Articles - archive


Global Competition Review 40 Under 40 2016

Dec 4, 2015

Global Competition Review

GCR is proud to present the 2015 edition of the 40 under 40, our listing of 40 young antitrustpractitioners from around the world. As with our previousfour editions, this year’s listing profiles young antitrustminds who have taken on leading roles within their firms,whether serving as one of the primary junior partners behindbig-name rainmakers or, in some cases, as a central figurein a competition group. This year’s list includes lawyers andbarristers practising in countries around the globe.


Related Attorney(s): Amy Ray
Related Practice(s): Antitrust
Related Office(s): Washington
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The U.S. Department of Justice’s New Policy Emphasizing Individual Civil and Criminal Accountability for Corporate Wrongdoing

Nov 30, 2015

World Securities Law Report

In the past five years, the U.S. Department of Justice (DOJ) has negotiated ever more eye-popping settlements with companies in cases involving violations of the U.S. Foreign Corrupt Practices Act, health-care fraud and financial fraud. With each new corporate resolution, the DOJ announces larger and larger penalties.


Related Attorney(s): J. Robert Duncan, Anne Tompkins, Jodi Avergun
Related Practice(s): White Collar Defense and Investigations
Related Office(s): Washington
read more »

Assessing A Judicial Solution To Abusive Merger Litigation

Nov 19, 2015

Law360

The sophisticated Delaware Chancery Court, the home to a great deal of corporate governance litigation, has recently made efforts to curb merger lawsuits that lack merit. Such cases make up a substantial portion of the claims that follow almost every public merger and are often resolved with nothing more than a few meaningless disclosures, a broad release and hundreds of thousands of dollars of plaintiffs attorneys’ fees. Examining these issues now is timely because the Delaware Chancery Court has expressed serious reservations about these lawsuits, warning litigants that the days of automatic approval of disclosure-only settlements, broad releases for defendants, and cash going only to plaintiffs lawyers are over.


Related Attorney(s): Gillian Burns
Related Office(s): New York
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In Closely Watched Case, Federal Court Upholds the Government’s Position on Provider Mandate to Report and Return Medicare and Medicaid Overpayments in 60 Days

Nov 16, 2015

Pratt's Government Contracting Law Report

The federal district court in Kane v. Healthfirst, Inc., has stepped in to fill a regulatory void left by the Centers for Medicare & Medicaid Services andhas provided long-awaited guidance to providers struggling to understandtheir compliance obligations and risks under The Patient Protection andAffordable Care Act’s report and refund mandate. The authors of thisarticle explain the decision and its implications.


Related Attorney(s): Brian McGovern, Jared Facher
Related Office(s): New York
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New World Disorder

Nov 12, 2015

IFLR

Transatlantic regulatory conflicts are hampering OTC derivatives’ recovery. Cooperation is needed to avoid conflicts arising from the extraterritorial reach of EU and US rules.


Related Attorney(s): Jeffrey Robins, Nihal Patel, Assia Damianova
Related Practice(s): Corporate, Financial Regulation
Related Office(s): London, New York
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TCEH Bankruptcy: SDNY Transfers Delaware Trust Company v. Wilmington Trust N.A. Intercreditor Dispute to Delaware Bankruptcy Court, Reaffirming Broad View of Bankruptcy Jurisdiction

November 5, 2015

Journal of Bankruptcy Law

In an action arising from the huge TCEH Chapter 11 bankruptcy, Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York issued an opinion in Delaware Trust Company v. Wilmington Trust N.A. denying plaintiff’s motion to remand the case back to New York state court, and granting defendants’ motion to transfer the case to the District of Delaware, from where it will be referred to the United States Bankruptcy Court for the District of Delaware.


Related Attorney(s): Michele Maman, Mark Ellenberg, Ivan Loncar, Howard Hawkins, Thomas Curtin, Ellen Halstead
Related Practice(s): Corporate Securitization, Financial Regulation
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Chancery Clarifies Appraisal Fundamentals

November 5, 2015

Law360

In a recent decision in an appraisal action, the Delaware Chancery Court reaffirmed the court’s reluctance to substitute its own calculation of the “fair value” of a target company’s stock for the purchase price derived through arm's-length negotiations, provided it resulted from a thorough, effective and disinterested sales process. The Oct. 21, 2015, decision, Merion Capital LP and Merion Capital II LP v. BMC Software Inc., not only provides a comprehensive review of the fundamentals of appraisal actions but also serves as a cautionary tale for merger arbitrageurs and other stockholders looking to seek appraisal remedies.


Related Attorney(s): Joshua Apfelroth, William Mills
Related Practice(s): Corporate
Related Office(s): New York
read more »

Expert Q&A on Developments in CMBS Lending

Oct 20, 2015

Practical Law

The commercial mortgage-backed securities (CMBS) lending market has, by all accounts, experienced a complete turnaround since its implosion in the years following the 2008 financial crisis. CMBS lending is now back and facing new challenges in a booming market. Practical Law asked William McInerney and Fredric Altschuler of Cadwalader, Wickersham & Taft LLP for their thoughts on how CMBS lending has changed in recent years and the ways they are tailoring their practice to the demands of the current CMBS market. 


Related Attorney(s): Fredric Altschuler, William McInerney
Related Practice(s): Fintech, Mortgage Finance
Related Office(s): New York
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Buyer (and its Creditors) Beware: SemCrude District Court Finds That Purchasers Took Oil and Gas Free and Clear of Producers' Liens

October 8, 2015

Bloomberg BNA

Although almost eight years have lapsed since the chapter 11 cases of Tulsa, Oklahoma-based SemCrude L.P. were confirmed, many of the issues at the forefront of those cases are re-emerging in light of the recent uptick in oil and gas-related restructurings.  The SemCrude cases provided useful guidance for oil and gas producers and purchasers to best address the perfection and management of security interests in oil and gas-related collateral.  Perhaps of most significance are the lessons SemCrude taught regarding the repercussions of a secured lender’s failure to timely perfect oil and gas security interests, especially if producers have a basis for asserting a security interest under state law.  The lessons have not stopped: on July 30, 2015, the Delaware district court resolved a dispute between producers and purchasers, and affirmed the bankruptcy court’s holding that the purchasers took oil purchased from SemGroup free and clear of the producers&

Related Attorney(s): Mark Ellenberg, Ingrid Bagby, Michele Maman
Related Practice(s): Bankruptcy Litigation, Projects & Transactions
Related Office(s): Houston, New York, Washington
read more »

Dole Ruling Warns Not To Undermine MFW Protections

September 2, 2015

Law360

In its Aug. 27 post-trial opinion, In re Dole Food Co. Inc. Stockholder Litigation, the Delaware Chancery Court held Dole executives David Murdock and C. Michael Carter personally liable for $148 million in damages for undermining and interfering with the special committee’s efforts to obtain a fair price for Dole’s minority stockholders following Murdock’s decision to take the company private in 2013. The decision emphasizes that transactions with a controlling stockholder that employ the dual procedural protections of independent director and “majority of the minority” approval must actually adhere to the substance and purpose of those protections.


Related Attorney(s): William Mills, Richard Brand
Related Practice(s): Corporate
Related Office(s): New York
read more »

FinCEN Continues Aggressive Anti-Money Laundering Trend

Aug 31, 2015

Law360

On Aug. 25, 2015, the Financial Crimes Enforcement Network proposed regulations that would require certain investment advisers to establish anti-money laundering programs and report suspicious activity to FinCEN pursuant to the Bank Secrecy Act. Under the proposed rule, investment advisers would be considered “financial institutions” under the BSA and, therefore, be subject to many new and burdensome compliance, reporting and record keeping requirements.


Related Attorney(s): Jodi Avergun, Dorothy Mehta
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Securities Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

Merger Control in the European Union: Lexology Navigator Q&A

Aug 19, 2015

Lexology

The authors discuss the current merger control climate in the EU, including trends, proposed reforms and recent legislation.


Related Attorney(s): Vincent Brophy
Related Practice(s): Antitrust, M&A Clearance & Counseling
Related Office(s): Brussels, London
read more »

Merger Control in the United States: Lexology Navigator Q&A

Jul 03, 2015

Lexology

The authors discuss the current merger control climate in the United States, including trends, proposed reforms and recent legislation.


Related Attorney(s): Evan Harris, Ngoc Hulbig
Related Practice(s): Antitrust, M&A Clearance & Counseling
Related Office(s): Charlotte, Washington
read more »

Madden Has Far-Reaching Implications For Loan Investors

Jun 29, 2015

Law360

On May 22, 2015, in Madden v. Midland Funding LLC, the United States Court of Appeals for the Second Circuit held that the application of state usury laws to third-party assignees is not preempted by the National Bank Act but rather such assignees remain subject to state usury limits. The Madden decision has potentially far-reaching implications for investors in, and securitizers of, bank-originated loans to the extent that it casts into doubt the ability of an assignee of a bank loan to collect interest at the rate originally provided for in the agreement.


Related Attorney(s): Nathan Bull, Scott Cammarn
Related Practice(s): Bank Regulation, Financial Regulation
read more »

Global Tax-Free Deals: Mergers, Acquisitions and Spins at Home and Abroad

Jun 25, 2015

Practising Law Institute: Corporate Tax Conference Materials

The first four sections of this article discuss the tax consequences of domestic and cross-border tax-free acquisitions and spinoffs. The balance of the article applies these rules to the types of intra-group transactions that multinational groups typically employ before and after acquisitions and dispositions.


Related Attorney(s): Linda Swartz
Related Practice(s): Mergers & Acquisitions Taxation, Tax
Related Office(s): New York
read more »

Multiple Step Acquisitions: Dancing the Tax-Free Tango

Jun 24, 2015

Tax Notes

This article explores the rules affecting the taxation of multiple step acquisitions, which have changed considerably in the new millennium, in the context of (i) reorganizations in which two or more sequential stock or asset transfers are combined to produce a single, often tax-free, transaction, (ii) single step tax-free reorganizations followed by stock or asset transfers to affiliates, and (iii) F reorganizations that also involve preceding or subsequent stock or asset transfers.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

2010 Bankruptcy Tax Issues

Jun 23, 2015

I’m very grateful to Simon Friedman, Stuart Goldring and Carl Jenks for dreaming up some of the most interesting slides that follow and sharing their insights into the byzantine world of bankruptcy tax over the years.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

ABCs of Cross-Border Derivatives

Jun 22, 2015

Practising Law Institute: Corporate Tax Conference Materials

This outline examines the U.S. tax consequences produced by derivative instruments in international financing transactions and highlights the inconsistent U.S. tax treatment that results from the use of different derivative financial instruments with the same economic results in cross-border financing transactions.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

A Layman's Guide to LLC Incentive Compensation

Jun 21, 2015

Practising Law Institute: Corporate and LLC Tax Conference Materials

This outline examines the U.S. tax consequences surrounding the use of equity based compensation by partnerships and limited liability companies (each, an “LLC”).


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

To Disclose or Not to Disclose: Tax Shelters, Penalties, and Circular 230 in 2015

Jun 20, 2015

Practising Law Institute: Corporate and LLC Tax Conference Materials

Disclosure requirements for participants in “reportable transactions.”


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Consolidated Attribute Reduction Regulations

Jun 19, 2015

Practising Law Institute: Corporate Tax Conference Materials

In early 2005, the Treasury Department issued final regulations that employ a hybrid single member, group-wide entity approach to reduce consolidated group members’ tax attributes when a member excludes cancellation of debt income (“COD”) under the bankruptcy or insolvency exceptions to COD (together with the prior temporary regulations, the “Consolidated 108 Regulations”).


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Big A, Little C: Baby Steps Toward Modernizing Reorganizations

Jun 18, 2015

This report recommends that Treasury and the IRS amend the regulations under section 368 to permit A reorganization treatment for acquisitions of 100 percent of a target corporation’s stock, followed by Target’s related state law conversion to a limited liability company or election to be treated as a disregarded entity.


Related Attorney(s): Linda Swartz
Related Practice(s): Mergers & Acquisitions Taxation, Tax
Related Office(s): New York
read more »

Partnership Bankruptcy Tax Issues

Jun 17, 2015

Practising Law Institute: LLC Tax Conference Materials

Bankruptcies and restructurings involving partners and partnerships raise a number of unique tax issues.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Debt Exchanges

Jun 16, 2015

Practising Law Institute: Corporate Tax Conference Materials

This article focuses on one of the crucial issues in any debt restructuring—whether changes to the terms of outstanding debt typically sought by lenders would constitute a deemed exchange of the debt pursuant to section 1001 and the corresponding Treasury regulations.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

The Elective Large Partnership Rules

Jun 15, 2015

Practising Law Institute: LLC Tax Conference Materials

A new elective regime was created for large partnerships as part of the Taxpayer Relief Act of 1997 (the “1997 Act”).


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Section 83(b), Section 409A, Section 457A and Subchapter K

Jun 14, 2015

Practising Law Institute

On May 24, 2005, the Treasury Department (“Treasury”) published proposed treasury regulations (the “proposed regulations”) and a proposed revenue procedure (the “proposed revenue procedure”) governing the issuance and vesting of capital and profits partnership interests issued in connection with the performance of services (such interests, “compensatory partnership interests”).


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Circular 230 and Other Recent Tax Shelter Developments

Jun 13, 2015

The tax shelter regulations include disclosure requirements for participants in “reportable transactions”, and list-maintenance and disclosure  requirements for “material advisors” with respect to reportable transactions.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
read more »

Bankruptcy Tax Issues

Jun 12, 2015

One of the principal tax goals of both a troubled company and its creditors in restructurings is
preserving the company’s net operating losses (“NOLs”) and other tax attributes.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
read more »

Real Estate Investment Trusts 101

Jun 11, 2015

The real estate investment trust (REIT) was originally intended to be a mutual fund for real estate.


Related Attorney(s): Linda Swartz
Related Practice(s): Tax
Related Office(s): New York
read more »

Handling Partnership and LLC Compensatory Interests

Jun 10, 2015

NYU Institute on Federal Taxation Presentation Materials

Current Law:  The Road to the Revenue Procedures


Related Attorney(s): Linda Swartz
Related Practice(s): Mergers & Acquisitions Taxation, Tax
Related Office(s): New York
read more »

Trust Indenture Act of 1939: A Sleeping Statute Comes Back to Life

May 14, 2015

BNA’s Bankruptcy Law Reporter

In December 2014 and January 2015, the U.S. District Court for the Southern District of New York issued two separate decisions involving the Trust Indenture Act of 1939 (the ‘‘TIA’’), a statute that has been rarely invoked in its over 75 year old history.


Related Attorney(s): Michele Maman, Ingrid Bagby
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Blowing The Whistle On SEC Whistleblower Protection

May 04, 2015

Law360

On April 1, 2015, the U.S. Securities and Exchange Commission issued an administrative cease-and-desist order against Houston-based technology and engineering firm KBR Inc., for violating Dodd-Frank whistleblower protection Rule 21F-17 because KBR required internal investigation employee-witnesses to sign confidentiality agreements in which the employee promised not to discuss the substance of their interviews with anyone without the prior approval of KBR’s legal department.


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

6 Steps for Quick FTC Antitrust Clearance of Pharma Mergers

May 01, 2015

Corporate Counsel

The “merger wave” in the pharmaceutical industry is underscoring the need to be able to interact with the antitrust regulators at the Federal Trade Commission (FTC) effectively and efficiently in order to maximize the chances of obtaining Hart–Scott–Rodino (HSR) clearance quickly.


Related Attorney(s): Evan Harris
Related Practice(s): Antitrust
read more »

Finance Act 2015--avoidance using carried-forward losses

Apr 20, 2015

Lexis®PSL Tax

Catherine Richardson examines the aspects of the Finance Act 2015 (FA 2015) which concern targeting avoidance using carried-forward losses.


Related Attorney(s): Catherine Richardson
Related Practice(s): Tax
read more »

Clearing The Smoke Around The Farr-Rohrabacher Amendment

Mar 10, 2015

Law360

The Farr-Rohrabacher Amendment to the 2015 Omnibus Appropriations Bill, which was signed into law in December of 2014, was widely hailed as a significant victory for advocates of medical marijuana. While the amendment is a positive step toward giving marijuana industry participants comfort, several factors limit its reach.


Related Attorney(s): Jodi Avergun
Related Practice(s): Global Litigation, Pharmaceutical Regulation and Compliance
Related Office(s): Washington
read more »

Sounding The D&O Liability Alarm For Health Nonprofits

Mar 03, 2015

Law360

A few weeks ago, the United States Court of Appeals for the Third Circuit issued an important, 28-page opinion that confirmed a jury verdict, holding former officers and directors of a not-for-profit health care provider in bankruptcy, jointly and severally liable to the facility’s creditors — in the amount of $2.25 million — for breach of fiduciary duty in failing to properly oversee and manage the nonprofit entity. Official Comm. of Unsecured Creditors ex rel. Lemington Home for Aged v. Baldwin (In re Lemington Home for Aged), No. 13-2707, at *1 (3d Cir. Jan. 26, 2015).


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

Embrace Diversity As a Business Imperative

Feb 2, 2015

New York Law Journal

As Cadwalader’s managing partner, Pat Quinn looks for opportunities to serve clients efficiently and creatively. Assembling a team that reflects the broadest and most diverse perspectives, he writes, allows a law firm to develop and maintain the highest standards of service in a dynamic and challenging business environment.


Related Attorney(s): Patrick Quinn
Related Office(s): New York
read more »

Friends With Benefits: Second Circuit Overturns Newman and Chiasson Convictions and Raises the Government’s Burden in Insider Trading Cases Against Tippees

Dec 12, 2014

Bloomberg BNA Corporate Law & Accountability Report

In a blow to insider trading prosecutions against downstream recipients of inside information, on Dec. 10 the U.S. Court of Appeals for the Second Circuit overturned the May 2013 convictions of Todd Newman and Anthony Chiasson (see related story, page 1711).


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

Camp's Market Discount Proposal Is a Mixed Bag for Distressed Debt

Dec 01, 2014

Journal of Taxation of Investments

Are distressed debt investors required to treat their speculative investment gains as ordinary interest income under the market discount rules, while continuing to treat their investment losses as capital losses? Or can they rely on the common law "doubtful collectibility doctrine" to stop accruing market discount as interest income, notwithstanding an IRS memorandum that seems to reject this approach? The recent economic downturn underscores the need for clear, consistent rules that do not artificially deflate investor demand.


Related Attorney(s): Mark Howe, Jason Schwartz
Related Practice(s): Tax
read more »

10 Best Practices For Interacting With OCIE Examiners

Sept 02, 2014

Law360

Over the past two years, the U.S. Securities and Exchange Commission's Office of Compliance Inspections and Examination (OCIE) has increased its examination efforts and, some commentators surmise, has morphed into a powerful tool for the SEC’s Division of Enforcement.


Related Attorney(s): Lex Urban
Related Office(s): New York, Washington
read more »

Committee Members’ Professional Fees and Expenses: To Pay or Not to Pay, That Is the Question

Sep 1, 2014

Pratt’s Journal of Bankruptcy Law

The U.S. District Court for the Southern District of New York entered a decision in Davis v. Elliot Management Corp., et al. (In re Lehman Bros. Holdings Inc.) addressing the applications for payment of professional fees in the approximate total amount of $26 million submitted by certain members of the official committee of unsecured creditors appointed under Section 1102 of the Bankruptcy Code in the historical and unprecedented bankruptcy cases of Lehman Brothers Holdings Inc. and its affiliated debtors. The authors of this article discuss the case and its implications.


Related Attorney(s): Ingrid Bagby, Michele Maman
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York
read more »

What Makes the UK So Attractive for High Yield Bond Restructurings?

Aug 28, 2014

LexisNexis

Restructuring & Insolvency analysis: Many European jurisdictions are developing procedures that they hope will rival those of the UK. However, Richard Nevins, senior partner says the UK will likely remain the jurisdiction of choice for bond restructuring.


Related Attorney(s): Richard Nevins
Related Office(s): London
read more »

UK Issues Sentencing Guideline for Individuals Convicted of White-Collar Offenses

Aug 1, 2014

Westlaw Journal – White-Collar Crime

The authors discuss the Sentencing Council for England and Wales’ recently issued guideline applicable to individuals convicted of fraud, bribery and money laundering offenses,


Related Attorney(s): Joseph Moreno
Related Practice(s): White Collar Defense and Investigations
Related Office(s): London, New York
read more »

The Controversy Continues Over Whether the Time for Assumption or Rejection of Integrated Nonresidential Real Property Leases and Other Contracts Should be Governed by Bankruptcy Code Section 365(d)(2) or Section 365(d)(4)'s Shorter Period

Aug 1, 2014

Norton Journal of Bankruptcy Law and Practice

Pursuant to section 365(d)(2) of the Bankruptcy Code, executory contracts, unexpired residential real property leases, and unexpired personal property leases may generally be assumed or rejected any time before confirmation of the debtor's plan, absent a court order granting a request by the nondebtor counterparty to shorten such time. There are also specific rules under section 365(d)(4) of the Bankruptcy Code governing the timing for the assumption or rejection of nonresidential real property leases in cases in which the debtor is the lessee, which require that assumption or rejection by the  debtor-lessee generally be within 120 days after the date of entry of the order for relief or the date of entry of an order confirming the plan. The authors review the potential conflict.


Related Attorney(s): Michele Maman, Ingrid Bagby
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York
read more »

The Volcker Rule’s Impact on Foreign Banking Organisations

May 1, 2014

Banking Today

Foreign banking organisations (FBOs) – i.e., non-U.S. banks that maintain a bank branch, agency office or subsidiary in the United States – have been granted some important exemptions to the proprietary trading provisions of the Volcker Rule. However, FBOs and their non-U.S. affiliates engaged in any proprietary trading or private fund activities must meet the conditions for any exemptions availed of, and are obligated to adhere to several administrative requirements.


Related Attorney(s): Scott Cammarn
Related Practice(s): Bank Regulation, Financial Regulation
Related Office(s): Charlotte
read more »

Secondary Actors in Securities Transactions Beware: The Supreme Court May Have Aided and Abetted the Prospect of Increased State Court Litigation

Apr 18, 2014

Law.com

Secondary actors in securities transactions, such as lawyers, accountants, investment advisers and brokers, should be on alert in the wake of the U.S. Supreme Court’s recent decision in Chadbourne & Parke v. Troice, which limits the application of (and protections provided by) the Securities Litigation Uniform Standards Act of 1998 (SLUSA). In Chadbourne, the Court narrowed SLUSA’s scope, holding that it does not preempt certain state-law class action litigation against secondary actors. In so doing, the Court allowed the state-law claims to proceed against two insurance brokers and two law firms.


Related Attorney(s): Gillian Burns
read more »

EU Risk Retention Requirement :A Brief Overview of the Current Framework

Apr 9, 2014

The Banking Law Journal

The authors provide a broad overview of the current EU risk retention regime as set out in the Capital Requirements Regulation and associated guidance published by the European Banking Authority, and compare the current regime with the previous regime.


Related Attorney(s): Patrick Leftley, Jeremiah Wagner, Nick Shiren
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
read more »

Anti-Money Laundering Guidance Issued for Banks Seeking to Service Marijuana- Related Businesses

Apr 8, 2014

Financial Fraud Law Report

Recently, both the Department of Justice (the “Department”) and the Financial Crimes Enforcement Network (“FinCEN”) of the Department of the Treasury issued anti-money laundering (“AML”) guidance relating to financial crimes involving marijuana businesses. The Department’s guidance was intended to provide enforcement guidance to prosecutors, while the FinCEN guidance focused on describing new compliance obligations of banks and other financial institutions seeking to provide financial services to marijuana-related businesses.


Related Attorney(s): Jodi Avergun, Joseph Moreno
Related Office(s): New York, Washington
read more »

Taxation Without Authorization: The Proposed "Dividend Equivalent" Withholding Regulation Under Section 871(M)

Apr 01, 2014

Columbia Journal of Tax Law - Tax Matters

The currently proposed regulations under section 871(m) of the Internal Revenue Code threaten to impose “dividend withholding” on a broad range of swaps, options, forward contracts, futures contracts, debt, and other financial contracts that reference dividend-paying U.S. stock, even if the contracts do not in fact reference dividends, and even if no party to the contracts ever owned the stock.


Related Attorney(s): Linda Swartz, Jason Schwartz
Related Practice(s): Tax
read more »

A Bird’s-Eye View of Chapter 15

Apr 1, 2014

INSOL World

From 2005 through 2013, nearly 800 Chapter 15 cases were filed and over 100 published opinions were issued by courts in such cases or related matters. The authors provide an overview of statistical data gleaned from the thousands of pleadings, orders, and other papers filed in the hundreds of pending and closed Chapter 15 cases in the United States.


Related Attorney(s): Ingrid Bagby
Related Office(s): New York
read more »

Caught Between a Great Wall and a Hard Place: Issues For U.S. Public Companies in Responding to Regulatory Requests for Chinese Data

Mar 31, 2014

Bloomberg BNA: Securities Regulation & Law Report

In January 2014, an SEC administrative law judge sanctioned five Chinese affiliates of major U.S. accounting firms for their failure to produce work papers related to audits of ten China-based U.S. issuers who were under investigation by the SEC. This article describes how the firms attempted to navigate between the SEC and the Chinese government; outlines an approach for mitigating some of the risks of responding to U.S. information requests for Chinese data; and suggests other areas where these issues may impact U.S. public companies.


Related Attorney(s): Jodi Avergun
Related Practice(s): FCPA Enforcement and Compliance, Securities Enforcement and Compliance
read more »

U.K. Guidelines Emphasize Importance of Robust Programs

Mar 17, 2014

Bloomberg BNA

In January, the Sentencing Council of England and Wales issued its first set of guidelines applicable to corporate white collar offenders. The guidelines, which cover fraud, bribery and money laundering offenses committed by companies, will apply to sentences imposed on or after October 1, regardless of the date of the offense. 


Related Attorney(s): Joseph Moreno
Related Practice(s): Anti-Money Laundering Investigations and Compliance, FCPA Enforcement and Compliance, White Collar Defense and Investigations
read more »

Cadwalader discusses Revisions to the Securitisation Framework: Second Consultative Document published by the Basel Committee

Mar 10, 2014

The CLS Blue Sky Blog

The Basel Committee on Banking Supervision (the “Basel Committee”) has published a second Consultative Document containing revised proposals for the Basel securitisation framework (the “Revised Proposals”). The Revised Proposals describe a revised set of approaches for determining the regulatory capital requirements in relation to securitisation exposures held in the banking book and include a draft standards text. Market participants will be taking a keen interest in these proposals, which are summarised below.


Related Attorney(s): Jeremiah Wagner
Related Practice(s): Securitization & Asset Based Finance
read more »

Mortgage Observer Weekly Q+A

Mar 10, 2014

Mortgage Observer Weekly

Charlotte Managing Partner and Capital Markets Group Co-Chair Stu Goldstein discusses commercial real estate finance and the innovative work Cadwalader attorneys are doing in this space in the March 7th edition of Mortgage Observer Weekly.


Related Attorney(s): Stuart Goldstein
Related Practice(s): Derivatives & Structured Products, Distressed Structured Products, Securitization & Asset Based Finance
Related Office(s): Charlotte
read more »

EU Risk Retention Requirements: Who Can Now Retain in a Managed CLO?

Mar 1, 2014

The Banking Law Journal

Cadwalader’s Nick Shiren and Robert Cannon explore the implications for collateralized loan obligations of the risk retention requirement in the European Union’s Capital Requirements Regulation.


Related Attorney(s): Nick Shiren, Robert Cannon
Related Practice(s): CLOs, Financial Regulation, Securitization & Asset Based Finance
Related Office(s): London
read more »

Notes from the 2011 National Institute on White Collar Crime's FCPA Panel

Mar 01, 2014

American Bar Association

Lory Stone and Jodi Avergun review the lively Foreign Corrupt Practices Act (FCPA) panel discussion held at the 25th Annual National Institute on White Collar Crime in San Diego. Cadwalader’s Peter Clark served as moderator.


Related Attorney(s): Jodi Avergun
Related Practice(s): FCPA Enforcement and Compliance, White Collar Defense and Investigations
read more »

DOJ seeks reversal of decision that could significantly impair False Claims Act enforcement

Nov 18, 2013

Compliance Today

On August 1, 2013, the Department of Justice (DOJ) submitted an amicus curiae brief asking the First Circuit to reverse a significant False Claims Act (FCA) decision issued in United States ex rel. Helen Ge, MD v. Takeda Pharmaceutical Company Limited, et al.


Related Attorney(s): Jodi Avergun
Related Practice(s): Health Care Fraud Strike Force, White Collar Defense and Investigations
read more »

How Cuban Scored a Home Court Win Against the SEC

Nov 14, 2013

Law360

On Oct. 17, 2013, a Dallas, Texas, jury dealt the U.S. Securities and Exchange Commission a stunning defeat in federal court by finding Mark Cuban, the entrepreneur and owner of the Dallas Mavericks, not liable for insider trading. While the verdict may have resulted from adverse evidentiary rulings, reliance on a reluctant, foreign witness and jury nullification for a hometown celebrity, this loss may cause the agency to reevaluate its approach to trials and to seek friendlier venues for insider trading cases.


Related Attorney(s): Nathan Bull
Related Practice(s): Global Litigation, Securities Enforcement and Compliance, White Collar Defense and Investigations
read more »

New Proposed Rules Increase Government Contractors’ Responsibilities for Preventing Human Trafficking

Oct 01, 2013

American Bar Association

On September 26, 2013, the Federal Acquisition Regulatory (FAR) Council published a proposed rule to hold federal contractors and subcontractors responsible for preventing the use of trafficked labor in company operations and supply chains. On the same date, the U.S. Department of Defense (DOD) also published a proposed rule to enhance the DOD’s existing trafficking policy. The authors discuss the vast implications for U.S. companies.


Related Attorney(s): Jodi Avergun
Related Practice(s): White Collar Defense and Investigations
read more »

Settling Class Actions: Process and Procedure

10/01/13

Practical Law The Journal

Parties to a class action settlement and their counsel must observe certain procedures to gain court approval and withstand heightened public scrutiny.


Related Attorney(s): Gillian Burns
Related Practice(s): Global Litigation
Related Office(s): New York
read more »

CFTC Opines on Retail Commodity Transactions

August 30, 2013

Energy Metro Desk

Last week, the U.S. Commodity Futures Trading Commission issued an interpretation regarding the meaning of the term "actual delivery" as it relates to "retail commodity transactions" under Section 2(c)(2)(D) of the Commodity Exchange Act.


Related Attorney(s): Robert Zwirb
Related Practice(s): Commodities & Futures Regulation, Financial Regulation, Regulation, Compliance, and Administrative Litigation
Related Office(s): Washington
read more »

Cadwalader on ESMA's Consultation Paper on the Extra-Territorial Application of EMIR

August 30, 2013

The CLS Blue Sky Blog

On 17 July 2013, the European Securities and Markets Authority ("ESMA") published a consultation paper (the "Consultation Paper") on draft regulatory technical standards ("RTS") aimed at implementing certain provisions of the European Markets Infrastructure Regulation ("EMIR") relating to (a) the extraterritorial application of EMIR, and ((b) preventing the evasion of EMIR's provisions.


Related Attorney(s): Nick Shiren, Assia Damianova
Related Practice(s): Financial Regulation
Related Office(s): London
read more »

Derivative Product Cos: New Rating Agency Guidelines

Jun 17, 2013

Derivatives Week

In a typical intermediation structure, a DPC will enter into a trade with a counterparty and simultaneously enter into an offsetting mirror transaction with the sponsor.


Related Attorney(s): Neil Weidner, Ivan Loncar
Related Practice(s): Derivatives & Structured Products, Financial Regulation, OTC Derivatives
Related Office(s): New York
read more »

The HSBC DPA: A Former DoJ Prosecutor's Perspective

Apr 8, 2013

ECOA Connects

The deferred prosecution agreement (“DPA”) is once again facing criticism, this time in connection with the Department of Justice’s (the “DOJ”) decision to enter into a DPA with HSBC Bank USA, N.A. and HSBC Holdings plc (together, “HSBC”) for violations of the Bank Secrecy Act, the International Emergency Economic Powers Act, and the Trading with the Enemy Act.


Related Attorney(s): Keith Gerver
Related Practice(s): Global Litigation
Related Office(s): New York, Washington
read more »

Golden Living Case Shows How ‘Worthless Services’ Can Be Costly

Mar 20, 2013

Bloomberg BNA Healthcare Fraud Report

With reform of the delivery and financing of health care at the federal and state level under way, quality of care has increasingly become a significant component of reimbursement for providers and managed care plans (e.g., “pay for performance” and quality incentive initiatives).


Related Attorney(s): Brian McGovern, Jared Facher
Related Practice(s): Health Care, White Collar Defense and Investigations
Related Office(s): New York
read more »

Chapter 9 Update: Limiting Jurisdiction in Municipal Bankruptcies

Mar 7, 2013

New York Law Journal

Since the publication of our two-part municipal bankruptcy series (see NYLJ, March 4, 2010, and May 6, 2010), the strain of rising pension costs, declining tax revenues, and onerous debt obligations has become more acute for many struggling municipalities.


Related Attorney(s): Thomas Curtin
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York
read more »

Revised Proposals for a European Union Financial Transactions Tax

Mar 1, 2013

FITAR

This article considers the revised proposal made by the European Commission for a European Council Directive on financial transaction tax (the FTT) to be introduced under the EU's enhanced cooperation procedure by 11 participating member states: Belgium, Germany, Estonia, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia (the FTT-zone).


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
Related Office(s): London
read more »

Hostess Case — Bankruptcy Court Refuses to Send Cash Collateral Dispute to Arbitration

Mar. 1, 2013

ABF Journal

U.S. Bankruptcy Court Judge Robert Drain’s decision in the Hostess case demonstrates that even if a dispute between a debtor and a third party is arguably subject to a pre-petition arbitration clause, that dispute may not be subject to arbitration if it is considered a “substantially” core aspect of the bankruptcy process.


Related Attorney(s): Michele Maman
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York
read more »

U.S. Foreign Account Tax Compliance Act: New Reporting Obligations on Foreign Financial Institutions about U.S. Individuals' Accounts, Investments

Feb 1, 2013

Bloomberg BNA

The Foreign Account Tax Compliance Act (FATCA), signed into law on March 18, 2010, was enacted to combat tax evasion by U.S. citizens and residents who have offshore accounts and assets.


Related Attorney(s): Dean Berry, Mark Howe
Related Practice(s): Corporate Taxation, Tax, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

Fifth Circuit Crafts New Test For Foreign Debtor Relief

Jan 03, 2013

New York Law Journal

On Nov. 28, 2012, the U.S. Court of Appeals for the Fifth Circuit in In re Vitro S.A.B. de C.V. issued a groundbreaking decision under Chapter 15 of the Bankruptcy Code, which provides the mechanics for U.S. bankruptcy courts to deal with cross-border insolvency proceedings.


Related Attorney(s): Casey Servais
Related Practice(s): Bankruptcy Litigation
Related Office(s): London, New York
read more »

California Dreaming? CalPERS And San Bernardino’s Ch. 9

Dec 21, 2012

Law360

California has seen a string of three Chapter 9 filings this year and faces a long line of distressed municipalities. Given this backdrop, the California Public Employees’ Retirement System (CalPERS) figures to play a prominent role in the resolution of many of these situations (in or out of bankruptcy).


Related Attorney(s): Thomas Curtin
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York, Washington
read more »

FATCA May Open Pandora’s Box of Civil, Criminal Tax Liability; Now Is a Critical Time to Consider Voluntary Disclosure

Dec 4, 2012

Bloomberg BNA Daily Tax Report

The Foreign Account Tax Compliance Act (FATCA), signed into law on March 18, 2010, was enacted to combat tax evasion by U.S. citizens and residents who have offshore accounts and assets.


Related Attorney(s): Mark Howe, Dean Berry
Related Practice(s): Corporate Taxation, Estate Planning & Administration, Private Wealth, Tax, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

1st Circ. Set To Weigh In On FCA First-To-File Rule

Dec 4, 2012

Law360

Early next year, the United States Court of Appeals for the First Circuit will likely issue a significant False Claims Act ruling in United States ex rel. Heineman-Guta v. Guidant Corp.


Related Attorney(s): Brian McGovern
Related Practice(s): Health Care, Health Care Fraud Strike Force, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

The History and Statutory Basis of Debtor-in-Possession Financing

Dec. 2, 2012

American Bankruptcy Institute

Businesses that have filed for bankruptcy protection under chapter 11 of the Bankruptcy Code often need access to new credit in order to continue operating as going-concerns and to fund their reorganizations.


Related Attorney(s): Michele Maman, Casey Servais, Ingrid Bagby
Related Office(s): New York
read more »

Is Your Default Foreclosable?

Nov 19, 2012

New York Law Journal

There exist two major theories of mortgage law in the United States: the title theory, in which title to the collateral is transferred to the mortgagee until the debt secured by the  mortgage has been satisfied; and the lien theory, where legal title to the property remains with the mortgagor and the mortgagee is granted a lien on the collateral until satisfaction of the debt secured by the mortgage.


Related Attorney(s): Steven Herman
Related Practice(s): Real Estate, Real Estate Restructuring, Real Estate Workouts & Restructurings
Related Office(s): New York
read more »

ESMA Issues Final Report On Clearing Under EU’s New OTC Derivatives Rules

Oct 15, 2012

BNA World Securities Law Report

Regulation (EU) No. 648/2012 of the European Parliament and of the Council of July 4, 2012, on OTC Derivatives, Central Counterparties and Trade Repositories, also known as the European Market Infrastructure Regulation (“EMIR”), was introduced to provide a framework to improve the functioning of the over-the counter (“OTC”) derivatives markets in the European Union.


Related Attorney(s): Assia Damianova, Nick Shiren
Related Practice(s): Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation
Related Office(s): London
read more »

Final Patent Rules Quell Jitters Over Post-Grant Proceedings

Oct 11, 2012

New York Law Journal

A bedrock principle of the U.S. patent system is the statutory presumption of the validity enjoyed by every issued U.S. patent.


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

Bankruptcy Court Holds That Venue Of Houghton Mifflin Case is Improper, But Delays Transfer

Oct 1, 2012

Pratt's Journal of Bankruptcy Law

The authors analyze a recent decision that serves as a reminder that courts are unlikely to find an official committee necessary to assure the adequate representation of equity’s interests when equity holders are likely out of the money and their interests are generally aligned with other constituents in the case.


Related Attorney(s): Thomas Curtin
Related Practice(s): Bankruptcy Litigation
Related Office(s): New York
read more »

Circuit Affirms Exclusion from Federal Health Care Programs under "Responsible Corporate Officer" Doctrine: Companies and Executives Beware of an Emboldened Department of Justice and HHS Office of Inspector General

Oct 1, 2012

Financial Fraud Law Report

The authors analyze a recent federal circuit court decision that, they believe, may lead the Department of Justice and the Department of Health and Human Services to feel more emboldened than ever to pursue aggressively “responsible corporate officers” more than they have so far.


Related Attorney(s): Brian McGovern
Related Practice(s): Corporate, Corporate Governance, Health Care, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

The current tax treatment of instruments designed to be compliant with CRD IV

Sep 20, 2012

Financial Instruments Tax and Accounting Review

On 26 June 2012 HMRC published a paper on their website entitled ‘The current tax treatment of Instruments designed to be compliant with Capital Requirements Directive 4’ (the HMRC Paper).


Related Attorney(s): Adam Blakemore
Related Practice(s): Bank Regulation, FCA Regulated Entities, Financial Regulation, Tax
Related Office(s): London
read more »

Controversial New Regulator Begins With Aggressive Enforcement Settlement Against Financial Services Company

Sep 18, 2012

BNA's Banking Report

On July 17, 2012, the Consumer Financial Protection Bureau (“CFPB”) reached a groundbreaking $165 million settlement with Capital One Bank (USA), N.A. (“Capital One”) in its first enforcement action, ordering Capital One, a credit card issuer, to refund $140 million to 2 million customers who purchased its credit card “add-on” products and to pay a $25 million fine into the CFPB’s Civil Penalty Fund.


Related Attorney(s): Nathan Bull
Related Practice(s): Financial Regulation, Swap Regulation, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

Surviving a Regulatory Inquiry

Sep. 1, 2012

Commodities Now

Regulators are using increasingly aggressive tactics in seeking information during an inquiry or investigation.


Related Attorney(s): Joseph Moreno
Related Practice(s): Energy Regulation & Litigation
Related Office(s): Washington
read more »

Examining Velo Holdings' KEIP

Aug 03, 2012

Law360

The authors discuss the U.S. Bankruptcy Court for the Southern District of New York's recent approval of a $2.875 million key employee incentive plan (KEIP) in the Velo Holdings bankruptcy cases over the objection of the U.S. trustee finding that it was primarily incentivizing and a sound exercise of the debtors' business judgment.


Related Attorney(s): Andrew Greenberg
Related Practice(s): Bankruptcy Litigation
read more »

Securities Clearing Firms: Beware Fraudulent Transfers

Aug 3, 2012

Law360

On July 3, 2012, the United States Court of Appeals for the Second Circuit refused to vacate an arbitration award against Goldman Sachs Execution & Clearing LP.


Related Attorney(s): Casey Servais
Related Practice(s): Bankruptcy Litigation, Broker-Dealer Regulation, Financial Regulation
Related Office(s): New York
read more »

Ruling on Disclosure of Wells Notices Under Federal Securities Laws

Aug 3, 2012

New York Law Journal

Public companies have long faced a dilemma of whether and when to disclose the receipt of a Wells Notice from the Division of Enforcement Staff of the Securities and Exchange Commission.


Related Attorney(s): Nathan Bull
Related Practice(s): Financial Regulation, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

Corruption and the Arab Spring: Compliance Implications for International Companies

Jul 25, 2012

The FCPA Report

To paraphrase Mao, a revolution, not being a dinner party, is a messy and unpredictable affair with winners and losers emerging in chaotic and sometimes haphazard fashion.


Related Attorney(s): James Treanor
Related Practice(s): White Collar Defense and Investigations
Related Office(s): Washington
read more »

New Pan-European Restrictions on Short Selling

Jun 1, 2012

Eurekahedge

On 24 March 2012, the European Parliament’s Regulation on “short selling and certain aspects of credit default swaps” (the Regulation) came into force.


Related Attorney(s): Assia Damianova, Nick Shiren
Related Practice(s): Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation, Structured Products
Related Office(s): London
read more »

A Practitioner's Guide to Resolving Late Claims

Apr 1, 2012

American Bankruptcy Institute Journal

Proofs of claim play a critical role in bankruptcy cases. Debtors use them to determine their liabilities; creditors use them to preserve their rights to distribution.


Related Attorney(s): Ingrid Bagby
Related Office(s): New York
read more »

The Law of Insider Trading: Legal Theories, Common Defenses, and Best Practices for Ensuring Compliance

Mar 1, 2012

NYU Journal of Law & Business

The government’s 2011 prosecution of hedge fund manager Raj Rajaratnam and the various investigations into the use of expert networks by hedge funds and other institutional investors have prompted questions about the law of insider trading, permissible methods of gathering information, general defenses to allegations of insider trading, and the ways in which firms can reduce risks of liability.


Related Attorney(s): Steven Lofchie
Related Practice(s): Broker-Dealer Regulation, Commodities & Futures Regulation, Financial Regulation, White Collar Defense and Investigations
Related Office(s): New York, Washington
read more »

Retrospective change of law announced for UK debt buybacks

Mar 1, 2012

Financial Instruments Tax and Accounting Review

In a written Ministerial Statement (the Ministerial Statement), delivered on 27 February 2012, the UK Government has announced measures to counteract two tax avoidance schemes entered into by a UK bank (the Bank), the Bank being a signatory to the Code of Practice on Taxation for Banks.


Related Attorney(s): Adam Blakemore
Related Practice(s): Bank Regulation, Corporate Taxation, Financial Regulation, Tax
Related Office(s): London
read more »

Proposals for a European Union Financial Transactions Tax

Feb 1, 2012

Butterworths Journal of International Banking and Financial Law

The proposals made by the EU Commission on 28 September 2011 regarding an EU directive on a common system of financial transaction taxation in the 27 member states of the EU have been debated widely since they were presented.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Mergers & Acquisitions Taxation, Restructurings & Bankruptcies Taxation, Securitization & Structured Products Taxation, Tax
Related Office(s): London
read more »

Bankruptcy Law in 2011: The Year in Review

Jan. 5, 2012

New York Law Journal

Early 2011 was a quiet period in the corporate bankruptcy world as many distressed companies turned to fairly robust capital markets to refinance their debt or effectuated out-of-court workouts with their lenders.


Related Attorney(s): Casey Servais
Related Office(s): New York
read more »

Financial Transaction Tax - Stripping Out the Hype

Dec 13, 2011

Data Explorers

UK Prime Minister David Cameron controversially walked out of summit talks last week such was his apprehension about Franco/German plans for a Financial Transaction Tax.


Related Attorney(s): Adam Blakemore
Related Practice(s): Securitization & Structured Products Taxation, Tax
Related Office(s): London
read more »

The Proposals for a European Union Financial Transactions Tax

Dec 2, 2011

Securities Lending Review

The proposals made by the EU Commission on 28 September 2011 regarding an EU Directive on a common system of financial transaction taxation in the 27 Member States of the EU have been debated widely since being presented.


Related Attorney(s): Adam Blakemore, Nick Shiren
Related Practice(s): Bank Regulation, FCA Regulated Entities, Financial Regulation, Tax
Related Office(s): London
read more »

Monitoring the Duty to Monitor

Nov 28, 2011

New York Law Journal

The significant losses suffered by investors during the recent financial crisis have again left many shareholders clamoring to find someone responsible.


Related Attorney(s): Louis Bevilacqua
Related Practice(s): Corporate, Corporate Governance
Related Office(s): New York
read more »

An Update on the U.K. Corporate Tax Reform

Nov 21, 2011

Tax Notes International

While the U.K. government’s blueprint for corporation tax reform was put forward in June 2010, key elements of the reform program have become much clearer during the summer of 2011.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
Related Office(s): London
read more »

Reducing Collateral Risks in the Financial Crisis - Some Practical Measures

Nov 3, 2011

Securities Lending Review

The on-going progress of the European financial crisis has continued to precipitate measures by financial institutions, funds and market participants to reduce their risk in a wide variety of structured financial transactions.


Related Attorney(s): Nick Shiren, Adam Blakemore
Related Practice(s): Securitization & Structured Products Taxation, Tax
read more »

Chapter 9 Bankruptcy Strategies: A Big Stick, Rarely Used

Oct.. 31, 2011

Thomson Reuters/Aspatore

The modern Chapter 9 predates the Bankruptcy Code by several years, though municipalities rarely take advantage of its potential benefits. In fact, despite the recent economic crisis, only twenty-four entities have filed for Chapter 9 since 2008, and in total, only 241 entities have filed since 1980. See Annual and Quarterly US Bankruptcy Statistics, AM. BANKR. INST., May 31, 2011, http://www.abiworld.org/statcharts/Chapter9through2Q2010.pdf. While this might suggest that Chapter 9 offers little value to municipalities, the truth is Chapter 9 can be a highly effective tool for municipalities to reduce and restructure their debt obligations.


Related Attorney(s): Lary Stromfeld
Related Practice(s): Distressed Municipal Finance
Related Office(s): New York
read more »

Repos of Loans - Now Possible

Oct 1, 2011

Law & Finance Magazine

Repurchase agreements or repos are now the legal structure most commonly used for the provision of funding between financial institutions.


Related Attorney(s): Robert Cannon
Related Practice(s): Corporate, Mortgage Banking & Whole Loan Trading, Securitization & Asset Based Finance
read more »

Congressional Breakthrough On Patent Reform Likely This Fall

Sep 14, 2011

New York Law Journal

While the U.S. Congress currently seems to be at an impasse on bipartisan legislation on a wide variety of important matters, to its credit it has almost reconciled nearly 60 years of debate over how to improve the existing patent statute that it enacted in the 1950s.


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

'Whittle': Just When You Thought Foreclosure Sales Were Sacrosanct

Sep. 1, 2011

New York Law Journal

On July 27, 2011, the U.S. Bankruptcy Court for the Northern District of Texas in Whittle Development Inc. v. Branch Banking & Trust Co. (In re Whittle Development Inc.) issued an opinion finding that a debtor may avoid as a preferential transfer under Bankruptcy Code section 547 a prepetition real property foreclosure sale, even if the foreclosure sale complied with state requirements for a valid foreclosure.


Related Attorney(s): Kathryn Borgeson
Related Office(s): New York
read more »

A Debtor-Friendly View Of Safe Harbors

Aug 22, 2011

Law360

In two recent decisions, the United States Bankruptcy Court for the Southern District of New York has interpreted narrowly certain of the Bankruptcy Code's safe harbor provisions.


Related Attorney(s): Stephen Johnson, Mark Ellenberg
Related Practice(s): Bankruptcy Litigation
read more »

Sub-Participations, Taxation and the Mitigation of Lender Credit Risk

Jun 1, 2011

Butterworths Journal of International Banking and Financial Law

As has previously been noted by other authors in this journal, recent events in the financial markets have resulted in the reassessment of counterparty risk.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate, Corporate Taxation, Securitization & Structured Products Taxation, Tax
read more »

EU Council Reviews the EMIR Proposal: Issues for End-Users

Apr 18, 2011

Bloomberg UK Financial Services Law Journal

In September 2010, the European Commission published a draft proposal (Commission Proposal) for a Regulation of the European Parliament and of the Council on over-the-counter (OTC) derivatives, central counterparties and trade repositories (commonly referred to as the “European Market Infrastructure Regulation” or “EMIR”).


Related Attorney(s): Nick Shiren
Related Practice(s): Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation
read more »

The Price of Terminating a Mortgage Loan Repurchase Agreement

Apr 11, 2011

New York Law Journal

Third Circuit approves discounted cash flow analysis under Code §562.


Related Attorney(s): Michele Maman, Mark Ellenberg, Gregory Petrick
Related Practice(s): Distressed Structured Products, Real Estate Restructuring
read more »

Explaining the Inexplicable: The Perks and the Perils of Proffer Sessions and Best Practices for Explaining it All to Your Client

Apr 1, 2011

ABA White Collar Crime

Envision this: You are sitting in your office one day and the phone rings. It is a former colleague from the office where you were both federal prosecutors.


Related Attorney(s): Jodi Avergun
Related Practice(s): White Collar Defense and Investigations
read more »

The UK Budget 2011 – Spotlight on Insurance

Apr 1, 2011

Tax Planning International Review

On March 23, 2011, the Chancellor of the Exchequer announced in the UK Budget a number of measures which will both directly and indirectly affect the UK tax treatment of insurers. Below follows a summary of the relevant changes.


Related Attorney(s): Adam Blakemore
Related Practice(s): Bank Regulation, Contentious Insurance, Corporate Taxation, FCA Regulated Entities, Financial Regulation, Insurance Products, Insurance and Reinsurance, Insurance-Linked Securities, Securitization & Asset Based Finance, Tax
read more »

UK Budget 2011: Key Tax Aspects

Apr 1, 2011

Financial Instruments Tax and Accounting Review

Adam Blakemore and Oliver Iliffe summarise the key tax aspects of the UK Budget held on 23 March 2011 relating to financial sector taxation and the prevention of tax avoidance.


Related Attorney(s): Adam Blakemore
Related Practice(s): Bank Regulation, Corporate Taxation, FCA Regulated Entities, Financial Regulation, Tax
read more »

Tainting The Sales Process

Mar 18, 2011

Law360

In In re Del Monte Foods Company Shareholders Litigation, Consol. C.A. No. 6027-VCL (Del. Ch. Feb. 14, 2011), the Court of Chancery temporarily enjoined a shareholder vote on a high premium, all-cash merger to require an additional 20-day market check based on a preliminary finding that the sale process was potentially tainted by alleged misconduct by Del Monte’s financial adviser and the private equity buyers.


Related Attorney(s): Gregory Patti,
Related Practice(s): Corporate, Global Litigation, Mergers & Acquisitions, Private Equity
read more »

Sleeping giants: insurance alchemy and Insurance Special Purpose Vehicles

Mar 10, 2011

Butterworths Journal of International Banking and Financial Law

An area of capital markets that continues to evolve and elicit a healthy interest from investors is the market for insurance-linked securities and derivatives.


Related Attorney(s): Adam Blakemore
Related Practice(s): Contentious Insurance, Corporate Taxation, Insurance Products, Insurance and Reinsurance, Tax
read more »

UK Stock Lending and Tax Planning – Two Recent Judicial Decisions

Mar 1, 2011

DX Quarterly Review

Two recent decisions of the UK Courts have provided a valuable insight into how the complex legislation which governs the taxation of stock lending transactions may be interpreted judicially.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
read more »

Same question, different outcome: s 2(a)(iii) of the ISDA Master Agreement under English and US insolvency law

Mar 1, 2011

Butterworths Journal of International Banking and Financial Law

Section 2(a)(iii) of the ISDA (International Swaps and Derivatives Association) Master Agreement (‘Master Agreement’) provides that a party’s payment obligations are subject to, inter alia, the condition precedent that there is no continuing event of default with respect to the other party.


Related Attorney(s): Assia Damianova, Nick Shiren, Mark Ellenberg
Related Practice(s): Derivatives & Structured Products, Distressed Structured Products, OTC Derivatives, Structured Products
read more »

The new world of post-verdict damages: the evolution of the patentee’s right to exclude

Jan 12, 2011

International Asset Management

In eBay v MercExchange, LLC (547 US 388 (2006)) the Supreme Court changed the landscape of available remedies awarded in patent infringement cases by overturning the longstanding rule – endorsed by the Federal Circuit – of routinely issuing permanent injunctions following a finding of patent infringement.


Related Attorney(s): Christopher Hughes, Danielle Tully
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation
read more »

The UK Bank Levy: An Update

Jan 3, 2011

Financial Instruments Tax and Accounting Review

Draft legislation on the UK’s new levy on balance sheet liabilities (the ‘Levy’) was published on 21 October 2010, 24 November 2010 and 9 December 2010, shedding more light on the final form which the Levy is likely to take.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, FCA Regulated Entities, Financial Regulation, Securitization & Structured Products Taxation, Tax
read more »

The Legal Cost of Loan Participations Post Financial Crisis

Jan 1, 2011

Butterworths Journal of International Banking and Financial Law

The reallocation and transfer of risk is at the core of modern economies. Credit institutions, funds and other investment vehicles, insurance companies and governments all use an ever expanding universe of financial instruments to transfer risk.


Related Attorney(s): Assia Damianova
Related Practice(s): CLOs, Commercial Mortgage-Backed Securities, Derivatives & Structured Products, Mortgage Banking & Whole Loan Trading, Municipal Securitization, OTC Derivatives, Residential Mortgage-Backed Securities, Securitization & Asset Based Finance, Structured Products
read more »

No Crisis Wasted: Proposed EU and U.S. Regulation of OTC Derivatives (Part II)

Dec 13, 2010

Bloomberg Law Reports

In July 2010, the U.S. Congress established a framework for the reform of derivatives regulation in the U.S. through the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).


Related Attorney(s): Steven Lofchie
Related Practice(s): Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation, OTC Derivatives, Structured Products, Swap Regulation
read more »

2010 OMIG Reform Legislation: "Wait'll Next Year"

Dec 1, 2010

Health Law Journal

As health care lawyers, by now you or one of your clients has probably encountered the New York State Office of Medicaid Inspector General (“OMIG”), perhaps on more than one occasion and in more than one context.


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

No Crisis Wasted: Proposed EU and U.S. Regulation of OTC Derivatives (Part I)

Nov 1, 2010

Bloomberg Law Reports

In July 2010, the U.S. Congress established a framework for the reform of derivatives regulation in the U.S. through the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).


Related Attorney(s): Steven Lofchie
Related Practice(s): Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation, OTC Derivatives, Structured Products, Swap Regulation
read more »

Perfect Storm: Lessons For Distressed Retailers, Part I

Oct 29, 2010

Law360

In the approximately five years since the Bankruptcy Abuse Prevention and Consumer Protection Act’s amendments to the Bankruptcy Code took effect, one general consensus has emerged: the effects of BAPCPA on distressed retailers have been profound.


Related Attorney(s): Michele Maman
read more »

National and International Banking Levies: ‘Harmonised Network’ or Unity in Diversity?

Oct 22, 2010

Financial Instruments Tax and Accounting Review

The proposed UK bank levy represents but one of a burgeoning category of worldwide initiatives introduced following the financial crisis. Adam Blakemore, Oliver Iliffe and Kieran Clancy explore this challenging new landscape.


Related Attorney(s): Adam Blakemore
Related Practice(s): Tax
read more »

DE Bankruptcy Court Denies Appointment of Examiner Despite Statutory Mandate

Oct 15, 2010

The Bankruptcy Strategist

The United States Bankruptcy Court for the District of Delaware recently denied the appointment of an examiner in U.S. Bank Nat’l Assoc. v. Wilmington Trust Co. (In re Spansion, Inc.), notwithstanding the fact that the statutory threshold which arguably mandates the appointment of an examiner upon the request of a party in interest had been satisfied.


Related Attorney(s): Gregory Petrick
read more »

Current Trends in U.S. Patent Litigation: How to Succeed in “Rocket Docket” Courts, the ITC, and Arbitration

Sep 13, 2010

The International Comparative Legal Guide to: Patents 2011

Defending a charge of patent infringement in U.S. courts has never been easy, but recent trends in U.S. patent litigation have significantly increased the pressure on accused infringers.


Related Attorney(s): Christopher Hughes
Related Practice(s): ITC Litigation, Intellectual Property, Patent & Trade Secret Litigation
read more »

Changes to the Regulation of Broker-Dealers and Investment Advisers Under Title IX of the Dodd-Frank Wall Street Reform and Consumer Protection Act

Sep 1, 2010

Derivatives

The Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law by President Obama on July 21, 2010, will dramatically reshape the U.S. financial regulatory system, while also significantly impacting non-financial institutions, which will be affected, at least indirectly, through their use of regulated financial products.


Related Attorney(s): James McDonnell, Steven Lofchie
Related Practice(s): Bank Regulation, Broker-Dealer Regulation, Derivatives & Structured Products, Financial Regulation, OTC Derivatives, Structured Products, Swap Regulation
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An Exemption for Overseas Branch Profits - The Discussion Continues

Aug 31, 2010

Practical European Tax Strategies

On July 27, 2010, the Government published a discussion document on reforming the taxation of profits of overseas branches of UK tax-resident companies with a view to introducing an exemption in relation to those profits (and a corresponding restriction of loss relief).


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
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From Bankruptcy-Remote to Risk-Remote: Reframing the Single-Purpose Entity in CMBS Finance

Aug 23, 2010

New York Law Journal

In re General Growth Properties Inc. and In re Extended Stay Inc. both challenged how effectively the single purpose entity (SPE) prevents real estate Chapter 11 filings. The findings of these reorganizations indicated that SPE structure alone will not preclude a bankruptcy filing.


Related Attorney(s): William McInerney
Related Practice(s): Commercial Mortgage-Backed Securities, Distressed Structured Products, Mortgage Finance, Real Estate, Securitization & Asset Based Finance
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Federal Circuit Considers ‘Inequitable Conduct’ En Banc

Aug 16, 2010

New York Law Journal

As early as the 1930s, the U.S. Supreme Court recognized that there must be some severe consequence where a patent applicant deliberately violated its duty of candor and good faith to the U. S. Patent and Trademark Office (PTO) in submitting information to gain allowance of a patent.


Related Attorney(s): Dorothy Auth Ph.D.
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation
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Bankruptcy Implications Of Environmental Liabilities

Aug. 2, 2010

Law360

On April 20, 2010, an explosion on the Deepwater Horizon oil drilling rig located off the coast of Louisiana killed 11 crewmen and set off what is now considered the largest offshore oil spill in U.S. history.


Related Attorney(s): Ingrid Bagby, Gregory Petrick, Richard Nevins
Related Practice(s): Bankruptcy Litigation
Related Office(s): London, New York, Washington
read more »

Derivatives issues to consider at the outset of a restructuring

Jul 14, 2010

Buttersworth Journal of International Banking and Financial Law

The advisers to a corporate undergoing a solvent restructuring need to consider the terms of any outstanding derivative transactions in order to avoid triggering the termination provisions which may result in the corporate being liable for significant mark-to-market termination payments, and may lead to cross-defaults under other financing arrangements.


Related Attorney(s): Assia Damianova, Nick Shiren
Related Practice(s): Derivatives & Structured Products, Distressed Structured Products, OTC Derivatives, Structured Products
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Keep a cat in the bag

Jul 1, 2010

Captive Risk

Catastrophe bonds have become an increasingly significant aspect of the risk management strategies of insurers and reinsurers, even at a time where the reinsurance market for catastrophe risk has available capacity and pricing seems to be soft.


Related Attorney(s): Robert Cannon
Related Practice(s): Financial Regulation, Insurance Products, Insurance and Reinsurance
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Derivatives Are Not To Blame

Jun 22, 2010

Derivatives Week

I am a derivatives partner in the law firm Cadwalader, Wickersham & Taft.  Last week I had the dubious distinction of being featured in an article on the ISDA Conference in San Francisco.


Related Attorney(s): Richard Schetman
Related Practice(s): Derivatives & Structured Products, OTC Derivatives, Structured Products
read more »

Metcalfe: A Bold Reaffirmation of Chapter 15’s Reach

Jun 1, 2010

Corporate Rescue and Insolvency

Chapter 15 of the US Bankruptcy Code was enacted in 2005 to harmonise US bankruptcy law with the insolvency laws of foreign jurisdictions.


Related Attorney(s): Ingrid Bagby
Related Practice(s): Financial Regulation
read more »

Banking code of practice on taxation – an update

Jun 1, 2010

Financial Instruments Tax and Accounting Review

In a follow-up article to their October 2009 analysis of the draft code of practice on taxation for the banking sector, Adam Blakemore and Oliver Iliffe weigh up the implications of recent changes to the scope and content of the code.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
read more »

Lehman Bankruptcy Court Rules Safe Harbors Do Not Override Setoff Mutuality Requirement

May 24, 2010

Derivatives Week

On May 5, 2009, Judge James Peck, the bankruptcy judge in the Lehman Brothers bankruptcy cases, held that the safe harbor provisions of the Bankruptcy Code do not override the mutuality requirements for setoff under section 553(a) of the Bankruptcy Code.


Related Attorney(s): Mark Ellenberg
Related Practice(s): Bankruptcy Litigation
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The Enforceability of Structured Finance Subordination Provisions: Where to Next?

May 1, 2010

Journal of International Banking and Financial Law

In July 2009, the High Court in England confirmed the validity under English law of contractual provisions common in structured finance transactions which subordinate payments to a swap counterparty in circumstances where the swap counterparty has defaulted on its obligations under the terms of the relevant swap agreement.


Related Attorney(s): Mark Ellenberg, Nick Shiren
Related Practice(s): Bankruptcy Litigation, Derivatives & Structured Products, Distressed Structured Products, OTC Derivatives, Structured Products
read more »

Outbound China M&A and investment – US

Apr 7, 2010

China Outbound Investment Guide 2010

From time to time, conditions come together to create the ‘Perfect Storm’. Meteorologists use this term rarely and as a benchmark to compare all subsequent weather events.


Related Attorney(s): Louis Bevilacqua
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Antitrust, Corporate, Cybersecurity and Data Protection, IP Due Diligence, Intellectual Property, M&A Clearance & Counseling, Mergers & Acquisitions, Patent Preparation & Prosecution, Trademark & Copyright Protection, White Collar Defense and Investigations
read more »

Rethinking Non-GAAP Financial Measures

Mar 3, 2010

Law360

The U.S. Securities and Exchange Commission's Division of Corporation Finance recently revised its Compliance and Disclosure Interpretations relating to the use of non-GAAP financial measures in filings with the SEC and other public disclosures made by reporting companies.


Related Attorney(s): Louis Bevilacqua
Related Practice(s): Corporate, Corporate Governance, Financial Regulation
read more »

Complex Real Estate Financings in the CMBS Era: How CMBS and Multi-Tranche Structures Are Impacting Distressed Real Estate Workouts

Mar 3, 2010

Practising Law Institute

The advent of the securitization of commercial mortgage loans in the early 1990’s has had a profound effect on commercial real estate finance.


Related Attorney(s): Patrick Quinn
Related Practice(s): Commercial Mortgage-Backed Securities, Distressed Structured Products, Mezzanine Finance, Mortgage Finance, Real Estate, Securitization & Asset Based Finance
read more »

Defending Mortgage Fraud Cases

Mar 1, 2010

White Collar Crime

Mortgage fraud takes many guises but can be succinctly classified as either fraud for profit or fraud for housing.


Related Attorney(s): Jodi Avergun
Related Practice(s): Global Litigation, Mortgage Finance, Real Estate, White Collar Defense and Investigations
read more »

Honest Services Fraud in the Private Sector

Mar 1, 2010

White Collar Crime

Honest services fraud, also known as the “intangible rights” theory of mail and wire fraud, has been the subject of controversy both before and after the Supreme Court’s decision in McNally v. United States, 483 U.S. 350 (1987).


Related Attorney(s): Lex Urban
Related Practice(s): White Collar Defense and Investigations
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The Dante Decision: A Legal Analysis

Feb 15, 2010

Derivatives Week

A recent decision in the U.S. Lehman Brothers bankruptcy case held that investors in a collateralized debt obligation called Dante did not have the right to jump ahead of Lehman to get repaid, contradicting an English court decision and raising questions about how similar deals will be treated.


Related Attorney(s): Stephen Johnson, Mark Ellenberg
Related Practice(s): Bankruptcy Litigation, Derivatives & Structured Products, OTC Derivatives, Structured Products
read more »

Banks, Tax and Policy Objectives

Feb 1, 2010

FITAR

The unveiling in the recent pre-Budget report of a bank payroll tax is already proving to be one of the most politically charged pieces of taxation legislation of recent years.


Related Attorney(s): Adam Blakemore
Related Practice(s): Bank Regulation, Corporate Taxation, Financial Regulation, Tax
read more »

IP Value 2010

Jan 19, 2010

Intellectual Asset Management

Supreme Court takes a second look at patent exhaustion, but is it déjà vu again?


Related Attorney(s): Christopher Hughes
Related Practice(s): Patent & Trade Secret Litigation, Patent Preparation & Prosecution
read more »

The New Regulation on Credit Rating Agencies is Published in the Official Journal of the European Union

Jan 15, 2010

EuroWatch

The wait is over. The EU Regulation (the “Regulation”) on credit rating agencies (“CRAs”) was published in the Official Journal of the European Union on November 17, 2009 and became effective, subject to certain exceptions, on December 7, 2009.


Related Attorney(s): Nick Shiren
Related Practice(s): Asset-Backed Commercial Paper, Broker-Dealer Regulation, CLOs, Commercial Mortgage-Backed Securities, Derivatives & Structured Products, FCA Regulated Entities, Financial Regulation, Insurance-Linked Securities, Mortgage Banking & Whole Loan Trading, Municipal Securitization, OTC Derivatives, Residential Mortgage-Backed Securities, Securitization & Asset Based Finance, Structured Products, Warehouse Lending
read more »

ION Media: Second Lien Terms Enforced

Jan 8, 2010

Law360

Despite the prevalence of first lien-second lien structures in the loan market over the course of the recently ended leveraged transaction cycle, a fully-litigated case interpreting the provisions of a first lien-second lien intercreditor agreement remains something of a rarity.


Related Attorney(s): Christopher McDermott, Ingrid Bagby, Michele Maman, Christopher Dickson
Related Practice(s): Corporate
read more »

Healthcare statute signals major change for biosimilar products

2010

IAM Life Sciences 250

The comprehensive healthcare bill recently passed by the US Congress includes an approval pathway for biosimilar biological products. The regime for biosimilar products in the United States is therefore set to change.


Related Attorney(s): Christopher Hughes
Related Practice(s): Global Litigation
Related Office(s): New York
read more »

Product-by-Process Patent Claims: Contrasting United States and Europe

Dec 28, 2009

New York Law Journal

Product-by-process patent claims have traditionally provided a useful way for protecting products, like chemical compounds, that are difficult to describe by chemical make-up or structure, but can be described by the way they are made.


Related Attorney(s): Christopher Hughes
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation, Patent Preparation & Prosecution
read more »

The SEC's Proposal For Regulating 'Dark Pools'

Dec 15, 2009

Law360

On Nov. 13, 2009, the U.S. Securities and Exchange Commission released a proposal to amend the regulatory requirements “that apply to nonpublic trading interest in National Market System (“NMS”) stocks.”


Related Attorney(s): Steven Lofchie
Related Practice(s): Financial Regulation
read more »

Transferring Risk of OTC CDS to a Central Counterparty: Are Customers Protected?

Nov 16, 2009

Butterworths Journal of International Banking and Financial Law

The turbulence in the financial markets has led to a reassessment of the risks of derivatives and related financial products and structures.


Related Attorney(s): Nick Shiren, Assia Damianova
Related Practice(s): Derivatives & Structured Products, Financial Regulation, Securitization & Asset Based Finance, Swap Regulation
read more »

The Blurring of Plain View

Nov 02, 2009

White-Collar Crime Litigation Reporter

For nearly four decades, the “plain view” doctrine, permitting a police officer to seize incriminating evidence without a warrant when discovered in plain view during a lawful entry, has been a fundamental precept of criminal procedure.


Related Attorney(s): Jodi Avergun
Related Practice(s): White Collar Defense and Investigations
read more »

Global Patent Strategy

Oct 26, 2009

New York Law Journal

While most entrepreneurs have dozens of “great” ideas for starting companies, in actual practice most companies are started by picking a single good idea that can be grown into a successful product.


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

Proposed UK Code of Practice on Taxation for Banks

Oct 09, 2009

Financial Instruments Tax and Accounting Review

The recent proposals for a Code of Practice on taxation for banks transacting business in the UK is either a restatement of existing statutory interpretation or a blurring of the boundaries between the executive and the judiciary.


Related Attorney(s): Adam Blakemore
Related Practice(s): Tax
read more »

The New Rating Regime For Structured Finance Investments in Europe

Oct 01, 2009

Journal of Structured Finance

Few doubt that the loss of investor confidence in ratings is linked to the recent mistakes made by credit rating agencies (“CRAs”) when rating structured finance investments.


Related Attorney(s): Nick Shiren
Related Practice(s): Derivatives & Structured Products, Securitization & Asset Based Finance
Related Office(s): London
read more »

Structured Finance Subordination Provisions Upheld by High Court

Oct 01, 2009

Journal of Bankruptcy Law

This article explains a recent decision by England’s High Court which highlights some of the uncertainties concerning transactions that were not structured with the insolvency of swap providers in mind.


Related Attorney(s): Nick Shiren
Related Practice(s): Derivatives & Structured Products, Securitization & Asset Based Finance
read more »

A Proposed U.K. Code of Practice on Taxation for Banks — ‘Spooky Jurisprudence’?

Sep 21, 2009

Tax Notes International

HM Revenue & Customs on June 29 published a 24-page consultation document setting out proposals for a Code of Practice on Taxation for Banks.


Related Attorney(s): Adam Blakemore
Related Practice(s): Tax
read more »

Regulatory Reform of OTC Derivatives under the Obama Proposal

Aug 03, 2009

DERIVATIVES: Financial Products Report

On June 17, 2009, the Obama Administration released its recommendations for reform of the U.S. financial regulatory system (“Proposal”).


Related Attorney(s): Richard Schetman, Jeffrey Robins, Ray Shirazi
Related Practice(s): Financial Regulation, OTC Derivatives
read more »

Regulating Rating Agencies - Local Power, No Solution

Jul 01, 2009

IFLR

After months of debate, the European Parliament's comprehensive regulation on credit rating agencies (CRAs) and their rating activities is about to come into force.


Related Attorney(s): Nick Shiren
Related Practice(s): Financial Regulation
read more »

Credit Default Swaps After the Global Banking Crisis: Regulatory Responses and Industry Initiatives

Jun 25, 2009

Journal of Securities Law, Regulation & Compliance

In the past nine years, the CDS market has grown into a multi-trillion dollar notional market with participants from nearly every sector of the financial world.


Related Attorney(s): Nick Shiren, Assia Damianova
Related Practice(s): Financial Regulation, Swap Regulation
read more »

Enforcing Mezzanine Loans Triggers Transfer Taxes

Jun 22, 2009

New York Law Journal

For the past several years, lenders have structured subordinate loans on real estate in the form of mezzanine loans, secured by pledges of equity interests in the owners of the real property.


Related Attorney(s): Bonnie Neuman
Related Practice(s): Mezzanine Finance, Real Estate
Related Office(s): New York
read more »

Loan relationships and derivative contracts: A Spring Clean

Jun 01, 2009

Tax Adviser

The Corporation Tax Act 2009 (CTA) received Royal Assent on 26 March this year, came into force on 1 April and has effect for accounting periods ending on or after 1 April for corporation tax (and for the tax year 2009/2010 for income tax and capital gains tax).


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax
read more »

Patentable subject matter in the US: past, present and future

05/29/2009

Intellectual Asset Management

Over the past decade, the United States has seen a dramatic increase in the number of filings for business method patents relating to e-commerce, insurance, financial services and the like.


Related Attorney(s): Christopher Hughes
Related Practice(s): Intellectual Property, Patent & Trade Secret Litigation, Patent Preparation & Prosecution
read more »

Greenhouse Gases And Commercial Real Estate

May 1, 2009

Greenhouse Gases And Commercial Real Estate

Climate change has been defined as statistically identifiable changes in the state of the climate that persists for an extended period, typically decades or longer.


Related Attorney(s): William McInerney
Related Practice(s): Real Estate
read more »

Lehman Brothers Bankruptcy Filings: Issues for Replacement Swap Counterparties and their Municipal Clients

Mar 02, 2009

Pratt's Journal of Bankruptcy Law

Voluntary petitions for protection under Chapter 11 of the United States Bankruptcy Code (the “Code”) were filed on September 15, 2008 by Lehman Brothers Holdings Inc. (“Holdings”), on October 3, 2008 by Lehman Brothers Special Financing Inc. (“LBSF”), and on October 5, 2008 by Lehman Brothers Financial Products Inc. (“LBFP”) and Lehman Brothers Derivative Products Inc. (“LBDP”).


Related Attorney(s): Richard Schetman, Mark Ellenberg, Lary Stromfeld
Related Practice(s): Bankruptcy Litigation, Securitization & Asset Based Finance
read more »

Bankruptcy Cramdown And Its Impact On Private-Label RMBS

Feb 10, 2009

Total ASF

Several bills have been recently introduced in Congress (collectively, the “Bankruptcy Legislation”) that would amend the U.S. Bankruptcy Code to, among other things, give bankruptcy judges in Chapter 13 cases the power to modify terms of certain mortgages secured by principal residences, including forcing principal reductions.


Related Attorney(s): Frank Polverino, Lisa Pauquette
Related Practice(s): Securitization & Asset Based Finance
read more »

Delaware Bankruptcy Court Decides Who is Master of a Master Lease

Feb 04, 2009

New York Law Journal

During the recent cycle of real estate financings, a popular structure emerged to segregate the real estate assets from the operating assets of a company.


Related Attorney(s): Steven Herman
Related Practice(s): Bankruptcy Litigation, Financial Regulation
read more »

What are Covered Bonds and Why Should Anyone Care?

Feb 02, 2009

The Real Estate Finance Journal

Covered bonds are a form of long-term secured financing that has been used in Europe for centuries but have not previously gained popularity in the U.S. credit markets.


Related Attorney(s): Patrick Quinn, Anna Glick, Frank Polverino, Michael Gambro
Related Practice(s): Securitization & Asset Based Finance
read more »

Continued viability of “earmarking doctrine” defense to preference actions affirmed by Fifth Circuit

Jan 30, 2009

Lexology

In In re Entringer Bakeries, Inc., the United States Court of Appeals for the Fifth Circuit affirmed the viability of the “earmarking doctrine” as a judicially-created defense to a  preference action under section 547(b) of the Bankruptcy Code.


Related Attorney(s): Michele Maman
Related Practice(s): Bankruptcy Litigation
read more »

Product-By-Process Patent Claims: Contrasting United States and Europe

2009

New York Law Journal

Product-by-process patent claims have traditionally provided a useful way for protecting products, like chemical compounds, that are difficult to describe by chemical make-up or structure, but can be described by the way they are made.


Related Attorney(s): Christopher Hughes
Related Practice(s): Global Litigation
Related Office(s): New York
read more »

A Review of HMRC's Consultation Document on Financial Products Avoidance

Mar 03, 2008

Tax Analysts

The author discusses how the revised draft legislation and the approach of HMRC to principles-based legislation as proposed in the consultation document could also create uncertainty and a lack of predictability in the taxation of commercial transactions and arrangements.


Related Attorney(s): Adam Blakemore
Related Practice(s): Corporate Taxation, Tax, Tax Controversy
Related Office(s): London
read more »

Collective Bargaining Agreements and the Bankruptcy Code: Are Damage Claims for Rejection of Collective Bargaining Agreements Available Under Section 1113?

Jan 01, 2008

Pratt's Journal of Bankruptcy Law

The authors explain that, based on recent decisions, no damage claim arises from court-approved rejection of a collective bargaining agreement pursuant to Section 1113.


Related Attorney(s): Ingrid Bagby
Related Practice(s): Bankruptcy Litigation
read more »

Post-'e-Bay' Injunctions: The Scoreboard and the Trend

Jan 01, 2008

New York Law Journal

In its May 2006 decision of eBay Inc. v. MercExchange LLC, the U.S. Supreme Court effected a significant shift in the remedies for patent infringement.


Related Attorney(s): Christopher Hughes
Related Practice(s): Global Litigation
Related Office(s): New York
read more »
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April 19: Trading Risk's London ILS Conference 2018

Robert Cannon will discuss the U.K.’s new insurance-linked securities framework.

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