.C. 78c (a) (10), 7 because the plan created an "investment contract" as that term had been interpreted in SEC v. W. J. Howey Co., 328 U.S. 293 (1946). It also determined that there had been a "sale" of this interest to respondent within the meaning of 2 (3) of the Securities Act, as amended, 15 U.S.C. 77b (3), and 3 (a) (14) of the Securities Exchange Act, 15 U.S.C. 78c (a) (14). 8 It [439 U.S. 551, 557] believed respondent voluntarily gave value for his interest in the plan, because he had voted on collective-bargaining agreements that chose employer contributions to the Fund instead of other wages or benefits.
To determine whether a particular financial relationship constitutes an investment contract, "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Howey, 328 U.S., at 301 . This test is to be applied in light of "the substance - the economic realities of the transaction - rather than the names that may have been employed by the parties." United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 851 -852 (1975). Accord, Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); Howey, supra, at 298. Cf. SEC v. [439 U.S. 551, 559] Variable Annuity Life Ins. Co., 359 U.S. 65, 80 (1959) (BRENNAN, J., concurring) ("[O]ne must apply a test in terms of the purposes of the Federal Acts . . ."). Looking separately at each element of the Howey test, it is apparent that an employee's participation in a noncontributory, compulsory pension plan such as the Teamsters' does not comport with the commonly held understanding of an investment contract.
An employee who participates in a noncontributory, compulsory pension plan by definition makes no payment into the pension fund. He only accepts employment, one of the conditions of which is eligibility for a possible benefit on retirement. Respondent contends, however, that he has "invested" in the Pension Fund by permitting part of his compensation from his employer to take the form of a deferred pension benefit. By allowing his employer to pay money into the Fund, and by contributing his labor to his employer in return for these payments, respondent asserts he has made the kind of investment which the Securities Acts were intended to regulate.
In order to determine whether respondent invested in the Fund by accepting and remaining in covered employment, it is necessary to look at the entire transaction through which he obtained a chance to receive pension benefits. In every decision of this Court recognizing the presence of a "security" under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security. See Tcherepnin, supra (money paid for bank capital stock); SEC v. United Benefit Life Ins. Co., 387 U.S. 202 (1967) (portion of premium paid for variable component of mixed variable- and fixed-annuity contract); Variable Annuity Life Ins. Co., supra (premium paid for variable-annuity contract); Howey, supra (money paid for purchase, maintenance, [439 U.S. 551, 560] and harvesting of orange grove); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943) (money paid for land and oil exploration). Even in those cases where the interest acquired had intermingled security and nonsecurity aspects, the interest obtained had "to a very substantial degree elements of investment contracts . . . ." Variable Annuity Life Ins. Co., supra, at 91 (BRENNAN, J., concurring). In every case the purchaser gave up some tangible and definable consideration in return for an interest that had substantially the characteristics of a security.
In a pension plan such as this one, by contrast, the purported investment is a relatively insignificant part of an employee's total and indivisible compensation package. No portion of an employee's compensation other than the potential pension benefits has any of the characteristics of a security, yet these noninvestment interests cannot be segregated from the possible pension benefits. Only in the most abstract sense may it be said that an employee "exchanges" some portion of his labor in return for these possible benefits. 12 He surrenders his labor as a whole, and in return receives a compensation package that is substantially devoid of aspects resembling a security. His decision to accept and retain covered employment may have only an attenuated relationship, if any, to perceived investment possibilities of a future pension. Looking at the economic realities, it seems clear that an employee is selling his labor primarily to obtain a livelihood, not making an investment.
Respondent also argues that employer contributions on his behalf constituted his investment into the Fund. But it is inaccurate to describe these payments as having been "on behalf" of any employee. The trust agreement used employee man-weeks as a convenient way to measure an employer's [439 U.S. 551, 561] overall obligation to the Fund, not as a means of measuring the employer's obligation to any particular employee. Indeed, there was no fixed relationship between contributions to the Fund and an employee's potential benefits. A pension plan with "defined benefits," such as the Local's, does not tie a qualifying employee's benefits to the time he has worked. See n. 3, supra. One who has engaged in covered employment for 20 years will receive the same benefits as a person who has worked for 40, even though the latter has worked twice as long and induced a substantially larger employer contribution. 13 Again, it ignores the economic realities to equate employer contributions with an investment by the employee.
As we observed in Forman, the "touchstone" of the Howey test "is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others." 421 U.S., at 852 . The Court of Appeals believed that Daniel's expectation of profit derived from the Fund's successful management and investment of its assets. To the extent pension benefits exceeded employer contributions and depended on earnings from the assets, it was thought they contained a profit element. The Fund's trustees provided the managerial efforts which produced this profit element.
The court below believed that its construction of the term "security" was compelled not only by the perceived resemblance of a pension plan to an investment contract but also by various actions of Congress and the SEC with regard to the Securities Acts. In reaching this conclusion, the court gave great weight to the SEC's explanation of these events, an explanation which for the most part the SEC repeats here. Our own review of the record leads us to believe that this reliance on the SEC's interpretation of these legislative and administrative actions was not justified.
The SEC in its amicus curiae brief refers to several actions of Congress said to evidence an understanding that pension plans are securities. A close look at each instance, however, reveals only that Congress might have believed certain kinds of pension plans, radically different from the one at issue here, came within the coverage of the Securities Acts. There is no evidence that Congress at any time thought noncontributory plans similar to the one before us were subject to federal regulation as securities.
The first action cited was the rejection by Congress in 1934 of an amendment to the Securities Act that would have exempted employee stock investment and stock option plans from the Act's registration requirements. 17 The amendment passed the Senate but was eliminated in conference. The legislative history of the defeated proposal indicates it was [439 U.S. 551, 564] intended to cover plans under which employees contributed their own funds to a segregated investment account on which a return was realized. See H. R. Conf. Rep. No. 1838, 73d Cong., 2d Sess., 41 (1934); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., pt. 1, pp. 895-896 (1941). In rejecting the amendment, Congress revealed a concern that certain interests having the characteristics of a security not be excluded from Securities Act protection simply because investors realized their return in the form of retirement benefits. At no time, however, did Congress indicate that pension benefits in and of themselves gave a transaction the characteristics of a security.
In an attempt to reconcile these interpretations of the Securities Acts with its present stand, the SEC now augments its past position with two additional propositions. First, it is argued, noncontributory plans are "securities" even where a "sale" is not involved. Second, the previous concession that noncontributory plans do not involve a "sale" was meant to apply only to the registration and reporting requirements of the Securities Acts; for purposes of the antifraud provisions, a "sale" is involved. As for the first proposition, we observe that none of the SEC opinions, reports, or testimony cited to us address the question. As for the second, the record is unambiguously to the contrary. 22 Both in its 1941 statements [439 U.S. 551, 568] and repeatedly since then, the SEC has declared that its "no sale" position applied to the Securities Acts as a whole. See opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed. Sec. L. Serv. § 75,195, p. 75,387 (1941); Hearings before the House Committee on Interstate and Foreign Commerce, supra, at 888, 896-897; Institutional Investor Study Report of the Securities and Exchange Commission, H. R. Doc. No. 92-64, pt. 3, p. 996 (1971) ("[T]he Securities Act does not apply . . ."); Hearings before the Subcommittee on Welfare and Pension Funds of the Senate Committee on Labor and Public Welfare on Welfare and Pension Plans Investigation, 84th Cong., 1st Sess., pt. 3, pp. 943-946 (1955). Congress acted on this understanding when it proceeded to develop the legislation that became ERISA. See, e. g., Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, S. Rep. No. 92-634, p. 96 (1972) ("Pension and profit-sharing plans are exempt from coverage under the Securities Act of 1933 . . . unless the plan is a voluntary contributory [439 U.S. 551, 569] pension plan and invests in the securities of the employer company an amount greater than that paid into the plan by the employer") (emphasis added). As far as we are aware, at no time before this case arose did the SEC intimate that the antifraud provisions of the Securities Acts nevertheless applied to noncontributory pension plans.
If any further evidence were needed to demonstrate that pension plans of the type involved are not subject to the Securities Acts, the enactment of ERISA in 1974, 88 Stat., 829, would put the matter to rest. Unlike the Securities Acts, ERISA deals expressly and in detail with pension plans. ERISA requires pension plans to disclose specified information to employees in a specified manner, see 29 U.S.C. 1021-1030, in contrast to the indefinite and uncertain disclosure obligations imposed by the antifraud provisions of the Securities Acts, see Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 474 -477 (1977); TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976). Further, ERISA regulates the substantive terms of pension plans, setting standards for plan funding and limits on the eligibility requirements an employee must meet. For example, with respect to the underlying issue in this case - whether respondent served long enough to receive a pension - 203 (a) of ERISA, 29 U.S.C. 1053 (a), now sets the minimum level of benefits an employee must receive after accruing specified years of service, and 203 (b), 29 U.S.C. 1053 (b), governs continuous-service requirements. Thus, if respondent had retired after 1053 took effect, the Fund would have been required to pay him at least a partial pension. The Securities Acts, on the other hand, do not purport to set the substantive terms of financial transactions.
The existence of this comprehensive legislation governing the use and terms of employee pension plans severely undercuts all arguments for extending the Securities Acts to noncontributory, [439 U.S. 551, 570] compulsory pension plans. Congress believed that it was filling a regulatory void when it enacted ERISA, a belief which the SEC actively encouraged. Not only is the extension of the Securities Acts by the court below unsupported by the language and history of those Acts, but in light of ERISA it serves no general purpose. See Califano v. Sanders, 430 U.S. 99, 104 -107 (1977). Cf. Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 250 (1970). Whatever benefits employees might derive from the effect of the Securities Acts are now provided in more definite form through ERISA.
[ Footnote 1 ] For examples of other noncontributory, compulsory pension plans, see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 236 -237 (1978); [439 U.S. 551, 554] Malone v. White Motor Corp., 435 U.S. 497, 500 -501 (1978); Alabama Power Co. v. Davis, 431 U.S. 581, 590 (1977).
[ Footnote 2 ] Contributions were tied to the number of employees rather than the amount of work performed. For example, payments had to be made even for weeks where an employee was on leave of absence, disabled, or working for only a fraction of the week. Conversely, employers did not have to increase their contribution for weeks in which an employee worked overtime or on a holiday. Trust Agreement, Art. 3, 1, App. 62a.
[ Footnote 3 ] Because the Fund made the same payments to each employee who qualified for a pension and retired at the same age, rather than establishing an individual account for each employee tied to the amount of employer contributions attributable to his period of service, the plan provided a "defined benefit." See 29 U.S.C. 1002 (35); Alabama Power Co. v. Davis, supra, at 593 n. 18.
[ Footnote 4 ] Respondent was laid off from December 1960 until April 1961. In addition, no contributions were paid on his behalf between April and July 1961, because of embezzlement by his employer's bookkeeper. During this 7-month period respondent could have preserved his eligibility by making the contributions himself, but he failed to do so.
[ Footnote 5 ] Count III charged the Teamsters and the Local with violating their duty of fair representation under 9 (a) of the National Labor Relations Act, 29 U.S.C. 159 (a), and Count V (later amended as Count VI) charged the Teamsters, the Local, Peick, and all other Teamsters Pension Fund trustees with violating their obligations under 302 (c) (5) of the Labor Management Relations Act, 29 U.S.C. 186 (c) (5). Count IV accused all defendants of common-law fraud and deceit.
[ Footnote 6 ] As of the time of appeal to the Seventh Circuit the District Court had not yet ruled on any class-certification issues.
"any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a `security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing."
The definition of a "security" in 3 (a) (10) of the Securities Exchange Act is virtually identical and, for the purposes of this case, the coverage of the two Acts may be regarded as the same. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 847 n. 12 (1975); Tcherepnin v. Knight, 389 U.S. 332, 342 (1967).
[ Footnote 8 ] Section 2 (3) of the Securities Act provides, in pertinent part, that "[t]he term `sale' or `sell' shall include every contract of sale or disposition of a security or interest in a security, for value." Section 3 (a) (14) of [439 U.S. 551, 557] the Securities Exchange Act states that "[t]he terms `sale' and `sell' each include any contract to sell or otherwise dispose of." Although the latter definition does not refer expressly to a disposition for value, the court below did not decide whether the Securities Exchange Act nevertheless impliedly incorporated the Securities Act definition, cf. n. 7, supra, as in its view respondent did give value for his interest in the pension plan. In light of our disposition of the question whether respondent's interest was a "security," we need not decide whether the meaning of "sale" under the Securities Exchange Act is any different from its meaning under the Securities Act.
[ Footnote 9 ] The Court of Appeals and the District Court also held that 17 (a) of the Securities Act provides private parties with an implied cause of action for damages. In light of our disposition of this case, we express no views on this issue.
[ Footnote 10 ] Respondent did not have any cause of action under ERISA itself, as that Act took effect after he had retired.
[ Footnote 11 ] Respondent also argues that his interest constitutes a "certificate of interest or participation in any profit-sharing agreement." The court below did not consider this claim, as respondent had not seriously pressed the argument and the disposition of the "investment contract" issue made it unnecessary to decide the question. 561 F.2d 1223, 1230 n. 15 (CA7 1977). Similarly, respondent here does not seriously contend that a "certificate of interest . . . in any profit-sharing agreement" has any broader meaning under the Securities Acts than an "investment contract." In Forman, supra, we observed that the Howey test, which has been used to determine the presence of an investment contract, "embodies the essential attributes that run through all of the Court's decisions defining a security." 421 U.S., at 852 .
[ Footnote 12 ] This is not to say that a person's "investment," in order to meet the definition of an investment contract, must take the form of cash only, rather than of goods and services. See Forman, supra, at 852 n. 16.
[ Footnote 13 ] Under the terms of the Local's pension plan, for example, respondent received credit for the five years he worked before the Fund was created, even though no employer contributions had been made during that period.
[ Footnote 14 ] In addition, the Fund received $7,500,000 from smaller pension funds with which it merged over the years.
[ Footnote 15 ] See Note, The Application of the Antifraud Provisions of the Securities Laws to Compulsory, Noncontributory Pension Plans After Daniel v. International Brotherhood of Teamsters, 64 Va. L. Rev. 305, 315 (1978).
[ Footnote 16 ] See Note, Interest in Pension Plans as Securities: Daniel v. International Brotherhood of Teamsters, 78 Colum. L. Rev. 184, 201 (1978).
"As used in this paragraph, the term `public offering' shall not be deemed to include an offering made solely to employees by an issuer or by its affiliates in connection with a bona fide plan for the payment of extra compensation or stock investment plan for the exclusive benefit of such employees." 78 Cong. Rec. 8708 (1934).
[ Footnote 18 ] Section 17 (c) of the Securities Act, 15 U.S.C. 77q (c), and 10 (b) of the Securities Exchange Act, 15 U.S.C. 78j (b) (when read with 3 (a) (10) and (12) of that Act), indicate that the antifraud provisions of the respective Acts continue to apply to interests that come within the exemptions created by 3 (a) (2) of the Securities Act and 3 (a) (12) of the Securities Exchange Act.
[ Footnote 19 ] See S. Rep. No. 91-184, p. 27 (1969); Hearings before the Senate Committee on Banking and Currency on Mutual Fund Legislation of 1967, 90th Cong., 1st Sess., pt. 3, pp. 1341-1342 (1967); Mundheim & Henderson, Applicability of the Federal Securities Laws to Pension and Profit-Sharing Plans, 29 L. & Contemp. Probs. 795, 819-837 (1964); Saxon & Miller, Common Trust Funds, 53 Geo. L. J. 994 (1965). The SEC argues that the addition by the House of the language "single or" before "common trust fund" indicated an intent to cover the underlying plans that invested in bank-maintained funds. The legislative history, however, indicates that the change was meant only to eliminate the negative inference suggested by the unrevised language that banks would have to register the segregated investment funds they administered for particular plans. Because the provision as a whole dealt only with the relationship between a plan and its bank, the revision did not affect the registration status of the underlying pension plan. See 116 Cong. Rec. 33287 (1970). This was consistent with the SEC's interpretation of the provision. Hearings, supra, at 1326. The subsequent addition of another provision excepting from the exemption funds "under which an amount in excess of the employer's contribution is allocated to the purchase of securities . . . issued by the employer or by any company directly or indirectly controlling, controlled by or under common control with the employer" appears to have been simply an additional safeguard to confirm the SEC's authority to require such plans, and only such plans, to register. See H. R. Conf. Rep. No. 91-1631, p. 31 (1970).
[ Footnote 20 ] It is a commonplace in our jurisprudence that an administrative agency's consistent, longstanding interpretation of the statute under which it operates is entitled to considerable weight. United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719 (1975); Saxbe v. Bustos, 419 U.S. 65, 74 (1974); Investment Company Institute v. Camp, 401 U.S. 617, 626 -627 (1971); Udall v. Tallman, 380 U.S. 1, 16 (1965). This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforeseen problems over time. But this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history. On a number of occasions in recent years this Court has found it necessary to reject the SEC's interpretation of various provisions of the Securities Acts. See SEC v. Sloan, 436 U.S. 103, 117 -119 (1978); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 41 n. 27 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 212 -214 (1976); Forman, 421 U.S., at 858 n. 25; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 759 n. 4 (1975) (POWELL, J., concurring); Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 425 -427 (1972).
[ Footnote 21 ] Subsequent to 1941, the SEC made no further efforts to regulate even contributory, voluntary pension plans except where the employees' contributions were invested in the employer's securities. Cf. n. 19, supra. It also continued to disavow any authority to regulate noncontributory, compulsory plans. See letter from Assistant Director, Division of Corporate Finance, May 12, 1953, 1978. CCH Fed. Sec. L. Rep. § 2105.51; letter from Chief Counsel, Division of Corporate Finance, Aug. 1, 1962, 1978. CCH Fed. Sec. L. Rep. § 2105.52; Hearings before the Senate Committee on Banking and Currency, supra n. 19, at 1326; 1 L. Loss, Securities Regulation 510-511 (2d ed. 1961); 4 id., at 2553-2554 (2d ed. 1969); Hyde, Employee Stock Plans and the Securities Act of 1933, 16 W. Res. L. Rev. 75, 86 (1964); Mundheim & Henderson, supra n. 19, at 809-811; Note, Pension Plans as Securities, 96 U. Pa. L. Rev. 549, 549-551 (1948).
[ Footnote 22 ] On occasion the SEC has contended that because 2 of the Securities Act and 3 of the Securities Exchange Act apply the qualifying phrase "unless the context otherwise requires" to the Acts' general definitions, it [439 U.S. 551, 568] is permissible to regard a particular transaction as involving a sale or not depending on the form of regulation involved. See 1 L. Loss, Securities Regulation 524-528 (2d ed. 1961); 4 id., at 2562-2565 (2d ed. 1969). The Court noted the contention in SEC v. National Securities, Inc., 393 U.S. 453, 465 -466 (1969). On previous occasions the SEC appears to have taken a different position: In 1943 it submitted an amicus brief in the Ninth Circuit arguing that a transaction must be a sale for all purposes of the Securities Act or for none, and it did not begin to rely on its "regulatory context" theory until 1951. See Brief for the SEC in National Supply Co. v. Leland Stanford Junior University, No. 10270 (CA9 Apr. 1, 1943); 1 L. Loss, supra, at 524 n. 211; Cohen, Rule 133 of the Securities and Exchange Commission, 14 Record of N. Y. C. B. A. 162, 164-165 (1959). We also note that, with respect to statutory mergers, the area in which the SEC originally developed its theory as to the bifurcated definition of a sale, the SEC since has abandoned its position and finds the presence of a "sale" for all purposes in the case of such mergers. See 17 CFR 230.145 (1978). In view of our disposition of this case, we express no opinion as to the correct resolution of the divergent views on this issue.
I join in the opinion of the Court except as to the discussion of the 1970 amendment to 3 (a) (2) of the Securities Act. There is no need to deal, in this case, with the scope of the exemption, since it is not an issue presented for decision.
First, the inference concerning Congress' understanding of the Act in 1970 is tenuous. The language of the amendment covers a variety of financial interests, some of which clearly are "securities" as defined in the Act. Congress most likely acted with a view to those interests, without considering other financial interests like those involved here, for which registration never had been required.
Second, even if a draftsman concerned with exempting a variety of interests from the registration requirement may have believed, in 1970, that certain pension interests were within the statutory definition of "security," that would have little, if any, bearing on this case. At issue here is the construction of definitions enacted in 1933 and 1934.


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Louis Smith represents banks, financial services companies, insurance companies and other businesses in a wide range of complex litigation matters, including consumer class actions and commercial contract disputes. He has a national litigation practice and has handled matters in over 25 states. Lou has wide-ranging appellate experience, including arguments before the New Jersey Supreme Court, the New York Court of Appeals and United States Courts of Appeals throughout the country.
Lead attorney representing bank in putative class action alleging maintenance fees were improperly imposed on a savings account. District court dismissed the action, finding it time-barred by a limitation of claims provision governing the account. Wechsler v. HSBC Bank USA, N.A., 2016 WL 1688012 (S.D.N.Y. April 26, 2016). Argued before the Second Circuit, which affirmed the dismissal. 674 Fed. Appx. 73 (2d Cir. 2017).
Lead attorney representing lender and affiliated companies in putative class action alleging failure to implement permanent modifications to loans.Compelled arbitration of all claims on an individual basis.McLean v. HSBC Finance Corp., 2016 WL 5796885 (D.N.J. Oct. 3, 2016).
Lead attorney representing internet service provider in putative class action asserting claims relating to internet speed. Compelled arbitration of all claims on an individual basis. Sacchi v. Verizon Online LLC, 2015 WL 765940 (S.D.N.Y. Feb. 23, 2015). Motion for reconsideration or certification for interlocutory appeal was denied. 2015 WL 1729796 (S.D.N.Y. April 14, 2015).
Lead attorney representing mortgage servicing company in nationwide putative class action alleging violations of the Fair Credit Reporting Act. Court granted motion to strike class allegations, Maldonado v. HSBC Mortgage Services, Inc., 2017 WL 3496460 (D. Nev. Aug. 15, 2017), and thereafter the matter was resolved.
Lead attorney representing banks and a financial services company in putative class action alleging violations of New Jersey consumer protection statutes and the Truth in Lending Act in connection with credit card advertisements and solicitations. Obtained dismissal of the matter in its entirety. Shah v. American Express Company, 2009 WL 3234594 (D.N.J. Sept. 30, 2009).
Lead attorney representing financial services company in putative class action seeking to certify a nationwide class based on alleged violations of the Fair Credit Reporting Act. Limited the scope of discovery by defeating Plaintiff's motion to compel a broad range of information, Watts v. American Express Travel Related Services Company, Inc., 2009 WL 906286 (D. Colo. April 3, 2009), and defeated motion for class certification.
Lead attorney representing defendants in putative class actions concerning rebate feature of a credit card product. Compelled arbitration on an individual basis. Homa v. American Express Company, 496 F. Supp. 2d 440 (D.N.J. 2007), remanded by 558 F. 3d 225 (3d Cir. 2009), stay granted pending Supreme Court decision, 2010 WL 4116481 (D.N.J. Oct. 18, 2010), and in August 2011, the District Court reinstated the arbitration order and thereafter the Third Circuit affirmed, 494 Fed.Appx. 191 (3rd Cir. 2012).
Lead attorney representing credit card issuers in putative class actions in Southern District of New York alleging violations of the Truth in Lending Act. Obtained dismissal of several actions, including Schwartz v. HSBC Bank USA, N.A., 2013 WL 5677059 (S.D.N.Y. Nov. 4, 2013), Schnall v. HSBC Bank Nevada, N.A., 2013 WL 1100769 (S.D.N.Y. March 18, 2013), and Schwartz v. HSBC Bank USA, N.A. 160 F. Supp. 3d 666 (S.D.N.Y. 2016), 2017 WL 95118 (S.D.N.Y. Jan. 9, 2017), and 2017 WL 2634180 (S.D.N.Y. June 19, 2017).
Lead attorney representing water utility in putative class action that raised claims based on an alleged interruption in water service. Obtained summary-judgment dismissal of all claims and argued before the Appellate Division, which affirmed the dismissal in its entirety. Rogers v. United Water New Jersey Inc., 2005 WL 2847794 (N.J. App. Div. Nov. 1, 2005).
Lead attorney representing national retailer in putative class action asserting claims based on the alleged improper collection of New Jersey Sales and Use Tax. Obtained dismissal of all claims. Avallone v. Sears Holding Corp., 2013 WL 1501450 (N.J. Tax April 1, 2013).
Lead attorney representing financial services company in putative class action asserting claims based on allegedly improper posting of payments. Obtained dismissal of all claims. Jaffe v. Capital One Bank, 2010 U.S. Dist. LEXIS 18117 (S.D.N.Y. March 1, 2010).
Lead attorney representing lender in putative class action in the United States District Court for the Southern District of Florida alleging statutory violations based on purported failure to present satisfactions of mortgage in a timely manner. After filing motion to dismiss, Plaintiff voluntarily withdrew the action.
Represented lenders in Florida putative class actions brought by borrowers asserting declaratory and quiet title claims contending that any effort to enforce mortgages on the properties would be barred by the statute of limitations. Obtained dismissal of several actions, including Gomez v. Household Finance Corp. III, 2014 WL 12722852 (S.D. Fla. Sept. 30, 2014), aff’d, 688 Fed. Appx. 680 (11th Cir. 2017) and Lopez v. HSBC Bank USA, N.A., 2014 WL 3361755 (S.D. Fla. Apr. 29, 2014).
Lead attorney representing financial services company in putative nationwide class action in the United States District Court for the District of New Jersey asserting claims based on alleged failures to honor settlements relating to credit card debt. Obtained prompt dismissal of action.
Lead attorney representing financial services company in putative class action asserting claims under state consumer protection statutes based on allegedly improper disclosure of personal information in collections lawsuits. Obtained prompt dismissal of all claims.
Lead attorney representing bank in connection with claims brought by victims of a Ponzi scheme. Motion to remand case to state court was denied, and case was dismissed, based on application of the Securities Litigation Uniform Standards Act. Marchak v. JPMorgan Chase & Co., et al., 84 F. Supp. 3d 197 (E.D.N.Y.2015).After subsequent related case was remanded to state court, 2016 WL 3911926 (E.D.N.Y. July 15, 2016), obtained dismissal of the matter in its entirety.
Lead attorney representing bank in matter arising out of a stock purchase agreement in which plaintiffs alleged that bank negligently and fraudulently prepared a pay-off letter related to the underlying transaction. Obtained summary-judgment dismissal of all claims and argued before the Appellate Division, J.A.O. Acquisition Company v. First Union National Bank, 23 A.D. 3d 200, 803 N.Y.S. 2d 527 (1st Dept. 2005), and the Court of Appeals, 8 N.Y. 3d 144, 831 N.Y.S. 2d 364 (2007), both of which affirmed the trial court's dismissal in its entirety.
Trial attorney in bankruptcy preference action in which bankruptcy trustee sought recovery of over $17 million from client bank in connection with a check-kiting scheme. After trial, the Court entered judgment in favor of bank. Pereira v. Summit Bank, 2001 WL 563730, 44 UCC Rep. Serv. 2d 806 (S.D.N.Y. 2001).
Lead attorney for banks and credit card companies in matters involving check and payment frauds, including matters involving fictitious payees and defalcating employees and fiduciaries. Obtained dismissal of numerous actions, including action arising from alleged fraud perpetrated by executive of a publicly traded company that sought recovery of approximately $20 million, aff'd in part in Koss v. American Express Co., 309 P.3d 898 (Ariz. Ct. App. 2013).
Lead attorney representing bank in matter involving claims that bank improperly repudiated a loan agreement and pursued collection activity. Obtained transfer of the matter to the Central District of California, Buchbut v. Tesar, et al., 2013 WL 1504768 (D.N.J. April 2013), and thereafter obtained dismissal of the matter.
Lead attorney representing insurance and financial services companies in matters concerning an accidental disability insurance product, including claims relating to the advertising and promotion of the product.
Obtained jury verdict on behalf of plaintiff in action alleging insurance broker failed to procure policy with adequate coverage. After the Appellate Division reversed, petitioned the New Jersey Supreme Court to take the case and argued before the Supreme Court, which reinstated the jury verdict. Aden v. Fortsh, 169 N.J. 64 (2001).
Prosecuted expedited preliminary injunction application in Southern District of New York seeking information and documents in commercial dispute relating to insurance program. After initial hearing before the Court, defendant agreed to provide client with all of the documents and information it was seeking and thereafter the matter was resolved.
Lead attorney representing brokerage and investment banking firm and other defendants in connection with claims asserted by former client. Compelled claims alleging financial and tax mismanagement into arbitration and obtained stay of remaining claims pending completion of arbitration. Deering v. Graham, 2015 WL 424534 (D.N.J. Jan. 30, 2015).
Lead attorney in matter involving breach of contract and misappropriation of trade secret claims. Defeated motion for a preliminary injunction, EchoMail v. American Express Co., 378 F. Supp. 2d 1 (D. Mass. 2005), and obtained summary judgment on replevin claim seeking the return of electronic information, 445 F. Supp. 2d 87 (D. Mass. 2006).
Lead attorney in defending financial services company in multi-million dollar claim alleging a breach of a computer software agreement. Addressed various complex contract-related issues and negotiated expeditious settlement of the matter.
Lead attorney representing a financial services company in multi-million dollar litigation with a former consultant involving contract and Copyright Act claims. Obtained summary judgment dismissing all claims in their entirety, which was affirmed on appeal. The Capability Group, Inc. v. American Express Travel Related Services Company, Inc., 706 F. Supp. 2d 146 (D. Mass. 2010), aff'd, 658 F. 3d 75 (1st Cir. 2011).
Represented financial services companies in lawsuits challenging amendments to New Jersey’s unclaimed property laws addressing travelers cheques and gift cards. American Express Travel Related Services Company, Inc. v. Sidamon-Eristoff, 755 F. Supp. 2d 556 (D.N.J. 2010), aff'd, 669 F. 3d 359 (3d Cir. 2012) and 669 F. 3d 374 (3d Cir. 2012).
Lead attorney representing foreign defendants in matter involving claims arising from sale of several websites and related financing and security interests. Defeated motion for preliminary injunction based on the absence of personal jurisdiction, New Earthshell Corp. v. Lycos Internet Limited, et al., 2015 WL 170564 (D.N.J. Jan. 12, 2015), and obtained dismissal of the matter.2015 WL 4716155 (D.N.J. Aug. 7, 2015).
Lead attorney representing telecommunications carrier in New Jersey Superior Court litigation involving breach of contract and fraud claims and counterclaims. After trial, all claims against client were dismissed and obtained judgment of approximately $2.1 million.
Lead attorney representing plaintiffs in trademark infringement matter in Southern District of New York. Obtained permanent injunction that shut down web-site containing infringing materials.
Lead attorney representing companies in several matters involving a consultant’s allegedly improper removal and use of confidential and proprietary information.
Defended English manufacturer of construction-related equipment in various product-liability claims brought throughout the United States. Obtained several dismissals based on the absence of personal jurisdiction, which were affirmed on appeal. Landers v. Dawson Construction Plant, Ltd., 1999 U.S. App. Lexis 28474 (4th Cir.) and 250 F. 3d 738 (5th Cir.), cert.denied, 122 S. Ct. 42 (2001).
Counsel to Independent Advisor of a major public company retained to conduct a review of the implementation and effectiveness of the internal controls, financial reporting, disclosure, planning, budget and projection processes and related compliance functions of the company.
Lead attorney representing creditor in contested involuntary bankruptcy proceeding. In re VoiceSmart, 1998 WL 34064627 (Bankr. D.N.J. June 8, 1998), aff’d, 1998 WL 34064618 (D.N.J. Oct. 30, 1998).
Lead attorney representing travel agency in state and federal court actions seeking recovery based on alleged injuries sustained over-seas. Obtained prompt dismissal of several actions, including Abramson v. Ritz-Carlton Hotel Company LLC, 2010 WL 3943666 (D.N.J. Oct. 6, 2010).

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