Ken Berg

Ken has extensive experience in complex commercial and business litigation representing financial institutions. His expertise includes bank and broker-dealer defense; FCM/IB defense; SEC, CFTC, FINRA, NFA, and Exchange investigations and enforcement actions; trade secrets/unfair competition; and contract disputes. He has defended securities and commodities class actions in New York, District of Columbia, and Chicago federal courts. He also regularly represents financial institutions in arbitration actions at the NFA, FINRA, and AAA. Ken has achieved the highest rating, AV Preeminent®, from Martindale-Hubbell® and has been named an Illinois Super Lawyer and a “Leading Lawyer” in Illinois.

Latest Articles

My partner, Ken Berg, writes about his recent meeting with the NCLA, a group that anyone who has an administrative practice should be familiar with.  –  Alan I had the privilege of being invited to attend in Washington, D.C., on February 28, 2019, the inaugural panel discussion hosted by a relatively new nonprofit civil rights organization, the New Civil Liberties Alliance (“NCLA”). What distinguishes NCLA from most civil rights organizations is that it represents business…
Here is an important post by my partner, Ken Berg, regarding SEC administrative proceedings, and what we can expect following the Supreme Court’s recent decision in Lucia. – Alan By now everyone knows the US Supreme Court declared the SEC’s administrative proceedings unconstitutional because the ALJs were improperly hired by the SEC staff instead of being appointed by the Commissioners. All respondents who raised this constitutional issue before the SEC, who have not settled, and…
In my second post on constitutionally-based affirmative defenses to SEC administrative proceedings, I discussed the shift of momentum in favor of the defense that the process of hiring SEC ALJs violates the Appointments Clause of the U.S. Constitution. This post examines the defense that the process of removing SEC ALJs violates the separation of power doctrine in the Constitution. The U.S. Constitution, art. II, § 1, cl. 1, provides that “[t]he executive Power shall be…
Here is Part II of Ken Berg’s analysis of constitutional defenses that have been raised in response to the SEC’s increased use of administrative proceedings.  In the interest of full disclosure, note that the Malouf case referenced towards the end is one that Heidi VonderHeide and I are handling.  In addition, it also worth mentioning that in another appeal of an adverse SEC decision that Heidi and I presently have before the DC Circuit, the Division…
This is the first in a series of posts by my partner, Ken Berg, discussing the constitutional defenses to SEC administrative enforcement actions, which we are called upon regularly to defend. Each subsequent post will discuss one of the constitutional issues and report the current state of the law as to that defense.  Ken’s next post will examine the Article II Appointments Clause issue and update the current state of the law as to this…
The Illinois Appellate Court issued an opinion this week with important repercussions for financial institutions who step in and take over the assets of failed institutions. In a case of “first impression in Illinois,” the Illinois Appellate Court held that Illinois courts lacked jurisdiction to consider a motion to vacate an arbitration award where the underlying arbitration claim was barred by the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). Instead of…
Surprise!  In a rare occurrence, recently a CFTC Judgment Officer awarded a broker its attorneys’ fees for “frivolous and vexatious” litigation brought in “bad faith” by a customer in a Reparations proceeding. Azubueze Jiagbogu v. TradeStation Securities, Inc., [Current Transfer Binder] COMM. FUT. L. REP. (CCH) ¶ 33,430 (CFTC Mar. 9, 2015). The customer’s conduct was egregious, failing to comply with discovery even when a rule to show cause issued and failing “to substantiate his…