UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`
`Case No. IPR2015-00990 and IPR2015-01093
`
`Patent No. 7,056,886
`
`DECLARATION OF PROFESSOR MARC I. STEINBERG
`
`I, Marc I. Steinberg, hereby declare as follows:
`
`I.
`
`INTRODUCTION
`
`(A)
`
`I am over the age of eighteen years and otherwise am competent to make
`
`this Declaration.
`
`· (B)
`
`I have been retained as an expert witness by Merchant & Gould P.C., on
`
`behalf of the Coalition for Affordable Drugs II LLC ("Petitioner"), for the
`
`above-captioned inter partes review ("IPR").
`
`(C)
`
`I am being compensated for my time in connection with this IPR at my
`
`customary rate of$750 per hour, with a minimum fee of$10,000. My compensation
`
`CFAD Exhibit 1036
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`
`Case No. IPR2015-00990 and IPR2015-01093
`
`Patent No. 7,056,886
`
`DECLARATION OF PROFESSOR MARC I. STEINBERG
`
`I, Marc I. Steinberg, hereby declare as follows:
`
`I.
`
`INTRODUCTION
`
`(A)
`
`I am over the age of eighteen years and otherwise am competent to make
`
`this Declaration.
`
`· (B)
`
`I have been retained as an expert witness by Merchant & Gould P.C., on
`
`behalf of the Coalition for Affordable Drugs II LLC ("Petitioner"), for the
`
`above-captioned inter partes review ("IPR").
`
`(C)
`
`I am being compensated for my time in connection with this IPR at my
`
`customary rate of$750 per hour, with a minimum fee of$10,000. My compensation
`
`CFAD Exhibit 1036
`
`
`
`Page Two (Declaration of Marc l. Steinberg)
`
`is not contingent upon my reaching any particular findings or conclusions, or on any
`
`particular outcome in this matter.
`
`(D)
`
`I understand this Declaration is being submitted in support of Petitioner's
`
`Brief In Response To The Board's Request for Additional Briefing Pursuant to 37
`
`U.S.C. Sec. 42.20(D).
`
`(E)
`
`In preparing this Declaration and formulating my opinions, I have relied
`
`upon my knowledge, education, research and experience, as reflected by my
`
`qualifications and credentials described below in Section II of this Declaration and
`
`as set forth in my curriculum vitae which is attached to this Declaration in Annex A.
`
`(F)
`
`In preparing this Declaration and formulating my opinions, I have
`
`reviewed and considered the documents set forth in Annex B of this Declaration.
`
`This list was prepared by the law firm of Merchant & Gould P.C.
`
`II.
`
`BACKGROUND
`
`(A)
`
`I am the Rupert and Lillian Radford Professor of Law at the Southern
`
`Methodist University (SMU) Dedman School of Law. I am the Director of the SMU
`
`Law School's Corporate Directors' Institute, the Director of the Law School's
`
`Corporate Extern Program, the faculty adviser to the SMU Corporate Counsel
`
`Symposium, and the former Senior Associate Dean for Academics and for Research
`
`at the SMU Law School. The courses I have taught since I entered full-time teaching
`
`in 1982 include Securities Regulation, Securities Litigation and Enforcement, and
`
`Business Enterprises.
`
`CFAD Exhibit 1036
`
`
`
`Page Three (Declaration of Marc I. Steinberg)
`
`(8) Prior to becoming a full-time academician in 1982, I was an attorney at the
`
`U.S. Securities and Exchange Commission (SEC), including serving as an attorney in
`
`the SEC's Division of Enforcement and as special projects counsel to the SEC's
`
`General Counsel.
`
`(C) From 1986 to the present, I have served as a consultant to law firms and as
`
`an expert witness in scores of matters involving the securities laws, including with
`
`respect to custom and practice in this area.
`
`(D)
`
`I received my undergraduate degree at the University of Michigan, my law
`
`degree (J.D.) from the University of California, Los Angeles (UCLA), and my masters
`
`of law degree (LL.M.) from Yale University. I am a member of the California, District
`
`of Columbia (inactive), Maryland, and Texas Bars. I also am a life member of The
`
`American Law Institute (ALI).
`
`(E)
`
`I have authored over 125 law journal articles as well as approximately 28
`
`books. For example, books of mine that address issues raised in this Matter include:
`
`"Securities Regulation" (6th edition 2013); "Understanding Securities Law" (6th
`
`edition 2014); "Securities Regulation: Liabilities and Remedies" (2014) (first
`
`published 1984); "Securities Practice: Federal and State Enforcement'' (2d edition
`
`2001) (and annual supplement) (coauthored); "Corporate Internal Affairs: A
`
`Corporate and Securities Law Perspective" (1983). I also have authored a number
`
`of law journal articles that analyze issues related to this Matter.
`
`(F)
`
`I have lectured outside of the United States on securities law issues,
`
`CFAD Exhibit 1036
`
`
`
`Page Four (Declaration of Marc I. Steinberg)
`
`including for example, presenting at law schools and/or the practicing bar in
`
`Argentina, Australia, Canada, China, England, Finland, Germany, Israel, Italy, japan,
`
`Russia, South Africa, and Sweden.
`
`(G)
`
`I am the editor-in-chief of The Securities Regulation Law journal, am the
`
`co-editor-in-chief of The International Lawyer, and serve on the advisory board of
`
`The journal of Corporation Law.
`
`III. OPINIONS RENDERED
`
`In this Matter, NPS Pharmaceuticals, Inc. (Patent Owner) contends that
`
`Petitioner has engaged in stock manipulation in violation of Section lO(b) of The
`
`Securities Exchange Act of 1934 and SEC Rule lOb-5 promulgated thereunder. See,
`
`e.g., Patent Owner's Briefin Response to the Board's Request for Additional Briefing
`
`Pursuant to 37 C.F.R. Sec. 42.20( d), at page 6 (hereinafter referred to as Patent
`
`Owner's Brief). This contention is erroneous.
`
`(A) Patent Owner alleges in this Matter that Petitioner has engaged in stock
`
`manipulation in violation of Section lO(b) of the Securities Exchange Act and SEC
`
`Rule lOb-5 promulgated thereunder. The law is clear that the federal district courts
`
`"shall have exclusive jurisdiction of violations of [the Securities Exchange Act] or
`
`the rules and regulations thereunder .... " Section 27(a) of the Securities Exchange
`
`Act. Insofar as I am aware, the only exception to this principle is when the litigating
`
`CFAD Exhibit 1036
`
`
`
`Page Five (Declaration of Marc I. Steinberg)
`
`parties enter into an enforceable arbitration agreement. See Shearson/American
`
`Express, Inc. v. McMahon, 482 U.S. 220 (1987) (holding, inter alia, that pre-dispute
`
`arbitration agreements between brokerage firms and their customers permissible
`
`under the Securities Exchange Act).
`
`(8) Patent Owner contends in this Matter that Petitioner violated Section 10(b)
`
`of the Securities Exchange Act and SEC Rule 10b-5 thereunder. Clearly, in an
`
`action for damages for violations of these provisions, a plaintiff must be a purchaser
`
`or seller of the subject securities in connection with the alleged misconduct. See
`
`Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). A number of courts
`
`have extended this purchaser-seller standing requirement to suits seeking
`
`injunctive relief. See Cowin v. Bresler, 741F.2d410 (D.C. Cir. 1984). In this Matter,
`
`I have seen no materials that indicate that Patent Owner was a purchaser or seller
`
`of the subject securities in connection with Petitioner's alleged misconduct.
`
`(C)
`
`In this Matter, Patent Owner contends that, by engaging in stock
`
`manipulation, Petitioner has engaged in fraud. In order to state such a claim in
`
`an action brought in federal court for alleged violation of Section 10(b) and Rule
`
`lOb-5, a complainant must not only plead fraud with particularity under Rule 9(b)
`
`of the Federal Rules of Civil Procedure but also must satisfy the more stringent
`
`pleading requirements set forth in Section 21 D(b) of the Securities Exchange Act.
`
`Enacted pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA),
`
`this statute requires, inter a/ia, that plaintiffs must "state with particularity facts
`
`CFAD Exhibit 1036
`
`
`
`Page Six (Declaration of Marc I. Steinberg)
`
`giving rise to a strong inference that the defendant acted with the required state of
`
`mind." As interpreted by the Supreme Court, to satisfy this statutory mandate, the
`
`inference of sci enter "must be cogent and at least as compelling as any opposing
`
`inference ofnonfraudulent intent." Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551
`
`U.S. 308 (2007). In this Matter, Patent Owner's contentions of Petitioner's alleged
`
`fraudulent conduct are far too generalized to meet the demanding pleading
`
`requirements of the federal securities laws. As will be elaborated upon below in
`
`this Declaration, Patent Owner has not identified any actionable conduct engaged
`
`in by Petitioner under the federal securities laws.
`
`(D) Patent-Owner makes much of the fact that Petitioner is taking part in a
`
`"short activist strategy". See Patent Owner's Brief at page 5. Short-selling is a
`
`common trading technique and, absent unlawful conduct, is permissible. As the
`
`Second Circuit stated, "short selling -- even in high volumes -- is not, by itself,
`
`manipulative [and that] [a]side from providing market liquidity, short selling
`
`enhances pricing efficiency by helping to move the prices of overvalued securities
`
`toward their intrinsic values." ATS! Communications, Inc. v. ShaarFund, Ltd., 493
`
`F. 3d 87, 101 (2d Cir. 2007). See Jn re Olympia Brewing Co. Securities Litigation,
`
`613 F. Supp. 1286, 1296 (N.D. Ill. 1985) (stating that "short selling is simply not
`
`unlawful, even in large numbers and even ifthe trading does negatively affect the
`
`purchase price").
`
`CFAD Exhibit 1036
`
`
`
`Page Seven (Declaration of Marc I. Steinberg)
`
`(E) Patent-Owner contends that Petitioner is engaged in stock manipulation.
`
`See Patent Owner's Brief at pages 2, 4, 6, 7, 10, 11. Patent Owner's use of this term
`
`is not consistent with what is defined as stock manipulation within the meaning of
`
`the federal securities laws. As the Supreme Court has observed, manipulation
`
`"connotes intentional or willful conduct designed to deceive or defraud investors by
`
`controlling or artificially affecting the price of securities." Ernst & Ernst v.
`
`Hochfelder, 425 U.S. 185, 199 (1976). And, as stated by the High Court in Santa Fe
`
`Industries, Inc. v. Green, 430 U.S. 462, 476 (1977): '"Manipulation' is 'virtually a
`
`term of art when used in connection with securities markets' ... [and] refers
`
`generally to practices, such as wash sales, matched orders, or rigged prices, that are
`
`intended to mislead investors by artificially affecting market activity." And, as more
`
`recently asserted by the Second Circuit: "A market manipulation claim, however,
`
`cannot be based solely upon misrepresentations or omissions. There must be some
`
`market activity, such as 'wash sales, matched orders, or rigged prices."' A TS!
`
`Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 101 (2d Cir. 2007) (citations
`
`omitted). lam unaware that Petitioner engaged in any of these proscribed practices.
`
`(F) Even if stock manipulation can be shown by the knowing injection of
`
`inaccurate information into the market for the purpose of artificially inflating or
`
`depressing the price of the subject security (see GFL Advantage Fund, Ltd. v. Co/kitt,
`
`272 F. 3d 189, 207 (3d Cir. 2001)), Patent Owner's contentions fail. As set forth
`
`below in this Declaration, based on the information 1 have reviewed, Petitioner
`
`did not engage in actionable misconduct. Indeed, even assuming arguendo that
`
`CFAD Exhibit 1036
`
`
`
`Page Eight (Declaration of Marc l. Steinberg)
`
`Patent Owner is correct that Petitioner did inject false information into the market,
`
`this conduct would not be actionable as the market was aware, according to Patent
`
`Owner, of Petitioner's plan: "The Bass Group has made no secret that the [IPR]
`
`Petitions are part of a 'short activist strategy.' This is short-hand for taking short
`
`positions on stock and then using the IPR process and misrepresentations to drive
`
`down stock prices." Patent Owner's Brief at page S (citation omitted) (emphasis
`
`supplied).
`
`(G) Patent Owner contends that Petitioner made a number of materially
`
`misleading statements -- namely, Petitioner's statements that its IPR petitions
`
`"shortenO patent exclusivity, hasten[] generic entry, and 'lowerO' drug prices
`
`for everyone." Patent Owner's Brief at page 2. These types of statements are
`
`predictive, forward-looking, and soft; they are not the types of statements that
`
`are deemed "material" and actionable under the federal securities laws. These are
`
`not statements that a reasonable investor would consider important when making
`
`one's investment decision to purchase the subject security. As stated by the Fourth
`
`Circuit in Raab v. General Physics Corporation, 4 F. 3d 286 (4th Cir. 1993): "Analysts
`
`and arbitrageurs rely on facts in determining the value of a security; not mere
`
`expressions of optimism .... "
`
`(H) Patent Owner also contends that Petitioner engaged in omission of
`
`material facts relating to its failure to disclose that "unchallenged patents and
`
`unchallenged '886 patent claims would still be enforceable, and that it must win
`
`both IP Rs to have the '886 patent de listed from the Orange Book .... " Patent Owner's
`
`CFAD Exhibit 1036
`
`
`
`Page Nine (Declaration of Marc I. Steinberg)
`
`Brief at page 6. This contention misses the mark as this information was already
`
`widely known pursuant to the Orange Book. Indeed, in Patent Owner's Preliminary
`
`Response in this Matter, it refers to information contained in the Orange Book to
`
`"clearly showff' the status ofGATTEX. See Patent Owner's Preliminary Response
`
`at page 27 (stating that "Petitioner also ignores that GATTEX[], the commercial
`
`embodiment of the invention of the '886 patent as clearly shown by its listing in the
`
`Orange Book for GATTEXO, was awarded orphan drug status by the FDA'). Thus,
`
`the Orange Book, published by the Food and Drug Administration (FDA), is "an
`
`official FDA publication available to the public online." Hollander v. Ortho-McNeil(cid:173)
`
`janssen Pharmaceuticals, Inc., 805 F. Supp. 2d 133, 137 (E.D. Pa. 2011) (also stating:
`
`'[g]iven the accessibility of patent information online"). See Merck & Co., Inc.
`
`v. Mediplan Health Consulting, Inc., 434 F. Supp. 2d 257, 264 (S.D.N.Y. 2006) (stating
`
`that "the Orange Book is available to the public"); Cyran, Kyle Bass Wields New
`
`Weapon in Challenging Drug Makers, New York Times, February 11, 2015, NPS EX.
`
`2020 (stating that "[e]ven if Mr. Bass succeeds against Acorda, the company's drug
`
`will still have four patents protecting it against generic competition until 2027").
`
`Hence, based on my understanding that the Orange Book is widely followed,
`
`accessible, and the information contained therein is known to the market, Petitioner
`
`was under no obligation to disclose this information. See In re Convergent
`
`Technologies, 948 F. 2d 507, 513 (91h Cir. 1991) (stating that "an omission is
`
`materially misleading only if the information has not already entered the market").
`
`CFAD Exhibit 1036
`
`
`
`Page Ten (Declaration of Marc I. Steinberg)
`
`(I) From my review of the news sources I have reviewed, Petitioner's alleged
`
`strategy is well known. In a Business Insider article dated January 7, 2015, mention
`
`is made of Petitioner's alleged "short activist strategy". NPS EX .. 2035. In a
`
`February 11, 2015 New York Times article, mention is made of "the next big
`
`short". The article thereafter discusses the track record of Petitioner's alleged
`
`strategy at that point NPS EX. 2020. And, in an article in the Wall Street Journal
`
`dated April 7, 2015 entitled New Hedge Fund Strategy: Dispute the Patent, Short the
`
`Stock (NPS EX. 2035), the alleged strategy is set forth in some detail. The article
`
`begins by stating: "A well-known hedge-fund manager is taking a novel approach
`
`to making money: filing and publicizing patent challenges against pharmaceutical
`
`companies while also betting against their shares." Thus, from widespread public
`
`information, Petitioner's alleged strategy was disclosed and understood by the
`
`market.
`
`I declare under penalty of perjury under the laws of the United States of America
`
`that the foregoing is true and correct to the best of my knowledge, information and
`
`belief.
`
`'1/21/IS
`Date
`
`Marc I. Steinberg
`
`CFAD Exhibit 1036
`
`
`
`ANNEX A
`
`MARC I. STEINB.ERG
`
`Dedman School of Law
`Southern Methodist University
`3315 Daniel Avenue
`Dallas, Texas 75205
`
`Office: (214) 768-4072
`Celi:
`(214) 789-4803
`Email: msteinbe@smu.edu
`marcsteinberg@me.com
`
`PRESENT POSITION
`
`Rupert and Lillian Radford Professor of Law
`
`SELECTED PROFESSIONAL EXPERIENCE
`
`1989-Present:
`
`2013-Present:
`
`2006-2012:
`
`1994-2004:
`
`Radford Professor of Law
`Dedman School of Law
`Southern Methodist University
`
`Director, Corporate Counsel
`Externship Program
`Dedman School of Law
`Southern Methodist University
`
`Senior Associate Dean for Research
`Dedman School of Law
`Southern Methodist University
`
`Visiting Professorial Fellow (in
`International Securities Regulation)
`Banking and Finance Law Unit
`Centre for Commercial Law Studies
`University of London
`
`CFAD Exhibit 1036
`
`
`
`1998-2003:
`
`2003-Present:
`
`2012-2013:
`
`2012-2013:
`
`June 2010:
`
`June 2007:
`
`May-June 2005:
`
`October 2004:
`
`1997-2000:
`
`Senior Associate Dean for Academics
`Dedman School of Law
`Southern Methodist University
`
`Founding Director
`SMU Corporate Directors' Institute
`
`Visiting Professor
`Bar Ilan University
`Israel
`
`Visiting Professor
`University of London
`
`Visiting Professor
`Bar Ilan University
`Israel
`
`Visiting Professor
`University of Heidelberg
`Germany
`
`Visiting Professor
`University of Gothenburg
`Sweden
`
`Paul Hastings Visiting Professor in
`Corporate and Financial Law
`The University of Hong Kong
`
`President
`Institute of International Banking
`and Finance
`Dedman School of Law
`Southern Methodist University
`
`2
`
`CFAD Exhibit 1036
`
`
`
`Feb.- March 1998:
`
`Parsons Visiting Scholar, University
`of Sydney; Visiting Professor, University of
`Western Australia
`
`1989-1997:
`
`October 1997:
`
`March 1996:
`
`March 1995:
`
`June 1994:
`
`March 1993:
`
`Feb.-June 1991:
`
`Of Counsel
`Winstead, Sechrest, & Minick, P.C.
`Dallas, Texas
`
`Visiting Professor, Meiji Gakuin
`University, Tokyo
`
`Visiting Scholar: University of
`Buenos Aires, University of Belgrano
`
`Visiting Scholar: University of Cape Town,
`Rand Afrikaans University,
`University of Stellenbosch,
`University of Witwatersrand
`
`Distinguished Lecturer
`Centre of Commercial Law Studies
`University of London
`
`Inaugural Visiting Charles F. Hartsock
`Professor
`College of Law
`University of Cincinnati
`
`Visiting Professor: University of Konstanz
`(Germany); Parsons Visiting Scholar:
`University of Sydney; Visiting Scholar:
`University of Canterbury, Victoria
`University of Wellington (New Zealand),
`University of Melbourne, Hong Kong
`Polytechnic School of Law; Lecturer:
`Ministry of Finance Course on International
`Taxation, Taipei Taiwan
`
`3
`
`CFAD Exhibit 1036
`
`
`
`1985-1989:
`
`Fall 1988:
`
`1986-1989:
`
`Spring 1988:
`
`November 1986:
`
`1983-1985:
`
`1983:
`
`1982-1983:
`
`1979-1982:
`
`Professor ofLaw
`School of Law
`University of Maryland
`
`Visiting Radford Professor of Law
`School of Law
`Southern Methodist University
`
`Of Counsel
`Melnicove, Kaufman, Weiner,
`Smouse & Garbis, P.A.
`Baltimore, Maryland
`
`Visiting Professor
`The Wharton School
`The University of Pennsylvania
`
`Visiting Fellow: Universities of Stockholm,
`Gothenburg, Lund, and Uppsala
`
`Associate Professor
`School of Law
`University of Maryland
`
`Adviser to former U.S. Supreme Court
`Justice Arthur J. Goldberg for the Federal
`Advisory Committee Report on Tender
`Offers
`
`Visiting Associate Professor
`The National Law Center
`George Washington University
`
`Special Projects Counsel
`(Confidential Legal Adviser
`to the General Counsel)
`Office of the General Counsel
`Securities and Exchange Commission
`4
`
`CFAD Exhibit 1036
`
`
`
`1978-1979:
`
`Spring 1979:
`
`1977-1978:
`
`1975-1976:
`
`Spring 1974:
`
`Summer 1971-1973:
`
`Attorney
`Division of Enforcement
`Securities and Exchange Commission
`
`Adjunct Professor
`School of Law
`Georgetown University
`
`Legislative Counsel
`U.S. Senator Robert P. Griffin
`
`Law Clerk
`U.S. Court of Appeal Judge Stanley N.
`Barnes (Ninth Circuit)
`
`Extern Law Clerk
`U.S. Court of Appeal Judge Anthony J.
`Celebrezze (Sixth Circuit)
`
`Tennis Professional
`Ramblewood Swim & Tennis Club
`Northville, Michigan
`
`SELECTED TEACHING EXPERIENCE
`
`1989-Present:
`
`March 2013:
`
`Dedman School of Law
`Southern Methodist University
`(Business Enterprises, Securities Regulation,
`Securities Litigation and Enforcement,
`Lawyering and Ethics for the Business
`Attorney, Corporate Counsel Externship
`Program, SEC Student Observer Program)
`
`School of Law
`Bar Ilan University (Israel)
`(Securities Law)
`
`5
`
`CFAD Exhibit 1036
`
`
`
`October 2012:
`
`June 2010:
`
`June 2007:
`
`May-June 2005:
`
`October 2004:
`
`1994-2004:
`
`March 1998:
`
`June 1991:
`
`Centre for Commercial Law Studies
`University of London
`(Securities Law)
`
`School of Law
`Bar Ilan University (Israel)
`(Securities Law)
`
`School of Law
`University of Heidelberg
`(Company and Securities Law)
`
`Gothenburg University Department of Law
`(Company and Securities Law)
`
`School of Law
`The University of Hong Kong
`(Company and Securities Law)
`
`Centre for Commercial Law Studies
`University of London
`(International Securities Regulation,
`Corporate Finance)
`
`School of Law
`The University of Western Australia
`(Corporate Finance and Securities
`Regulation)
`
`School of Law
`The University ofKonstanz (Germany)
`(Transnational Securities Transactions:
`The American Perspective)
`
`6
`
`CFAD Exhibit 1036
`
`
`
`1983-1989:
`
`Spring 1988:
`
`November 1986:
`
`1982-1983:
`
`Spring 1979:
`
`EDUCATION
`
`School of Law
`University of Maryland
`(Business Associations, Securities
`Regulation, Securities Regulation Seminar,
`SEC Student Observer Program, National
`Securities Moot Court Competition)
`
`The Wharton School
`University of Pennsylvania
`(Securities Regulation)
`
`School of Law
`Universities of Stockholm, Gothenburg,
`Lund, Uppsala, and Helsinki
`(U.S., Swedish, and Finnish Stock Exchange
`Regulation)
`
`The National Law Center
`George Washington University
`(Corporations, Securities Regulation,
`Regulation of the Securities Markets)
`
`Georgetown University Law Center
`(Professional Responsibility)
`
`1976-1977: LL.M., Yale University (Graduate Fellow)
`
`1972-1975: J.D., University of California, Los Angeles (Board of Editors,
`UCLA-Alaska Law Review)
`
`1968-1972: A.B., University of Michigan (Magna Cum Laude)
`
`7
`
`CFAD Exhibit 1036
`
`
`
`PROFESSIONAL AFFILIATIONS AND HONORS
`
`Member:
`
`The American Law Institute (1987-Present) (Life Member,
`2011-Present)
`
`Executive Committee, American Association of Law Schools
`(AALS), Section of Professional Responsibility (2014-
`Present)
`
`Financial Industry Regulatory Authority (FINRA), National
`Adjudicatory Council (NAC) (2012 - present)
`
`Securities Law Committee, State Bar of Texas (2002-Present)
`
`Board of
`Int'! Scholars:
`
`Banking and Finance Law Unit at the Centre for Commercial
`Law Studies, University of London (1994-2004)
`
`Fellow:
`
`London Institute on International Banking, Finance and
`Development Law, Centre for Commercial Law Studies,
`University of London (1995-2004)
`
`Maguire Teaching Fellow, Cary M. Maguire Center for Ethics
`and Public Responsibility, Southern Methodist University
`(2002-2003)
`
`President:
`
`President, SMU Law School Institute of International Banking
`and Finance (1997-2000)
`
`Editor:
`
`Co-Editor-in-Chief, The International Lawyer (2001-Present)
`
`Editor-in-Chief, The Securities Regulation Law Journal (1987-
`Present)
`
`Editor, Southern Methodist University Dedman School of Law
`SSRN Legal Studies Research Paper Series (2007-20 I 3)
`
`Council Member: Member of the Council, Section of International Law, American
`Bar Association (2001-Present)
`8
`
`CFAD Exhibit 1036
`
`
`
`Scholarship:
`
`The Marc I. Steinberg Securities Law Scholarship at the SMU
`School of Law (Donated and Sponsored by The Securities Law
`Section of The Dallas Bar Association) (1999 - Present)
`
`Recipient:
`
`Advisory
`Boards:
`
`SMU Author's Award for International Securities Law: A
`Contemporary and Comparative Analysis (Presented by
`Dedman College, Godbey Lecture Series April 2000)
`
`Academic Advisory Board:
`
`The University of Hong Kong Faculty of Law, Asian Institute of
`International Financial Law (1999-Present)
`
`Panel of Academic Contributors - Black's Law Dictionary (8th
`ed. 2004) (9th ed. 2009)
`
`SEC Historical Society Museum Committee (20 I 0)
`
`Corporate Compliance Center, South Texas College of Law
`(2004-2010)
`
`Board of Contributing Editors and Advisers:
`
`The International Lawyer
`(1991-1996, 1999-Present)
`The Journal of Corporation Law
`( 1981-Present)
`Law and Business Review of
`the Americas ( 1995-Present)
`Studies in International Financial Economic
`and Technology Law, British Institute of
`International and Comparative Law (2006-
`Present)
`South Texas College of Law Corporate
`Compliance Center (2004-2010)
`Broker-Dealer Dispute Report
`( 1999-200 I)
`9
`
`CFAD Exhibit 1036
`
`
`
`IOSCO Advisory Group on Emerging
`Markets (1997-2000)
`Kluwer Yearbook of International Financial and
`Economic Law (1997-2000)
`The Delaware Journal of Corporate Law
`(1981-1996)
`Business Information and Privacy Reporter (1987-
`1990)
`The Corporation Law Review (1981-1985)
`The Securities Regulation Law Journal (1981-
`1987)
`University of Maryland Journal of International
`Law and Trade (1984-1989)
`
`Teaching Fellow:
`
`SMU Maguire Center for Ethics and Public
`Responsibility (2002-2003)
`
`External Examiner:
`
`The University of Hong Kong (in Comparative
`Securities Law) (1999-Present)
`
`The University of London (LL.M. Examinations)
`{1999-2004)
`
`Founding Director:
`
`SMU Corporate Directors' Institute (2003-Present)
`
`Adviser:
`
`Members' Consultative Group, ALI Restatement of
`The Law Governing Lawyers (1991-2000)
`Members' Consultative Group, ALI Restatement of
`the Law Governing Agency (2001-2006)
`SMU Law Review Corporate Counsel Annual
`Symposium {1993-Present)
`Adviser, SMU Business Law Society (2001-
`Present)
`Adviser to the Mead Data Central/Lexis
`Federal Securities Law Library {1989-1995)
`Adviser, Bloomberg L.P. (2000-2002)
`Consultant, A Handbook of Business Law
`Terms (West 1999)
`
`10
`
`CFAD Exhibit 1036
`
`
`
`Executive Committee:
`
`Section of International Law and Practice,
`American Bar Association (2001-Present)
`
`Mediator:
`
`Recipient:
`
`Completed Basic Mediation Training Course
`
`Outstanding Young Men of America (1979)
`
`Bar Memberships:
`
`Texas, California, District of Columbia (inactive),
`Maryland, United States Supreme Court Bars
`
`FELLOWSHIPS AND LECTURES
`
`Visiting Professor, University of London (2012-2013)
`
`Visiting Professor, Bar Ilan University, Israel (2012-2013, June 2010)
`
`Presentation, Moscow State University Criminal Law Faculty, Moscow (May 28,
`2009)
`
`Presentation, Federal Anti-Monopoly Service and Federal Service for the
`Regulation of Financial Markets of the Russian Federation, Moscow (May 27,
`2009)
`
`Presentation, Ministry of Internal Affairs, Economic Crimes Department of the
`Russian Federation, Moscow (May 26, 2009)
`
`Visiting Professor, University of Heidelberg, Heidelberg, Germany (June 2007)
`
`Foulston Siefkin Distinguished Lecturer, Washburn University School of Law (Feb.
`23-24, 2006)
`
`Presentation, University of Stockholm Centre for Commercial Law, Stockholm
`(May 30, 2005)
`
`Visiting Professor, University of Gothenburg, Gothenburg (May - June 2005)
`
`11
`
`CFAD Exhibit 1036
`
`
`
`The Paul Hastings Visiting Professorship in Corporate and Financial Law,
`University of Hong Kong Faculty of Law (October 2004)
`
`Visiting Professorial Fellow in International Securities Regulations, Banking and
`Finance Law Unit, Centre for Commercial Law Studies, University of London
`(1994-2004)
`
`Associate Fellow, London Institute on International Banking, Finance and
`Development Law, Centre for Commercial Law Studies, University of London
`(1995-2004)
`
`Winston S. Howard Distinguished Lecturer, University of Wyoming College of
`Law (April 11-12, 2003)
`
`Symposium on International Securities Law, The University of Pennsylvania Law
`School (Jan. 19, 2001)
`
`Presentation, University of Peking 1 OOth Anniversary Conference, Beijing (May
`1-3, 1998)
`
`Visiting Professor, The University of Western Australia, Perth (March 1998)
`
`Parsons Visiting Scholar, The University of Sydney (Feb. 1998)
`
`Visiting Professor, Meiji-Gakuin University, Tokyo (October 1997)
`
`Visiting Scholar, Asia University, Tokyo (October 1997)
`
`Visiting Scholar, University of Buenos Aires, University of Belgrano (March 1996)
`
`Lecturer, International Development Law Institute, Rome (June 1994) (June 1996)
`
`Visiting Scholar, University of Cape Town, Rand Afrikaans University, University
`of Stellenbosch, University of Witwatersrand (March 1995)
`
`Distinguished Lecturer, Banking and Finance Law, Centre of Commercial Law
`Studies, University of London (June 1994)
`
`The David Hume Institute and the University of Edinburgh (June 1994)
`
`12
`
`CFAD Exhibit 1036
`
`
`
`Inaugural Visiting Charles F. Hartsock Professor of Law, University of Cincinnati
`College of Law (March 11-15, 1993)
`
`Keynote Speaker, Australian Corporate Law Professors Conference, Brisbane (Feb.
`1-2, 1993)
`
`German Marshall Fund Recipient, University ofKonstanz School of Law (June
`1991)
`
`Visiting Scholar in Corporate and Securities Law (Law Schools of University of
`Sydney, University of Melbourne, Victoria University of Wellington, University
`of Canterbury (Feb.-April 1991)
`
`Faculty Seminars Presented at Law Schools of University of Sydney, University of
`Melbourne, Monash University, Murdock University, Hong Kong Polytechnic
`University (March-May 1991)
`
`The Swedish Institute, Lecture and Consult Regarding American and Swedish
`Securities Regulation (University of Stockholm, Gothenburg University,
`University of Lund, Uppsala University, University of Helsinki, Swedish
`Banking Lawyers Association, Swedish Stock Exchange, Swedish Stock Market
`Board (Nov. 1986)
`
`The Lauder Institute, The Wharton School of the University of Pennsylvania (Feb.
`7, 1986)
`
`Baron de Hirsch Meyer Endowed Lectures, ALI Draft Restatement on Corporate
`Governance, University of Miami School of Law (March 4, 1983)
`
`SELECTED EXPERT WITNESS AND RELATED ENGAGEMENTS
`
`Abdula v. Canadian Solar, Inc., No. C-710-10 (Ontario Canada Superior Court)
`
`Belo Holdings, Inc., et al., v. AHN Holdings, Inc., et al., No. DV98-07579 (Dallas
`County Texas)
`
`BFA Liquidation Trust v. Arthur Andersen LLP, No. CV2000-015849 (Superior
`Court Maricopa County Arizona)
`
`13
`
`CFAD Exhibit 1036
`
`
`
`In re Elk Corporation (Wetzel v. Karol), No. CC-06-18652-B (Dallas County
`Texas)
`
`In re Enron Corporation Securities Litigation, Civ. No. H-01-3624 (S.D. Texas)
`
`Facciola v. Greenberg Traurig LLP, et al. ("Radical Bunny"), No. 2:10-cv-01025
`(D. Arizona)
`
`Great Rivers Cooperative of Southeastern Iowa v. Farmland Industries, Inc., Civil
`Action No. 4-95-CV-70529 (S.D. Iowa)
`
`Optek L.P. et al. v. Lucent Technologies, Inc., et al., No. 1-01-226 (Rockwall
`County Texas)
`
`The People of the State of New York v. Mark Belnick (Tyco), Indictment# 143-03
`(N.Y. Cty. Sup. Ct. 2004)
`
`In the Matter of Piper Capital Management, Admin. Proc. File No. 3-9657 (SEC
`Minneapolis, Minnesota)
`
`Securities and Exchange Commission v. Mark Cuban, No. 08-cv-2050 (N.D.
`Texas)
`
`Stenovich et al. v. Eccles et al., No. 000907870 (Salt Lake County, Utah)
`
`United States v. Martha Stewart, (51 03 Cr. 717) (S.D.N.Y.)
`
`In the Matter of Theodore W. Urban, Admin. Proc. File No. 3-13655 (SEC
`Washington D.C.)
`
`In re White Nile Software, Inc., Civil Cause No. 06-03319-A (Dallas County
`Texas) (Appointment as Temporary Receiver)
`
`PUBLICATIONS
`
`BOOKS
`
`Corporate Internal Affairs -- A Corporate and Securities Law Perspective (Quorum
`Press) (1983) (294 pp.)
`
`14
`
`CFAD Exhibit 1036
`
`
`
`Tender Offers -- Developments and Commentaries (Quorum Press) (1985) (editor)
`(384 pp.)
`
`Securities Regulation: Liabilities and Remedies (Law Journal Press) (2014) (first
`published 1984) (including updates 1-56) (two volumes, app. 1,300 pp.)
`
`Securities Practice: Federal and State Enforcement (West, Clark Boardman
`Callaghan) (1985) (including annual Supplements 1987- 2001) (lead coauthor)
`(two volumes, app. 1,200 pp.)
`
`Securities Practice: Federal and State Enforcement (West) (2d ed. 2001) (including
`annual Supplements 2002-2015) (lead coauthor) (two volumes, app. 2,000 pp.)
`
`Contemporary Issues in Securities Regulation (Butterworth Legal Publishers)
`(1988) (editor) (508 pp.)
`
`Textbook on Business Enterprises: Legal Structures, Governance and Policy
`(Lexis/Nexis) (coauthored) (2009) (731 pp.) and Professor's Manual
`
`Textbook on Business Enterprises: Legal Structures, Governance and Policy
`(Lexis/Nexis) (coauthored) (2d ed. 2012) (940 pp.) and Professor's Manual
`
`Textbook on Securities Regulation (Matthew Bender & Co.) (1986) (1,032 pp.)
`(including 1988, 1989, 1990, 1991, 1992 Supplements) and Professor's Manual
`
`Textbook on Securities Regulation (Matthew Bender & Co.) (2d edition 1993)
`(1,486 pp.) (including 1994, 1995, 1996, 1
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