Alain practices in many areas of complex litigation, including contract disputes, commercial and business litigation, and government investigations. He is also an active member of the firm’s interdisciplinary working group focused on the legal and policy implications of emerging artificial intelligence (AI) and robotics technologies, as well as the firm’s Institutional Investor Class Action Recovery, and Sports & Entertainment practices. In addition, Alain maintains an active pro bono practice, in which he counsels and represents clients in matters related to civil appeals, immigration, and domestic and sexual violence.
During law school, Alain served as a judicial intern for the Honorable Gregory C. Flynn of the Waltham District Court and the District Court Appellate Division. He was also a criminal law teaching assistant and a summer law clerk at Free Speech For People, a legal advocacy organization dedicated to campaign finance reform. During his final year of law school, he became certified as a mediator in accordance with Massachusetts state law and Supreme Judicial Court of Massachusetts requirements.
Before he attended law school, Alain held several positions at Bowdoin College, his alma mater, including alumni fund associate in the school’s annual giving office. He also served as an intern for US Senator Kirsten Gillibrand (D-NY).
Education
- Boston College (JD, cum laude)
- Bowdoin College (BA, cum laude)
Recognition & Awards
- The National Black Lawyers Top 40 Under 40 Black Lawyers in Massachusetts (2019)
Involvement
- Friends Committee Member, Action for Boston Community Development (ABCD) (2017 – present)
- Bowdoin Regional Admissions Volunteer Organization Member, Bowdoin College Admissions Office (2014 – present)
- Alumni Fund Class Agent, Bowdoin College Office of Annual Giving (2012 – present)
Languages
- Creole (Haitian)
- French
Recent Insights
Viewpoints
Viewpoints
Federal Court Denies Toshiba’s Motion to Dismiss, Allowing Exchange Act Claims Covering Transactions in Unsponsored ADS to Proceed Alongside Japanese Law Claims Covering Common Shares
February 19, 2020 | Blog | By Joel Rothman
Recently, the United States District Court for the Central District of California denied the defendants’ motion to dismiss the Second Amended Complaint (“Amended Complaint”) filed in the Toshiba securities litigation. As we previously wrote, in 2016, the district court dismissed the case, holding both that transactions in Toshiba’s unsponsored American Depositary Receipts (ADRs) are not “domestic” transactions as required by Morrison, and also that the plaintiffs’ Japanese law claims must be dismissed due to comity concerns and on forum non conveniens grounds. (link to prior blog). Then, in 2018, the Ninth Circuit reversed this decision, holding that Toshiba ADR trades are domestic, and allowed the defendants to file the Amended Complaint asserting more specific allegations about Toshiba’s connection to the ADR trades. (link to blog on 9th Circuit opinion).
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Second Circuit Summarily Affirms the Attorneys’ Fees Award in the Foreign Exchange Antitrust Settlement after District Court Rejects Class Counsel’s Side Deal with the Objector
December 2, 2019 | Blog | By Joel Rothman
On November 1, 2019, the United States Court of Appeals for the Second Circuit issued a summary order rejecting the appeal of an objector to the Foreign Exchange Antitrust Settlement. A few weeks earlier, U.S. District Court Judge Schofield had denied a motion filed by the objector and class counsel seeking an “indicative ruling” on their combined motion for approval of an agreement that would have ended the appeal. These two decision clear the way for the remaining distribution from the settlement fund, which totaled over $2.3 billion dollars.
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Connecticut Court Says Intervention Is One Way To Preserve Putative Class Member's Right To Opt Out
October 10, 2019 | Blog | By Ellen Shapiro
Last week, the district court entered an order, granting CalSTRS’ motion for intervention for the limited purpose of tolling the statute of repose. While there is no longer a risk that the complaint will be dismissed (the vast majority of Plaintiffs’ claims have since survived dismissal), CalSTRS has successfully preserved its right to opt out if a class is certified. Allowing CalSTRS (and others) to use motions to intervene to toll the statute of repose rather than forcing such putative class members to choose to forego their rights or file their own opt-out action may preserve resources and encourage efficiency of the courts.
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Judge Rakoff Unseals Documents in Petrobras Securities Class Action To Allow Use in Foreign Arbitration, Bypassing Traditional Requirements of 28 U.S.C. § 1782
August 14, 2019 | Blog | By Ellen Shapiro
Years after Plaintiffs brought a federal securities complaint against Petrobras, and more than a year after the case settled for approximately $3 billion, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York ordered the unsealing of the majority of documents attached to parties’ summary judgment papers. Cornell University intends to use these documents in an arbitration in Brazil. Not only does Judge Rakoff’s decision come as an important reminder that sealing orders are not intended to last forever, but this decision also demonstrates how a motion to unseal may be used to bypass the traditional requirements of 28 U.S.C. § 1782, frequently invoked by entities seeking to use U.S. discovery in foreign proceedings.
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Court Denies Class Member’s Untimely Request to Be Excluded from Class Even Though Class Member Had Previously Filed a Separate Action
July 24, 2019 | Blog | By Joel Rothman
Supreme Court Denies Opportunity To Clarify Whether The Federal Securities Laws Carry a Duty to Update
May 22, 2019 | Blog | By Ellen Shapiro
The U.S. Supreme Court denied defendants-appellees’ petition for certiorari in Hagan v. Khoja. As set forth in our prior alert, the executives of the now-defunct biotechnology company, Orexigen, sought review of a Ninth Circuit decision, which not only created a departure from other courts in its narrow-approach to incorporation by reference and judicial notice, but according to the petition, also distinguished itself by being the first Circuit Court of Appeal to find that an issuer owes a duty to update a statement of historical fact that was accurate when made. At issue was whether Orexigen had a duty to disclose data that demonstrated interim results from an obesity drug trial were not as promising as once touted. In opposition to the petition for certiorari, respondent argued, inter alia, that “[e]ven if petitioners were correct . . . that this case implicates whether companies have a duty to update earlier statements of historical fact, the interlocutory posture of this case would make it the worst kind of vehicle for considering that question.”
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Tenth Circuit Affirms Extraterritorial Reach of SEC Enforcement of the Federal Securities Laws
April 25, 2019 | Blog | By Alain Mathieu, Joel Rothman
In the Traffic Monsoon litigation, the U.S. Court of Appeals for the Tenth Circuit held that the enforcement provisions of the Securities Act and the Exchange Act reach Traffic Monsoon’s sales to customers outside of the United States. The implications of this decision are significant. This is the first Circuit Court decision to interpret Section 929P(b) of Dodd-Frank, and the first to adopt the position that Dodd-Frank limited Morrison’s application to allow for the enforcement provisions of the 1933 and 1934 Acts to apply extraterritorially. As a result, the decision may result in future decisions by the SEC to allow for holders of common shares to be eligible for recovery in connection with fair funds, rather than limiting eligible parties to holders of shares of American Depositary Shares or Receipts (ADR’s), a limitation the SEC imposed in the Fair Fund established for investors in BP. Recently, Traffic Monsoon has requested a stay of the Tenth Circuit's mandate while it prepares a writ of certiorari to the Supreme Court.
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Judge Rakoff Highlights the Financial Risk to Objectors of Class Settlements
October 23, 2018 | | By Joel Rothman, Ellen Shapiro, Kevin Mortimer, Alain Mathieu
On August 15, 2018, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York awarded an objector to the Petrobras class settlement nearly $12,000 in attorneys’ fees (click here for the Order). The objector had asked the Court for almost $200,000 to cover 231.7 hours of legal work. Approximately one month later, Judge Rakoff sanctioned another objector to the Petrobas class settlement (click here for the Order). In the September Order, Judge Rakoff issued a grave warning to future objectors and reminded counsel that it is the Court’s duty to “safeguard the ability of objectors to protect class members from abusive settlements while in turn protect[] class members from being abused by the objectors themselves.
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U.S. District Court Holds that Certain Claims by Opt-Out Plaintiffs Are Barred by the Statute of Repose
October 10, 2018 | Blog | By Joel Rothman, Kevin Mortimer, Ellen Shapiro, Alain Mathieu
In a recent ruling in In re: BP p.l.c. Securities Litigation the United States District Court for the Southern District of Texas dismissed claims asserted by opt-out plaintiffs as time barred by the Exchange Act’s statute of repose pursuant to the U.S. Supreme Court’s ruling in ANZ Securities. This decision underscores that institutional investors should closely monitor the statutes of limitation and repose applicable to securities fraud claims to ensure they are not later barred from recovery.
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Court Allows Volkswagen Bondholder Action to Proceed, But Expresses Doubts about the Plaintiff’s Ability to Certify a Class
October 1, 2018 | Blog | By Joel Rothman, Alain Mathieu
As we previously noted in this post, the United States District Court for the Northern District of California dismissed the Volkswagen Bondholder Plaintiff’s first amended complaint, with leave to amend, holding that it could not rely on the Affiliated Ute or Basic presumptions to plead reliance, and that it had not sufficiently pleaded direct reliance. On April 2, 2018, the Plaintiff filed a Second Amended Bondholder’s Class Action complaint (SAC), which added allegations: (1) of direct reliance, (2) that the bonds at issue were priced and traded on an efficient market, (3) that the defendants’ alleged fraud created the market, and (4) that Volkswagen committed fraud on the regulatory process. On September 7, 2018, the court denied the defendants motion to dismiss, and ruled that that the case may proceed to discovery, but also expressed concerns about the Plaintiffs’ ability to certify a class.
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