Clients & Friends Memos


English Court of Appeal Confirms Primacy of Choice of Governing Law Clause in ISDA Master Agreements

Jun 29, 2017

On 15 June 2017 the English Court of Appeal handed down a significant judgment in Dexia Crediop S.p.A. v Comune di Prato. The Court’s unanimous judgment confirmed that the nature of an agreement made pursuant to an ISDA Master Agreement will be sufficiently international in character to prevent the application of any mandatory rules of local law. The ISDA Master Agreement in question, contained an English law choice of law clause and a clause conferring jurisdiction on the English courts. The decision follows a series of challenges made by several European public authorities in the English courts, arguing that notwithstanding the choice of law adopted by parties to an ISDA Master Agreement, Article 3(3) of the Rome Convention permits the application of mandatory local rules. This decision builds on the Court of Appeal’s decision in Banco Santander Totta SA v Companhia Carris de Ferro de Lisboa SA leaving only limited scope for such choice of law challenges in the English courts.


Related Attorney(s): Steven Baker, Jenna Rennie, Janaki Tampi
Related Practice(s): Litigation
Related Office(s): London
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Agreement Reached on Form of New EU Securitisation Regulation and on Amendments to the Capital Requirements Regulation

Jun 27, 2017

The EU legislative institutions have now agreed compromise amendments to the proposed EU regulation intended to lay down common rules on securitisation and to create a European framework for “simple, transparent and standardised” (“STS”) securitisation. They have also agreed compromise amendments to the proposed regulation amending the Capital Requirements Regulation, which includes a new hierarchy of approaches for calculating exposures to securitisation transactions and provisions designed to result in the regulatory capital requirements for exposures to STS securitisations being lower than those for non-STS securitisations. This memorandum discusses the compromises reached on these EU regulations.


Related Attorney(s): Suzanne Bell, Robert Cannon, Merryn Craske, Stephen Day, Neil Macleod, Claire Puddicombe, David Quirolo, Nick Shiren, Daniel Tobias, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
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Latest Court Decision Addresses New York’s Limits on Executive Compensation and Administrative Costs of State-Funded Providers -- Third Department Tosses “Soft” Cap But Affirms “Hard” Cap

Jun 23, 2017

On June 22, 2017, the New York State Appellate Division, Third Department issued a decision in LeadingAge New York v. Shah on the validity of regulations promulgated by the Department of Health (“DOH”), pursuant to Executive Order 38 (“EO 38”), that limit executive compensation and administrative costs for certain State-funded providers.


Related Attorney(s): Jared Facher, Pamela Landman, Brian McGovern
Related Practice(s): Health Care, Not-for-Profit Institutions
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Financial CHOICE Act Would Complicate the Choices in Bringing and Defending Against SEC Cases

Jun 12, 2017

Legislation passed by the U.S. House of Representatives threatens to shake up the Securities and Exchange Commission’s enforcement program in a historic manner.


Related Attorney(s): Jodi Avergun, Aaron Buchman, Jason Halper, Joseph Moreno, Lex Urban, Kendra Wharton
Related Practice(s): Corporate & Securities Litigation, Litigation, Securities Enforcement & Investigations, White Collar Defense and Investigations
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Navigating the Currents – Legal Privilege Under English Law

May 22, 2017

On 8 May 2017 the High Court in London applied a strict approach to litigation privilege in the context of self-reporting investigations. It is the first case in which a court has considered whether litigation privilege is engaged in a criminal investigation involving the UK Serious Fraud Office (“SFO”). This decision is likely to have significant consequences on the conduct of corporate internal investigations in a civil and criminal context and on self-reporting in the criminal context, including cross-border investigations. This memo considers the current UK position on legal professional privilege, placing the recent decision of the High Court in the context of previous key decisions on privilege, Three Rivers (No. 5) and the RBS Rights Issue Litigation (“RBS”).

 

 


Related Attorney(s): Steven Baker, Jenna Rennie, Janaki Tampi
Related Practice(s): Litigation
Related Office(s): London
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WannaCry Ransomware Attacks Should Be a Wake-Up Call for Cybersecurity Diligence

May 17, 2017

Last week’s massive ransomware attack should serve as a wake-up call that companies across all industries and regions must take the threat of global cyber attacks seriously.  Although investigators are still uncovering details, three key lessons have emerged for businesses seeking to protect themselves.


Related Attorney(s): Joseph Facciponti, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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European Commission Adopts Proposal to Amend EMIR

May 11, 2017

On 4 May 2017, the European Commission (the “Commission”) adopted a proposal for a Regulation amending Regulation (EU) No 648/2012 (“EMIR”) as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivatives contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories (the “Proposal”).


Related Attorney(s): Assia Damianova, David Quirolo, Nick Shiren
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): London
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The Responsible Corporate Officer Doctrine in the Wake of DeCoster

May 03, 2017

The most important Park doctrine case in over forty years may be heading to the Supreme Court – but not if the federal government has its way. The Responsible Corporate Officer doctrine (“RCO doctrine”), commonly referred to as the Park doctrine, permits the government to prosecute employees for corporate misconduct when they are in a “position of authority” and fail to prevent or correct a violation of the Food, Drug and Cosmetic Act (“FDCA”).


Related Attorney(s): Brian McGovern, Anne Tompkins, Stephen Weiss
Related Practice(s): Health Care, White Collar Defense and Investigations
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The Delaware Chancery Court’s Columbia Pipeline and Saba Software Decisions: Lessons beyond Corwin

Apr 27, 2017

Two recent decisions from the Delaware Court of Chancery faithfully apply the Delaware Supreme Court’s holding in Corwin v. KKR Financial Holdings LLC.  No surprise there.  Corwin held that when “a transaction not subject to the entire fairness standard is approved by a fully informed, uncoerced vote of the disinterested stockholders, the business judgment rule applies.”  That is so even if, pre-Corwin, an all-cash merger otherwise would have been subject to enhanced scrutiny under Revlon


Related Attorney(s): Jason Halper, Hyungjoo Han
Related Practice(s): Corporate & Securities Litigation, Litigation, Mergers & Acquisitions
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UK Proposal for Register of Foreign Beneficial Ownership of Real Estate Continues Global Trend Toward Transparency

Apr 20, 2017

On 5 April 2017, the UK Department for Business, Energy & Industrial Strategy (the “Department”) issued a call for evidence (the “proposal”) for a public register (the “foreign ownership register”) detailing the beneficial ownership of foreign companies or foreign entities that own or buy UK property, or that participate in certain UK central government procurement activities.[1] The proposal responds to recent pressure on the UK government to enhance the transparency of foreign property investment, and is the latest global effort to increase transparency and prevent legal entities being used to camouflage money laundering and other corrupt activities.

 


Related Attorney(s): Jodi Avergun, Steven Baker, Joseph Moreno, Janaki Tampi
Related Practice(s): Litigation, White Collar Defense and Investigations
Related Office(s): London, Washington
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Broadband Internet Service Providers In Regulatory Limbo After Repeal of FCC Privacy and Data Security Rules

Apr 20, 2017

Potentially signaling the end of the short-lived stint by the Federal Communication Commission (“FCC”) to regulate consumer data privacy on the internet, the Trump Administration recently repealed Obama-era data privacy and security rules for broadband providers.  The action, passed by Congress and signed by President Trump pursuant to the Congressional Review Act, completely rescinds the rules that would have gone into effect later this year.  


Related Attorney(s): Peter Carey, Joseph Facciponti, Keith Gerver, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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Strike One on Health Care Reform: Where Do We Go from Here?

Mar 30, 2017

As reported in our January 23, 2017 Clients & Friends Memorandum entitled “Status of the Affordable Care Act Repeal Efforts,” one of the first priorities of the Trump administration was the repeal of the Patient Protection and Affordable Care Act (“ACA”).  In our March 21, 2017 Clients & Friends Memorandum entitled “The American Health Care Act – A Side-by-Side Comparison to Existing Law,” we reported that the House Committees on Ways and Means and Energy and Commerce proposed the American Health Care Act (“AHCA”) to “repair and replace” the ACA pursuant to the budget-resolution process on March 6, 2017 and that the Budget Committee voted to approve the AHCA on March 16, 2017.  The AHCA was introduced and ordered reported by Committee on March 20, 2017.


Related Attorney(s): Pamela Landman, Stephanie Marcantonio, Paul Mourning
Related Practice(s): Health Care
Related Office(s): New York
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The American Health Care Act – A Side-by-Side Comparison to Existing Law

Mar 21, 2017

As reported in our January 23, 2017 Clients & Friends Memorandum entitled “Status of the Affordable Care Act Repeal Efforts,” on January 12 and 13, 2017, the Republican-controlled Congress took the first step toward repealing certain provisions of the Patient Protection and Affordable Care Act (“ACA”) (Public Law 111-148) by adopting a fiscal budget resolution containing a “reconciliation directive” to House and Senate committees to prepare ACA repeal legislation by January 27, 2017.


Related Attorney(s): Pamela Landman, Stephanie Marcantonio, Paul Mourning
Related Practice(s): Health Care
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Proposed Federal Cybersecurity Regulations for Financial Institutions Face an Uncertain Future

Mar 13, 2017

Last year’s proposed comprehensive framework for cybersecurity rules for large financial institutions is suddenly facing an uncertain future.


Related Attorney(s): Joseph Facciponti, Ruth Merisier, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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Energy Infrastructure Projects Still Face Challenges after Trump Administration Executive Orders

Mar 08, 2017

The Trump administration promises to streamline the regulatory process, dismantle burdensome regulations, and promote domestic job growth.  On January 24, 2017, President Trump issued an executive order and four presidential memoranda seeking to advance these goals in the energy sector.


Related Attorney(s): Mark Haskell, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
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The EU’s New Data Protection Regulation – Are Your Cybersecurity and Data Protection Measures up to Scratch?

Mar 06, 2017

In the context of increasing cyber-attacks on major corporate organisations, small businesses and government, data protection and cybersecurity is a hot topic. Added to this, the GDPR—a strict new regulatory regime in Europe—will commence in May 2018 and has implications for both non-European and European-based organisations.


Related Attorney(s): Steven Baker, Joseph Facciponti, Jenna Rennie, Janaki Tampi
Related Practice(s): Litigation
Related Office(s): London, New York
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Signs, Signs, Everywhere a Sign: Changes in Store for SEC Enforcement under the Trump Administration

Mar 06, 2017

Even before President Trump’s nomination of Jay Clayton as the next Chairman of the Securities and Exchange Commission (“SEC” or “Commission”), signs have been appearing that changes are afoot within the Division of Enforcement (“Enforcement Division”). The power of Enforcement Division attorneys in the field to issue subpoenas and open new investigations was recently scaled back, and now will require personal sign-off by the Director of Enforcement in Washington, D.C.


Related Attorney(s): Jodi Avergun, Scott Cammarn, J. Robert Duncan, Joseph Moreno, Nihal Patel, Anne Tompkins
Related Practice(s): Securities Enforcement & Investigations, White Collar Defense and Investigations
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M&A Update: Toehold Accumulations: Further Convergence Between Private Equity and Hedge Fund Strategies

Mar 02, 2017

Over the past few years, private equity funds and hedge funds have increasingly employed tactics traditionally employed by the other as part of their value maximization strategies.  Underscoring this convergence has been a willingness by private equity funds to incorporate a “toehold” accumulation strategy into their investment model.


Related Attorney(s): Joshua Apfelroth, Richard Brand, Jason Halper, William Mills, Amy Ray
Related Practice(s): Antitrust, Bank Regulation, Corporate, Litigation, Mergers & Acquisitions, Private Equity
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New York State Releases Final “First-In-Nation” Cybersecurity Rules

Feb 28, 2017

The New York Department of Financial Services (“DFS”) recently released the much-anticipated final version of its “first-in-nation” cybersecurity rules that it first announced in the fall of last year.1  The rules require a wide range of insurance, banking, and financial services companies to adopt robust cybersecurity programs to protect sensitive and confidential data from theft or harm by cybercriminals. 


Related Attorney(s): Joseph Facciponti, John Moehringer, Howard Wizenfeld
Related Practice(s): Cyber and National Security, Intellectual Property, White Collar Defense and Investigations
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New York Seeks to Regulate Fintech Lending Market

Feb 21, 2017

New York is joining a small but growing list of states seeking to regulate the “bank-origination” method of online lending.


Related Attorney(s): Joseph Beach, Scott Cammarn, Scott Cogar
Related Practice(s): Bank Regulation, Financial Regulation, Fintech, Securitization & Asset Based Finance
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Will European Privacy in the United States be Trumped?

Feb 14, 2017

In recent weeks there has been significant debate among commentators about whether Europeans’ privacy is becoming less protected in the US and what that may mean for the privacy protection arrangements between the EU and the US.


Related Attorney(s): Steven Baker, Jenna Rennie, Janaki Tampi
Related Practice(s): Cyber and National Security, International Litigation, Litigation, White Collar Defense and Investigations
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The Trump Administration: President Trump Issues Executive Actions on Dodd-Frank and the DOL Fiduciary Rule

Feb 06, 2017

On February 3, 2017, President Trump signed two executive actions intended to provide a framework for scaling back the Dodd-Frank Act (“Dodd-Frank Act”)  and rescinding or revising the Department of Labor’s “fiduciary rule.” 

As we have previously written, President Trump and the Republican-majority Congress have various levers to rapidly revise and reverse the previous administration’s policies, short of legislative change.  Such mechanisms include the Congressional Review Act  and various forms of executive action, including executive orders, discretionary agency directives and enforcement decisions.  These executive actions are likely the beginning of a series of changes intended to reduce the regulatory burden on U.S. financial markets.

This memorandum discusses the two executive actions and their significance within a broader agenda to reshape financial regulation.


Related Attorney(s): Scott Cammarn, Jacob Dachs, James Frazier, Matthew Lefkowitz, Steven Lofchie, Nihal Patel, Jeffrey Robins, Lary Stromfeld
Related Practice(s): Executive Compensation, Benefits & ERISA, Financial Regulation
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NIST’s Draft Update to Cybersecurity Framework Focuses on Third-Party Vendors and the Cost-Effectiveness of Cybersecurity Programs

Feb 01, 2017

On January 10, 2017, the National Institute of Standards and Technology (“NIST”) released a proposed update to its popular cybersecurity blueprint for organizations and businesses, known as the Framework for Improving Critical Infrastructure Cybersecurity (the “Framework”).  The updated Framework, titled “Draft Version 1.1,” includes, among other things, new provisions for assessing the cybersecurity risk posed by third-party vendors and the addition of a new section on measuring the cost effectiveness of cybersecurity programs.


Related Attorney(s): Peter Carey, Joseph Facciponti, Keith Gerver, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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Losing Your Marbles: A Sensible Interpretation of Section 316 of the Trust Indenture Act

Jan 27, 2017

The U.S. Court of Appeals for the Second Circuit issued its ruling in Marblegate Asset Management, LLC v. Education Management Corp. that provided much needed clarity to creditors and issuers involved in out-of-court restructurings affecting noteholders.  The issue for the court was whether Education Management Corp. violated the Trust Indenture Act (the “TIA”) when it implemented a restructuring that impaired the rights of one of its unsecured noteholders, Marblegate Asset Management, LLC.


Related Attorney(s): William Mills
Related Practice(s): Corporate, Financial Restructuring
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Prospects for U.S. Tax Reform Under President Trump

Jan 27, 2017

The election of President Donald J. Trump, combined with Republican control of Congress, makes fundamental U.S. federal income tax reform more likely than at any time since the enactment of the Tax Reform Act of 1986.


Related Attorney(s): Linda Swartz, Edward Wei
Related Practice(s): Tax
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New Sheriff In Town As Rolls-Royce Pays Record Penalty For Foreign Bribery And Corruption

Jan 23, 2017

On 17 January 2017, the UK Serious Fraud Office, the US Department of Justice, and the Brazilian Ministério Público Federal announced an $800 million global settlement with Rolls-Royce plc and Rolls-Royce Energy Systems Inc., resolving allegations of a long-running scheme to bribe foreign officials in South America, the Middle East, Eastern Europe and Asia in exchange for assistance in obtaining government contracts. In addition to the payment of disgorgements and fines – the largest ever imposed under the UK’s Bribery Act 2010 – Rolls-Royce has agreed to implement a number of compliance measures and reporting requirements pursuant to deferred prosecution agreements with UK, US, and Brazilian authorities. The joint settlement, which was spearheaded by the SFO, heralds a new era in global cooperation and coordination in the enforcement of bribery and corruption laws.


Related Attorney(s): Jodi Avergun, Steven Baker, Joseph Moreno, Jenna Rennie, Janaki Tampi, Kendra Wharton
Related Practice(s): Litigation, White Collar Defense and Investigations
Related Office(s): London, Washington
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FTC Announces 2017 Thresholds for Merger Control Filings Under the HSR Act and Interlocking Directorates Under the Clayton Act

Jan 23, 2017

The Federal Trade Commission (“FTC”) has announced its annual revisions to the dollar jurisdictional thresholds in Section 7A of the Clayton Act and the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”).  The revised thresholds will become effective 30 days after the date of their publication in the Federal Register.


Related Attorney(s): Ngoc Hulbig, Amy Ray
Related Practice(s): Antitrust
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Status of the Affordable Care Act Repeal Efforts

Jan 23, 2017

On January 20, 2017, Donald J. Trump became the 45th President of the United States.  Consistent with his campaign promises to act swiftly to “repeal and replace” the Patient Protection and Affordable Care Act (“ACA”) (Public Law 111-148) and as telegraphed by Vice President Mike Pence earlier this month, his first act as President was to execute an Executive Order intended “to minimize the unwarranted economic and regulatory burdens of the [ACA], and . . . to afford the States more flexibility and control to create a more free and open healthcare market.”


Related Attorney(s): Pamela Landman, Stephanie Marcantonio, Paul Mourning
Related Practice(s): Health Care
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Law Firm Data Breaches Demonstrate the Expanding Scope of Cyber Attacks

Jan 17, 2017

In a case of “cyber meets securities fraud,” the United States Attorney’s Office for the Southern District of New York (“SDNY”) recently indicted three foreign nationals on charges of insider trading, wire fraud, and computer hacking for allegedly trading on information they stole from the computer networks of two major New York law firms. A parallel enforcement action brought by the Securities and Exchange Commission – its first time bringing civil charges based on the hacking of a law firm’s computer network – alleges insider trading and other violations of the Securities Exchange Act of 1934.


Related Attorney(s): Joseph Facciponti, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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2016 YEAR IN REVIEW: SECURITIES LITIGATION AND REGULATION

Jan 13, 2017

2016 was an active year in securities litigation.  In the first half of 2016 alone, plaintiffs filed 119 new federal class action securities cases.  It was also a busy year for SEC enforcement proceedings, with a record 868 cases filed, 548 of which were independent enforcement actions (as opposed to follow-up actions or cases based on delinquent regulatory filings).  This continued the trend of growth in SEC enforcement activity, as independent actions have increased by nearly 61% since 2013.


Related Attorney(s): Nathan Bull, Jason Halper, Hyungjoo Han, Adam Magid, Jared Stanisci
Related Practice(s): Corporate & Securities Litigation, Litigation
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2016 YEAR IN REVIEW: CORPORATE GOVERNANCE LITIGATION AND REGULATION

Jan 12, 2017

2016 saw many notable developments in corporate governance litigation and related regulatory developments.


Related Attorney(s): Nathan Bull, Jaclyn Hall, Jason Halper, Hyungjoo Han, Adam Magid, Jared Stanisci
Related Practice(s): Corporate & Securities Litigation, Corporate Governance, Litigation
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The Tenth Circuit Rules SEC Administrative Judges Are Unconstitutional, Setting Up Potential Supreme Court Review

Jan 11, 2017

The constitutionality of the SEC’s in-house administrative proceedings is in doubt following the 10th Circuit Court of Appeals’ ruling in Bandimere v. SEC.  In Bandimere, a three-judge panel held, by a 2-1 decision, that SEC administrative law judges (“ALJs”) are inferior officers under the Appointments Clause of the Constitution and that they must be appointed in accordance with that clause, rather than hired as employees.  The decision directly conflicts with the August 2016 holding of the Court of Appeals for the D.C. Circuit in Raymond J. Lucia Cos. v. SEC.  This circuit split sets the stage for a potential Supreme Court review of the SEC’s administrative proceedings.


Related Attorney(s): Jodi Avergun, Kendra Wharton
Related Practice(s): Securities Enforcement & Investigations, White Collar Defense and Investigations
read more »

New York State Revises “First-In-Nation” Cybersecurity Rules

Jan 10, 2017

The New York Department of Financial Services (“DFS”) recently issued a revised version of the cybersecurity rules that it first announced in the fall of last year.  The rules apply to a wide range of insurance, banking, and financial services companies under the DFS’s supervision and require them to adopt robust cybersecurity programs to protect sensitive and confidential data from theft by cybercriminals.


Related Attorney(s): Joseph Facciponti, John Moehringer, Howard Wizenfeld
Related Practice(s): Cyber and National Security, Intellectual Property, Litigation, White Collar Defense and Investigations
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The Trump Administration: Potential Levers of Regulatory Change Affecting the Commodities Markets

Dec 21, 2016

Much has happened since the election of Donald J. Trump as the 45th President of the United States and the return of both houses of Congress to Republican control.  The Trump transition team has repeatedly declared its intention to “dismantle” the Dodd-Frank Act (“Dodd-Frank” or “Act”), in the interim calling for an immediate moratorium on new rulemaking not required for emergencies to allow for a systematic review before further action is taken.


Related Attorney(s): Scott Cammarn, Steven Lofchie, Jeffrey Robins
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance, Financial Regulation
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Process Is Paramount: The Delaware Court of Chancery Gives “100% Weight” to Merger Price in Determining Company’s Fair Value in Appraisal Proceeding

Dec 20, 2016

On December 16, 2016, the Delaware Court of Chancery issued a post-trial opinion in an appraisal proceeding arising from the acquisition of Lender Processing Services, Inc. (“LPS” or the “Company”) by Fidelity National Financial, Inc. (“Fidelity”).  In his opinion in Merion Capital LP et al. v. Lender Processing Services Inc., C.A. No. 9320-VCL (Del. Ch. Dec. 16, 2016), Vice Chancellor Laster held that the “fair value” of the Company’s stock at the effective time of the merger was the $37.14/share merger price.


Related Attorney(s): Jason Halper, Jared Stanisci
Related Practice(s): Corporate & Securities Litigation, Litigation, Mergers & Acquisitions
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The Supreme Court’s Broad Interpretation of the Bank Fraud Statute May Provide a Potent Tool in Combatting Cybercrime

Dec 19, 2016

The Supreme Court in Shaw v. United States recently held that the federal bank fraud statute does not require that defendants cause, or intend to cause, an actual financial loss to the financial institutions they seek to defraud. The Supreme Court’s decision helped resolve a longstanding dispute over whether the bank fraud statute requires that a defendant intend not only to trick a bank into giving money to the defendant, but also to cause the bank to suffer a financial loss. In addition – and perhaps inadvertently – the Supreme Court also confirmed the bank fraud statute’s place among the tools that federal law enforcement can use to tackle cybercrime.


Related Attorney(s): Joseph Facciponti, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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The Trump Administration: Change By Executive Action and Inaction

Dec 09, 2016

The election of Donald J. Trump as the 45th President of the United States, along with Republican control of the majority of both the House of Representatives and the Senate, will likely result in significant changes in U.S. financial services, energy, and commodities laws and markets.


Related Attorney(s): Scott Cammarn, Pamela Landman, Steven Lofchie, Jeffrey Robins, Allison Saltstein
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance, Financial Regulation
read more »

ECON Agrees Compromise Amendments to STS/Risk Retention

Dec 08, 2016

The European Parliament’s Committee on Economic and Monetary Affairs (“ECON”) has today agreed compromise amendments (the “Compromise Amendments”) to the proposed EU regulation intended to lay down common rules on securitisation and create a European framework for “simple, transparent and standardised” (“STS”) securitisation (the “Regulation”).

 

 


Related Attorney(s): Robert Cannon, Merryn Craske, Stephen Day, Neil Macleod, Claire Puddicombe, David Quirolo, Nick Shiren, Daniel Tobias, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
read more »

The Supreme Court Restores Implied Benefit Theory in Insider Trading Prosecutions of Downstream Tippees

Dec 08, 2016

Friends and relatives of corporate insiders who knowingly receive and trade on inside information now confront greater exposure for federal securities laws violations.  On December 6, 2016, the Supreme Court held in United States v. Salman that “tippees” who trade on material non-public information may be found criminally liable even when there is no evidence of a pecuniary or tangible benefit to the insider who tipped.


Related Attorney(s): Jodi Avergun, Jason Halper, Alexander Hokenson, Joseph Moreno
Related Practice(s): Litigation, White Collar Defense and Investigations
read more »

DOJ and FTC Advocate Broader Approach to FERC’s Market Power Evaluation under Sections 203 and 205 of the Federal Power Act

Dec 08, 2016

On November 28, 2016, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (together, the “Agencies”) submitted comments on the Federal Energy Regulatory Commission’s (the “Commission” or “FERC”) September 22, 2016 Notice of Inquiry (“NOI”), which seeks public comment on possible changes to the Commission’s assessment of market power under sections 203 and 205 of the Federal Power Act (“FPA”).


Related Attorney(s): George Billinson, Mark Haskell, Lamiya Rahman
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
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United Airlines Settles with SEC for Side-Stepping Its Own Anti-Corruption Controls: Management Override for a Ride Over to South Carolina

Dec 07, 2016

In a settlement highlighting the need for public companies to implement – and adhere to – effective internal controls, United Airlines “United” recently paid a $2.4 million civil penalty to the Securities and Exchange Commission “SEC” for failing to follow its own compliance policies and procedures designed to prevent corrupt payments.


Related Attorney(s): J. Robert Duncan, Joseph Moreno
Related Practice(s): White Collar Defense and Investigations
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The Trump Administration: The Future of Health Care

Dec 06, 2016

The election of Donald J. Trump as the 45th President of the United States, along with the Republican control of the majority of both the House of Representatives and the Senate, will likely set in motion a major overhaul of the nation’s health care system.  As a candidate, President-elect Trump strongly echoed calls to “repeal and replace” the Patient Protection and Affordable Care Act (“ACA”) and also called for other reforms that would potentially affect Medicaid funding, pharmaceutical regulation, and the health insurance industry.


Related Attorney(s): Kathy Chin, Pamela Landman, Stephanie Marcantonio, Brian McGovern, Paul Mourning
Related Practice(s): Health Care
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IRS Phases in Section 871(m) Dividend Equivalent Withholding

Dec 05, 2016

On December 2, the U.S. Internal Revenue Service issued Notice 2016-76, which phases in the application of withholding on dividend equivalent payments under section 871(m). Under the notice, withholding applies only to delta-one transactions in 2017, and applies to other U.S. equity transactions beginning after 2017.

 


Related Attorney(s): Jean Bertrand, Brian Foster, Mark Howe, Steven Lofchie, Jason Schwartz, Ray Shirazi, Edward Wei
Related Practice(s): Tax
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The Trump Administration: Tools to Modify Current Tax Guidance

Nov 30, 2016

The election of Donald J. Trump as the 45th President of the United States, along with the Republican control of the majority of both the House of Representatives and the Senate, has raised the possibility that current Treasury regulations may be modified or nullified.


Related Attorney(s): Mark Howe, Gary Silverstein, Linda Swartz, Edward Wei
Related Practice(s): Tax
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Additional Clarifying Amendments to the Nonprofit Revitalization Act Signed Into Law

Nov 30, 2016

On November 28, 2016, Governor Cuomo signed into law Chapter 466 of the Laws of New York of 2016 (Assemb. Bill 10365B) (the “2016 Amendment”).  The 2016 Amendment is intended to “improve and make clarifying amendments to the Nonprofit Revitalization Act of 2013” (the “NPRA”) in order to “correct certain inconsistencies, and . . . make the statute operate more smoothly and efficiently,” most notably to the “related party” provisions and the prohibition in the NPRA against employees serving as the chair of the board of a corporation organized under the New York Not-for-Profit Corporation Law (“NPCL”).


Related Attorney(s): Pamela Landman, Paul Mourning
Related Practice(s): Health Care, Not-for-Profit Institutions
read more »

White Collar Crime Law Enforcement in a Trump Justice Department - 8 Predictions

Nov 29, 2016

After a conventional presidential campaign, determining the policy priorities and direction of the incoming administration with respect to the Justice Department’s white collar law enforcement responsibilities can be a relatively straightforward process.  Confident prediction this election year, however, is tempered by the lack of comprehensive Trump Administration policy releases addressing these issues. 


Related Attorney(s): Jodi Avergun, Jonathan Bailyn, J. Robert Duncan, Joseph Facciponti, Joseph Moreno, Anne Tompkins, Kenneth Wainstein
Related Practice(s): Anti-Money Laundering & Asset Forfeiture, Cyber and National Security, FCPA and International Anti-Bribery, False Claims Act, OFAC and Export Control, Pharmaceutical Regulation and Compliance, Securities Enforcement & Investigations, White Collar Defense and Investigations
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FERC Staff’s White Paper on Manipulation Provides Insights on Commission’s Developing Manipulation Law

Nov 28, 2016

On November 17, 2016, the Office of Enforcement (“FERC Staff”) of the Federal Energy Regulatory Commission (the “Commission” or “FERC”) issued a White Paper on Anti-Market Manipulation Enforcement Efforts Ten Years After EPAct 2005 (“Manipulation White Paper”) to “provide insight” on its ten years of experience investigating potentially manipulative conduct under the Anti-Manipulation Rule.


Related Attorney(s): George Billinson, Mark Haskell
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
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The European Central Bank Publishes Draft Guidance on Leveraged Transactions

Nov 25, 2016

On 23 November 2016, the European Central Bank (the “ECB”) launched a public consultation in relation to draft guidance for Eurozone banks intended to develop clear and consistent definitions, measures and monitoring with regard to leveraged transactions. The draft guidance sets out how the ECB expects banks to maintain the credit quality of their leveraged transactions and to monitor related risks to their balance sheets. The consultation period runs until 27 January 2017.


Related Attorney(s): Stephen Day, Neil Macleod, Claire Puddicombe, David Quirolo, Nick Shiren, Daniel Tobias
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): London
read more »

FERC Staff Issues a White Paper Providing Guidance on Effective Compliance Programs

Nov 21, 2016

On November 17, 2016, the Federal Energy Regulatory Commission (the “Commission” or “FERC”) Office of Enforcement (“FERC Staff”) issued a White Paper on Effective Energy Trading Compliance Practices (“Compliance White Paper”) to provide jurisdictional companies with concrete examples of how to design, implement, and assess compliance practices that “may” prevent or detect market manipulation.  FERC Staff characterizes the Compliance White Paper as a supplement to the Commission’s five prior policy statements related to compliance. However, the Compliance White Paper contains a lengthy list of prescriptive measures that FERC Staff recommends that companies should consider when developing and enforcing an effective compliance program.  Many of the recommended measures make sense especially in light of recent enforcement actions, but others may be impractical or expensive to implement.


Related Attorney(s): Mark Haskell
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
Related Office(s): Washington
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The Trump Administration: Change By Appointment

Nov 18, 2016

The election of Donald J. Trump as the 45th President of the United States, along with the Republican control of the majority of both the House of Representatives and the Senate, will likely result in significant changes in U.S. financial services, energy, and commodities laws and markets.  The most sweeping changes may require legislation and may generate controversy within Congress – in particular in the U.S. Senate.


Related Attorney(s): Maurine Bartlett, Scott Cammarn, Jacob Dachs, James Frazier, Mark Haskell, Martin Horowitz, Steven Lofchie, Dorothy Mehta, Jeffrey Robins
Related Practice(s): Energy & Commodities, Executive Compensation, Benefits & ERISA, Financial Regulation
read more »

Federal Court Blocks CMS Ban on Pre-Dispute Nursing Home Arbitration Agreements Pending Legal Challenge: What the Ruling Means for Providers

Nov 10, 2016

Earlier this week, a federal court enjoined the federal Centers for Medicare and Medicaid Services from enforcing a rule, promulgated on September 28, 2016, which barred pre-dispute arbitration agreements between nursing facilities in the Medicare or Medicaid programs and their nursing home residents, commencing November 28, 2016.   


Related Attorney(s): Marsena Farris, Brian McGovern
Related Practice(s): Health Care
read more »

CFTC Approves Supplemental Proposal for Proposed Regulation AT

Nov 07, 2016

On November 4, 2016, the Commodity Futures Trading Commission (“CFTC” or the “Commission”) approved, by a 2 – 1 vote, a supplemental proposal (“Reg AT Supplemental Proposal”) that amends a 2015 proposed rule related to automated trading (“Proposed Reg AT”).  The Reg AT Supplemental Proposal includes a 60-day comment period that commences upon publication in the Federal Register.  Unless addressed in the Reg AT Supplemental Proposal, Proposed Reg AT remains the same.  Below is a summary of the key aspects of the Reg AT Supplemental Proposal based upon the discussion at the CFTC’s open meeting along with the fact sheet and Q&A document posted to the CFTC website.


Related Attorney(s): Lamiya Rahman
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
Related Office(s): Houston, Washington
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Revitalization Act Held to Grant Whistleblower Implied Private Right of Action

Nov 04, 2016

On October 24, 2016 the New York Supreme Court, Kings County entered a decision allowing a former employee to proceed with a lawsuit against a not-for-profit, private college preparatory school and its headmaster alleging violations of the whistleblower provisions of the New York Not-for-Profit Corporation Law (“NPCL”).


Related Attorney(s): Pamela Landman, Paul Mourning
Related Practice(s): Health Care, Not-for-Profit Institutions
read more »

Enforcement at the Gates: SEC Action against Big Four Firm and New International Standards Highlight the Role of Accountants as Financial Gatekeepers

Nov 04, 2016

In late September 2016, Andrew Ceresney, Director of Enforcement of the Securities and Exchange Commission (“SEC”), signaled the SEC’s renewed focus on the key role played by audit committee members and external auditors as the “gatekeepers” of the financial reporting process.  While stating that the SEC would not second-guess the good faith actions of auditors, he pledged that auditors and audit committee members who failed to reasonably carry out their responsibilities under applicable accounting standards would be held to task.  In addition, just days before Mr. Ceresney made these remarks, the SEC made good on this promise by bringing its first enforcement action for an audit failure against a Big Four firm in nearly seven years, and its first ever independence-related action against auditors for maintaining overly close relationships with their clients. At the same time that the SEC was preparing this case, the International Ethics Standards Board for A

Related Attorney(s): J. Robert Duncan, Joseph Moreno
Related Practice(s): Securities Enforcement & Investigations, White Collar Defense and Investigations
Related Office(s): Washington
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Further Guidance on the HSR Act Investment-Only Exemption for Seemingly “Passive” Investors Engaging with Management

Nov 02, 2016

Investors considering engaging with management should take note of a recent informal interpretation received from the FTC’s Premerger Notification Office (PNO) advising that certain seemingly “passive” behavior is inconsistent with the “investment-only” exemption freeing acquirers of voting securities from the reporting and notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act).


Related Attorney(s): Ngoc Hulbig, Amy Ray
Related Practice(s): Antitrust, Corporate, Mergers & Acquisitions
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FERC Issues ANOPR on Revisions to Oil Pipeline Indexing Policies and Reporting Requirements

Oct 25, 2016

On October 20, 2016, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued an advanced notice of proposed rulemaking (“ANOPR”) seeking comments on potential revisions to (1) the Commission’s policies for evaluating oil pipeline indexed rate changes; and (2) the reporting requirements for page 700 of FERC Form No. 6, Annual Report of Oil Pipeline Companies.


Related Attorney(s): Mark Haskell, Lamiya Rahman, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
read more »

Controversial Debt-Equity Regulations Finalized With Limited Fixes, Concessions and Reservations by Government

Oct 24, 2016

On October 13, 2016, Treasury and the IRS issued important new final and temporary regulations (the “Regulations”) under section 385 of the Internal Revenue Code addressing the treatment of intercompany debt for U.S. federal income tax (“U.S. tax”) purposes. The Regulations generally will apply to taxable years ending after January 18, 2017, while the documentation requirements described below will apply to debt instruments issued after December 31, 2017. The proposed version of the Regulations, issued in April 2016, attracted controversy due to its broad reach and strict requirements as well as arguments that the rules exceeded the authority granted to Treasury by Congress.


Related Attorney(s): Mark Howe, Jason Schwartz, Gary Silverstein, Linda Swartz, L. Matthew Waterhouse
Related Practice(s): Tax
Related Office(s): New York
read more »

Application of New Debt-Equity Regulations to Securitizations

Oct 24, 2016

On October 13, 2016, Treasury and the IRS issued new final and temporary “anti-inversion” regulations under section 385 of the Internal Revenue Code that could treat certain purchasers of notes issued by securitizations as having exchanged their notes for stock in certain related domestic entities.


Related Attorney(s): Mark Howe, Jason Schwartz, Gary Silverstein, Linda Swartz, L. Matthew Waterhouse
Related Practice(s): Tax
Related Office(s): New York, Washington
read more »

D.C. Circuit Brings CFPB under Presidential Control

Oct 13, 2016

On October 11, 2016, the United States Court of Appeals for the D.C. Circuit issued its long-awaited opinion in PHH Corp. v. Consumer Financial Protection Bureau, in which the Court held that the structure of the Consumer Financial Protection Bureau (“CFPB”) was unconstitutional under the Separation of Powers doctrine because its single Director was not subject to the supervision and control of the Executive Branch. The Court’s remedy was to reinterpret the relevant provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) to recast the CFPB as an executive agency, providing the President the power to supervise, direct, and remove at will its Director. Despite finding that the structure under which CFPB had been operating since its creation in 2011 was unconstitutional, the Court explicitly declined to address – at least for now – the effect of its ruling on past CFPB rules and enf

Related Attorney(s): Scott Cammarn, Peter Carey, Martin Horowitz, Joseph Moreno, Jeffrey Robins
Related Practice(s): Financial Regulation, White Collar Defense and Investigations
Related Office(s): Charlotte, New York, Washington
read more »

Supreme Court Justices Appear Hesitant to Narrow the Scope of Insider Trading Liability

Oct 07, 2016

Since the Second Circuit Court of Appeals’ December 2014 decision in United States v. Newman, the government’s ability to aggressively pursue insider trading cases involving tipping has been in doubt.  But, on October 5, the Supreme Court heard oral arguments in Salman v. United States, a case that should clarify the government’s burden in proving insider trading cases against tippers and tippees.


Related Attorney(s): Jodi Avergun, Alexander Hokenson, Joseph Moreno
Related Practice(s): Securities Enforcement & Investigations, White Collar Defense and Investigations
read more »

In Final Rule, CMS Acts to Bar Pre-Dispute Binding Arbitration Agreements With Nursing Home Residents Effective November 28, 2016

Sep 30, 2016

On September 28, 2016, the federal Centers for Medicare and Medicaid Services (“CMS”) issued its long-awaited final rule that, among other things, prohibits skilled nursing facilities (“SNFs”) and nursing facilities (“NFs”) participating in the Medicare or Medicaid programs from requiring pre-dispute binding arbitration in any new admission agreements executed on or after November 28, 2016.


Related Attorney(s): Marsena Farris, Brian McGovern
Related Practice(s): Health Care
read more »

The Federal Reserve’s Proposed Rollback of Physical Commodities Authority for Financial Holding Companies

Sep 29, 2016

On September 23, 2016, the Board of Governors of the Federal Reserve System (the “FRB”) issued a proposed regulation concerning the ability of a financial holding company (“FHC”) to engage in physical commodities activities (the “Commodities Proposal”).  The Commodities Proposal follows an advanced notice of proposed rulemaking issued by the FRB more than two years ago in early 2014.


Related Attorney(s): Scott Cammarn, Jacob Dachs
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance, Financial Regulation
read more »

Your 401(k) Plan "Brokerage Window" May Require An S-8 Registration

Sep 28, 2016

New guidance from the Securities Exchange Commission requires issuers to take a fresh look at their 401(k) plans.  On September 22, 2016, the SEC’s Division of Corporation Finance released a Compliance and Disclosure Interpretation (“CDI”) addressing registration requirements for 401(k) plans that allow investments through a self-directed “brokerage window.”


Related Attorney(s): William Mills
Related Practice(s): Corporate
read more »

Selected Risk Retention Questions and Answers for CMBS Securitizations

Aug 16, 2016

On October 22, 2014, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission, the Federal Housing Finance Agency and the Department of Housing and Urban Development (the “Agencies”) released a joint final rule (the “Rule”) implementing the credit risk retention requirements of Section 15G of the Securities Exchange Act of 1934. The adopting release was published in the Federal Register on December 24, 2014 (the “Release”). References to sections of the Rule set forth below are to the version of the common rule published in the Federal Register (79 Fed. Reg. 77602 (December 24, 2014)).


Related Attorney(s): Michael Gambro, Anna Glick, Stuart Goldstein, Y. Jeffrey Rotblat
Related Practice(s): Commercial Mortgage-Backed Securities, Securitization & Asset Based Finance
Related Office(s): New York
read more »

The SEC Retains its House Advantage During Administrative Proceedings

Aug 05, 2016

Facing pressure from industry practitioners and in the wake of constitutional challenges in multiple jurisdictions, the Securities and Exchange Commission (“SEC”) recently amended its Rules of Practice that apply to proceedings before an administrative law judge (“ALJ”).


Related Attorney(s): Jodi Avergun, Joseph Moreno, Lex Urban
Related Practice(s): Corporate & Securities Litigation, Securities Enforcement & Investigations, White Collar Defense and Investigations
read more »

Amendments to the Basel Securitisation Framework – Alternative Capital Treatment for Simple, Transparent and Comparable Securitisations

Aug 03, 2016

The Basel Committee on Banking Supervision (the “Basel Committee”) published an updated version of the “Basel III Document – Revisions to the securitisation framework” on 11 July 2016 (the “Amended Securitisation Framework”).  This now includes alternative regulatory capital treatment for securitisation transactions which meet the criteria for identifying simple, transparent and comparable securitisations.  In this Clients & Friends Memo we discuss the background to this document and consider the amendments which have been made and how they will affect securitisation transactions.


Related Attorney(s): Bruce Bloomingdale, Robert Cannon, Merryn Craske, Stephen Day, David Quirolo, Nick Shiren, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
read more »

FinCEN Tightens the Screws on Money Launderers with Additional Scrutiny of High-Value Residential Real Estate Transactions

Aug 01, 2016

Choice real estate markets such as New York, Miami, Los Angeles, San Francisco, San Diego, and San Antonio may offer enticing amenities like buzzing nightlife or sunny beaches, but thanks to the Financial Crimes Enforcement Network (“FinCEN”), they now also come with an extra dose of law enforcement scrutiny.  On July 27, 2016, FinCEN expanded the locales in which Geographic Targeting Orders (“GTO”) will temporarily require U.S. title insurance companies to identify the natural persons (the “beneficial owners”) behind legal entities used to make “all cash” purchases of high-end residential real estate in those six metropolitan areas.


Related Attorney(s): Jodi Avergun, Nicholas Brandfon, Steven Herman
Related Practice(s): Anti-Money Laundering & Asset Forfeiture, White Collar Defense and Investigations
read more »

Potential Risks and Rewards of Cybersecurity Information Sharing Under CISA

Jul 21, 2016

When President Obama signed into law the Cybersecurity Act of 2015, which was designed to facilitate information sharing on cybersecurity threats between the public and private sectors, proponents hailed it as “our best chance yet to help address this economic and national security priority in a meaningful way.”


Related Attorney(s): Peter Carey, Keith Gerver, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
read more »

Supreme Court Reinvigorates Effectiveness of Obtaining an Opinion of Counsel to Defend against Potential Enhanced Damages for Willful Infringement in Halo Electronics

Jul 21, 2016

On June 13, 2016, the U.S. Supreme Court again reversed a decision of the Federal Circuit—the Circuit specially designated to hear all patent appeals—this time, in articulating the test for determining whether to award enhanced damages for willful patent infringement in Halo Electronics, Inc. v. Pulse Electronics, Inc.


Related Attorney(s): Dorothy Auth Ph.D.
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation
read more »

Proposed Regulations Would Block Some Spinoffs

Jul 15, 2016

Proposed regulations issued on July 14, 2016 generally would prevent tax-free spinoffs involving companies with less than 5% active business assets and spinoffs where one company holds a substantial amount of nonbusiness assets and the other company does not. These rules generally would apply to transactions occurring on or after the publication date of final regulations, subject to generous transition rules.


Related Attorney(s): Linda Swartz, Edward Wei
Related Practice(s): Mergers & Acquisitions, Mergers & Acquisitions Taxation, Tax
read more »

The Defend Trade Secrets Act: Significant Recent Changes to Intellectual Property Law May Provide New Avenues for Protecting Potentially Unpatentable Critical Discoveries

Jul 14, 2016

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (“DTSA”), marking one of largest changes to intellectual property law since the America Invents Act of 2011. This legislation will allow companies to more rigorously protect their trade secrets which are defined as any information that is not generally known to the public, whose holder has made reasonable efforts to maintain its secrecy, where an independent economic value is derived from that secrecy.


Related Attorney(s): Dorothy Auth Ph.D., David Cole
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation
read more »

FERC Increases Maximum Civil Monetary Penalties for Power, Gas and Oil Companies

Jul 06, 2016

On June 29, 2016, the Federal Energy Regulatory Commission (the “Commission”) issued an interim final rule amending the civil monetary penalties within its jurisdiction to adjust for inflation.  FERC adjusted its penalties pursuant to its statutory obligation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “ 2015 Adjustment Act”).  The Act requires each federal agency to adjust for inflation each civil monetary penalty within the agency’s jurisdiction by July 1, 2016 and to continue to update each penalty annually every January 15th.  The Commission explained that the interim final rule is not subject to notice and comment rulemaking because the adjustments are statutorily required and not subject to the agency’s discretion.


Related Attorney(s): George Billinson, Mark Haskell, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Investigations, Energy & Commodities Regulation & Compliance
Related Office(s): Washington
read more »

D.C. Circuit Reopens Controversy Concerning Regulated Master Limited Partnership Taxation

Jul 06, 2016

On Friday, July 1, 2016, a panel of the United States Court of Appeals for the District of Columbia Circuit reopened the issue of whether pipelines organized as partnerships can claim a tax allowance for ratemaking purposes in United Airlines Inc., et al. v. FERC, et al., No. 11-1479.


Related Attorney(s): Mark Haskell, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Investigations, Energy & Commodities Regulation & Compliance
read more »

Proposed QI Agreement Addresses Cascading Withholding on Dividend Equivalents

Jul 05, 2016

On July 1, the U.S. Internal Revenue Service issued Notice 2016-42, which proposes changes to the qualified intermediary (QI) agreement to address cascading U.S. withholding tax on dividends and “dividend equivalents” received and paid by qualified derivatives dealers (QDDs) with respect to U.S. equity securities.


Related Attorney(s): Brian Foster, Mark Howe, Steven Lofchie, Jason Schwartz, Ray Shirazi
Related Practice(s): Financial Regulation, Tax
Related Office(s): New York, Washington
read more »

FERC Issues Order Assessing Civil Penalties Against ETRACOM

Jul 05, 2016

On Friday, June 17, 2016, the Federal Energy Regulatory Commission issued an Order Assessing Civil Penalties against ETRACOM LLC and ETRACOM’s founding member and majority owner, Michael Rosenberg. The Commission held that the Respondents violated the Federal Power Act Anti-Manipulation Rule, specifically, that they engaged in a “cross-commodity” scheme in which they submitted virtual supply offers at the New Melones intertie at the border of the California Independent System Operator (“CAISO”) wholesale electric market with the intent to lower power prices artificially at New Melones in order to increase the value of ETRACOM’s Congestion Revenue Rights (“CRRs”) positions that settled based upon power prices at that location. Respondents offered two primary defenses to Staff’s allegations, each of which the Commission rejected: (1) that CAISO was not a well-functioning market and (2) that ETRACOM based its trading activity on market fundamentals.&am

Related Attorney(s): George Billinson, Mark Haskell, Lamiya Rahman
Related Practice(s): Energy & Commodities, Energy & Commodities Investigations, Energy & Commodities Regulation & Compliance
Related Office(s): Washington
read more »

D.C. Circuit Upholds FERC’s NEPA Analysis in Sabine Pass and Freeport LNG Projects

Jun 30, 2016

On June 28, 2016, the U.S. Court of Appeals for the District of Columbia Circuit rejected two related challenges to the Federal Energy Regulatory Commission’s environmental review of the Sabine Pass LNG and Freeport LNG applications to site, construct, and operate liquefied natural gas (“LNG”) export facilities under Section 3 of the Natural Gas Act.


Related Attorney(s): Mark Haskell, Lamiya Rahman, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Investigations, Energy & Commodities Regulation & Compliance
Related Office(s): Washington
read more »

SEC Proposal Would Require Business Continuity and Transition Plans for Investment Advisers

Jun 30, 2016

Citing the ongoing risk of terrorist and cyber-attacks, the 2008 financial crisis, and Hurricanes Katrina and Sandy, the SEC has issued proposed rules under the Investment Advisers Act of 1940 that would require investment advisers to establish business continuity and transition plans to be utilized in the event of a data loss, system failure, or other significant business disruption. The proposed rules for investment advisers, similar to business continuity plan rules already mandated by FINRA, the CFTC, and the NFA, would require that such plans be risk-based, documented in written policies and procedures, and reviewed at least annually. The proposed rules would also amend the existing books and records requirements to impose new recordkeeping obligations relating to business continuity and transition plans.  If approved, they would convert what is currently an industry best practice to a requirement for all SEC-registered investment advisers.


Related Attorney(s): Dorothy Mehta, Joseph Moreno
Related Practice(s): Financial Regulation, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

OIG Delivers Home Care a One – Two Punch: Release of Report and Alert on Home Health Fraud Highlights Increased OIG Scrutiny of Home Care Agencies

Jun 29, 2016

On June 22, 2016, the Office of Inspector General (“OIG”) issued two communications that underscore its continued focus on fraud in home health care, along with the role of physicians as “gate keepers” in authorizing Medicare-covered services and facilitating improper billing across the care spectrum. 


Related Attorney(s): Aaron Buchman, Jared Facher, Brian McGovern
Related Practice(s): Health Care, Health Care Fraud Strike Force
Related Office(s): New York
read more »

It’s a Mad, Mad, Madden World

Jun 29, 2016

On Monday, June 27, 2016, the Supreme Court of the United States denied the petition for certiorari in Midland Funding LLC v. Madden, No. 15-610.  The Supreme Court’s denial leaves intact the unusual – and troubling – decision by the U.S. Court of Appeals for the Second Circuit, Midland Funding, LLC v. Madden.  In that case, the Second Circuit held that the application of state usury laws to nonbank assignees is not preempted by Section 85 of the National Bank Act (the “NBA”), but rather such assignees remain subject to state usury limits.  The Second Circuit’s decision suggests that a nonbank assignee of a bank-originated loan might not be able to collect the amount of interest contracted for by the originating national bank if the rate of interest exceeds the usury rate otherwise applicable to the assignee.


Related Attorney(s): Scott Cammarn
Related Practice(s): Bank Regulation, Financial Regulation, White Collar Defense and Investigations
Related Office(s): Charlotte
read more »

What does Brexit mean for the European CLO Market?

Jun 27, 2016

In its referendum held on 23 June 2016, the UK voted to leave the European Union (“Brexit”).  On the following day, David Cameron announced that he will resign as Prime Minister on the election of a new Conservative Party leader and that such leader should be elected prior to the Conservative Party annual conference which starts on 2 October 2016.  David Cameron said that he will leave it to his successor formally to notify the European Council of the UK’s intention to withdraw from the European Union.


Related Attorney(s): Adam Blakemore, Robert Cannon, Neil Macleod, Claire Puddicombe, David Quirolo, Catherine Richardson, Nick Shiren, Daniel Tobias
Related Practice(s): Antitrust, Securitization & Asset Based Finance, Tax
Related Office(s): Brussels, London
read more »

FERC Issues Order Clarifying Reporting Requirements in the Electric Quarterly Report and Updating Data Dictionary

Jun 23, 2016

On June 16, 2016, the Federal Energy Regulatory Commission issued an order implementing specified clarifications to existing Electric Quarterly Report (“EQR”) reporting requirements and the accompanying EQR Data Dictionary.  The Commission’s order revised or affirmed the following reporting requirements and data fields:  (1) Increment Name; (2) Commencement Date of Contract Terms; (3) Transmission-related data; (4) Time Zone field options; and (5) E-Tag ID-related data fields.  Notably, the Commission also announced that, going forward, it will post to its website such “minor or non-material” changes to EQR reporting requirements and the EQR Data Dictionary, in addition to notifying EQR users via e-mail.  It will no longer propose these types of changes in a Commission order or rulemaking and, as a result, will not provide an opportunity for comment.  It explained that this will enable the agency to make minor or non-material changes in a more time

Related Attorney(s): Mark Haskell
Related Practice(s): Energy & Commodities
Related Office(s): Washington
read more »

M&A Update: New York Court of Appeals Rejects Extension of Common Interest Privilege to Merger Talks

Jun 15, 2016

On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is pending or reasonably anticipated.  The decision reversed an intermediate appeals court’s expansion of the privilege to situations where the parties shared a “common legal interest” short of pending or reasonably anticipated litigation.  


Related Attorney(s): Nathan Bull, William Mills
Related Practice(s): Corporate, Corporate & Securities Litigation, Corporate Governance, Litigation
read more »

European Parliament Rapporteur Publishes Draft Amendments to the Proposed EU Securitisation Regulation

Jun 10, 2016

On 6 June 2016, Paul Tang MEP, the Rapporteur of the Committee on Economic and Monetary Affairs (“ECON”) of the European Parliament, published a “Draft Report”, consisting mainly of  draft amendments (the “Proposed Amendments”) to the EU's proposal for a regulation intended to lay down common rules on securitisation and create a European framework for “simple, transparent and standardised” (“STS”) securitisation (the “Regulation”).


Related Attorney(s): Robert Cannon, Merryn Craske, Stephen Day, Neil Macleod, Claire Puddicombe, David Quirolo, Nick Shiren, Daniel Tobias, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
read more »

CFPB Proposed Rules Address Payday Loans and Impose New Customer Diligence Requirements

Jun 08, 2016

The Consumer Financial Protection Bureau (“CFPB”) last week announced long-awaited proposed rules governing payday loans and other high-cost credit products, including that lenders must take steps to ensure prospective borrowers have the ability to repay them.


Related Attorney(s): Scott Cammarn, Peter Carey, Joseph Moreno
Related Practice(s): Bank Regulation, Financial Regulation, White Collar Defense and Investigations
read more »

Update on the EU STS and Risk Retention

May 25, 2016

On 19 May 2016, the Committee on Economic and Monetary Affairs of the European Parliament (“ECON”) published a working document on the European Commission’s proposal for a regulation (the “Proposed Regulation”) intended to harmonise risk retention, transparency and due diligence requirements applying to securitisations and to create a legal framework to encourage “simple, transparent and standardised” securitisations (“STS securitisations”).


Related Attorney(s): Stephen Day, Neil Macleod, David Quirolo, Nick Shiren, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
read more »

Government’s Decision Not to Charge Phil Mickelson Illustrates Difficulties in Proving Insider Trading Cases Against Tippees

May 24, 2016

On May 19, 2016, the United States Attorney’s Office for the Southern District of New York and the Securities and Exchange Commission (“SEC”) announced insider trading charges against Las Vegas sports bettor William (“Billy”) Walters and former Dean Foods chairman Thomas Davis for allegedly trading on nonpublic company information.  Tellingly, no charges were brought against professional golfer Phil Mickelson, who was named as a relief defendant and agreed to repay close to $1 million in trading profits made as part of the alleged scheme.


Related Attorney(s): Joseph Moreno, Kendra Wharton
Related Practice(s): Securities Enforcement & Investigations, White Collar Defense and Investigations
read more »

Dual Decisions Provide Narrow Path for Plaintiffs to Establish Standing in Data Breach and Cybersecurity Suits

May 23, 2016

Last week, decisions by the United States Supreme Court and the Northern District of Georgia provided further guidance regarding the narrow path required for a class action plaintiff to successfully establish Article III standing in a data breach claim brought in federal court.


Related Attorney(s): Keith Gerver, Joseph Moreno
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
read more »

In Wake of the Panama Papers, Treasury Proposes New Reporting Requirements for Foreign-Owned Legal Entities

May 18, 2016

On May 10, 2016, the Treasury Department issued proposed regulations that, if approved, will require business entities formed in the United States that are owned by a single foreign person to obtain an employer identification number (“EIN”), maintain adequate records of certain transactions, and file information returns with the Internal Revenue Service (“IRS”).


Related Attorney(s): Jodi Avergun, Keith Gerver, Mark Howe, Joseph Moreno, Linda Swartz, Kendra Wharton
Related Practice(s): Tax, White Collar Defense and Investigations
read more »

FinCEN Issues Final Rules for Customer Due Diligence Requirements

May 13, 2016

On May 11, 2016, the Financial Crimes Enforcement Network (“FinCEN”) issued the final version of its long-awaited “Customer Due Diligence Rules” under the Bank Secrecy Act.  The final rules impose a new requirement on “covered financial institutions” – which include banks, broker-dealers, mutual funds, and futures commission merchants and introducing brokers in commodities – to identify the beneficial owners who own or control certain legal entity customers at the time a new account is opened.


Related Attorney(s): Jodi Avergun, Scott Cammarn, Dorothy Mehta, Joseph Moreno
Related Practice(s): Anti-Money Laundering & Asset Forfeiture, Bank Regulation, Financial Regulation, White Collar Defense and Investigations
read more »

CFTC Proposes Amendment to RTO-ISO Order

May 12, 2016

On May 10, 2016, the Commodity Futures Trading Commission (“CFTC”) proposed an amendment (“Proposed Amendment”) to an order it issued on March 28, 2013 (“RTO-ISO Order”), exempting certain electric energy transactions from a number of provisions of the Commodity Exchange Act (“CEA”) and CFTC regulations other than the general anti-fraud and anti-manipulation provisions, and other scienter-based prohibitions.


Related Attorney(s): Mark Haskell, Brett Snyder
Related Practice(s): Energy & Commodities, Energy & Commodities Regulation & Compliance
read more »

IRS Ruling Sounds Alarm over Tax-Exempt Status of Nonprofit ACOs Operating outside of the Medicare Shared Savings Program

May 10, 2016

On April 8, 2016, the IRS released private letter ruling 201615022 denying tax-exempt section 501(c)(3) status to a nonprofit accountable care organization (“ACO”) that did not participate in the Medicare Shared Savings Program (“MSSP”). This adverse determination raises questions about the ability of an ACO outside of the MSSP to qualify for tax-exempt status under section 501(c)(3).


Related Attorney(s): Jean Bertrand, Brian McGovern, Paul Mourning
Related Practice(s): Health Care
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CFPB Targets Mandatory Arbitration Clauses to Protect Consumer Class Actions

May 10, 2016

On May 5, 2016, the Consumer Financial Protection Bureau (“CFPB”) issued a proposed rule to prohibit providers of certain consumer financial products and services from using arbitration clauses to block consumers from filing or participating in class action lawsuits. In addition, the proposed rule would impose a reporting obligation on providers of covered consumer financial products or services, requiring that certain materials filed in arbitration cases be submitted to the CFPB.


Related Attorney(s): Scott Cammarn, Peter Carey, Joseph Moreno
Related Practice(s): Financial Regulation, White Collar Defense and Investigations
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SEC Focuses on Investor Perspective and Use of Technology with New Concept Release

May 06, 2016

On April 13, 2016, the U.S. Securities and Exchange Commission issued a concept release on the business and financial disclosures required by Regulation S-K. The release is part of an ongoing comprehensive evaluation by the SEC of disclosure requirements in response to statutory mandates in the FAST Act and JOBS Act (more information on which can be found at the Disclosure Effectiveness Initiative). This review also includes the Report on Review of Disclosure Requirements in Regulation S-K and forthcoming reports on Regulation S-X.


Related Attorney(s): William Mills
Related Practice(s): Corporate, Financial Regulation
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Trove of SNF Claims Data Released By CMS – Ready for Mining By Auditors and Whistleblowers

May 02, 2016

Over recent years, the Federal government has trained its sights on potential billing abuses in the Medicare Part A program for Skilled Nursing Facilities (“SNFs”) in the provision of rehabilitation therapy services.  The U.S. Health and Human Services Office of the Inspector General (“OIG”) issued a report in September 2015, finding that the current methodology “creates a strong financial incentive for SNFs to bill for higher levels of therapy even when beneficiaries do not need such levels.”


Related Attorney(s): Aaron Buchman, Brian McGovern
Related Practice(s): Health Care
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M&A Update: Proposed Amendments to the Delaware Appraisal Statute

Apr 19, 2016

The Corporation Law Section of the Delaware State Bar Association recently approved proposed legislation to amend the General Corporation Law of the State of Delaware (the “DGCL”).  Among the proposed changes are amendments that would mitigate some of the risks presented by stockholder appraisal actions by barring appraisal claims that do not meet certain minimum thresholds.  In addition, the proposed legislation would allow companies to limit the amount of statutory interest payable to stockholders who seek appraisal by making discretionary payments to such stockholders prior to the final value determination by a court.  If adopted by the Delaware General Assembly, these amendments would apply to merger agreements entered into on or after August 1, 2016.


Related Attorney(s): Joshua Apfelroth, Mattan Erder, William Mills
Related Practice(s): Corporate, Mergers & Acquisitions
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Current Structuring May Not Shield Private Equity Firms from ERISA Liabilities

Apr 14, 2016

On March 28, 2016, the U.S. District Court for the District of Massachusetts held that two private equity funds within Sun Capital were jointly and severally liable under the Employee Retirement Income Security Act of 1974, as amended (ERISA), for the $4.5 million multiemployer pension plan withdrawal liability of a portfolio company. This landmark decision appreciably changes the landscape for private equity investment in companies with pension plans or potential pension liabilities.


Related Attorney(s): Robert Davis, James Frazier, Linda Swartz
Related Practice(s): Corporate, ERISA, Executive Compensation, Benefits & ERISA
Related Office(s): New York, Washington
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M&A Update: Broad Anti-Inversion Rules Released

Apr 05, 2016

On April 4, 2016, Treasury released new rules making it more difficult for some U.S. companies to invert (“Serial Inversion Regulations”), Proposed Regulations limiting the effectiveness of “earnings stripping” techniques (“Earnings Stripping Regulations”), and Final and Temporary Treasury Regulations incorporating rules previously described in Notices 2014-52 and 2015-79. 


Related Attorney(s): William Mills, Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
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Important Court Decision For No-Fault Insurers -- Federal Court Rejects Argument To Limit Insurers’ Right To Seek Judicial Relief From Fraud Schemes

Apr 05, 2016

We are pleased to inform you of a very favorable recent caselaw development in the no-fault insurance area, in which our firm played a significant role.  Specifically, on March 24, 2016, in the case of Liberty Mutual Fire Insurance Company, et al. v. Shapson, et al., the United States District Court for the Eastern District of New York (Honorable Eric N. Vitaliano) rejected certain defendants’ attempt to stay or dismiss an insurer’s federal lawsuit seeking declaratory relief stemming from a major no-fault fraudulent scheme involving the fraudulent incorporation of providers, unlawful fee-splitting and other improper conduct.


Related Attorney(s): Jared Facher, William Natbony
Related Practice(s): Health Care, Insurance and Reinsurance
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New York State Bill Would Alter Taxation of Carried Interest

Mar 31, 2016

A bill recently introduced in the New York State Assembly would impose additional tax on carried interest.  The taxation of carried interest has been widely discussed over the last decade, with a number of bills introduced (but not enacted) in Congress that generally would tax such carried interest at ordinary Federal income tax rates (rather than at lower capital gain rates).


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
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The Southern District of New York’s Norske Skog Decision: What Constitutes A Refinancing May Be In The Eye of The Beholder

Mar 29, 2016

The recent decision by the United States District Court for the Southern District of New York in Citibank, N.A. v. Norske Skogindustrier ASA  could be an important consideration for future drafting and interpretation of debt agreements.  While the Court’s decision is in the context of a preliminary injunction motion, the opinion provides useful guidance for parties potentially undertaking a refinancing exchange offer, and for parties who may seek to challenge such an exchange.  Given the increasing need for companies in distressed industries to exchange debt and extend maturities, parties facing a potential debt exchange should consider the Norske Skog court’s indenture analysis.



Related Attorney(s): Ingrid Bagby, Stuart Goldstein, William Mills, Yushan Ng
Related Practice(s): Corporate, Financial Restructuring, Securitization & Asset Based Finance
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Delaware Bankruptcy Court Rules TCEH First Lien Distributions Are Governed by the Bankruptcy Code, Not by Intercreditor Agreement Waterfall

Mar 21, 2016

On March 11, 2016, Judge Christopher Sontchi of the U.S. Bankruptcy Court for the District of Delaware issued an opinion in the Energy Future Holdings bankruptcy that resolved an intercreditor dispute over $90 million in proceeds to be distributed under the plan of reorganization. The Court determined that distributions under a plan of reorganization and monthly adequate protection payments made pursuant to a cash collateral order were governed solely by the plan and order, and were not required to be distributed in accordance with a waterfall provision in an intercreditor agreement.


Related Attorney(s): Thomas Curtin, Mark Ellenberg, Ellen Halstead, Howard Hawkins, Ivan Loncar, Michele Maman
Related Practice(s): Corporate, Financial Restructuring
Related Office(s): New York, Washington
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UK Budget 2016 – Key Tax Measures

Mar 17, 2016

The Chancellor of the Exchequer delivered the UK Budget for 2016 on 16 March 2016.

In this Client and Friends Alert we have outlined the key tax measures that we expect to be of interest to Cadwalader’s clients and friends.


Related Attorney(s): Adam Blakemore, Catherine Richardson
Related Practice(s): Tax
Related Office(s): London
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FRB Requests Comments on Proposed Single-Counterparty Credit Limits

Mar 17, 2016

The Board of Governors of the Federal Reserve System ("FRB") has requested comments on reissued proposed rules that would establish a single-counterparty credit limits ("SCCL") for domestic and foreign bank holding companies with $50 billion or more in total consolidated assets. The proposed rules are intended to implement Section 165(e) of the Dodd-Frank Act, which requires the FRB to impose limits on the amount of credit exposure that such domestic or foreign bank holding companies can have to unaffiliated companies in order to reduce the number of risks that might arise from the companies' failure.

Comments on the proposed regulations must be submitted by June 3, 2016.


Related Attorney(s): Scott Cammarn, Evan Weller
Related Practice(s): Financial Regulation, Securitization & Asset Based Finance
Related Office(s): Charlotte
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More Than a Family Affair: Six-Figure HIPAA Penalty Upheld for Unrepentant Home Care Agency due to PHI Access by Spurned Spouse of Employee

Mar 08, 2016

The Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder (“HIPAA”) should be now well-known to health care providers and health plans.  Under HIPAA’s “Privacy Rule,” covered entities must take steps to “reasonably safeguard” protected health information (“PHI”) from any “intentional or unintentional use or disclosure that is in violation of the standards, implementation specifications or other requirements” of the Privacy Rule.


Related Attorney(s): Jared Facher, Brian McGovern
Related Practice(s): Health Care
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Codere S.A. Surety Bonds - Gambling with Unfunded Commitments

Mar 02, 2016

Mr Justice Robin Knowles CBE handed down his judgment on 29 January 2016 in GSO Credit – A Partners L.P. (and other GSO funds) v Barclays Bank PLC and HCC International Company PLC [2016] EWHC 146 (Comm) concerning the application of the Loan Market Association (“LMA”) Standard Terms and Conditions for Par and Distressed Trade Transactions (Bank Debt/Claims) dated 14 May 2012  (the “Terms and Conditions”) (as in effect on the Trade Dates of 10 and 11 June 2013).

The case provides the first judgment in the new Financial List that was established in October 2015 to facilitate the hearing of complex financial claims  by judges with relevant experience given the need for specialist expertise in the various litigations arising since the 2008 financial crisis.


Related Attorney(s): Adam Colman, Tawnee Harker, Louisa Watt
Related Practice(s): Debt & Claims Trading, Financial Restructuring
Related Office(s): London
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CMS Issues Final Regulations to Guide Medicare Providers and Suppliers in Complying with 60-Day Mandate to Report and Return Overpayments

Feb 23, 2016

he Patient Protection and Affordable Care Act (“PPACA”), signed into law on March 23, 2010, included a provision (the “Report and Refund Mandate”), broadly requiring health care providers, suppliers, Part D plans and managed care organizations that were overpaid by the Medicare or Medicaid program to report and return the overpayment within 60 days of the date when the overpayment was “identified.”


Related Attorney(s): Jared Facher, Brian McGovern
Related Practice(s): Health Care
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Bank Resolutions – Trust the Regulators, but Keep Your Powder Dry

Feb 17, 2016

In times of financial turbulence, politicians, regulators and the media make the case for tighter controls of the markets.  However, with new regulatory powers coming in and the resulting extra layer of complexity that their application brings, investors have their reasons not to put their trust in regulators.  As seen with recent developments in Portugal and Italy, a number of competing motivations surround the rescue of financial institutions.  The old maxim – “Put your trust in God, but keep your powder dry” -  may be applied to describe investor sentiment in an environment where treating senior investors equitably has not been a priority for local regulators.


Related Attorney(s): Assia Damianova, Nick Shiren
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
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U.S. DOE Disclaims Jurisdiction Over Canadian Gas and Authorizes LNG Exports to Non-FTA Nations From Bear Head LNG Project

Feb 10, 2016

On February 5, 2016, the U.S. Department of Energy's Office of Fossil Energy ("DOE/FE") issued two orders to Bear Head LNG Corporation and Bear Head LNG (USA), LLC (together, "Bear Head LNG"), formally announcing DOE's comprehensive policy for considering applications involving liquefied natural gas ("LNG") exports from Eastern Canada to global markets.


Related Attorney(s): Tania Perez, Lamiya Rahman
Related Practice(s): Energy & Commodities
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Getting By With a Little Help From Friends: United States Supreme Court to Clarify Insider Trading Liability in Tipping Cases

Jan 27, 2016

On January 19, 2016, the United States Supreme Court granted certiorari in United States v. Salman, in which the Ninth Circuit Court of Appeals held that the government may prove a “personal benefit” to a tipper of inside information—a necessary element of an insider trading case involving tipping—by showing evidence that an insider made a “gift” of confidential information to a trading relative or friend.


Related Attorney(s): Jodi Avergun, Kendra Wharton
Related Practice(s): Corporate & Securities Litigation, Securities Enforcement & Investigations, White Collar Defense and Investigations
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FTC Announces 2016 Thresholds for Merger Control Filings Under HSR Act and Interlocking Directorates Under the Clayton Act

Jan 26, 2016

The Federal Trade Commission (“FTC”) has announced its annual revisions to the dollar jurisdictional thresholds in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”); the revised thresholds are expected to become effective in late February 2016, 30 days after the date of their publication in the Federal Register.  These changes increase the dollar thresholds necessary to trigger the HSR Act’s premerger notification reporting requirements.  The FTC also increased the thresholds for interlocking directorates under Section 8 of the Clayton Act.


Related Attorney(s): Ngoc Hulbig, Amy Ray
Related Practice(s): Antitrust, M&A Clearance & Counseling, Mergers & Acquisitions
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M&A Update: Highlights from 2015 and Implications for 2016

Jan 19, 2016

A record-setting year for M&A deal activity, 2015 also yielded several important legal decisions and highlighted significant trends that are likely to influence M&A market participants in 2016 and beyond.


Related Attorney(s): Joshua Apfelroth, Lindsey Kister, Braden McCurrach, William Mills
Related Practice(s): Corporate, Corporate & Securities Litigation, Corporate Governance, Litigation, Mergers & Acquisitions
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FinCEN Targets High-Value Real Estate Transactions in New York and Miami

Jan 19, 2016

On January 13, 2016, the Financial Crimes Enforcement Network (“FinCEN”) announced that it had issued a Geographic Targeting Order (“GTO”) which will temporarily require certain title insurance companies to report the identity of natural persons who make “all-cash” purchases of high-value residential real estate through shell companies in New York County (Manhattan) and Miami-Dade County.


Related Attorney(s): Jodi Avergun, Nicholas Brandfon, J. Robert Duncan, Steven Herman, Joseph Moreno
Related Practice(s): Real Estate, White Collar Defense and Investigations
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The EBA’s New Remuneration Guidelines: Expanding the Scope of the Bonus Cap

Jan 14, 2016

On 21 December 2015 the European Banking Authority (“EBA”) published its final guidelines on sound remuneration policies (the “Guidelines”), together with its opinion on proportionality (the “EBA Opinion”).

The Guidelines and EBA Opinion are likely to be of particular relevance to a number of smaller regulated investment firms, since the EBA’s intention is that they will no longer be able to disapply the so-called “bonus cap” on the basis of “proportionality”.


Related Attorney(s): Neil Macleod, David Quirolo, Nick Shiren, Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
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Glass Lewis Opens Registration for Issuer Data Report Requests, including expanding access to certain companies in Canada and Europe

Jan 08, 2016

U.S. companies listed on the NASDAQ and NYSE, as well as certain listed companies in Canada and Europe, with annual shareholder meetings scheduled between March 1, 2016 and June 30, 2016 may now register through January 31, 2016 to receive an Issuer Data Report (IDR) from Glass Lewis. The IDR service has per country participation limits and is available to eligible companies on a first-come, first-served basis. The registration period for a country will end prior to January 31, 2016 if the participation limit for that country is reached.


Related Attorney(s): Christopher Cox, William Mills
Related Practice(s): Corporate, Corporate Governance
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OFAC Publishes Cyber-Related Sanctions Regulations

Jan 08, 2016

On December 31, 2015, the Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued regulations implementing Executive Order 13694 of April 1, 2015, which authorized the imposition of economic sanctions on individuals and entities determined to be responsible for, complicit in, or benefitting from significant cyber attacks or cyber theft. 


Related Attorney(s): Peter Carey, Keith Gerver, Joseph Moreno, James Treanor
Related Practice(s): Cyber and National Security, White Collar Defense and Investigations
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M&A Update: Delaware Chancery Court Invalidates Charter and Bylaw Provisions Allowing Only For Cause Removal of Directors Where Board is Not Classified

Jan 05, 2016

In a December 21, 2015 transcript ruling, the Delaware Chancery Court invalidated the provisions of VAALCO Energy, Inc.’s charter and bylaws that allow for removal of directors only “for cause” even though VAALCO’s board is not classified.  Vice Chancellor Laster ruled that the charter and bylaw provisions conflicted with the plain reading of Section 141(k) of the Delaware General Corporation Law, which states that stockholders may remove directors from the board with or without cause except where the board is classified or directors are elected by cumulative voting.


Related Attorney(s): Andrew Alin, William Mills
Related Practice(s): Corporate, Corporate & Securities Litigation, Mergers & Acquisitions
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