David Spears
Partner

David Spears concentrates in white collar criminal defense, securities enforcement defense, and complex civil litigation. In all three areas, he has had extensive trial experience and achieved notable successes.

Mr. Spears spent the early years of his career working in government, including two years as an Attorney Advisor to Commissioner Robert Pitofsky at the Federal Trade Commission in Washington, D.C., focusing on antitrust matters; two years as a Trial Attorney and Deputy Chief Trial Attorney in the Enforcement Division of the Securities and Exchange Commission in Washington, D.C.; and five years as an Assistant United States Attorney in the Criminal Division of the United States Attorney's Office for the Southern District of New York. During his years at the SEC and the United States Attorney's Office, Mr. Spears had more than twenty trials.

Mr. Spears left the government in 1988 and has been in private practice since that time. In private practice, Mr. Spears has tried a large number of cases in federal and state courts and before the SEC, the New York Stock Exchange, the NASD, and arbitration panels.

In private practice, Mr. Spears has represented defendants in many criminal jury trials in federal courts around the United States and in New York State court. He has tried criminal cases involving charges of conspiracy, money laundering, securities fraud, wire fraud, mail fraud, interstate and international transportation of stolen goods, false statements, obstruction of justice, and Food and Drug Administration crimes, among others. In 2004, Mr. Spears, together with partner Christopher Dysard and associate Justin Deabler, represented a former Merrill Lynch investment banker in an Enron-related criminal jury trial in Houston. The trial court's denial of our client's motion for judgment of acquittal was reversed on appeal by the Fifth Circuit Court of Appeals and the indictment was dismissed for lack of evidence. United States v. Brown, 459 F.3d 509 (5th Cir. 2006).

At the present time, Mr. Spears is representing the lead defendant in United States v. Stein (S.D.N.Y.), a criminal case in which the Department of Justice indicted 19 individuals for alleged tax shelter fraud involving KPMG. In that case, Mr. Spears has been instrumental in obtaining several groundbreaking rulings. In June 2006, the District Court ruled that certain provisions of the Thompson Memorandum, which discouraged the payment of legal fees by a corporation for its employees, violated the Fifth and Sixth Amendments to the Constitution. United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006). That ruling led to the revocation of the Thompson Memorandum by the Department of Justice and its replacement by the McNulty Memorandum, which does not contain the offending restrictions on the payment of legal fees. In July 2007, the District Court dismissed with prejudice all of the government's charges against our client and 12 other defendants based upon the government's interference with KPMG's payment of legal fees for those defendants. United States v. Stein, 495 F. Supp. 2d 390 (S.D.N.Y. 2007). Mr. Spears argued the motion before the District Court that resulted in the dismissal of the indictment. That dismissal is presently on appeal before the Second Circuit Court of Appeals.

Mr. Spears has also helped many clients avoid criminal charges altogether in diverse areas, including in several large international securities and antitrust matters.

Mr. Spears has represented scores of individuals and entities in investigations before, and proceedings by, the SEC, the NYSE, the NASD, and FINRA. While many of these representations have resulted in no charges being filed against the client, Mr. Spears has also tried numerous cases against the SEC in federal court and against the NYSE and NASD before their own hearing panels. In 2004 and 2005, he assisted a large hedge fund in obtaining the release of over $165 million that had been frozen jointly by the SEC and the New York State Attorney General's Office based upon allegations of illegal market timing transactions. In his years at the SEC and in the Securities and Commodity Fraud Unit of the United States Attorney's Office, and his years in private practice, Mr. Spears has been counsel in cases involving an extremely broad range of statutes, rules, and regulations under the Securities Act of 1933, the Securities Exchange Act of 1934, the Rules of the NYSE, the NASD, and FINRA, and other securities laws.

Mr. Spears has represented clients in many large civil cases involving complex financial and securities law issues. In particular, with his colleagues at Spears & Imes LLP, he has represented clients in several large litigations relating to asset-backed securities.

• From 1999 through 2005, Mr. Spears and partner Linda Imes represented a group of foreign and domestic financial institutions in litigation to recover hundreds of millions of dollars of losses associated with their purchases of bonds backed by credit card debt. The clients ultimately recovered nearly 100 percent of their losses.

• In 2002, Mr. Spears represented a large British bank in a bankruptcy proceeding in which $400 million worth of receivables of LTV Steel Corporation securing notes issued by LTV to the bank had been taken without notice by the Bankruptcy Court at the commencement of the proceeding and given to other secured creditors. As a result of litigation Mr. Spears pursued in the bankruptcy proceeding and in federal district court, the bank ultimately received full payment for all of the wrongfully-taken receivables and reimbursement of all its litigation costs.

• In 2004 and 2005, Mr. Spears and partner Charlita Mays represented a major insurer of public securities in claims to recoup over $1 billion in potential losses related to a financial guaranty the insurer had given to purchasers of bonds backed by credit card receivables of Spiegel Inc. As a result of the multiple litigations pursued by Mr. Spears and Ms. Mays, the insurer suffered no loss.

• At the present time, Mr. Spears, together with partners Christopher Dysard and Jason Mogel, is representing a group of foreign and domestic financial institutions in litigation against a major U.S. investment bank to recover large losses related to the sale of bonds backed by consumer installment loans of Heilig-Meyers.

Mr. Spears has also done extensive work defending entities and individuals in civil litigation. Examples include:

• He defended a publicly-traded company and its board members in a shareholder class-action suit brought under the federal securities laws. At trial in the Eastern District of New York, the jury returned a verdict for the defendants on all claims.

• He represented Columbia University in a federal civil rights action brought against it based on a pharmaceutical drug test program in which members of its medical school faculty had participated. All claims against the University were dismissed with prejudice.

• He and partner Linda Imes represented Columbia University in a qui tam proceeding based on allegations of improper Medicaid billing for obstetrical services at a University hospital. They resolved the matter favorably to Columbia.

Mr. Spears is a member of the Criminal Justice Section of the American Bar Association, the New York Council of Defense Lawyers, and the Association of the Bar of the City of New York.

Education

• J.D., Columbia University School of Law, 1977; Board of Editors, Columbia Law Review

• B.A., Northwestern University, 1974

Admissions

• New York

• District of Columbia

• Southern and Eastern Districts of New York

• U.S. Court of Appeals for the Second Circuit
  
  

Contact

tel  212-213-6991

fax 212-213-0849

dspears@spearsimes.com

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