David G. Russell

David G. Russell

Partner | Atlanta Office
drussell@phrd.com
T: (404) 420-5545
F: (678) 533-7785
 

Practice Group(s)

Services

Education

  • Davidson College - (B.A. in Economics, 1972)
  • Vanderbilt University School of Law - (J.D., 1977)

Admitted to Practice

  • Georgia

About David

Complex Business Litigation and Arbitration: David has over 40 years experience -- as an advocate, arbitrator, and mediator -- in successfully resolving complex business disputes. These class, mass, and individual cases have involved complex agreements for stock and asset purchases (including financial and accounting warranties), credit card and other data processing, merchant processing, money transfer agency relationships, construction, rapid transit car procurement, and uranium supply.

Securities Litigation and Arbitration: Recently, The Best Lawyers in America recognized David as the singular Atlanta 2016 "Lawyer of the Year" in Securities Litigation.  Since 1985, David has successfully represented major securities firms, public and private companies, and their agents in jury trials, arbitrations, and regulatory enforcement proceedings. These cases have included class actions, shareholder derivative claims, and retail customer suits involving corporate mergers, earnings restatements, product failures, complex derivative and structured products, single-stock risk, margin, hedge funds, limited partnerships, mutual funds, equities, annuities, unauthorized wire transfers, estate planning, emerging markets securities and related derivatives, municipal bonds and derivatives and other investments. They have been based principally on federal and state securities laws and regulations, common law theories, and ERISA. He has also represented securities firms in claims arising out of broker terminations, including libel, tortious interference, covenants not to compete, confidentiality agreements, and trade secrets. Going back to the mid-80s, illustrative clients include Goldman Sachs, Barclays Wealth, Neuberger Berman, Deutsche Bank Securities, Lehman Brothers, Morgan Stanley Smith Barney, Merrill Lynch, Wachovia Securities, Prudential Securities, Sanford Bernstein, Shearson, and E.F. Hutton. David has also defended securities-related federal criminal actions including money, property, and honest services wire fraud.

Jury Trial Experience: David began trying cases to the jury in 1977, his year of law school graduation, in the Superior Courts in Georgia. He has significant jury trial experience at both the state and federal level as lead counsel.

Appellate Practice: David has argued appeals in the Fourth, Fifth, Ninth, and Eleventh Circuits, and the Georgia Supreme Court and has briefed cases nationwide, including petitions for certiorari to the United States Supreme Court.

Arbitration and Mediation Experience

  • David has tried over 100 arbitrations under the auspices of the American Arbitration Association, the National Association of Securities Dealers, the New York Stock Exchange, and FINRA. He has served as an arbitrator in commercial cases with the AAA for over 10 years.

Professional and Civic Involvement


  • Lawyers Club of Atlanta
  • Atlanta Bar Association
  • American Bar Association
  • State Bar of Georgia since 1977
  • For 15 years, provided pro bono habeas corpus representation to a Georgia man, who had previously been convicted of double murder and sentenced to death

Honors


  • Recognized by The Best Lawyers in America as the Atlanta 2016 "Lawyer of the Year" in Securities Litigation
  • Selected as a Georgia Super Lawyer by Law & Politics Media and Atlanta Magazine (2004-present)
  • Recognized as a leading Commercial Litigation practitioner by The Best Lawyers in America, David is also ranked as one of only 59 "Bet-the-Company" practitioners in the State of Georgia.
  • Named one of Georgia's leading trial lawyers by Georgia Trend magazine ("Georgia's Legal Elite") in 2011
  • Recognized as one of Georgia's "Top Rated Lawyers" by Martindale-Hubbell and ALM (2012)

Representative Engagements


  • Recent Cases:
  • In March 2017, David and Justin Gunter won a securities arbitration in Atlanta on behalf of their broker-dealer client. They defeated a former broker's claim for $1,000,000 for forfeited deferred compensation and for allegedly underpaid sales compensation. They prevailed on their claim that the broker was liable for 100% of a debt she owed to the broker-dealer, plus interest and $50,000 in fees and costs.
  • In December 2016, David and Justin Arpey were completely victorious in a FINRA securities arbitration that they tried for a week in Boston on behalf of a major broker-dealer. Their client prevailed on every claim asserted and for the full dollar amount claimed, a total of $2,327,401. The three member arbitration panel also denied the opposing party’s $1,000,000 counterclaim for fraud, breach of contract, tortious interference, and other legal claims. The hard-fought case involved disputes between the broker-dealer and one of its former investment representatives. The award was selected as one of two "Selected Awards of Interest" by the Securities Arbitration Commentator in its January 2017 edition.
  • In February 2016, David and Andrea Block won a complete victory in a FINRA customer arbitration in which they represented a manager who had approved a customer’s $1,000,000 investment in the equity tranche of a collateralized debt obligation, or CDO. On various legal theories, the customer sought his $1,000,000 in losses and $3,000,000 in punitive damages. After three days of hearings in Boston, the three-member arbitration panel denied all of the customer’s claims.
  • In an award entered in December 2015, David, Wayne Hillis, and Andrea Block won a multi-week FINRA arbitration in New York on behalf of a major securities broker-dealer. The three-arbitrator panel awarded the firm's client $1,028,571 in compensatory damages, which was 100% of the amount requested, plus pre- and post-award interest and $154,285 in attorneys' fees. The panel denied in full the $4.4 million counterclaims of the adversary, a former investment representative of the broker-dealer.
  • In November 2015, David and Justin Arpey won a major victory for a securities broker-dealer in a four-day FINRA arbitration hearing in New York City. The arbitration panel awarded to our client $2,413,243 in compensatory damages, plus $258,491 in attorneys’ fees and costs, on our client’s claim for breach of a promissory note by a former investment representative. In addition, the panel assessed all arbitration forum and hearing fees (over $7,000) against the investment representative. The panel denied all claims for relief asserted by the investment representative.
  • In July 2015, David, Wayne Hillis and Andrea Block won a week-long FINRA arbitration in New York on behalf of a major securities broker-dealer. The three-arbitrator panel awarded the firm’s client $1,800,000 in compensatory damages, which was 100% of the amount requested, plus $150,000 in attorneys’ fees. The adversaries, three former investment representatives of the broker-dealer, lost all of their claims for $5,000,000 in damages.
  • In May 2015, David and Scott Zweigel won a major victory on behalf of a securities broker-dealer in a customer case that was decided by a three-arbitrator FINRA panel. The case involved allegedly improper withdrawals from a trust account, which was depleted by the trustee for his own use. The customers sought $19 million in damages. After a week-long evidentiary hearing, the Panel rejected all of the customers’ claims, awarded our client $500,000 in attorney fees, and ruled that the individual brokers’ regulatory records should be “expunged” of all references to the “false” claims.
  • In 2014, on behalf of a major broker-dealer, David successfully negotiated a settlement of under six figures of a claim for over $10,000,000 involving the suitability of investments for an estate-planning device called a grantor retained annuity trust, or GRAT. He then obtained a FINRA award recommending expungement of a broker’s regulatory record after an evidentiary hearing during which the broker and an expert witness testified. In the award, the Florida-based arbitration panel found that the customer’s claims were false and that the broker’s investment advice was suitable. So ended three years of disputes over claimed investment losses in 2008-2009.
  • January 2014 - After four weeks of evidentiary hearings in Boston in 2013 before a three-member FINRA arbitration panel, David successfully defended a major broker-dealer and five of its current and former executives against legal claims brought by a former broker whose employment had been terminated. The former broker sought compensatory damages of $17 million, to be trebled under the Massachusetts Wage Act, for alleged non-payment of compensation and for alleged retaliatory firing. The broker also asserted claims for wrongful termination, breach of contract, breach of implied covenant of good faith and fair dealing, fraud, promissory estoppel, unjust enrichment, and other claims. Not only did the arbitration panel deny all of the broker’s claims in their entirety, the panel awarded our client, the broker-dealer, compensatory damages of $3.25 million. David served as lead counsel of a team that included Wayne Hillis, John Mitchell and Andrea Block.
  • September 2012 - Obtained a complete dismissal of a $35 million claim involving the sale of a stock in a UK company that was traded on the Frankfurt Stock Exchange. The claim was that the broker-dealer did not follow the customer's selling instructions or best-execution practices and had recommended unsuitable options strategies. Though this result was negotiated, the firm paid nothing - basically a $35 million claim went to zero, after rigorous fact-finding led to the conclusion that the stock was in a likely scam company that the customer had once controlled. A consent request for expungement is pending. Now the SEC and the DOJ are pursuing the customer.
  • May 2012 - On behalf of a leading securities broker-dealer in a FINRA arbitration, recently obtained the equivalent of a directed verdict after the customer-claimants put on their claim for $14.8 million in damages over nine hearing days in Atlanta. The case centered on single-stock risk and protective measures like collars, on margin debt, on private equity investments, and on a managed options account. The arbitration panel dismissed all of the customers’ claims, which were based on account losses in 2008. The panel also ordered that the appearance of the claim on the brokers’ records at FINRA be expunged. In an extraordinary but justified ruling, the panel awarded the broker-dealer $500,000 in attorney fees and costs and assessed over $23,000 in forum fees against the claimants. In short, the result was a total win for the broker-dealer. In September 2012, this award was confirmed in full by the federal court in Atlanta.
  • March 2012 - Obtained a complete victory in a FINRA arbitration on behalf of a respondent investment advisory firm. The claimant, a former managing director who had resigned from the firm, sought over $1 million in alleged deferred compensation based on a stock incentive plan that constituted one-third of his annual total compensation. Among other points, David Russell and Jared Miller argued that the resignation effected a forfeiture of the unvested stock portion. The arbitrators denied the claim in its entirety and assessed all forum fees against the claimant.
  • September 2011 - Defended a prominent investment advisory firm against various legal claims relating to the sale of a Lehman Brothers-related hedge fund. After a five-day evidentiary hearing in Tampa, Florida, the arbitration panel awarded the elderly claimant just 10¢ on the dollar for his $1,000,000 investment in an IRA account. The amount of the award equaled what the firm had offered to pay as a gesture of goodwill pending resolution of the Lehman bankruptcy.
  • September 2011 - On a promissory note case for a broker-dealer against a former broker, David Russell and Andrea Block obtained the total principal amount of $1,000,000, interest, and $250,000 in attorneys' fees, costs, and filing fees. In the same case, they successfully defended a counterclaim that sought $1,740,000 based on alleged breach of contract, breach of implied covenants, fraudulent and negligent inducement, and misrepresentation.
  • February 2011 - Obtained a pre-hearing dismissal with prejudice for a branch manager relating to a claim of $1,000,000 in losses from structured products purchased by an elderly couple.
  • December 2010 - Successfully represented a major broker-dealer and two of its registered representatives in a week-long hearing, convincing a three-arbitrator FINRA panel in New York, New York to deny all claims of the investor-customer. The claims sought over $12 million in damages based on alleged losses in master limited partnerships (held on margin) and in private equity transactions. The panel also ordered that the records of the representatives be expunged of any reference to the claims, which the panel found to be "false" and unsubstantiated, and that the claimant bear all fees.
  • Other Cases:
  • For a prominent securities broker-dealer, recently obtained complete dismissal of an arbitration in which an investor claimed $20 million in damages (plus $1 million in attorney fees, plus interest and punitive damages) based on alleged failure to hedge to avoid his losses in a concentrated equity position. At the hearing, the investor presented 20 witnesses, including his wife (a judge), a lawyer, an Emory business school professor, a CPA, an investment advisor, a PhD in Economics, two other securities expert witnesses, and six current and former brokers.
  • Represented a major European bank as part of an appellate team that recently won an affirmance from the Eleventh Circuit Court of Appeals of the district court's complete dismissal of a $30 million fraud and RICO matter, all stemming from an allegedly fraudulent tax shelter program.
  • Obtained $20 million settlement for public company to resolve disputes arising out of the sale of one of its business divisions and whether multimillion dollar antitrust claims were retained by seller
  • Successfully defended major check authorization company against putative class action claims under the Fair Credit Reporting Act and the Drivers Primary Protection Act; obtained summary judgment and dismissal respectively in these cases, pending in federal court in Texas and Alabama, and also obtained denial of class certification
  • Defended securities firm in putative class action involving interest rate swap agreement related to municipal bond issuance
  • Defended securities firm in bankruptcy adversary proceeding involving alleged fraudulent transfers from now-defunct hedge funds
  • In three-week jury trial in Florida, successfully defended securities and commodities firm against multiple claims brought by brain-damaged and disabled investor, and sustained verdict on appeal
  • Negotiated $85 million settlement with State of Georgia relating to a contingency-fee consulting contract for federal financial assistance
  • Prevailed on behalf of securities firm in multi-week NASD arbitration hearings involving alleged libel, slander, and tortious interference arising from broker termination
  • Resolved through a series of arbitrations and mediations securities claims arising out of leveraged and derivative emerging markets products in which South American customers invested heavily
  • Successfully defended outside directors and large stockholders of public company in corporate derivative and federal securities fraud claims pending in both state and federal courts in Georgia arising out of accounting restatement
  • Successfully obtained dismissal of mass and individual actions arising out of Centennial Olympic Park bombing during 1996 Olympic Games in Atlanta, and prevailed on appeal to Georgia Supreme Court
  • Resolved major commercial dispute concerning credit card processing agreement between bank-issuer and processor

Publications and Presentations


  • Panelist, discussion before the Georgia Arbitration Forum on how to improve the reality and perception of arbitration as a fair, efficient, and economical alternative to litigation. (September, 2016)

  • Presenter, Annual Arbitration Institute in Atlanta on the topic of “Arbitration vs. Litigation—How Litigators Deal with the Differences.” (August, 2016)

  • Author, Unbroken Poem, a novel (2014), available in hardback and on Amazon.com
  • Author, "Russell's Better Brief Writing Guide," 7 Ga. Bar J. 42 (2002)
  • Panelist, Eleventh Annual Corporate and Business Organization Litigation seminar on the topic of "Managing the Big Picture -- Multiple Problems, Claims and Proceedings with In-House Counsel Under Fire"
  • Arbitrating Securities Class Actions - Panelist "Arbitrating Securities Class Actions (ABA Section of Litigation Annual Conference, May, 2009), in which a number of nationally prominent securities and arbitration practitioners discussed the viability of securities class arbitrations; recent awards and court rulings related to securities class arbitrations; the practicalities of administering a class arbitration; and recent changes in the rules governing securities arbitrations before FINRA.
  • “Blaming the Victim” for Acting Irresponsibly: The Power of Affirmative Defenses in Securities Arbitrations

 
©2016 Parker, Hudson, Rainer & Dobbs LLP. All rights reserved.