Counsel for the banks on the other side of the deal. We negotiate the underwriting and purchase agreements, run independent due diligence, and build the disclosure-liability defense that lets a syndicate stand behind an offering it sells.
An underwriter is liable for a false registration statement up to the public offering price of what it underwrote, and its defense has two parts, both to be proved: a reasonable investigation and a reasonable ground to believe the disclosure was true. The standard is the care a prudent man takes with his own property, applied to the file the syndicate kept rather than to the deal it remembers.
The file has a known shape. Auditors give negative assurance on changes in share capital, debt and earnings only through a cut-off date within 135 days of the last period they audited or reviewed, so an offering that slips past that date loses comfort on the latest quarter. Audited financial statements are expertised and may be relied on absent red flags; unaudited interim figures are not, and the courts have declined to treat a comfort letter alone as an investigation of them.
We act for underwriters, initial purchasers and placement agents, and for no one else on the deal. We negotiate the underwriting agreement, run the syndicate's own diligence, and close the file in a form a judge can read.
Negotiating the underwriting agreement on a registered deal and the purchase agreement on a 144A placement, down to the representations and warranties, conditions, lock-ups, indemnification, and termination rights that protect the syndicate.
Running the underwriters' own investigation of the issuer, with business, legal, and financial review, management and auditor sessions, and the documented diligence program that supports the statutory due-diligence defense.
Reading the registration statement or offering memorandum from the syndicate's perspective and testing the risk factors, MD&A, and business disclosure for the material misstatement or omission that creates underwriter liability.
Negotiating the scope of the auditors' comfort letter and delivering or taking the negative-assurance (10b-5) letter, the two closing deliverables that anchor the underwriters' diligence defense.
Coordinating among the lead and co-managers, agreement among underwriters, the marketing and stabilization framework, and the closing logistics that carry a priced deal to settlement.
Responding to staff comment letters from the syndicate's side, coordinating an offshore Regulation S tranche with a domestic offering, and matters before the SEC for underwriters and initial purchasers.
Section 11 reaches the registration statement and asks whether the underwriter investigated. Section 12(a)(2) reaches the prospectus and asks whether it took reasonable care. Rule 10b-5 reaches everything and requires scienter. The diligence file is built to answer the first two; the third turns on the record of what the bank knew and when.
What counts as a reasonable investigation depends, by rule, on the type of issuer and security, the underwriting arrangement and the bank's role in it, and whether the facts were incorporated by reference from an earlier filing. A shelf takedown priced in an afternoon is judged against that list, not against an IPO.
An issuer's promise to indemnify the banks for Securities Act liability can be unenforceable as against public policy where the bank was itself at fault. Every underwriting agreement therefore carries a contribution clause behind the indemnity, allocating the loss by relative fault and benefit, drafted to work on the day the indemnity does not.
Counsel's negative-assurance letter excludes the financial statements, the notes and the other financial and statistical data in the document, which is the territory the comfort letter covers. The two are scoped together so that no line of the prospectus falls between them, and both are brought down at closing and again on any option exercise.
The market-out lets the syndicate walk if trading is suspended or a material adverse change lands between pricing and closing. The over-allotment option, customarily open for 30 days and capped by FINRA at 15 percent of the base deal, is how the stabilizing bank covers its short. The lock-up in an IPO runs 180 days.
A Section 11 claim can be filed within a year of discovering the misstatement and up to three years after the offering, so the diligence memo, the request lists and the notes of every management call are kept in a form that can be produced in year three. Memory is not a defense.
The syndicate's investigation opens before the first draft circulates. The diligence request list goes out, management and auditor sessions are calendared, and business, legal, and financial review begins. Every question asked and answered is logged, because the file being built now is the defense the banks will stand on later.
The registration statement or offering memorandum is read from the syndicate's side, with the risk factors, MD&A, and business disclosure pressure-tested for the misstatement or omission that creates underwriter liability. SEC staff comment letters are answered from the banks' perspective.
On the pricing call the underwriting or purchase agreement is signed, after the representations, indemnities, conditions, lock-ups, and termination rights have been negotiated in the syndicate's favor. The banks commit their capital only once the risk allocation is written down.
At closing and any option exercise, the deliverables land together: the auditors' comfort letter, counsel's negative-assurance letter, closing opinions, and bring-down diligence confirming nothing has changed since pricing. Then the file is closed out, organized and contemporaneous, ready if a claim arrives years later.
The diligence file is the one piece of the deal that never stops closing. We build it so it holds when someone finally opens it.
Underwriter's counsel represents the underwriters, initial purchasers, or placement agents, the banks that buy and resell the securities, and does not act for the issuer. We negotiate the underwriting or purchase agreement, run independent due diligence on the issuer, review the registration statement or offering memorandum from the syndicate's perspective, and deliver or take the legal opinions, comfort letters, and negative-assurance letters the closing requires. The work exists to protect the banks from the disclosure liability an offering carries.
Because their interests diverge. The issuer wants the deal done on its terms; the underwriters need a disclosure record they can stand behind and a due diligence defense if a buyer later claims the offering document was misleading. Independent counsel lets the syndicate test the issuer's disclosure, negotiate representations and indemnities in its own favor, and build the diligence file that supports the statutory due-diligence defense under the securities laws.
Under the federal securities laws an underwriter can be liable for a material misstatement or omission in an offering document, but it has a defense if it conducted a reasonable investigation and reasonably believed the disclosure was accurate. Building that defense means a documented diligence program of management and auditor sessions, business and legal review, bring-down calls, and a record of the questions asked and answered. We run that process so the defense is real and the file proves it.
A comfort letter is delivered by the issuer's auditors to the underwriters, giving limited assurance on the financial information in the offering document. A negative-assurance or 10b-5 letter is delivered by counsel, stating that nothing has come to the lawyers' attention to suggest the disclosure contains a material misstatement or omission. Both are closing deliverables that support the underwriters' diligence defense, and we negotiate their scope and take or give them as the deal requires.
Yes. We act for underwriters, initial purchasers, and placement agents on registered equity IPOs and follow-ons, investment-grade and high-yield debt, convertible and equity-linked notes, and Rule 144A / Regulation S placements. On a 144A deal the agreement is a purchase agreement rather than an underwriting agreement, but the diligence, disclosure, and liability concerns the banks bring are the same.
We have represented clients in matters before the SEC. In an underwriting context that means responding to staff comment letters on a registration statement from the syndicate's side, addressing disclosure questions raised in review, and speaking for the underwriters in front of the regulator as their counsel.
The registered equity IPO, with its registration statement, SEC review, listing, and the syndicate process that takes a private company public.
Explore →Follow-on equity raises by an already-listed issuer and secondary sales by existing holders, structured against the disclosure record already in the market.
Explore →Convertible notes, exchangeable bonds, and hybrid instruments, offering and disclosure work that sits between a company's equity and its debt.
Explore →Exempt offerings to qualified institutional buyers and offshore investors, covering purchase agreements, initial-purchaser diligence, and resale-restriction mechanics.
Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
One partner is accountable for the whole matter, and you have that partner's direct line. Chicago, London, and Dubai work to the same standard.