Michael Birnbaum is a go-to litigator for high-stakes cases and investigations who serves as managing partner of Morrison Foerster’s New York office and served previously as the head of MoFo’s New York Litigation Department.

As a member of the firm’s Investigations + White Collar, Securities Enforcement, and Securities Litigation Groups, Michael represents financial institutions, professional services firms, investment advisers, broker-dealers, and public companies in internal investigations and government enforcement matters. He advises clients facing inquiries from the SEC, FINRA, and other regulators, drawing on his prior experience as a senior trial counsel at the SEC to help clients navigate complex regulatory and enforcement issues. He has achieved significant results, including at trial, in matters involving investment funds and other financial institutions, addressing allegations of fraudulent securities offerings, registration violations, and supervisory failures related to the sale of securities.

Michael’s practice also focuses on representing clients in complex commercial litigation in state and federal courts and before arbitration panels in trade secret, defamation, and “business divorce cases, and in restructuring-related disputes involving high-stakes chapter 11 proceedings and related litigation. He advises creditors’ committees in investigations and claims alleging fraudulent transfers, breaches of fiduciary duty, equitable subordination, and other contested issues that arise in bankruptcy proceedings. Michael is frequently engaged at critical inflection points in a case, where litigation risk, governance issues, and potential regulatory exposure intersect, and he brings a trial-ready, strategic approach to resolving complex disputes in bankruptcy courts and other forums.

Michael is frequently invited to speak on topics related to securities litigation and enforcement, including by the Practising Law Institute (PLI) and Securities Docket. He also publishes articles relating to trending topics in these areas and serves on the editorial board of Wall Street Lawyer.

Before joining private practice, Michael served at the SEC for 11 years, where he worked closely with SEC investigative units including the Asset Management Unit, the Market Abuse Unit, and the Complex Financial Instruments Unit. He also worked with attorneys at various U.S. Attorney’s Offices, the Manhattan District Attorney’s Office, and foreign securities regulators on securities-related investigations and prosecutions.

Selective Significant Representations

Complex Litigation

• Farmland Partners, Inc. Named “Litigator of the Week” by AmLaw Litigation Daily for achieving a landmark settlement for Farmland Partners Inc. (FPI), a publicly traded farmland REIT, in a “short-and-distort” case that was prompted by a defamatory article that drove down FPI’s stock price by 39% in one day. The previously anonymous author, who wrote under the alias “Rota Fortunae,” and his clients utilized the scheme to profit from their short positions. As part of the settlement, the author acknowledged publicly that his article was full of false statements and made a payment that was multiples of the profits he made off the scheme. Meanwhile, FPI prevailed on its defense of a class action accusing the company and principals of securities fraud.
• Leading Audit Firm. Won full victory for leading audit firm in confidential arbitration concerning work performed in connection with government contracts, including an award of fees.
• Traackr, Inc. Achieved favorable settlement in trade secrets litigation after successfully narrowing claims and theories of relief through motion practice and discovery.

Bankruptcy Proceedings

• Unsecured Creditors of Incora Ltd. Represented in connection with a chapter 11 bankruptcy trial in U.S. Bankruptcy Court for the Southern District of Texas. We reached a conditional settlement for the Committee after investigating potential wrongdoing by various stakeholders—including securities law violations—and seeking standing to pursue claims to subordinate other stakeholders’ interests.
• Unsecured Creditors of Nikola Corporation. Represented in connection with a chapter 11 bankruptcy proceeding in D. Del. bankruptcy court. As part of our representation, we are evaluating certain potential claims, including for potential securities law violations by various individuals, and investigating facts relating to several existing securities law cases against individuals connected to Nikola.
• Unsecured Creditors’ Committees in Bankruptcy Proceedings. Led investigations and drove favorable settlements in matters including Clovis Oncology, Inc. (D. Del.) and Wesco Aircraft Holdings, Inc. (S.D. Tex.) (pending approval).

Government Enforcement

• A Multinational Electronics Company. Representation in an SEC FCPA investigation involving conduct in Latin America related to a business relationship with a company that was subsequently involved in a government corruption scandal.
• Investors in Cryptocurrency. Advise clients regarding litigation and regulatory investigations in connection with initial coin offerings and related transactions.
• Special Purpose Acquisition Companies (SPACs). Represent SPACs, sponsors, and other investors in SEC investigations regarding various SPACs’ initial public offerings and de-SPAC transactions, and counsel clients engaging in such transactions regarding regulatory and litigation risks.
• A Major Pharmaceutical Company. Successfully convinced SEC not to pursue an action against pharmaceutical company following investigation into the company’s FDA-related disclosures.
• Leading Crowdfunding Entity. Representation in providing compliance advice and counsel in connection with FINRA inquiries arising from alleged unregistered securities offerings and disclosure issues.
• An International Broker-Dealer. Representation in responding to FINRA and SEC inquiries related to the treatment of domestic and international client accounts.