Mitchell E. "Mitch" Herr, former Regional Trial Counsel for the Southeast Region of the U.S. Securities and Exchange Commission (SEC), is a Miami litigation attorney who focuses his nationwide practice on the defense of securities enforcement matters. Mr. Herr joined Holland & Knight in 2000, after serving for more than five years as the Regional Trial Counsel for the SEC in Miami, where he was responsible for its litigation in eight states and two territories. At the SEC, Mr. Herr handled many significant and complex SEC cases, including several of first impression (see Case List under Representative Engagements below).
At Holland & Knight, Mr. Herr defends business entities (including public and private companies, broker-dealer firms, investment advisers, mutual funds and hedge funds), municipal securities issuers and individuals (including their directors, officers and employees) before the SEC, the Financial Industry Regulatory Authority (FINRA), the Public Company Accounting Oversight Board (PCAOB) and state securities regulators. Mr. Herr has extensive experience with a wide spectrum of securities enforcement matters, including many current "hot-button" enforcement issues. For example, Mr. Herr has represented clients in the following spaces.
- Crypto-Currency: Defended the issuer of an initial coin offering (ICO) before the SEC's Cyber Unit and represented a federal court-appointed equity receiver of an ICO issuer
- Insider Trading: Represented a number of individuals suspected of insider trading by the SEC, often employing sophisticated analyses of the client's trading to rebut any inference that it was based on material, non-public information; also represented corporations in investigations concerning potential insider trading by their officers and employees
- Financial Reporting and Disclosure: Represented public companies and their officers (CEOs, CFOs and controllers) in SEC investigations concerning the accuracy of their financial statements and other public disclosures
- Anti-Money Laundering (AML): Represented broker-dealer firms in investigations by FINRA of potential AML violations, including the adequacy and enforcement of their compliance procedures; represented two broker-dealer firms in intensive FINRA investigations concerning the trading of Venezuelan sovereign bonds
- Market Manipulation: Represented high-speed algorithmic trading firms in SEC investigations into potential market manipulation
- Trading Practices and Trade Reporting: Represented broker-dealer firms in FINRA investigations of their trading practices, including compliance with the markup rule, inter-positioning, trade allocation and cherry-picking, and Order Audit Trail System (OATS) and Trade Reporting and Compliance Engine (TRACE) reporting
- Offering Fraud: Represented entities and individuals in SEC investigations of potential fraud in the offering of securities
- Asset Valuation: Represented investment advisers to hedge funds in investigations by the SEC's Asset Management Unit into asset valuation; also represented an employee of an international financial firm in a parallel SEC/U.S. Department of Justice (DOJ) investigation concerning the valuation of synthetic credit default swaps
- Municipal Securities: Represented municipal issuers (including conduit issuers), their directors, officers, employees and bond counsel in SEC enforcement investigations; for many years, chaired the National Association of Bond Lawyers (NABL) annual panel on SEC enforcement and made several presentations to the Florida Bar on this subject
- Investment Adviser – Prohibited Transactions: Represented investment advisers in SEC investigations concerning prohibited transactions, including the receipt of Rule 12b-1 fees with respect to retirement assets
- Mutual Funds: Represented advisers to mutual funds and fund board members in SEC investigations concerning performance advertising, style drift, compliance procedures, best execution, commission recapture and the receipt of soft dollars
- Representation of Attorneys: Represented bond counsel in an SEC enforcement investigation; also represented an SEC enforcement defense attorney suspected of aiding and abetting his client's violations
- Whistleblowers: Represented several SEC whistleblowers; obtained a Cooperation Agreement, resulting in a declination of charges
- Examinations by SEC's Office of Compliance Inspections and Examinations (OCIE): Assisted broker-dealer firms and investment advisers in preparing for and responding to OCIE examinations
- PCAOB Examinations and Investigations: Represented public accounting firms in examinations and investigations
- FINRA Trading Inquiries: Represented public companies in responding to trading inquiries
- SEC Self-Reporting Initiatives: Represented parties in connection with SEC self-reporting initiatives, including the Municipalities Continuing Disclosure Cooperation Initiative (MCDC) and the Share Class Selection Disclosure Initiative (SCSD)
- SEC Enforcement Sweeps: Represented an investment adviser in the recent Form PF sweep; represented a broker-dealer firm in a sweep concerning the minimum denomination rule for municipal securities
- Equity Receiverships: Served as an equity receiver for two failed hedge funds on nomination of the SEC (SEC v. KS Advisors, Inc. et. al., Civil Action No. 2:04-CV-105-FtM-29 (M.D. FLA.) and has served as legal counsel to several equity receivers, presently including the federal court-appointed receiver of an ICO issuer.
- Internal Investigations: Have conducted and assisted a number of internal investigations, typically concerning financial reporting
Mr. Herr has published extensively in the field of securities regulatory enforcement (see the Publications link above) and is frequently invited to speak at national and statewide securities and legal education conferences (see the Speaking Engagements link above).
While at Dickinson College, Mr. Herr was elected to Phi Beta Kappa in his junior year and was awarded a three-year Army ROTC full scholarship. At the University of Chicago Law School, Mr. Herr served as an associate editor of The University of Chicago Law Review and was elected to the Order of the Coif.