The GRIP Files: Howard A. Fischer

In the last of our seasonal Holiday profiles, we look back at Howard A. Fischer’s career both in public and private service and hear his predictions for 2024.

We spoke to Howard Fischer, recognized as a leading expert on securities disputes, enforcement proceedings, and securities regulations, including those related to digital assets. He is currently a partner in the litigation and white collar departments of Moses & Singer LLP where, among other things, he represents targets of governmental investigations and enforcement actions, as well as parties involved in civil litigation in the financials services sector. He also counsels clients on securities regulatory matters.

Howard A. Fischer. Photo: Private

Howard is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency, and speaks frequently at professional seminars and to various media outlets regarding regulatory and enforcement developments in this area. He serves as Secretary for the International Section of the New York State Bar Association (NYSBA), and co-chairs the Committee on Corporate Counsel as well as the Securities Disputes Committee.

As a former Senior Trial Counsel at the US SEC, he was entrusted with some of the most sophisticated and noteworthy cases that the federal government prosecuted in the last decade. During his nine year tenure at the SEC, he earned multiple awards for exemplary service and served as first chair for numerous trials. This included acting as lead counsel in the litigation against Wing Chau and Harding Advisory LLC – relating to CDO asset selection in the run-up to the financial crisis – resulting in a major judgment against one of the characters lampooned in the film The Big Short.

Howard was also the lead trial counsel in the prosecution of Kareem Serageldin, another figure referenced in “The Big Short”, involving the mismarking of certain mortgage-backed assets, by Credit Suisse, in the wake of the financial crisis.

Tell us about yourself

I have been practicing in the field of securities litigation and enforcement for over three decades; this seems impossible to me, but my grey hair seems to confirm it. My first exposure to securities law came when I clerked for the United States District Court in the Southern District of New York, and saw multiple cases involving allegations of securities fraud. During my career in private practice, I have represented plaintiffs and defendants in multiple securities fraud litigations, arbitrated securities claims for broker-dealers, clearing firms, and other financial institutions, defended securities class actions, and counselled clients on how to avoid securities prosecutions.

I think the public benefits tremendously when those with experience in the private sector bring that training to public service.

For around a decade following the Financial Crisis, I was a Senior Trial Counsel for the New York Regional Office of the Securities & Exchange Commission, where I prosecuted Ponzi scheme architects, large institutions involved in the credit crisis, bankers who mismarked collateralized debt obligations, and what I then thought was the dumbest insider trader in US financial history. After my stint at the SEC, I returned to private practice at the NYC law firm of Moses Singer, which has a long history as a stalwart in financial services.

I am fascinated by securities law because it is, in essence, the way in which we organize and limit capitalism. It is how we balance potentially competing interests, like protecting investors and promoting capital formation. The decisions we make as a society in drafting laws and regulations, and the way in which we enforce them, affect how trillions of dollars are allocated, and which concerns are prioritized. The US securities laws regime is also unique in that we use it in what might seem like unconnected fields, like regulating the disclosure of and planning for environmental impacts, or restricting the way in which digital assets are marketed and transacted.

What advice would you give to your younger self?

I wish I had gone into government service earlier in my career and gone back and forth between the private and public sector more frequently. I think the public benefits tremendously when those with experience in the private sector bring that training to public service. And as a lawyer in the private sector, I recognize how valuable public sector experience is and how much it benefits clients.

What has been the proudest moment of your career?

I think there is a common misconception that the SEC Division of Enforcement just seeks scalps without regard to equity or whether the current law supports a prosecution. While the SEC has certainly gotten more aggressive in its enforcement stance, its mandate at is core is to enforce the law as written. Perhaps surprisingly, my proudest moments relate to the cases that I advised against bringing, notwithstanding public pressure, on the grounds that even if the conduct involved was less than savory, it was not illegal, and should not be prosecuted.

Tell us an amusing anecdote about your work.

When I was at the SEC, I was prosecuting a case with several defrauded investor witnesses. At one deposition, defense counsel tried to impugn the integrity of the witness, implying that they were a witness only because they wanted to recover their lost investment, and not because they believed they were defrauded. The witness was outraged that counsel thought he was motivated solely by the prospect of financial gains. “Money! You think money motivates me? How dare you!” he thundered. “You think all I care about is money? You know what I care about? Hmm? Not money – hot women!” He then took out his tablet and showed defense counsel an array of attractive women in bikinis on his boat. “This is what matters to me!”

The first step to resolving a problem is believing that a solution is possible.

In my recollection, I don’t think the noun he used was “women.” But I have cleaned up the anecdote for a family audience.

Can you recommend a good book?

While there have been a bevy of good books on finance and crypto in the last year or so, I’m going to recommend what I think is one of the best pieces of fiction in recent years, “Exit West” by Mohsin Hamid. While Hamid’s novel takes place against a backdrop of severe global instability and war, and an uncontrollable migrant crisis spanning the world, the book’s denouement is unexpectedly optimistic and hopeful. With all the troubles currently wracking the globe, I think it is helpful to emphasize models of optimism. Although many current political problems seem insolvable, hopefulness might be the greatest asset – the first step to resolving a problem is believing that a solution is possible.

Give us a prediction for 2024

Today there is a two-for-one special. On the ESG front, the SEC will finally release its long-anticipated climate disclosure rules, and they will be challenged within a day with a lawsuit filed in a district hostile to SEC regulation. With regard to crypto, the SEC will win more cases than it will lose, there will not be a conclusive appeals court decision, and there will not likely be resolution of SEC authority to regulate digital assets either in the courts or in Congress. Ultimately, both issues will await the results of the next election cycle before a final resolution is reached regarding SEC authority over environmental disclosure or digital assets.

What’s your New Year’s wish?

I hope that the greatest source of discord comes from disputes over the scope of SEC authority, and that peaceful resolutions are achieved with respect to the greater political disputes.