Mark J. Hyland is a partner in Seward & Kissel’s Litigation Group. Mark also is a member of the Firm’s three person Management Committee. Mark has practiced at the Firm since graduating law school in 1980, and has been a partner since 1989. Seward & Kissel has approximately 175 attorneys, with approximately 28 in its Litigation Group.
Mark’s primary responsibilities include providing litigation services to a broad range of clients, including investment advisors, broker-dealers and banks. Mark has particular expertise in federal securities law, general commercial law and trademark litigation.
Mark is an established trial attorney. He has tried many cases to a jury and the bench and has conducted arbitrations and administrative proceedings throughout the country and in Europe. More recent cases include an arbitration where he successfully defended an investment advisor against Dodd-Frank whistleblower claims, breach of contract and fraud claims and also prevailed on certain counterclaims resulting in a judgment against Claimant; an arbitration where he represented claimants, seed investors in a management company of a venture capital firm, in a 16-day arbitration where claimants alleged breach of contract and breach of fiduciary duty. Mark recently completed a trial where he represented a broker dealer, registered investment adviser, registered investment company before the New York City Tax Appeals Tribunal challenging amount of unincorporated business tax.
Recent Notable Cases
Sidney Gordon and Jeffrey Tauber, on behalf of themselves and All Other Similarly Situated, Plaintiff’s v. Sonar Capital Management LLC, et. al., S.D.N.Y., 11-cv- 9665(JSR)
Mark represented Sonar Capital Management LLC, an investment adviser, the Sonar Funds and its principal in a putative class action alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, thereunder as well as violations of Section 20A of the 1934 Act in connection with trading in the shares of Sigma Designs Inc. Plaintiffs sought to represent classes of both buyers and sellers of Sigma shares during different periods and sought some $50 million in damages. Plaintiffs alleged that Sonar caused the Sonar Funds to buy and sell shares on the basis of material non-public information provided to a former Sonar managing director who pleaded guilty to federal insider trading charges. After the Sonar defendants vigorously opposed class certification, the Court denied plaintiff’s motion for class certification, finding that one putative representative was not an adequate representative due to an undisclosed fee arrangement with an attorney not appointed to represent the class and the other was not an adequate representative because he was subject to unique defenses in respect of his trading patterns in Sigma. 92 F. Supp.3d 193. Thereafter the Court granted the Sonar Defendants motion for summary judgment dismissing with prejudice the Third Amended Complaint (116 F. Supp.3d 360). The class action certification motion and the Sonar defendant’s motion for summary judgment presented cutting edge issues of law that were resolved in our clients’ favor.
In re BankAtlantic Bancorp Inc. Litigation, Delaware Court of Chancery, C.A. No. 7068-VCL.
Mark represented Wells Fargo Bank N.A. as the trustee of two series of trust preferred securities (“TruPS”) issued by BankAtlantic Bancorp, Inc. (“BBX”) at trial in the Delaware Court of Chancery. BBX’s total TruPS obligations outstanding were approximately $333 million. The documents governing BBX’s TruPS required any purchaser of substantially all of the property of BBX to assume the TruPS obligations. BankAtlantic planned to sell $3.1 billion in loans and $3.4 billion in deposits to BB& T Corporation (“BB&T”), while retaining a portfolio of non-performing assets and the obligation to pay the TruPS holders. Wells Fargo and other plaintiffs contended that the retained assets would not be sufficient to pay the TruPS obligations and that the transaction constituted a sale of substantially all of the property of BBX. Following a two week trial held just six weeks after the commencement of the case, the Court agreed, finding that BBX was selling 85-90% of its assets and its operating business, and that BBX would be unable to pay the TruPS obligations, which would be accelerated after the transaction. The court therefore permanently enjoined the sale. BB&T subsequently agreed to assume the obligation to pay the TruPS under amended deal terms. Mark Hyland co-authored an article about the BankAtlantic case titled, “Delaware Chancery Court Affirms Rights of TruPS Holders,” which appeared in the July/August 2012 edition of The Banking Law Journal.
Solis v. Hofmeister, et. al., 5:12-cv-250-KKC (D. Ky.)
Mark represented an investment adviser in an action brought by the United States Department of Labor alleging violations of ERISA in connection with the management of certain pension plans. The DOL alleged that the plans engaged in certain prohibited transactions under ERISA, alleging damages of more than $25 million. After vigorously defending the action a settlement was achieved under which the action was dismissed for a payment of approximately $360,000.
Tradex Global Master Fund SPC Ltd., et al. v. Titan Capital Group III, LP, et al., Index No. 652127/2010 (Sup. Ct. N.Y. County).
Mark represented defendants in an action commenced in the Supreme Court of the State of New York, New York County, by Tradex Global Master Fund SPC Ltd. and Tradex Global Advisors LLC(“Tradex”) alleging claims of fraud, negligent misrepresentation, breach of fiduciary duty and breach of contract arising out of investment losses suffered in the third quarter of 2010.
Tradex alleged that the fund manager exceeded the authority in the offering documents by taking excessive short-biased positions and that it relied on predictions of positive performance in deciding to maintain its investments, and make additional investments, in a Titan fund which subsequently suffered substantial losses. The terms of the fund’s governing documents (including the subscription agreements and the PPM) disclosed the risks inherent in investments, disclaimed any assurances of positive performance, and granted the investment manager broad discretion to make investment decisions.
Defendants moved to dismiss the suit in its entirety. The trial court dismissed the negligent misrepresentation, breach of fiduciary duty, and breach of contract causes of action, but not the fraud cause of action. Defendants appealed on the grounds that the lower court erred in holding the alleged representations were actionable as fraud and that applicable law recognized that offering documents that specifically disclosed the risks involved in an investment render any reliance on alleged contradictory oral representations unreasonable as a matter of law.
The Appellate Division unanimously reversed the denial of the Defendants’ motion to dismiss Tradex’s fraud claim. Specifically, the Court held that Tradex’s reliance on any alleged oral statements was unjustifiable as a matter of law where the Tradex acknowledged that the application for additional investments was based on the PPM.
In re Big Sandy Holding Co., U.S. Bankruptcy Court for the District of Colorado, No. 12-30138 MER
Mark also represents Wells Fargo Bank as the trustee of a series of TruPS issued by Big Sandy Holding Co. (“Big Sandy”) in Big Sandy’s bankruptcy in the United States Bankruptcy Court for the District of Colorado. Wells Fargo challenged the planned bankruptcy sale of Big Sandy’s bank subsidiary, Mile High Banks, arguing that a particular asset — a federal tax fund– was the property of the subsidiary, not the parent holding company. Seward & Kissel’s intervention achieved a multi-million dollar increase in the consideration to be paid by the subsidiary bank’s purchaser, which will result in a substantially higher recovery in the bankruptcy for all of Big Sandy’s TruPS holders. Big Sandy’s plan of reorganization is in the process of confirmation.
Other Selected Cases
Mark also obtained a judgment in excess of $1 billion on behalf of a group of lenders to the failed Fontainebleau major hotel and casino project in Las Vegas and, in connection therewith, obtained an injunction prohibiting the defendants and their affiliates from closing a restructuring that would have diluted the value of the hotel and casino project, the defendants’ primary asset. In a related action, Mark obtained a $100 million judgment, recently affirmed, against a guarantor of that hotel project pursuant to a completion guaranty.
Mark also obtained a defendants’ verdict in a complex securities fraud case tried before a jury in federal court in the Southern District of New York, which was affirmed on appeal in a widely cited reported decision. Vacold LLC v. Cerami VLN LLC, 545 F.3d 114. He also won a defendants’ verdict on behalf of an investment manager in a three week complex breach of contract case tried before a jury in Supreme Court, New York County. In each case, plaintiffs sought tens of millions of dollars in damages.
In the area of arbitration, Mark also obtained a substantial eight figure award in an 18 day arbitration on behalf of an executive asserting breach of contract against a well-known private equity firm. He also recently obtained a preliminary injunction and then a seven figure arbitration award on behalf of a member of a private equity LLC. On another case, Mark obtained a substantial seven figure arbitration award, which included an award of attorneys’ fees and costs, on behalf of a chief executive officer of an investment adviser for breach of contract.
Mark has represented scores of companies and individuals over the years in investigations conducted by the United States Securities and Exchange Commission, FINRA and other self-regulatory organizations.
Mark was named as a Super Lawyer in Business Litigation annually from 2007 through 2017.
In March 2017, Mark received Fordham Law School’s Dean’s Medal of Achievement, the highest honor bestowed by the law school to an alumni.
In 2012, the Irish Voice, an Irish-American newspaper, selected Mark as one of the “Irish Legal 100,” a list of leading American lawyers of Irish ancestry. Mark has been recognized in The Legal 500 from 2013 through 2017. The Legal 500 2013 edition described Mark, as ‘the perfect blend of super-sharp litigator and gracious gentleman.’’ and in the 2014 edition noted that Seward & Kissel’s litigation department was “lean, mean and cost-effective, the firm punches above its weight.” Mark also has an AV Peer Review Ranking by Martindale-Hubbell, which ranks him 5.0 out of 5.0, its highest ranking.
From March 2012 through March 2014, Mark served as the President of the Fordham Law Alumni Association. He remains an active member of the Board of Directors of the Association and is on its Executive Committee. Mark is also a member of the President’s Council of Fordham University.
Mark is a member of the American Bar Association, the New York State Bar Association, the Federal Bar Council, the New York County Lawyers’ Association, and is a Certified Mediator for the Southern District of New York. Mark also frequently conducts seminars on insider trading under the federal securities laws.