Gary Naftalis

Kramer Levin Naftalis & Frankel LLP

New York www.kramerlevin.com

gnaftalis@kramerlevin.com Tel: +1 212 715 9253

Biography

Gary P Naftalis is co-chairman of Kramer Levin Naftalis & Frankel LLP and one of the nation’s leading trial lawyers and pre-eminent litigators. For more than 40 years, he has represented individuals and corporations in all phases of complex bet-the-company civil, criminal and regulatory matters. Mr Naftalis formerly served as an assistant US attorney in the Southern District of New York. He received his law degree from Columbia, his MA from Brown, and his AB from Rutgers. He has taught at Columbia and Harvard and co-authored the leading work on the grand jury.

You have a wide-ranging corporate crime practice. What have you enjoyed working on the most?

I find it enormously satisfying to be able to help individuals and corporations in times of crisis. In those high-stress situations, everything that is important is at stake – their freedom, reputation and future. Being able to persuade regulators or prosecutors not to bring charges is the best outcome for the client. But often we need to go to court to vindicate the client’s rights. Trying such high-stakes cases is an intellectual and strategic challenge and involves relating to and persuading people, whether they be jurors or judges, that the charges are unjust and unfounded. That is a challenge that I enjoy the most.

How has the market changed since you first started practising?

The scope of what is considered criminal and worthy of investigation and prosecution has dramatically increased. Matters that were once the subject only of private civil disputes, or at most administrative action, have now been criminalised. In addition, corporations are now being investigated and prosecuted much more frequently. It was not that long ago that corporations were hardly ever the focus of criminal investigations and prosecutions.

The most significant change in business crime defence is globalisation. Quite often the alleged misconduct involves complexities and consequences not confined to a single nation, regulator and authority. You must now strategise and approach issues while considering diverse and often competing interests and agendas.

What impact has technological innovation had on the nature of corporate crime cases you have been seeing?

Electronic communications — emails and text messages — have exponentially increased the universe of communications and complicated the work of this business crime defence lawyer. People dash off emails and texts often without the care and editing that goes into sending a written memo or letter. And unlike written drafts and letters that can be discarded, electronic communications never go away. Deleted emails and texts can be retrieved from hard drives. The evolution of final documents can be traced through metadata.

On the positive side, presentation of data and arguments to judges and juries is enhanced by technology and can be much more effective and persuasive. Jurors pay more attention when documents and testimony are projected on a screen and so much more can be done with graphics.

What has been the most memorable matter that you’ve worked on?

One case that stands out is my successful defence of Michael Eisner, the CEO of the Walt Disney Company, in the shareholder’s derivative lawsuit relating to the hiring and termination of Michael Ovitz as Disney’s president. After a highly publicised 37-day trial in the Delaware Court of Chancery – the second longest trial held in that court – Mr Eisner and the other Disney directors prevailed and every claim against them were rejected. Because the case was tried with cameras in the courtroom, the public could see firsthand how the evidence demonstrated that Michael Eisner had acted properly in all respects and always in the best interests of Disney and its shareholders.

What do you think will be the greatest challenge faced by the generation of white-collar crime lawyers behind you?

The greatest challenge they face is the absence of trials. Even before covid-19, there were far fewer jury trials than in the past. Because of covid-19, there were essentially no jury trials for more than a year. You can’t become a great trial lawyer by reading books or watching videos. You need to be in the trenches. And it is harder to convince a prosecutor or regulators that their prospective case has flaws if you don’t have a track record in the courtroom.

What advice would you give to younger lawyers starting a career in the field?

The best advice I had ever received was to become an assistant US attorney under Robert Morgenthau in the Southern District of New York after clerking for a federal judge. It was a life changing experience. I learned how to be a trial lawyer and how to present complex fraud cases to a jury. I found that this was something that I liked and suited my talents and aspirations.

I highly recommend clerking for a great judge, preferably a trial judge. Learning the ins and outs of trials, how judges approach decision-making and understanding how the system works is invaluable. Working as a prosecutor is also valuable if you want to be a trial lawyer. You cannot learn how to try cases from books. You need to be in court and actively trying cases. And a highquality public prosecutor’s office is a great place to get hands-on experience and learn from your mistakes and from trying cases against great adversaries.

You can never be over-prepared. There is no substitute for really knowing the facts and all the issues that might arise at trial. And being credible so the jury and judge will rely on what you argue and what you say as always being the truth. Having a good reputation for lawyering skills and reliability is indispensable.

WWL says: Gary Naftalis is revered for his adept handling of corporate investigations, with peers highlighting him as “one of the very best in the country”.