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Articles & Books
INSIGHT: IP Cases and Trends—A Look Back and 2020 Expectations
Dec. 16, 2019Bloomberg Law
Cadwalader attorneys review the most significant IP issues from 2019, including new IP legislation and U.S. Supreme Court decisions. They offer insights on what’s to come in 2020, including the big news that the Supreme Court will hear the Oracle v Google case relating to copyright infringement of protected software.
Related Practice(s): ITC Litigation, Intellectual Property, Patent & Trade Secret Litigation, Patent Preparation & Prosecution, Trademark & Copyright Protection
Related Office(s): New York
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The Competition-Privacy Collision
Dec. 13, 2019Global Competition Review
As political pressure builds for competition enforcers to protect consumers’ privacy, Joel Mitnick and Monica Martin look at whether U.S. antitrust law provides the means to do so.
Related Practice(s): Antitrust, Global Litigation
Related Office(s): New York
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Protecting Intellectual Property in the U.S. - What to Know as a Chinese Entrepreneur
Dec. 5, 2019Tsinghua Financial Review (Chinese-language)
https://www.cadwalader.com/uploads/books/ad7aa027855fcbcd86c5b45ddcc22d6b.pdfThis article details important steps every Chinese company should take before entering the U.S. market to protect the intellectual property surrounding their products and to prevent infringing third-party IP in the United States.
Related Practice(s): Global Litigation, Intellectual Property, Trademark & Copyright Protection
Related Office(s): New York
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INSIGHT: The Demise of LIBOR—Tax and Transfer Pricing Implications—Part 2
Nov. 26, 2019Bloomberg Tax
The London Interbank Offered Rate (LIBOR) is coming to an end with implications for tax, accounting, and transfer pricing. Sherif Assef, Yosef Lugashi, and Petia Petrova of KPMG LLP, and Jeff Nagle of Cadwalader, Wickersham & Taft LLP outline in Part II of a two-part series the potential for significant modifications for U.S. tax purposes, implications of IRS proposed regulations, how to adapt systems and processes, and associated challenges.
Related Practice(s): LIBOR Preparedness Team, Tax
Related Office(s): Charlotte
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U.S. Loan Origination Under the Ireland-U.S. Tax Treaty
Nov. 25, 2019Tax Notes
Cadwalader partner Jason Schwartz explores how direct lending funds can use the Ireland-U.S. income tax treaty to make loans in the United States without being subject to U.S. federal income tax.
Related Practice(s): Tax
Related Office(s): New York
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INSIGHT: The Demise of LIBOR—Tax and Transfer Pricing Implications—Part I
Nov. 25, 2019Bloomberg Tax
The London Interbank Offered Rate (LIBOR) is coming to an end with implications for tax, accounting, and transfer pricing. Sherif Assef, Yosef Lugashi, and Petia Petrova of KPMG LLP, and Jeff Nagle of Cadwalader, Wickersham & Taft LLP explain in Part I of a two-part series how taxpayers need to prepare for the U.S. LIBOR alternative rate and the impact on intercompany agreements.
Related Practice(s): LIBOR Preparedness Team, Tax
Related Office(s): Charlotte
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How Fed. Circ. May Defer To PTAB In Facebook Case
Nov 8, 2019Law360
Facebook Inc. v. Windy City Innovations LLC is currently pending before the U.S. Court of Appeals for the Federal Circuit. Central to the appeal is the question of whether the Federal Circuit should provide deference under Chevron USA Inc. v. Natural Resources Defense Council Inc. to the Patent Trial and Appeal Board’s precedential decisions. As such, the case has the potential to call the entire Chevron framework into question.
Related Practice(s): Global Litigation, Intellectual Property
Related Office(s): New York
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Protecting Intellectual Property in the United States
Nov. 5, 2019Cadwalader partner Dorothy Auth and associate John Augelli outline what entrepreneurs entering the U.S. market need to know to protect their intellectual property.
Related Practice(s): Intellectual Property
Related Office(s): New York
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The ‘Tipping’ Point - Possible Shakeup to Insider Trading Rules
Oct 25, 2019Bloomberg Law
The guilty plea by former N.Y. Congressman Chris Collins put the spotlight on insider trading again. The proposed Insider Trading Prohibition Act could clarify the legal haziness that financial institutions, corporate executives, and casual investors regularly wrestle with, but it also raises liability questions for the C-Suite.
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation, Securities Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): Washington
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Sports Gambling Compliance: Big Money Worth The Wager
Oct 11, 2019Law360
Fans and states cheered the U.S. Supreme Court’s May 2018 decision in Murphy v. NCAA giving states the power to authorize sports betting. In some ways, the immediate enthusiasm for the Supreme Court’s ruling may have been premature. Far from authorizing sports betting at the federal level, Murphy v. NCAA merely cleared the way for states to set rules either banning or regulating sports betting within state lines.
Related Practice(s): Global Litigation, Sports Law, White Collar Defense and Investigations
Related Office(s): Washington
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Transitions From IBOR to Alternative Rates Avoid Tax Under Proposed Regulations
Oct. 10, 2019In a BrassTax Alert, the Cadwalader Tax team provides insights regarding the Treasury Department and IRS proposed regulations deeming transitions from IBOR to alternative rates a non-taxable event.
Related Practice(s): Tax
Related Office(s): New York, Washington
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The District Court in Tribune Circumscribes Merit and Maintains Section 546(e) Safe Harbor Protection for Shareholders in the Wake of a Failed LBO
Oct 1, 2019Pratt’s Journal of Bankruptcy Law
In a decision related to the failed leveraged buyout and subsequent bankruptcy of the Tribune Company, the U.S. District Court for the Southern District of New York found that Tribune, the purchaser of stock from its shareholders, employed a bank to effect the two-step leveraged buyout and was a customer of the bank. The authors of this article explain the decision and its implications.
Related Practice(s): Financial Restructuring
Related Office(s): New York
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Using Irish Treaty Funds To Avoid US Taxes In Direct Lending
Sept. 30, 2019Given the emergence of direct lending as a popular asset class for institutional investors, an Irish treaty fund could be a powerful tool for U.S. managers with access to foreign capital. Cadwalader partners Jason Schwartz and Gregg Jubin provide analysis via Law360.
Related Office(s): Washington
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State Attorney General Insider | The New Cadwalader Edition
Sept. 17, 2019Cadwalader is pleased to present our inaugural issue of the State Attorney General Insider, a newsletter on the latest notable cases and updates from within the State Attorneys General community.
Related Office(s): Charlotte, New York, Washington
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INSIGHT: Big Tech Facing State Attorneys General Antitrust Freight Train
Sept. 20, 2019Bloomberg Law
State attorneys general are banding together to take on Big Tech antitrust issues. Cadwalader attorneys say it remains to be seen whether the investigations will ripen into complaints and, if so, whether they will be rooted in antitrust or involve consumer protections with respect to data privacy.
Related Practice(s): Antitrust, Global Litigation, State Attorneys General Practice
Related Office(s): New York, Washington
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Too Many Stakeholders in the Kitchen
September 2019CEP Magazine
High-stakes corporate investigations into bribery, corruption and other misconduct can be highly complex. The impulse to let every conceivable stakeholder play a role, while well-intentioned, can often lead to a “too many cooks in the kitchen” situation, undercutting the efficiency and effectiveness of the entire investigative process.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Washington
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Reflections on the Council’s Supreme Court Admissions Trip
Aug. 23, 2019Federal Bar Council Quarterly
Cadwalader partner Ellen Holloman reflects on being admitted to the bar of the Supreme Court of the United States in this issue of the Federal Bar Council Quarterly.
Related Practice(s): Global Litigation
Related Office(s): New York
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INSIGHT: Five Things Every Company Should Know About SEC Whistleblowers
Aug. 1, 2019Bloomberg Law
The recent payment of $50 million to a pair of whistleblowers should serve as a wake-up call to companies that the SEC’s Whistleblower Program is alive and well. The authors provide five key compliance steps to help companies respond to whistleblowers and minimize their associated risks.
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation, Securities Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): New York, Washington
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Trulia’s Impact
June 4, 2019Harvard Law School Forum on Corporate Governance and Financial Regulation
The Harvard Law School Forum on Corporate Governance and Financial Regulation published an excerpt of a recent Clients & Friends Memo (Corporate Governance Litigation & Regulation: A Periodic Review and Predictions for the Remainder of 2019) written by members of the Global Litigation practice.
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Corporate Governance Litigation and Counseling, Global Litigation
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On Wealth: The Modern Evolution of the Trust Company
June 1, 2019International Family Offices Journal
During the past decade there has been a significant shift in the ownership and structure of the private trust business that serves high net worth individuals and families in the United States and abroad.
Related Practice(s): Estate Planning & Administration, Family Office, Private Wealth
Related Office(s): New York
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DOJ’s Wire Act Interpretation Adds Hurdle for Stakeholders via Sports Business Journal
Apr 15, 2019Sports Business Journal
Stephen Weiss and Christian Larson discuss the Department of Justice’s new interpretation of the Wire Act and its potentially profound impact on the legalization of online and app-based sports betting in America. States and companies that offer online sports betting have much to consider in a suddenly murky legal environment.
Related Practice(s): Global Litigation, Sports Law, White Collar Defense and Investigations
Related Office(s): Washington
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Cadwalader’s Michael Mascia, Wesley Misson Co-Author Fund Finance Market Review in the International Comparative Legal Guide to Lending and Secured Finance 2019
Apr. 12, 2019GLG's International Comparative Legal Guide
Cadwalader Finance Group co-chair Michael Mascia and partner Wesley Misson have co-authored a chapter in the recently released International Comparative Legal Guide to Lending and Secured Finance 2019.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
Related Office(s): Charlotte
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Witness Interview Memorandum (Workplace Investigation)
Mar. 28, 2019Lexis Practice Advisor
Cadwalader’s Ellen Holloman and Jaclyn Hall provide guidance on conducting witness interviews in workplace investigations. This annotated form is a Witness Interview Memorandum (Workplace Investigation) for use by employers and their attorneys to document witness interviews during an internal workplace investigation. The form also includes drafting notes, optional clauses, and alternate clauses.
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
Related Office(s): New York
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Cadwalader’s Michael Mascia, Wesley Misson Co-Author Chapter in Fund Finance 2019
Mar 15, 2019Fund Finance 2019
Cadwalader Finance Group co-chair Michael Mascia and partner Wesley Misson are co-authors of the “Lending to Separately Managed Accounts” chapter in the recently released Fund Finance 2019, a comprehensive guide to the fund finance market published by Global Legal Insights. Mascia is also a contributing editor of Fund Finance 2019.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
Related Office(s): Charlotte
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Cadwalader’s Brian Foster, Samantha Hutchinson Co-Author Chapter in Fund Finance 2019
Mar 15, 2019Fund Finance 2019
Cadwalader partners Brian Foster and Samantha Hutchinson are co-authors of “The Rise of Private Equity Secondaries Financings.” a chapter in the recently released Fund Finance 2019, a comprehensive guide to the fund finance market published by Global Legal Insights.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
Related Office(s): London, New York
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Cadwalader’s Jeremy Cross, Samantha Hutchinson and Mathan Navaratnam Co-Author Chapter in Fund Finance 2019
Mar 15, 2019Fund Finance 2019
Cadwalader partners Jeremy Cross and Samantha Hutchinson, with associate Mathan Navaratnam, are co-authors of the England & Wales chapter in the recently released Fund Finance 2019, a comprehensive guide to the fund finance market published by Global Legal Insights.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
Related Office(s): London
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STS: a new age for European securitisations
Jan. 16, 2019Butterworths Journal of International Banking and Financial Law
In this article, Nick Shiren and Alex Collins consider how STS (simple, transparent and standardised) status is achieved under the Securitisation Regulation. This article first appeared in the January issue of Butterworths Journal of International Banking & Financial Law.
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): London
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Private Client USA | 2019
Jan. 11, 2019The International Comparative Legal Guide
In this comprehensive Q&A, the authors review notable recent developments in the provision of private client and offshore services.
Related Practice(s): Estate Planning & Administration, Institutional Planning, Private Wealth
Related Office(s): New York
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Delaware Court of Chancery Finds Director Breaches of Fiduciary Duty and Aiding and Abetting Liability for Activist Investor in Shareholder Class Action Suit
January 1, 2019The M&A Lawyer
Read Cadwalader's analysis on a recent decision from the Delaware Court of Chancery in which the Court explicitly concluded that fiduciary and disclosure duties had been breached as a result of directors applying or succumbing to what the Court deemed “activist pressure.”
Related Practice(s): Corporate, Global Litigation
Related Office(s): New York
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Taxing Times: The Death of LIBOR
Dec 12, 2018Brass Tax
Regulators have cautioned that LIBOR - which serves as a reference rate for approximately $35 trillion dollars of debt and derivatives - will be phased out as early as the end of 2021. As a result, countless instruments will have to be amended to provide for a new reference rate. If these amendments are treated as "material modifications," they could significantly affect the parties to the instruments.
Related Practice(s): LIBOR Preparedness Team, Tax
Related Office(s): London, New York, Washington
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Corporations, Directors, and Officers: Potential Criminal and Civil Liability
Nov. 27, 2018LexisNexis
This practice note provides an overview of the law and legal standards governing the imposition of criminal liability on officers, directors, and corporations for the acts of employees. The practice note discusses the federal government’s policies and procedures in corporate criminal investigations and prosecutions, and the most common areas of corporate civil liability under the federal securities laws.
This excerpt from Lexis Practice Advisor®, a comprehensive practical guidance resource providing insight from leading practitioners, is reproduced with the permission of LexisNexis. Reproduction of this material, in any form, is specifically prohibited without written consent from LexisNexis.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): New York, Washington
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How SUPPORT Will Affect Pharma Interactions With DEA
Oct. 29, 2018Law360
This article discusses a few of the more important provisions that are anticipated to affect the pharmaceutical industry in its interactions with the U.S. Drug Enforcement Administration.
Related Practice(s): Pharmaceutical Regulation and Compliance
Related Office(s): Washington
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Frivolous and Bad Faith Claims: Defense Strategies in Employment Litigation
Sep 26, 2018LexisNexis Practice Advisor
The authors provide guidance on defending frivolous and bad faith claims in employment actions. While the article generally covers federal employment law claims, many of the strategies discussed also apply to state employment law claims. (Note: This excerpt from Lexis Practice Advisor®, a comprehensive practical guidance resource providing insight from leading practitioners, is reproduced with the permission of LexisNexis. Reproduction of this material, in any form, is specifically prohibited without written consent from LexisNexis.)
Related Practice(s): Global Litigation
Related Office(s): New York
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The Taxation of CRE-CLOs
Sep 5, 2018Bloomberg Tax
Jason Schwartz, Gary Silverstein, and Daniel Ng discuss the tax considerations applicable to the growing market for commercial real estate collateralized loan obligations (CRE-CLOs). The authors analyze CRE-CLO structures that can be used for securitizing pools of assets that are inappropriate for acquisition by a real estate mortgage investment conduit (REMIC).
Related Practice(s): CLOs, Tax
Related Office(s): New York
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INSIGHT: Fresh Perspectives on Witness Interviews as Pendulum Swings to Individual Culpability in White Collar Investigations
Aug 31, 2018Bloomberg Law
Todd Blanche and Stephen Weiss explain that with the government placing more emphasis on holding individuals responsible for corporate wrongdoing, unique styles and approaches to interviews with prosecutors are a necessity.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Washington
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The Implications of the Second Circuit’s Ruling in Hoskins
Aug 30, 2018Global Investigations Review
Jodi Avergun and Joseph Moreno provide analysis on the implications of the Second Circuit’s ruling in United States v Hoskins.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): New York, Washington
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The European, Middle Eastern and African Antitrust Review 2019
Aug. 15, 2018Global Competition Review
Vincent Brophy and Tom Bainbridge provide a summary of EU antitrust developments in the financial services sector, including commentary on recent EU antitrust investigations, the interplay with financial regulatory enforcement and the development of private litigation. The article addresses certain practical aspects to be considered when dealing with antitrust cases in this sector.
Related Practice(s): Antitrust, Antitrust & Financial Services, Antitrust Compliance & Counselling, Antitrust Investigations, Antitrust Litigation & Disputes, Global Litigation, Merger Clearance
Related Office(s): London
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Private Clients in the USA
Aug 13, 2018Lexology Navigator
In this comprehensive Q&A, the authors review notable recent developments in the provision of private client and offshore services, including individual taxation, compliance issues, wills and probate, capacity and power of attorney, and family links.
Related Practice(s): Estate Planning & Administration, Private Wealth
Related Office(s): New York
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The Taxation of Commercial Real Estate Collateralized Loan Obligations
Jul 23, 2018Bloomberg BNA Daily Tax Report
The authors discuss the tax considerations applicable to the growing market for commercial real estate collateralized loan obligations (CRE-CLOs), and analyze CRE-CLO structures that can be used for securitizing pools of assets that are inappropriate for acquisition by a real estate mortgage investment conduit (REMIC).
Related Practice(s): CLOs, Real Estate, Securitization & Asset Based Finance, Tax
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Recent Trends In Structuring CRE-CLOs
Jul 16, 2018Law360
Commercial real estate collateralized loan obligations, or “CRE-CLOs,” are growing in popularity as a way to securitize mortgage loans. Market participants have predicated as much as $14 billion of new CRE-CLO issuances in 2018, compared to $7.7 billion in 2017.
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): New York
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GIR Names White Collar Defense and Investigations Chair Jodi Avergun to the Top 100 Women in Investigations Survey
July 5, 2018Global Investigations Review
Click to read Jodi's full profile write-up in Global Investigations Review.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Cybersecurity and Data Privacy, Economic Sanctions, FCPA Enforcement and Compliance, False Claims Act and Health Care Fraud, Global Litigation, National Security, Pharmaceutical Regulation and Compliance, Securities Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): Washington
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The EC Leniency Programme – Hamstrung by Private Litigation?
July 1, 2018Competition Law Insight
The European Commission’s leniency programme is vital to the detection, investigation, and prosecution of cartels, and therefore to the Commission’s effectiveness as a competition authority. Any threats to the success of the programme are to be taken seriously. Tom Bainbridge provides analysis.
Related Practice(s): Antitrust, Global Litigation
Related Office(s): London
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Trends and Developments In Shareholder Activism
June 28, 2018Corporate Disputes Magazine
Read Cadwalader’s perspective on the recent trends and developments in shareholder activism written by Global Litigation co-chair Jason Halper, special counsel Gillian Burns, and associate Ailsa Chau.
Related Practice(s): Corporate
Related Office(s): New York
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Disputes Arising From M&A Transactions
June 28, 2018Corporate Disputes Magazine
Global Litigation co-chair Jason Halper joins a panel moderated by Corporate Disputes Magazine to discuss disputes arising from M&A transactions.
Related Practice(s): Mergers & Acquisitions
Related Office(s): New York
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Top 5 Summer Tips: Social Events and Networking
June 27, 2018LexisNexis
Anne Tompkins outlines five practical tips you can use as a summer associate to make the most of the social and networking events your firm has planned.
Related Office(s): Charlotte, New York, Washington
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Criteria for Identifying STC Short-Term Securitisations
June 15, 2018LexisNexis
Banking and Finance analysis: David Quirolo and Jeremiah M Wagner (partners) and Neil Macleod (special counsel) in Cadwalader’s Capital Markets Group, point out that new criteria aimed at assisting the financial industry in its development of simple, transparent and comparable (STC) short-term securitisations may be too restrictive, and the regulatory benefits may not be sufficiently significant, for the criteria to be widely adopted.
This article was first published on Lexis®PSL Banking and Finance on 6 June 2018.
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
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International Arbitration Roundtable
June 13, 2018Financier Worldwide Magazine
International arbitration has been a hive of activity in recent times, with the number and value of disputes referred to arbitration continuing to grow. Concurrently, the arbitration community has observed a number of fresh trends and developments, including demands for greater transparency in how arbitration is administered, support for third-party funding across major arbitration jurisdictions and an uptick in arbitration involving sovereign states. An increasingly important tool for international businesses, arbitration, for many, is evolving into the preferred method for dispute resolution across the globe.
Related Practice(s): Global Litigation, International Dispute Resolution
Related Office(s): London
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Yahoo Settlement Changes SEC Expectations on Cyber Disclosure
June 4, 2018Bloomberg Law
Cadwalader's Joseph Moreno, Kyle DeYoung, Keith Gerver, Alexander Hokenson, and Stephen Weiss discuss the Yahoo settlement and changes to SEC expectations on cyber disclosure.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Washington
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UK Corporate Interest Restriction Rules – Keeping Pace with Change
May 16, 2018FITAR
Adam Blakemore and Catherine Richardson reflect on the development of, and practical considerations associated with, the existing legislation, and provide guidance on some of the aspects that may be subject to further amendments.
Related Practice(s): Tax
Related Office(s): London
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Will Facebook Firestorm Yield Tougher U.S. Data Privacy Standards?
April 23, 2018Bloomberg Law
States could reform their various laws to implement new data protection and breach notification standards, but this would be a piecemeal effort that could be years in the making and would still retain a balkanized system with laws of varying scope and effectiveness.
Related Practice(s): Cybersecurity and Data Privacy
Related Office(s): Washington
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Dodd–Frank Credit Risk Retention Rules and ‘Open-Market CLOs’ (LSTA v Securities and Exchange Commission and Board of Governors of the Federal Reserve System)
Apr 18, 2018LexisNexis
Neil Weidner and Peter Williams explain the implications of the US Court of Appeals’ risk retention ruling on collateralised loan obligations (CLOs).
Related Practice(s): CLOs, Securitization & Asset Based Finance, Structured Products
Related Office(s): Charlotte, New York
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The Global Subscription Credit Facility and Fund Finance Markets – Key Trends and Forecasts 2018
Apr 16, 2018The International Comparative Legal Guide to Lending & Secured Finance 2018
The Subscription Credit Facility (each, a “Facility”) and related Fund Finance markets had a fascinating 2017. On the one hand, everything stayed exactly the same. Like virtually every year since the financial crisis, Facility credit performance remained pristine, with no monetary defaults having become public last year. And the out-paced growth rate continued. But, on the other hand, outside of the four corners of the transactions, change seemed to come daily. This chapter summarizes the key trends in the Facility and Fund Finance markets in 2017 and forecasts developments for the coming year.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
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Publicity: The US Perspective
Mar 20, 2018An extract from GIR Practitioner’s Guide to Global Investigations, Edition 2
In this chapter, authors Jodi Avergun and Bret Campbell discuss restrictions in a criminal investigation or trial, the investigatory and pre-trial stage, trial and post-trial stage, discovery of internal corporate communications and much more.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Washington
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Individual Penalties and Third-Party Rights: The US Perspective
Mar 20, 2018An extract from GIR Practitioner’s Guide to Global Investigations, Edition 2
In this chapter, authors Joseph Moreno and Anne Tompkins discuss prosecutorial discretion, principles of federal prosecution, DOJ enforcement priorities and policies, individual accountability for wrongdoing and much more.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Charlotte, Washington
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The Taxation of CLO Risk Retention Structures
Mar 16, 2018Journal of Taxation of Financial Products
The authors examine a tax structure that U.S. collateral managers of collateralized loan obligation issuers commonly use to comply with the U.S. and European “risk retention” rules enacted following the 2007–2008 global financial crisis that require sponsors of securitization vehicles to maintain a financial interest in those vehicles.
Related Practice(s): CLOs, Tax
Related Office(s): New York
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Tax Reform Complicates Middle-Market CLOs
Mar 9, 2018Law360
The recently enacted Tax Cuts and Jobs Act is causing concerns for advisers of middle-market collateralized loan obligation issuers, or MM CLOs, that are engaged in a U.S. trade or business for U.S. tax purposes.
Related Practice(s): Securitization & Asset Based Finance, Tax
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Contracting Party Beware: The Implied Covenant Will Not Save You From Your Agreement If You Negotiated Away Your Rights
Mar 1, 2018The M&A Lawyer
On February 1, 2018, the Delaware Court of Chancery granted defendants’ motion to dismiss an action brought by minority unitholders of Trumpet Search, LLC. The decision in Christopher Miller et al. v. HCP & Co., et al is a powerful reminder that the broad freedom of contract that Delaware law accords entities such as LLCs offers both the promise of great latitude to contracting parties and the threat of serious pitfalls for parties that fail to carefully protect their interests in the agreement. The decision also underscores the limits on an implied covenant breach claim under Delaware law.
Related Practice(s): Global Litigation, M&A Litigation, Mergers & Acquisitions
Related Office(s): New York
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Cooperation Resulting in Waiver
Mar 1, 2018Financier Worldwide
When considering how and when to update the SEC or the DOJ about the status of an investigation, company and outside counsel should weigh whether the risk of a later finding that the update constituted a privilege waiver outweighs the benefit of cooperation.
Related Practice(s): FCPA Enforcement and Compliance, Global Litigation, White Collar Defense and Investigations
Related Office(s): New York, Washington
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March Madness: Universities Must Prepare For NCAA Inquiries
Feb 27, 2018Law360
Universities and their college basketball programs are facing pressure on both ends of the court: first from the U.S. Attorney’s Office for the Southern District of New York (SDNY) and the FBI, and second from the NCAA. This article discusses how universities can take a proactive approach in the wake of the SDNY investigation.
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation, White Collar Defense and Investigations
Related Office(s): Charlotte, New York, Washington
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Cadwalader’s Michael Mascia is Contributing Editor of Fund Finance 2018: Second Edition
Feb 15, 2018Cadwalader Finance Group co-chair Michael Mascia is the Contributing Editor of Global Legal Insights’ recently released comprehensive guide to the fund finance market, “Fund Finance 2018: Second Edition.” Mascia and Cadwalader Finance partner Tim Hicks also co-authored the chapter “Equity Commitment Facilities: A Primer,” which summarizes the key structural features of an equity commitment facility and outlines the essential considerations for lenders. View the chapter and the book in its entirety here.
Related Practice(s): Fund Finance
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Recent Trends In Structuring Risk Retention Vehicles
Feb 14, 2018Law360
In the wake of the 2007-2008 global financial crisis, the United States and Europe enacted “risk retention” rules that require sponsors of securitization vehicles to maintain a financial interest in those vehicles (i.e., “skin in the game”).
Related Practice(s): CLOs, Securitization & Asset Based Finance
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Outside Counsel May Face Criminal Liability In Complex Business Cases
Jan 29, 2018New York Law Journal
Todd Blanche and Kyle DeYoung discuss the criminal liability that outside counsel may face in complex business cases.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): New York, Washington
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CMBS In 2017 And A Look Ahead
Jan 4, 2018Law360
Whether you were waiting for a “wall” or a “wave” to hit the commercial mortgage-backed securities market last year, 2017 did not deliver the massive amount of CMBS refinancings predicted by many at the end of 2016. In this article, we will review what happened during 2017 and look ahead to what the industry might see in 2018.
Related Practice(s): CLOs, Commercial Mortgage-Backed Securities, Securitization & Asset Based Finance
Related Office(s): Charlotte, New York
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Tax Reform: Effects on Funds and Securitizations
Dec 11, 2017Tax Management Memorandum
Jason Schwartz, Jean Bertrand and Kara Altman discuss the provisions in the current House and Senate tax reform proposals that could, if enacted in their current form, significantly affect securitization vehicles and investment funds.
Related Practice(s): Securitization & Structured Products Taxation, Tax
Related Office(s): New York
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Elements of an Effective Corporate Compliance Program
Nov 17, 2017Fraud & White Collar Crime 2017 Expert Guide
Companies that are either located in, or transact business in the United States – even if they are not in highly regulated industries like health care or finance – are subject to an almost ever-increasing array of regulations with which they must comply. Add to that the financial incentives provided by the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (“Dodd-Frank Act”) and companies can find themselves at the center of regulatory or criminal investigations in an instant.
Related Practice(s): White Collar Defense and Investigations
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Share Reserve and Other Limits in Public Company Equity Plans
Nov 15, 2017Practical Law
This article addresses the key considerations when establishing the share reserve and other limits in a public company equity plan, including business and shareholder considerations, the requirements of Sections 162(m) and 422 of the Internal Revenue Code, proxy advisory firm scoring and review, the voting guidelines of institutional investors, and potential shareholder litigation related to director awards.
Related Practice(s): Corporate, Executive Compensation & Benefits, Executive Compensation, Benefits & ERISA
Related Office(s): New York
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Roller-Coaster Ride for the Securitisation Market
Nov 13, 2017LexisNexis
Robert Cannon considers the EU securitisation regulation adopted by the European Parliament on 26 October 2017 and the impact it will have on the European securitisation market.
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): London
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Subscription Lines: Opportunities Multiply As They Are Seized
Sep 29, 2017Non-Bank Financial Institutions Newsletter (Barclays)
Subscription lines to funds have been hitting the headlines recently. This article takes a closer look at the benefits of the subscription line, the concerns expressed in recent publications and their future usage.
Related Practice(s): Fund Finance, Private Equity, Securitization & Asset Based Finance
Related Office(s): London
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Insider Trading After Martoma: Benefits Without Friends?
Sep 18, 2017Law360
The authors address United States v. Martoma, which eliminates the need to prove a “close personal relationship” between tippers and tipees who exchange confidential information, and will likely expand the number of criminal insider trading prosecutions by the federal government. It is the latest in a string of important decisions concerning the scope of insider trading liability.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Corporate & Financial Services Litigation & Regulation, Corporate Governance, Corporate Governance Litigation and Counseling, Economic Sanctions, FCPA Enforcement and Compliance, Financial Regulation, Global Litigation, Investment Management Litigation, Securities Enforcement and Compliance, White Collar Defense and Investigations
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European Union: Financial Services
Sep 11, 2017The European, Middle Eastern and African Antitrust Review 2018 | Global Competition Review | Sep 11, 2017
Cadwalader partner Vincent Brophy and special counsel Tom Bainbridge have written a chapter in Global Competition Review's annual Antitrust Review, entitled "European Union: Financial Services". The article provides a summary of EU antitrust developments in the financial services sector, including commentary on the recent proliferation of EU antitrust investigations, the interplay with financial regulatory enforcement and the development of private litigation. Against that background, the article addresses certain practical aspects to be considered when dealing with antitrust cases in this sector.
Related Practice(s): Antitrust
Related Office(s): Brussels, London
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Using Blockchain to Replace Deposit Account Control Agreements
Sep 11, 2017Bloomberg Law | BNA's Banking Report
In a secured lending transaction, it is common for a lender to take security over a borrower’s deposit accounts as part of its collateral package. In the United States, such security interest is commonly perfected under the Uniform Commercial Code (UCC) by the entrance of the secured party, the debtor and the thirdparty account bank at which the deposit account is maintained into a deposit account control agreement (a DACA). While effective to perfect a security interest, the process of entering into and maintaining DACAs, and complying with their various terms, can be burdensome on all parties involved. This article takes a closer look at the potential implementation of a blockchain structure on traditional DACAs.
Related Practice(s): Bank Regulation, Corporate, Corporate & Financial Services Litigation & Regulation, Global Litigation
Related Office(s): New York
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Practice Alert: Implicit warnings in the DOJ’s declinations with disgorgement
Aug 31, 2017The FCPA Blog
Since the DOJ launched the Pilot Program in April 2016 to encourage companies to self-report FCPA violations and cooperate with the feds, the DOJ has published seven declination letters addressed to companies under investigation. Companies should review and understand the implications of the DOJ’s use of declinations with disgorgement, as we expect the current practice to continue.
Related Practice(s): FCPA Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): Washington
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From Bills Of Lading To Blockchain Structures
Aug 10, 2017Law360
The emergence of blockchain technology in commodities trading raises important questions about the future of bills of lading and how these novel technologies fit with the legal concepts surrounding documents of title.
Related Practice(s): Corporate Finance
Related Office(s): Charlotte
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Pre-packing European Debt in American Courts: the Roust Corporation Restructuring
June 1, 2017Butterworths Journal of International Banking and Financial Law
This article examines the successful $1.1bn reorganisation of Roust Corporation in the United States Bankruptcy Court for the Southern District of New York earlier this year. Cadwalader acted as transatlantic adviser to the Ad Hoc Committee of Convertible Noteholders.
Related Practice(s): Financial Restructuring
Related Office(s): London
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So You’ve Been Hacked: The Changing Landscape of Post-Data Breach Liability
April 28, 2017New York Law Journal
The authors focus on the potential for regulatory and civil liability for corporations in the aftermath of a data breach.
Related Practice(s): Cybersecurity and Data Privacy, Global Litigation, White Collar Defense and Investigations
Related Office(s): New York, Washington
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The Global Subscription Credit Facility and Fund Finance Markets – Key Trends and Forecasts 2017
April 26, 2017The International Comparative Legal Guide to Lending & Secured Finance 2017
The Subscription Credit Facility and related Fund Finance markets continued their outpaced growth in 2016, extending the long-standing industry trend. Mirroring the recent experience both during and after the financial crisis, facility credit performance remained pristine, with no monetary defaults having become public last year. The authors summarize the key trends in the Facility and Fund Finance markets in 2016 and forecasts developments for the coming year. This article appeared in the 2017 edition of The International Comparative Legal Guide to Lending & Secured Finance, published by Global Legal Group Ltd, London.
Related Practice(s): Fund Finance, Securitization & Asset Based Finance
Related Office(s): Charlotte
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SEC Scrutiny Of Non-GAAP Disclosures Likely To Continue
Mar 28, 2017Law360
Non-GAAP measurements serve a valid purpose, which is to improve and supplement a company’s financial disclosures and provide additional comparability between periods and among firms. However, because non-GAAP disclosures are by definition unshackled from the prescriptions of GAAP, they are susceptible to potential manipulation and vulnerable to claims that they were used to mislead investors.
Related Practice(s): Global Litigation
Related Office(s): Washington
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How Colleges Can Avoid Title IX Pitfalls
Mar 28, 2017University Business
The authors discuss how to provide due process to higher ed students accused of sexual misconduct.
Related Practice(s): Global Litigation
Related Office(s): Charlotte, Washington
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Fund Finance 2017: First Edition
Feb 22, 2017Global Legal Insights
Michael Mascia, Wesley Misson and Jeremy Cross co-authored the chapter on the U.S. subscription credit facility and fund finance market in Fund Finance 2017: First Edition. The book provides law firms, financial institutions, funds and investors with comprehensive insight into fund finance markets, products and jurisdictions.
Related Practice(s): Securitization & Asset Based Finance
Related Office(s): Charlotte, London
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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
Jan 2, 2017The M&A Lawyer
The decision in Merion Capital LP et al. v. Lender Processing Services Inc. is just the latest of several relatively recent decisions equating fair value and merger consideration where the merger was the product of an appropriate sale process consisting of, among other things, an arm’s‑length negotiation conducted by an independent and informed board advised by independent financial advisors.
Related Practice(s): Mergers & Acquisitions
Related Office(s): New York
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Patents for Computer and Life Science Technologies Making a Comeback?
November 8, 2016New York Law Journal
In recent years, the U.S. Supreme Court has been making it more difficult to obtain and enforce patent protection for computer- and life science-related technologies. However, two recent Federal Circuit cases (Rapid Management Litigation and McRO) suggest there may be reasonable boundaries on the court's principles for excluding patent protection.
Related Practice(s): Global Litigation, Intellectual Property, Patent & Trade Secret Litigation
Related Office(s): New York
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ISDA and FIA Execution Agreement, Cleared Derivatives Execution Agreement and Addendum
October 28, 2016Lexis PSL Banking & Finance
Assia Damianova discusses the ISDA and FIA execution agreement, cleared derivatives execution agreement and addendum.
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): London
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Even Legal Marijuana Businesses Pose Serious Money Laundering Risks for Banks and Investors
October 1, 2016Compliance Week
Marijuana might be legal in some places, but as IRS audits increasingly show, just doing business with the legal marijuana industry brings significant compliance challenges, especially for the financial services world.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, White Collar Defense and Investigations
Related Office(s): Washington
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European Union: Financial Services
Sep 7, 2016The European, Middle Eastern and African Antitrust Review 2017
Related Practice(s): Antitrust
Related Office(s): Brussels
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Expert Q&A on Judicial Activism and Disclosure-Only Settlements in Delaware
August 19, 2016Practical Law
Gregory Markel and Gillian Burns explain the implications of the Delaware Court of Chancery's decision in In re Trulia, Inc. Stockholders Litigation. The Court sent a forceful signal to the plaintiffs’ bar and corporate defendants by adopting a new standard for judicial approval of disclosure-only settlements in litigation challenging public mergers and acquisitions.
Related Practice(s): Mergers & Acquisitions
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5 Lessons For Colleges From Stanford Sexual Assault Case
August 18, 2016Law360
The authors discuss the key issues that college and university administrators should consider when dealing with sexual assault investigations and adjudications.
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): Charlotte, Washington
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Brexit: Losing Our Passport
August 4, 2016Practical Law
Nick Shiren discusses the impact on securitisation and CLOs should the UK lose all passporting rights to sell services into the EU following Brexit.
Related Practice(s): CLOs, Securitization & Asset Based Finance
Related Office(s): London
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Finance Bill 2016: Criminal offences and civil sanctions
Apr 26, 2016Lexis®PSL
Private Client analysis: Catherine Richardson, associate, and Adam Blakemore, partner, provide an update on the criminal offences and civil sanctions aspects of Finance Bill 2016 (formally known as Finance (No 2) Bill).
This article was first published on Lexis®PSL Private Client on 26 April 2016. Click for a free trial of Lexis®PSL.
Related Practice(s): Private Wealth, Tax
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The Global Subscription Credit Facility and Fund Finance Markets – Key Trends and Forecasting 2016
Apr 21, 2016The International Comparative Legal Guide to Lending & Secured Finance
The Subscription Credit Facility and related Fund Finance markets continued their outpaced growth in 2015, building upon and continuing a market trend in place since at least 2010. Michael Mascia and Wesley Misson summarize the key trends in the Facility and Fund Finance markets in 2015 and forecast developments for the coming year. This article appeared in the 2016 edition of The International Comparative Legal Guide to Lending & Secured Finance, published by Global Legal Group Ltd, London.
Related Practice(s): Fund Finance
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Complying With AML Laws: Challenges for the Fintech Industry
April 05, 2016Crowdfund Insider
A major challenge to the growing Fintech industry comes from government scrutiny and enforcement actions - particularly as they relate to money laundering and the financing of terrorist activity.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Cybersecurity and Data Privacy, Fintech, White Collar Defense and Investigations
Related Office(s): Washington
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President Obama Signs Cybersecurity Act of 2015 to Encourage Cybersecurity Information Sharing
Apr 1, 2016Pratt’s Privacy & Cybersecurity Law Report
The Cybersecurity Act of 2015 – Congress’s first major piece of cybersecurity legislation –has been years in the making. President Obama signed into law a $1.1 trillion omnibus spending bill that contained the Act late last year. The authors of this article discuss the Act and its implications.
Related Practice(s): White Collar Defense and Investigations
Related Office(s): Washington
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Marketing and Data Security Practices: The FTC v. LifeLock Settlement
April 01, 2016Compliance & Ethics Professional
This most recent settlement between the FTC and LifeLock provides another important opportunity for businesses to evaluate their data security practices to ensure the protection of consumer data and the accuracy of their representations regarding those practices.
Related Practice(s): Cybersecurity and Data Privacy, White Collar Defense and Investigations
Related Office(s): Washington
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Non-Bank Payments Aren't a Long-Term Answer for Legal Marijuana
Mar 04, 2016PaymentsSource
Despite generating an estimated $4.5 billion in revenue last year, the legal marijuana industry has yet to solve one of its biggest issues—the lack of reliable payments, banking and other financial services.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Securities Enforcement and Compliance, White Collar Defense and Investigations
Related Office(s): Washington
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Mandatory Subordination of Affiliate Securities Claims
March 1, 2016ABI Journal
The mandatory-subordination provision of § 510(b) of the Bankruptcy Code serves the important purpose of preventing disappointed shareholders from assuming the guise of creditors in order to enhance their recoveries in bankruptcy.
Related Practice(s): Financial Restructuring
Related Office(s): New York
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Delaware Judges Have Been Heard
Feb 2, 2016Law360
Until very recently, abusive litigation related to mergers was all but certain to follow the announcement of a public merger. Last fall, we wrote an article discussing the proliferation of disclosure-only settlements used to resolve merger litigation, which in many cases do not provide any economic benefit to shareholders and foreclose potentially valuable claims that have not been thoroughly vetted.
Related Practice(s): Mergers & Acquisitions
Related Office(s): New York
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Pot Banking 2016: More State Ballots But Continued Unease
Feb 01, 2016American Banker
Despite its astounding growth in recent years, the marijuana industry remains hampered by its own banking crisis. Marijuana businesses' difficulty in accessing financial services has created problems for businesses and government alike.
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Securities Enforcement and Compliance, White Collar Defense and Investigations
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Draft Finance Bill 2016—criminal offences and civil sanctions
Jan 13, 2016Lexis PSL
Corporate Crime analysis: What proposed criminal offences and civil sanctions are included in the draft Finance Bill 2016? Catherine Richardson, associate at Cadwalader, Wickersham & Taft LLP, and Adam Blakemore, partner at the firm, consider the proposed new criminal offences and civil sanctions contained in the draft Finance Bill 2016.
Related Practice(s): Tax
Related Office(s): London
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