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Todd Fishman

Partner

Email

todd.fishman@aoshearman.com

Phone

+1 212 756 1130

Offices

New York

V-CARD
Todd has thirty years of experience focusing on the defense of antitrust, commodities markets and securities investigations and complex class actions.

He represents companies and individuals in federal and state courts throughout the country and in proceedings before the Department of Justice, Securities and Exchange Commission, Commodity Futures Trading Commission, Federal Reserve Board, Financial Industry Regulatory Authority and state attorneys general in matters concerning accounting fraud, securities fraud and financial reporting, commodities fraud and manipulation, antitrust and competition matters and corrupt practices and money laundering.

For ten years, Todd served as defense counsel for the former chairman and chief executive officer of Lehman Brothers in government investigations and multiple other proceedings arising out of the firm's bankruptcy filing in September 2008. Todd also has extensive experience representing financial services clients in cross-border enforcement investigations and litigation.

In addition, Todd has represented clients in significant antitrust matters. He frequently represents clients in government investigations and civil litigation involving the intersection of antitrust and the financial markets. In recent years he has represented global financial services firms in DOJ and regulatory investigations and multidistrict class action proceedings relating to alleged manipulation and collusion in the markets for credit default swaps, CDS indices, precious metals and U.S. Treasury instruments. In addition, he represented Toys ‘R’ Us, Inc. in administrative proceedings before the Federal Trade Commission, including at trial and on appeal to the Seventh Circuit Court of Appeals.

Todd also has a focus on the crypto and digital assets space. He is representing a large cryptocurrency derivatives trading platform in a long-running Southern District of New York class action litigation alleging product offering and exchange trading practices in violation of the Commodity Exchange Act and U.S. and state securities laws. He also regularly comments on enforcement trends and disruptive trading practices in digital asset markets.

Prior to joining the firm, Todd served as a law clerk for the Honorable William H. Pauley III, United States District Judge, Southern District of New York.

Todd is a co-author of the Criminal Antitrust Enforcement chapter in the leading treatise White Collar Crime: Business and Regulatory Offenses. Todd also served as a member of the New York City Bar’s Securities Litigation Committee from 2014 to 2018. He is recognized by Legal 500 as "knowledgeable and great to work with" in its Dispute Resolution category (corporate investigations as well as international litigation) and by Super Lawyers (New York Metro) for antitrust litigation.

Expertise

Industries

Experience

Representative matters

  • The former chairman and chief executive officer of Lehman Brothers in connection with congressional testimony, testimony before the Financial Crisis Inquiry Commission, criminal, Securities and Exchange Commission, New York Attorney General and bankruptcy examiner investigations, FINRA proceedings and civil securities and ERISA actions arising out of the bankruptcy filing.
  • A global French bank in regulatory investigations relating to alleged manipulation and collusion in the market for U.S. Treasury instruments as well as the multidistrict class action proceedings In re Treasury Securities Auction Antitrust Litigation.
  • A global financial services firm in DOJ and regulatory investigations relating to the precious metals and derivative trading markets as well as the multidistrict class action proceedings In re Commodity Exchange Inc., Gold Futures and Options Trading Litigation and In re Silver Fixing, Ltd. Antitrust Litigation. 
  • A Dutch banking group in a cross-border FCPA investigation by the SEC and Dutch criminal authorities relating to potential corrupt practices, money laundering, and failures in due diligence.
  • A global French banking group in a DOJ antitrust investigation relating to the failure of Archegos Capital Management. 
  • A leading U.S. title insurance company in a New York Attorney General investigation into hiring (no-poach) practices.
  • One of the largest cryptocurrency derivatives trading platforms in class action litigation in the Southern District of New York alleging product offering and exchange trading practices in violation of the Commodity Exchange Act and U.S. and state securities laws.
  • A French banking group in a Southern District of New York action brought by a Bermuda hedge fund alleging that various broker-dealers engaged in spoofing and naked short selling strategies to manipulate the stock price of Concordia on U.S. and Canadian markets in violation of the U.S. securities laws.
  • A leading U.S. multinational brokerage firm in a Southern District of New York action alleging securities fraud and fiduciary breaches relating to the embezzlement of gains from cryptocurrency investments.
  • A global French bank in a False Claims Act action arising out of the emergency loans issued to AIG by the Federal Reserve Bank of New York in late 2008.

Published Work

  • U.S. Supreme Court Declines to Expand Section 10(b) and Rule 10b-5(b) Liability to Pure “Known Trend or Uncertainty” Omissions Under MD&A Item 303, April 2024
  • An Emerging Financial Crisis In 2023? A Primer on Old Metrics, New York Law Journal, June 20, 2023
  • Update to Criminal Antitrust Enforcement (Chapter 1), White Collar Crime: Business and Regulatory Offenses, Law Journal Press, May 2023 (Release 66)
  • Behind the DOJ’s recent antitrust trial losses: an evolving concept of intent, Allen & Overy update, May 18, 2022
  • Department of Justice Antitrust Division Updates Its Leniency Program, Allen & Overy update, April 7, 2022
  • Criminal Antitrust in 2022: Two Cases Likely to Frame the New Agenda, New York Law Journal, January 11, 2022
  • Active U.S. Enforcement of Anti-Money Laundering Rules Continues Unabated, New York Law Journal, June 3, 2020
  • Criminal Antitrust Enforcement (Chapter 1), White Collar Crime: Business and Regulatory Offenses, Law Journal Press, 2019 Revised Edition
  • U.S. continues aggressive sanctions and anti-money laundering enforcement against non-U.S. banks, Allen & Overy update, July 19, 2019
  • Beyond Leniency: DOJ Antitrust Announces New Approach For Crediting Corporate Compliance Programs, Allen & Overy update, July 12, 2019
  • The Rule of Reason as a Bar to Criminal Antitrust Enforcement, New York Law Journal, December 12, 2018
  • The SEC's Renewed Focus on Gatekeepers, The Review of Securities & Commodities Regulation, October 5, 2016
  • The Wheat and the Whale: Reckless Manipulation and the CFTC's Use of the Dodd-Frank Act Anti-Manipulation Provisions, BNA Securities Regulation & Law Report, July 13, 2015
  • Lessons from the Credit Crisis: A Subtle Shift in the Long Reach for Top Executives, Wall Street Lawyer, December 2013 (Volume 17, Issue 12)
  • Whither amnesty? Uncertainty in U.S. antitrust enforcement, Allen & Overy Client Bulletin, June 2013
  • U.S. and EU Antitrust Enforcement: What Role In A More Heavily Regulated Financial Sector?, Competition Policy International, Fall 2011, with co-authors Olivier Freget and David Gabathuler. Awarded Best Academic General Antitrust Article in Competition Policy International's 2012 Antitrust Writing Awards
  • Limiting FINRA Arbitral Jurisdiction, New York Law Journal, September 12, 2011
  • Hyper field pre-emption: Did the Billing case create hyper field pre-emption for U.S. securities laws? An analysis of the Second Circuit's short sale decision, International Financial Law Review, February 2010
  • FTC In Nine West Studies Resale Price Maintenance Plans, New York Law Journal, June 2, 2008
  • Preserving the Private Securities Fraud Action: Will Courts Dilute the Tellabs Mandate?, International Law Office, March 11, 2008
  • Supreme Court Further Restricts Investor Lawsuits Against Secondary Actors, Allen & Overy eBulletin, January 2008
  • Lafferty's Orphan: The Abandonment of Deepening Insolvency, American Bankruptcy Institute Journal, December 2007/January 2008
  • Developments in Private Securities Litigation, PLI's 39th Annual Institute on Securities Regulation Handbook (Vol. 2), with co-author Patricia M. Hynes, November 2007
  • Reaching tipping point – U.S. courts are struggling to decide whether they want the world's securities fraud cases, International Financial Law Review, October 2007
  • One Hundred Years Gone: U.S. Supreme Court Rejects Per Se Liability For Vertical Minimum Price Restraints, Allen & Overy eAlert, June 2007
  • Antitrust Immunity in the Securities Markets: The U.S. Supreme Court Speaks, Allen & Overy eAlert, June 2007
  • Scheme Liability: The New Securities Litigation Bugbear, Allen & Overy Bulletin, September 2006
  • Antitrust Immunity in the Second Circuit, Redux, New York Law Journal, November 21, 2005
  • Antitrust Immunity in the Second Circuit, New York Law Journal, January 14, 2004
  • Coping with the Limits of Joint Defense Agreements, New York Law Journal, with co-author Michael S. Feldberg, November 13, 2003
  • DeMaria v. Andersen: For The Second Circuit, Novelty And Retrospection In The Securities Act Of 1933, Banking and Financial Services Policy Report, with co-author Harry S. Davis, August 2003
  • The Proposed Antitrust Guidelines for Competitor Collaborations, New York Law Journal, November 9, 1999; reprinted in Antitrust Litigator, April 2000

Speaking Engagements

  • Panelist, Regulatory Actions of US Authorities Regarding Foreign Banks — Recent Risks and Precedents, 21st International Seminar on Prevention of Money Laundering and Combating Terrorism Financing, México City, October 4, 2019 
  • Panelist, Hot Topics in Securities Litigation and Enforcement, Omnicare, Halliburton III, Home Courts and the Financial Reporting and Audit Task Force, New York City Bar Association, April 6, 2016 
  • Panelist, ISDA Symposium: CFTC Enforcement Conference, New York, October 1, 2015 
    Moderator and Panelist, Swap Regulation and Enforcement: CFTC, DOJ Antitrust and EU Competition, New York (Sandpiper Partners), April 19, 2013 
  • Panelist, Benchmark Canada Cross-Border Forum, New York, September 27, 2012 
  • Panelist, PwC Securities Litigation Study Breakfast Briefing, New York (April 11, 2012) and Chicago (April 17, 2012) 
  • Panelist, Securities Litigation: Stoneridge, Tellabs and Other Recent Developments and Decisions, New York City Bar, July 15, 2008

Leadership Positions And Professional Affiliations

  • Member, New York City Bar Association, Securities Litigation Committee (2014-2018)
  • Member, American Bar Association, Antitrust and Litigation Sections
  • Member, Federal Bar Council

Qualifications

Admissions

Registered Foreign Lawyer, England and Wales, 2024

Admitted: Bar of the State of New Jersey, 1995

Admitted: Bar of the State of New York, 1996

Admitted: United States District Courts District of New Jersey, 1996

Southern District of New York, 1996

Eastern District of New York, 1996

Western District of New York, 2008

Admitted: United States Court of Appeals Second Circuit, 2007

Third Circuit, 2010 Ninth Circuit, 2014

Admitted: Supreme Court of the United States 2008

Academic

J.D., magna cum laude, Benjamin N. Cardozo School of Law, 1995

B.A., cum laude with highest honors in Politics, Brandeis University, 1991

Disclaimer
A&O Shearman was formed on May 1, 2024 by the combination of Shearman & Sterling LLP and Allen & Overy LLP and their respective affiliates (the legacy firms). Any matters referred to above may include matters undertaken by one or more of the legacy firms rather than A&O Shearman.