Clients & Friends Memos


COVID-19 Resource Center

Access our latest insights on the impact of COVID-19 to help you navigate this unprecedented environment.

“Sustainable” Companies Face Increased Pressure to Justify the Sustainability Label Amid Investor Challenges and Demands for Greater Risk Assessment and Disclosure

December 01, 2021

The recent IPO for Rivian Automotive Inc., the electric pick-up truck manufacturer whose shares increased 29% on the day following the offering, resulting in an enterprise valuation of more than $86 billion – more than the market values of every other automaker except Tesla, Toyota, and Volkswagen – is evidence that investors may place a significant premium on certain companies that are at the forefront of addressing (and potentially seizing opportunities resulting from) climate change and related sustainability issues.


Related Attorney(s): Jason Halper, Ellen Holloman, Mark Grider, Mark Beardsworth, Kevin Roberts, Melis Acuner, Sara Bussiere, Victor Celis
Related Practice(s): Environmental, Social & Governance (ESG) Task Force, Global Litigation, White Collar Defense and Investigations
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What’s in a Name? Court Holds That Despite Its Title, a Security Agreement Also Subordinated Junior Creditor’s Rights to Payment

November 30, 2021

On October 29, 2021, Judge Laura Taylor Swain, the presiding judge in the Puerto Rico bankruptcy case, ruled that approximately $2 billion in intragovernmental loan claims were subordinated to bonds issued by the Puerto Rico Highway and Transportation Authority (“HTA”) pursuant to an assignment and security agreement.  The Court’s opinion provides guidance on several important issues regarding subordination agreements, including the distinction between payment and lien subordination, the importance of including certain provisions in drafting such agreements, and the operation of a tiered subordination structure.


Related Attorney(s): Mark Ellenberg, Howard Hawkins, Michele Maman, Thomas Curtin, William Natbony
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Financial Restructuring, Global Litigation
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You Win Some, You Lose Some: The Second Circuit Affirms Dismissal of Landlords’ Free Speech Challenge to Harassment Laws and Reverses Dismissal of Landlords’ Contract Clause Challenge to Guaranty Law

November 16, 2021

On October 28, 2021, the United States Court of Appeals for the Second Circuit ruled on Melendez v. City of New York, in which the plaintiffs, who are New York City landlords, alleged that certain laws enacted in response to the COVID-19 pandemic were unconstitutional.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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Securities Litigation Update: Divided Ninth Circuit Permits Direct-Listing Investors to Assert Securities Act Claims, Despite Inability to Differentiate Between Registered and Unregistered Shares

November 02, 2021

On September 20, 2021, in Pirani v. Slack Technologies, Inc., a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that investors who purchase stock in a “direct listing”—in which pre-existing shares are sold to the public without underwriters—may bring claims based on alleged misrepresentations in a registration statement, even if they cannot demonstrate that they acquired registered shares.


Related Attorney(s): Jason Halper, Ellen Holloman, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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UK Autumn Budget 2021 – Key Tax Measures

October 28, 2021

The Chancellor of the Exchequer delivered the United Kingdom (“UK”) Autumn Budget for 2021 on 27 October 2021.

The Budget was delivered against the backdrop of the UK’s ongoing recovery from the Covid‑19 pandemic and the evolving relationship between the UK and the rest of the world following Brexit.  As with many previous Budgets, eye-catching pieces of good news sit alongside anti-avoidance proposals which –  while targeted – cast a slightly cold shadow over the more hopeful items.  The same is true in the Autumn Budget 2021, where the positive and potentially game-changing introduction of the new Qualifying Asset Holding Companies regime and helpful changes to the stamp duty treatment of UK securitisation companies are lined up with further measures to be applied to the “willing associates and collaborators” of any offshore promoter of tax avoidance.


Related Attorney(s): Adam Blakemore, Catherine Richardson, Hugo Chan
Related Practice(s): Tax
Related Office(s): London
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Financial Stability Oversight Council Issues Key Report Declaring Climate Change as an Emerging Threat to U.S. Financial Stability

October 25, 2021

On October 21, 2021, the Financial Stability Oversight Council (“FSOC”), established in 2010 by the Dodd-Frank Wall Street Reform and Consumer Protection Act to respond to emerging threats to the stability of the U.S. financial system, released a Report on Climate-Related Financial Risk (the “Report”).


Related Attorney(s): Jason Halper, Daniel Meade, Sara Bussiere, Timbre Shriver
Related Practice(s): Environmental, Social & Governance (ESG) Task Force, Financial Regulation, Global Litigation
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Can Computer Systems Using Artificial Intelligence Patent their own Inventions?

October 08, 2021

Increasingly, companies are using artificial intelligence to invent new methods and products.  But can a named inventor be a non-human machine under the law?  That depends on which country’s laws are being applied.


Related Attorney(s): Dorothy Auth Ph.D., Howard Wizenfeld
Related Practice(s): Global Litigation, Intellectual Property
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Recent Amendments to English Civil Procedure Help Simplify the Issuance of Contractual Claims Against Foreign Defendants—Service of Process Pursuant to CPR 6.33(2B)

September 28, 2021

On 6 April 2021, an amendment was introduced to the Civil Procedure Rules 1998 (S.I. 1998/3132) (the “CPR”) at Part 6 concerning service out of the jurisdiction.  The change is of interest where at least one or more international businesses/foreign parties (whether EU or non‑EU), otherwise unconnected with the UK, incorporate a choice of court agreement (or “COCA”) in favour of the courts of England & Wales as a means to resolve their contractual disputes.  CPR 6.33(2B)(b) now provides that permission of the court is not required to serve out of the jurisdiction a claim where jurisdiction is based on any COCA in favour of the courts of England and Wales.  In many cases, this will simplify the procedure for service of international contractual claims on foreign domiciled defendants, by eliminating a preliminary step (i.e. the need to seek permission of the court), which adds cost and delay.


Related Attorney(s): Melis Acuner, Emma Farrow, Gareth Rund
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation, International Dispute Resolution
Related Office(s): London
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FTC Rescinds Vertical Merger Guidelines

September 20, 2021

Change is the only constant of late at the Federal Trade Commission (“FTC”). Newly confirmed Chair Lina Khan has wasted no time in using her three-Democrat majority to overhaul the Commission’s merger enforcement practices.


Related Attorney(s): Joel Mitnick, Ngoc Hulbig
Related Practice(s): Antitrust
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One-Two Punch: FTC Does About-Face on Treatment of Debt for HSR Purposes and Casts Doubt on Informal Interpretation Program

September 14, 2021

In a recent blog post, the Acting Director of the Federal Trade Commission Bureau of Competition announced the reversal of the Federal Trade Commission’s (“FTC”) decades-long position regarding the treatment of debt repayment when determining whether a premerger notification filing under the Hart-Scott-Rodino (“HSR”) Act is required. Effective September 27, 2021, companies and individuals that do not file HSR based on excluding retired debt from the transaction value may face enforcement action.


Related Attorney(s): Joel Mitnick, Ngoc Hulbig
Related Practice(s): Antitrust, Mergers & Acquisitions
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Investors and Regulators Turning up the Heat on Climate-Change Disclosures: Attempting to Make Sense of the State of Play in the US, EU, and UK

September 14, 2021

As investors’ calls for greater climate-related corporate accountability grow louder, the “E” in ESG—environmental, social and governance—looms larger than ever, particularly from the perspective of directors facing oversight responsibilities and the challenge of providing adequate disclosure.


Related Attorney(s): Jason Halper, Melis Acuner, Mark Beardsworth, Ellen Holloman, Kevin Roberts, Sara Bussiere, Duncan Grieve, Timbre Shriver
Related Practice(s): Environmental, Social & Governance (ESG) Task Force, Global Litigation, White Collar Defense and Investigations
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COVID-19 Update: New York Governor Signs New Moratorium Effective until January 15, 2022

September 07, 2021

On September 2, 2021, New York Governor Kathy Hochul signed into law a new moratorium on evictions and foreclosures for residential tenants and small businesses.  Recently, in the case Chrysafis v. Marks, the U.S. Supreme Court enjoined the enforcement of the previous residential moratorium in New York (which expired August 31), finding that the tenant’s ability to self-declare financial hardship while precluding a landlord from contesting that declaration violated the landlord’s due process rights.  Additionally, in the case Alabama Association of Realtors v. Department of Health and Human Services, the U.S. Supreme Court held that the CDC exceeded its statutory authority in issuing its latest residential eviction moratorium and blocked the enforcement of such moratorium.  In response, and citing the rise in cases due to the Delta variant of COVID-19, the New York legislature passed a new moratorium, which expires January 15, 2022.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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COVID-19 Update: U.S. Supreme Court Holds that CDC Exceeded its Authority in Issuing Eviction Moratorium

August 30, 2021

On August 26, 2021, the U.S. Supreme Court issued an order vacating the Centers for Disease Control and Prevention’s latest eviction moratorium.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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COVID-19 Update: CDC Issues New Eviction Moratorium while U.S. Supreme Court Grants Injunction against Enforcing the Eviction Moratorium in New York

August 18, 2021

On August 3, 2021, the Centers for Disease Control and Prevention issued a new order banning residential evictions in counties where COVID-19 cases are quickly rising.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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SEC Approves Nasdaq’s Proposed Rule Changes to Increase Corporate Board Diversity

August 10, 2021

On August 6, 2021, the Securities and Exchange Commission (“SEC”) issued an order approving proposed rule changes submitted by The Nasdaq Stock Market LLC (“Nasdaq”) to adopt listing rules related to board diversity.


Related Attorney(s): Jason Halper, Ellen Holloman, Philip Khinda
Related Practice(s): Corporate, Corporate & Financial Services Litigation & Regulation, Corporate Governance, Global Litigation, White Collar Defense and Investigations
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Securities Litigation Update: First Circuit Holds That Future-Focused Risk Disclosures Are Not Misleading Absent “Grand Canyon”-Level Threat to Company

August 09, 2021

On July 9, 2021, in Karth v. Keryx Biopharmaceuticals, Inc., the U.S. Court of Appeals for the First Circuit affirmed entry of judgment for the defendants in a putative class action asserting violations of Section 10(b) of the Securities Exchange Act of 1934 based on a pharmaceutical company’s alleged understatement of risks associated with its reliance on a single third-party manufacturer for the only drug it produced.  In so ruling, the Court invoked a “Grand Canyon” metaphor for a company’s obligation to describe risks as active or imminent, as opposed to theoretical:  “one cannot tell a hiker that a mere ditch lies up ahead, if the speaker knows the hiker is actually approaching the precipice of the Grand Canyon.” In this case, however, the Court held that the defendant’s risk disclosures—which stated that it “could experience a loss of revenue” if its supplier failed to perform—were not misleading

Related Attorney(s): Jason Halper, Ellen Holloman, Jonathan Watkins, Adam Magid
Related Practice(s): Global Litigation
Related Office(s): Charlotte, New York
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August Changes to Fund Distribution in the EEA

August 02, 2021

This week sees the introduction of significant changes to the rules and regulations governing the marketing of alternative investment funds (“AIFs”) to investors in the Member States of the European Economic Area (the “EEA”) with both the deadline for implementation of the Cross Border Marketing Directive (the “Directive”) and the Cross Border Marketing Regulation (the “Regulation”) coming into force. For the avoidance of doubt, the EEA no longer includes the United Kingdom.


Related Attorney(s): Michael Newell, Michael Sholem, Michael Gwydir, Jack Kelly, Paolo Del Val
Related Practice(s): Financial Regulation, Fund Formation, Investment Management
Related Office(s): London
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The President’s Competition Order – One Week On

July 20, 2021

On July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy” (the “Order”).  The Order responds to what the President characterizes as a “failed experiment” in lax antitrust enforcement that he believes has led to undue concentration of businesses throughout the economy.  It appears that the analytically-fuzzy era of “big is bad” may be returning to Washington.  In the first week following the Order’s issuance, the federal antitrust enforcement agencies have begun actively gearing up for new enforcement initiatives and wholesale changes in the standards of antitrust review.


Related Attorney(s): Joel Mitnick, Eden Sung
Related Practice(s): Antitrust, Global Litigation
Related Office(s): New York
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Marketplace Lending Update #10: OCC’s True Lender Rule Is Repealed

July 16, 2021

On June 30, 2021, President Biden signed a joint resolution of Congress under the Congressional Review Act (“CRA”) to disapprove the OCC’s True Lender Rule. As a result, the True Lender Rule is now repealed.


Related Attorney(s): Rachel Rodman, Daniel Meade, Scott Cammarn, Joseph Beach, Chris Gavin
Related Practice(s): Financial Regulation, Securitization & Asset Based Finance, White Collar Defense and Investigations
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Securities Litigation Update: Courts of Appeals Weigh in on American Pipe Tolling and the Affiliated Ute Presumption of Reliance

July 15, 2021

Last month, the U.S. Courts of Appeals for the Third and Ninth Circuits issued decisions interpreting two significant doctrines affecting federal securities law litigants:  (1) American Pipe tolling—a doctrine that suspends (or “tolls”) the running of the statute of limitations applicable to the claims of potential class members while a putative class action is in progress, and (2) the Affiliated Ute presumption of reliance—a substitute at the motion to dismiss and class certification stages for the otherwise required direct proof of reliance in claims asserted under Section 10(b) of the Securities and Exchange Act of 1934 (Exchange Act) involving “primarily a failure to disclose.”


Related Attorney(s): Jason Halper, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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Blasius Is Alive and Well in Delaware: Delaware Supreme Court Chides Chancery for Turning Away Stockholder’s Claims Without Considering Whether Board’s Interference with Stockholder Vote Triggered Blasius’s Compelling Justification Test

July 13, 2021

Despite being one of the more well-known doctrines in corporate law, the rule articulated in Blasius—that directors who act with the primary purpose of interfering with a stockholder vote must have a compelling justification for their conduct—has received little attention from the Delaware Supreme Court. Delaware’s highest court has not mentioned the Blasius test in over a decade and has not held that a board’s conduct triggered the Blasius test since 2003.


Related Attorney(s): Jason Halper, Jared Stanisci, Victor Bieger, Annika Conrad
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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COVID-19 Update: Supreme Court Denies Request to Lift CDC’s Eviction Moratorium

July 01, 2021

On June 29, 2021, the Supreme Court denied an application by a group of real estate agents and associations to lift the eviction moratorium issued by the Centers for Disease Control and Prevention (the “CDC”). Originally issued on September 4, 2020, the CDC’s order temporarily banned evictions of residential tenants in an effort to mitigate the spread of COVID-19.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System: Supreme Court Vacates Class Certification Order in Decade-Long Class Action, Clarifying That Courts May Consider the Materiality of Alleged Misstatements in Applying Fraud-on-the-Market Presumption

June 30, 2021

On June 21, 2021, the United States Supreme Court issued a decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, vacating a decision of the Second Circuit that affirmed certification of a securities fraud class action against The Goldman Sachs Group, Inc.  The Court directed the Second Circuit to consider the “generic” nature of Goldman’s alleged misrepresentations in assessing whether Goldman had successfully rebutted the fraud on the market presumption of reliance for purposes of plaintiff’s claim under Section 10(b) of the Securities Exchange Act of 1934, and therefore, whether class certification is appropriate.


Related Attorney(s): Jason Halper, Adam Magid, Matthew Karlan, Nicholas Caros
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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DOJ Casts the FCPA Spotlight on Brazil-Related Enforcement

June 11, 2021

On May 25, 2021, the U.S. Department of Justice (“DOJ”) unsealed an indictment charging two Austrian citizens, Peter Weinzierl (“Weinzierl”) and Alexander Waldstein (“Waldstein”), for their roles in a scheme to launder hundreds of millions of dollars through the U.S. financial system on behalf of the Brazilian construction conglomerate, Odebrecht S.A. (“Odebrecht”). The indictment alleges that Weinzierl and Waldstein helped Odebrecht funnel money to offshore accounts to pay bribes to government officials in Brazil, Panama, and Mexico.


Related Attorney(s): Kevin Roberts, Lex Urban, Duncan Grieve, Stephen Weiss
Related Practice(s): FCPA Enforcement and Compliance, Global Litigation, White Collar Defense and Investigations
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Securities Litigation Update: Eighth Circuit Endorses Striking Class-Action Allegations on the Pleadings, Setting Appellate-Level Precedent for Early Termination of Putative Securities Class Actions

June 11, 2021

On June 3, 2021, in Donelson v. Ameriprise Financial Services, Inc., a panel of the U.S. Court of Appeals for the Eighth Circuit ordered class-action allegations in a putative securities fraud class action stricken on the pleadings under Rule 12(f) of the Federal Rules of Civil Procedure, and directed the matter to arbitration.  The decision is significant not only for its broad application of an arbitration clause to federal securities fraud claims, but as a rare appellate-level endorsement for striking class allegations under Rule 12(f)—which permits a court to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”—prior to class discovery and a motion for class certification.


Related Attorney(s): Jason Halper, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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Illinois Supreme Court Holds Challenge To GO Bonds Is Barred By Laches, But Avoids Underlying Constitutional Issues

May 26, 2021

On May 20, 2021, the Illinois Supreme Court finally put to rest a long-simmering challenge to the validity of around $14 billion of Illinois general obligation bonds.  The Supreme Court unanimously affirmed, albeit on different grounds, a trial court’s August 2019 order denying a petition by a prominent political activist to file a lawsuit challenging those bonds.  In affirming the trial court’s decision, the Supreme Court also reversed an intermediate appellate court’s August 2020 decision permitting the challenge to go forward.

 


Related Attorney(s): Ingrid Bagby, Ivan Loncar, Michele Maman, Jed Miller, Lary Stromfeld, Casey Servais
Related Practice(s): Financial Regulation, Financial Restructuring
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Securities Litigation Update: First Circuit Endorses Broad View of Extraterritorial Reach of the Federal Securities Laws, Cementing Split with the Second Circuit on the Meaning of a “Domestic” Transaction

May 26, 2021

On May 10, 2021, in SEC v. Morrone, a panel of the U.S. Court of Appeals for the First Circuit held that the federal securities laws apply to securities transactions as long as “irrevocable liability”—the point at which parties become legally bound to carry out the transaction—occurs in the United States.  The Court thus joined the Ninth Circuit in rejecting the Second Circuit’s more defendant-friendly approach to extraterritoriality, under which a defendant may avoid liability by showing that the claims “are so predominantly foreign as to be impermissibly extraterritorial.”  Until the Supreme Court resolves this circuit split, plaintiffs asserting securities claims involving foreign transactions likely will steer clear of the Second Circuit, opting for circuits that have rejected such fact-intensive defenses.

 


Related Attorney(s): Jason Halper, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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Marketplace Lending Update #9: To Thine Own Self Be True? Not Necessarily

May 21, 2021

On May 11, the Senate voted 52-47 (with three Republicans joining 49 Democrats) to pass a joint resolution under the Congressional Review Act (“CRA”) to disapprove of (i.e., rescind) the Office of Comptroller of the Currency’s final rule relating to “National Banks and Federal Savings Associations as Lenders” (the so-called “True Lender Rule”).


Related Attorney(s): Daniel Meade, Scott Cammarn, Rachel Rodman, Joseph Beach, Chris Gavin
Related Practice(s): Financial Regulation, Marketplace Lending and FinTech, Securitization & Asset Based Finance, White Collar Defense and Investigations
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The FCA Consults on UK’s Investor Protection Rules for SPACs

May 19, 2021

Until the last month, the market in the U.S. for special purpose acquisition company (“SPAC”) IPOs has been booming. For example, in the first three months of 2021, there were 298 IPOs of U.S. SPACs, which raised in aggregate $87.07 billion. That booming market has not included the UK, where during the same period, there were no SPAC IPOs.


Related Attorney(s): Stephen Fraidin, Gregory Patti, William Mills, Michael Newell, Joanna Valentine, Dmitry Morgan
Related Practice(s): Corporate, Financial Regulation
Related Office(s): London, New York
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COVID-19 Update: Can't Lose What You Never Had: Court Rejects All Legal Theories Asserted by Retail Tenant

May 18, 2021

The United States District Court for the Southern District of New York (the “Court”) decided in Gap Inc. v. Ponte Gadea N.Y. LLC on March 8, 2021, that a retail tenant will not be able to use the COVID-19 pandemic as an excuse for not making rent payments under multiple legal theories.


Related Attorney(s): Steven Herman, Suleida Arias
Related Practice(s): Real Estate
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Corwin Cleansing Denied Again: Delaware Court of Chancery Green Lights Claims Alleging Loyalty Breaches Tainting Company Sales Process in In re Pattern Energy Group Inc. Stockholders Litigation

May 18, 2021

On May 6, 2021, Vice Chancellor Zurn of the Delaware Court of Chancery issued a 200-page decision denying a motion to dismiss in In re Pattern Energy Group Inc. Stockholders Litigation, a class action challenging the $6.1 billion go-private, all-cash sale of Pattern Energy Group Inc. (“Pattern Energy” or the “Company”) to Canada Pension Plan Investment Board (“Canada Pension”).  The transaction was narrowly approved by 52% of the Pattern Energy stockholders on March 10, 2020, with both ISS and Glass Lewis recommending stockholders vote against the sale.  The sale closed on March 16, 2020. 


Related Attorney(s): Jason Halper, Jared Stanisci, Matthew Karlan, Sara Bussiere, Audrey Curtis
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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7-Eleven/Speedway: Bumps on the Road to Closing: Are Conventional Closing Conditions Sufficient to Protect Buyer Interests?

May 17, 2021

In an extraordinary, perhaps unprecedented, action, parties to a proposed deal that had been under investigation for about nine months closed the transaction almost immediately upon expiration of the Hart-Scott-Rodino (“HSR”) waiting period—which had been extended four times by mutual agreement of the parties and the Federal Trade Commission (“FTC”)—leading to public recriminations among the sitting FTC Commissioners for botching what could have been a successful settlement agreement with substantial divestitures that instead ended in a “mess.”


Related Attorney(s): Joel Mitnick, Ngoc Hulbig, Eden Sung
Related Practice(s): Antitrust, Global Litigation
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The UK’s National Security & Investment Act

May 12, 2021

The UK’s National Security and Investment Act 2021 received Royal Assent on 29 April 2021 and is expected to “commence” at the end of 2021, with retrospective application to transactions occurring since 12 November 2020. The Act provides the UK Government with the statutory power to review and potentially block or unwind M&A transactions based on national security. Investments over 25% in businesses within 17 specified sensitive sectors will be void unless notified and approved. The Secretary of State will have broad powers to review other transactions posing a national security concern for up to 5 years after closing, while parties to those transactions will have the right to make a voluntary notification (reducing the period within which the transactions may be reviewed to 6 months).


Related Attorney(s): Joanna Valentine, Michael Sholem, Dmitry Morgan
Related Practice(s): Corporate, Financial Regulation
Related Office(s): London
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COVID-19 Update: Decision Striking Down CDC Federal Eviction Moratorium Temporarily Stayed

May 11, 2021

On May 5, 2021, the United States District Court for the District of Columbia (“DC Court”) vacated a nationwide eviction moratorium order issued by the Centers for Disease Control (“CDC”) to help mitigate the spread of COVID-19 in Alabama Association of Realtors, et al. v. United States Department of Health and Human Services, et al. (the “Decision”).  The DC Court found that the CDC exceeded its authority in issuing such moratorium on nationwide evictions of rental properties and that the CDC Order should be set aside.  The Decision was immediately appealed by the Justice Department on behalf of the CDC and the ruling has been stayed pending such appeal.

 


Related Attorney(s): Steven Herman, Jessica Wong
Related Practice(s): Real Estate
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COVID-19 Update: Governor Cuomo Extends Eviction and Foreclosure Moratorium until August 31

May 05, 2021

On May 5, 2021, New York Governor Andrew Cuomo signed a bill that extends the moratorium on evictions and foreclosures for residential tenants and small businesses to August 31, 2021. The previous moratorium expired May 1, 2021.

 


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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Securities Litigation Update: Eighth Circuit Closes the Door on Securities Class Action Alleging Violation of Broker’s Duty of Best Execution, Highlighting Class Certification Challenges in Atypical Fraud Cases

April 29, 2021

On April 23, 2021, in Ford v. TD Ameritrade Holding Corp., a panel of the U.S. Court of Appeals for the Eighth Circuit reversed a district court order certifying a class action alleging that TD Ameritrade committed securities fraud by failing to comply with the duty of best execution in executing customer orders.  The decision deals a blow to securities class actions based on violations of a broker’s best execution obligation and highlights the difficulties investors face in certifying securities fraud claims outside a typical disclosure-based stock-drop case.


Related Attorney(s): Jason Halper, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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Securities Litigation Update: Southern District of New York Dismisses Putative Securities Class Action Alleging Sale of Unregistered Cryptocurrency, But Risk Remains for Crypto-Issuers and Exchanges

April 23, 2021

On April 16, 2021, in In re Bibox Group Holdings Ltd. Securities Litigation, Judge Denise Cote of the U.S. District Court for the Southern District of New York dismissed a putative class action alleging registration violations under securities laws against a cryptocurrency issuer and exchange, holding that the plaintiff lacked standing to assert class claims based on crypto-assets he did not purchase and did not timely file suit.


Related Attorney(s): Jason Halper, Jonathan Watkins, Adam Magid
Related Practice(s): Corporate & Financial Services Litigation & Regulation, Global Litigation
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To Vote or Not to Vote: Court Holds That “Out of Money” Junior Creditor Barred from Objecting to Plan

April 22, 2021

On March 31, 2021, the U.S. Bankruptcy Court for the District of Kansas held in In re Fencepost Productions Inc. that even though an assignment of voting rights provision in a subordination agreement was not enforceable in a bankruptcy proceeding, a subordinated creditor nevertheless was barred from participating in proceedings related to a chapter 11 plan and disclosure statement on the basis that the subordinated creditor lacked prudential standing.


Related Attorney(s): Ingrid Bagby, Michele Maman, Thomas Curtin
Related Practice(s): Financial Restructuring
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The Government is Launching a Consultation on Reforming the UK’s Audit and Corporate Governance Regime

April 13, 2021

On 18 March 2021, the Department for Business, Energy & Industrial Strategy launched a consultation on its proposals for wide-ranging reforms to modernise the UK’s audit and corporate governance regime. The reforms proposed in the consultation would implement the recommendations of three previous independent reviews commissioned in the wake of a series of large-scale company failures, such as Carillion, Thomas Cook and BHS, which have been laid at the door of poor internal governance and external review at those companies.


Related Attorney(s): Joanna Valentine, Dmitry Morgan
Related Practice(s): Corporate
Related Office(s): London
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CFPB Suit Against Student Loan Trusts Dismissed

April 01, 2021

On March 26, 2021, Judge Maryellen Noreika of the U.S. District Court for the District of Delaware dismissed a lawsuit brought by the Consumer Financial Protection Bureau (“CFPB”) in Consumer Financial Protection Bureau v. The National Collegiate Master Student Loan Trusts, finding, inter alia, that the CFPB’s suit was constitutionally defective due to the CFPB’s untimely attempt to ratify the prosecution of the litigation in the wake of the Supreme Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau


Related Attorney(s): Ellen Holloman, Neil Weidner, Cheryl Barnes, Rachel Rodman, Scott Cammarn
Related Practice(s): CLOs, Financial Regulation, Global Litigation, Securitization & Asset Based Finance, White Collar Defense and Investigations
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Interest in SPACs—Special Purpose Acquisition Companies—is booming…and so is the risk of litigation.

March 31, 2021

If 2020 was the “year of the SPAC,” 2021 may be the year of SPAC litigation. SPACs—Special Purpose Acquisition Companies—are publicly traded companies launched as vehicles to raise capital to acquire a target company. Often called blank-check companies, SPACs are companies in which shareholders buy shares without knowing which company the SPAC will target and acquire. Investors place their faith in the sponsor: the entity or management team that forms the SPAC.


Related Attorney(s): Stephen Fraidin, Gregory Patti, Jason Halper, Jared Stanisci, Sara Bussiere, Victor Bieger, Victor Celis
Related Practice(s): Corporate, Global Litigation, Special Purpose Acquisition Companies (SPACs)
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Supreme Court to Weigh in on Presumption of Reliance in Securities Class Actions: Goldman Sachs v. Arkansas Teacher Retirement System

March 30, 2021

On March 29, the United States Supreme Court heard oral argument in Goldman Sachs Group, Inc., et al. v. Arkansas Teacher Retirement System, et al., No. 20-222. The closely-watched case raises a host of important issues concerning the substantive and procedural requirements for certifying a securities fraud class action.


Related Attorney(s): Jason Halper, Matthew Karlan, Nicholas Caros
Related Practice(s): Global Litigation
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European Regulators Publish Joint Opinion on the Jurisdictional Scope of the EU Securitisation Regulation

March 29, 2021

On 26 March 2021, the European Supervisory Authorities (the “ESAs”) published a Joint Opinion (the “Opinion”) on the jurisdictional scope of the obligations of the non-EU parties to securitisations under the Regulation (EU) 2017/2402 (the “EU Securitisation Regulation”). References in this memo to articles refer to articles of the EU Securitisation Regulation.


Related Attorney(s): Suzanne Bell, Robert Cannon, Stephen Day, Matthew Duncan, Claire Puddicombe, David Quirolo, Nick Shiren, Daniel Tobias, Michael Sholem
Related Practice(s): CLOs, Financial Regulation, Securitization & Asset Based Finance
Related Office(s): London
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Pharmaceutical Mergers: U.S. Antitrust Agencies Join Global Working Group

March 16, 2021

The Federal Trade Commission (“FTC”) announced today a multilateral working group to share best practices and build a new approach to pharmaceutical mergers. Initiated by the FTC, the working group will include the Canadian Competition Bureau, the European Commission Directorate General for Competition, the UK’s Competition and Markets Authority, the Antitrust Division of the U.S. Department of Justice, and Offices of the State Attorneys General.


Related Attorney(s): Joel Mitnick, Ngoc Hulbig
Related Practice(s): Antitrust
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UK Anti-Money Laundering Legislation in a Post-Brexit Landscape

March 16, 2021

Following months of uncertainty, on Christmas Eve a Brexit agreement was finally reached between the United Kingdom (“UK”) and the European Union (“EU”). The European Union (Future Relationship) Act 2020 (the “Act”) received Royal Assent on 30 December 2020. While the agreement signalled an early Christmas present for many, for others it failed to offer the certainty that they long hoped such an arrangement would provide. One of the areas on which the Act fails to offer much guidance is money laundering and terrorist financing.


Related Attorney(s): Kevin Roberts, Charlotte Glaser
Related Practice(s): Global Litigation, White Collar Defense and Investigations
Related Office(s): London
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COVID-19 Update: Governor Cuomo Extends Eviction Protections for Small Businesses That Demonstrate a Financial Hardship

March 15, 2021

In December, New York Governor Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, which provided a moratorium on residential eviction and foreclosure proceedings until May 1, 2021


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
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ESMA Proposes Rules for Taxonomy-Alignment of Non-Financial Undertakings and Asset Managers

March 10, 2021

Further to our Clients & Friends Memo of 22 June 2020, the Sustainability Taxonomy Regulation (2020/852) (the “Regulation”) was published in the Official Journal on 22 June 2020 and entered into force on 12 July 2020. The Regulation established an EU-wide framework for classifying economic activity as environmentally sustainable and aims at (1) reducing “greenwashing”, where financial products are marketed as environmentally sustainable without sufficient factual basis for their claims and (2) improving the efficiency of private investment in sustainable projects.


Related Attorney(s): Michael Sholem, Joanna Valentine, Dmitry Morgan
Related Practice(s): Corporate, Financial Regulation
Related Office(s): London
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COVID-19 Update: Federal Eviction Moratorium Struck Down

March 05, 2021

On February 25, 2021, the United States District Court in the Eastern District of Texas (“Texas Court”) granted summary judgment in favor of the plaintiffs in Lauren Terkel et al. v. Centers for Disease Control and Prevention et al., holding that a nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (“CDC”) to mitigate the spread of COVID-19 exceeded the constitutional authority granted to the CDC.


Related Attorney(s): Steven Herman, Jessica Wong
Related Practice(s): Real Estate
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UK Listing Review Publishes Recommendations

March 05, 2021

In November  2020, the UK launched a review of its Listing Rules, led by Lord Jonathan Hill, with a specific goal to recommend changes that would improve the UK’s competitiveness as a global listing centre, particularly for high growth and “new economy” businesses. On 3 March 2021, the report, containing 15 recommendations, was published.


Related Attorney(s): Joanna Valentine, Dmitry Morgan
Related Practice(s): Corporate
Related Office(s): London
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Unwelcome Intrusion: Reckoning with the Impact of Economic Sanctions on Derivatives Transactions

March 01, 2021

The United States, along with the United Kingdom and European Union, has increasingly wielded economic sanctions against major commercial actors and financial transactions, sometimes roiling global markets in the process. It is now common for sanctions to target not only rogue regimes, terrorists, and drug traffickers, but also major corporations that are deeply integrated into international financial markets – including derivatives markets. For evidence of this trend, one need look no further than the November 12, 2020 Executive Order (“E.O.”) “on Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies.” The Order prohibits transactions by U.S. persons in the securities of identified Communist Chinese military companies (“CCMCs”), including “any securities that are derivative of, or are designed to provide investment exposure to such securities.”


Related Attorney(s): James Treanor, Jodi Avergun, Steven Lofchie, Michael Sholem, Nihal Patel
Related Practice(s): Economic Sanctions, Financial Regulation, White Collar Defense and Investigations
Related Office(s): London, New York, Washington
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Delaware Court of Chancery Allows Merger-Based Breach of Fiduciary Duty Claims to Proceed Against Target Company CEO, Financial Advisor, and Acquirer Stemming from Sale of Presidio, Inc.

March 01, 2021

On January 29, 2021, Vice Chancellor Laster of the Delaware Court of Chancery refused to dismiss a shareholder class action stemming from the 2019, $2.2 billion sale of Presidio, Inc., an IT solutions provider specializing in digital infrastructure and cloud and security solutions, to BC Partners Advisors L.P. (“BCP”), a private-equity firm.  In Firefighters’ Pension System of the City of Kansas City v. Presidio, Inc., a shareholder of Presidio filed suit against Presidio’s CEO, its board of directors, Apollo Global Management LLC (Presidio’s controlling shareholder, owning approximately 42% of its outstanding common stock), LionTree Advisors, LLC (financial advisor to both Presidio and Apollo), and the acquiror, BCP.


Related Attorney(s): Jason Halper, Jared Stanisci, Victor Bieger, Sara Bussiere, Victor Celis
Related Practice(s): Global Litigation
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When “Six Eyes” Just Aren’t Enough

February 25, 2021

On February 16, 2021, the United States District Court in the Southern District of New York (the “Court”) issued a decision In Re Citibank August 11, 2020 Wire Transfers that upheld the “discharge for value” doctrine and ruled that certain lenders (the “Defendants”) were entitled to retain funds erroneously sent by the administrative agent (the “Plaintiff”) under a credit facility to which the Defendants were a party.


Related Attorney(s): Christopher Dickson, Steven Herman
Related Practice(s): Real Estate
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The UK Serious Fraud Office’s Extraterritorial Powers Are Clarified

February 24, 2021

After three years of uncertainty over the Serious Fraud Office’s (“SFO”) powers to obtain documents located overseas, the UK Supreme Court has clarified the extraterritorial effect of the legislation facilitating that power domestically. The Supreme Court held that KBR, Inc., the U.S. engineering, procurement and construction company, was not required to provide the SFO with documents that were located overseas during a criminal investigation into its UK subsidiary, KBR Ltd.


Related Attorney(s): Jodi Avergun, Mark Beardsworth, Kevin Roberts, Shruti Chandhok, Charlotte Glaser
Related Practice(s): White Collar Defense and Investigations
Related Office(s): London, Washington
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New York Assembly Sponsored Legislation Proposes New Tax on Mezzanine Debt and Preferred Equity

February 09, 2021

Assembly Bill A3139 was introduced by Assembly Member Harvey Epstein on January 22, 2021. The bill is currently in committee but, if enacted, it will amend New York’s Real Property Law and Tax Law to require the recording of mezzanine debt and preferred equity investments and subject it to the mortgage recording tax. These amendments will force borrowers and lenders to reconsider the economic costs of mezzanine financing.


Related Attorney(s): Steven Herman, Michael Schromm
Related Practice(s): Mezzanine Finance, Real Estate
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FTC Announces 2021 Thresholds for Merger Control Filings under HSR Act and Interlocking Directorates under the Clayton Act

February 04, 2021

For the first time since 2010, the Federal Trade Commission (“FTC”) has decreased the dollar jurisdictional thresholds necessary to trigger the reporting requirements in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”); the revised thresholds were published in the Federal Register on February 2, 2021, and will become effective on March 4, 2021.


Related Attorney(s): Joel Mitnick, Ngoc Hulbig
Related Practice(s): Antitrust, Global Litigation
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First Circuit Case Doesn’t Move the Line on the Future of State Authorized Sports Betting

February 01, 2021

The First Circuit’s recent decision in New Hampshire Lottery Commission v. Rosen holds that the Wire Act’s prohibitions on interstate activity apply only to sports betting, and not to all types of bets and wagers, such as online lotteries, poker, and other gaming for dollars. State lotteries and non-sports betting vendors cheered the decision, but for the sports betting industry, the decision is disappointing because their business still potentially runs afoul of federal law.

 


Related Attorney(s): Todd Blanche, Jodi Avergun, Lex Urban, Christian Larson, Stephen Weiss
Related Practice(s): Sports Law, White Collar Defense and Investigations
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COVID-19 Update: CFPB Announces Results of its Prioritized Assessments of CARES Act and Other Borrower Protections in Light of COVID-19 Pandemic

January 27, 2021

On January 19, 2021, the Consumer Financial Protection Bureau (CFPB or Bureau) published a special edition of its Supervisory Highlights focused on its COVID-19 Prioritized Assessments. As Cadwalader previously wrote, the CFPB announced in July 2020 that it had sent targeted information requests to supervised financial institutions regarding the consumer risks posed by the pandemic, including how institutions were implementing the special borrower protections under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.


Related Attorney(s): Rachel Rodman, Scott Cammarn, Keith Gerver
Related Practice(s): Financial Regulation, White Collar Defense and Investigations
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You Can Run But You Can’t Hide: The Corporate Transparency Act

January 27, 2021

In December 2020, as part of the larger National Defense Authorization Act, the Corporate Transparency Act (the “Act”) was enacted. The Act requires that anonymous shell companies, most notably limited liability companies and partnerships, disclose their ultimate beneficial ownership and control in an effort to combat corruption, money laundering and financing of terrorism, among other things, in the United States.


Related Attorney(s): Steven Herman, Alessandra LaRocca
Related Practice(s): Real Estate
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Stand Pat, Don’t Act: Supreme Court Holds That Mere Retention of Debtor Property Does Not Violate Section 362(a)(3) of the Bankruptcy Code’s Automatic Stay Provision

January 22, 2021

On January 14, 2021, the U.S. Supreme Court issued an opinion addressing a split among circuit courts on whether an entity violates Section 362(a)(3) of the Bankruptcy Code’s automatic stay provision by passively retaining possession of a debtor’s property after a bankruptcy petition is filed.  Section 362(a)(3) prohibits “any act . . . to exercise control over property” of the bankruptcy estate.


Related Attorney(s): Ingrid Bagby, Michele Maman, Casey Servais, Eric Waxman
Related Practice(s): Financial Restructuring
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The Anti-Money Laundering Act of 2020: New Challenges for Financial Institutions, Their Employees and Customers, and (Nearly) Everyone Else

January 15, 2021

On January 1, 2021, Congress enacted the Anti-Money Laundering Act of 2020 (the “Act”). As part of the National Defense Authorization Act for Fiscal Year 2021, the Act creates a broad range of new anti-money laundering (“AML”) obligations for banks and other financial institutions, certain private investment structures, and even federal regulators.


Related Attorney(s): Jodi Avergun, Todd Blanche, Scott Cammarn, Steven Herman, Dorothy Mehta, Christian Larson
Related Practice(s): Anti-Money Laundering Investigations and Compliance, Financial Regulation, Real Estate, White Collar Defense and Investigations
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DOJ Brings First Criminal “No-Poach” and “Wage-Fixing” Prosecutions; New Focus on Labor Market Prosecutions

January 14, 2021

The Department of Justice’s Antitrust Division (“DOJ”) announced that, on January 5, 2021, a federal grand jury returned a two-count indictment charging Surgical Care Affiliates LLC and its related entity (together, “SCA”), which own and operate outpatient medical care centers across the country, for agreeing with competitors not to solicit senior-level employees.


Related Attorney(s): Joel Mitnick, Ngoc Hulbig
Related Practice(s): Antitrust, Global Litigation
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COVID-19 Update: Can’t Lose What You Never Had: New York State Court Rejects Argument that a Pledge of the Equity Interests in an Entity that Owns Real Property Requires Foreclosure under RPAPL Article 13

January 13, 2021

During the COVID-19 pandemic, New York State courts have granted a number of preliminary injunctions enjoining UCC foreclosures for a period of time.  For example, in D2 Mark LLC vs. Orei VI Investments LLC and Shelbourne BRF LLC, Shelbourne 677 LLC v. SR 677 BWAY LLC, the courts found that elements of the UCC foreclosures were not commercially reasonable as a result of the pandemic and temporarily prevented the UCC foreclosures.  However, not all borrowers have had the same success with preliminary injunctions.


Related Attorney(s): Melissa Hinkle, Molly Lovedale
Related Practice(s): Real Estate
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COVID-19 Update: Governor Cuomo Extends Residential Eviction and Foreclosure Moratorium

January 11, 2021

Since declaring a State of Emergency on March 7, 2020 in response to the COVID-19 pandemic, New York Governor Andrew Cuomo has issued a number of Executive Orders providing protections for both commercial and residential tenants and mortgagors. On March 20, 2020, Governor Cuomo issued Executive Order 202.8 prohibiting the enforcement of an eviction of any residential or commercial tenant or a foreclosure of any residential or commercial property for period of ninety days. Most recently, Executive Order 202.66 extended the residential moratorium through January 1, 2021, and Executive Order 202.81 extended the commercial moratorium through January 31, 2021.


Related Attorney(s): Steven Herman, Eunji Jo
Related Practice(s): Real Estate
Related Office(s): Charlotte, New York
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A New Year’s Booster Shot: Congress Grants the SEC a Statutory Disgorgement Remedy and Extended Statute of Limitations

January 04, 2021

Congress opened 2021 by overturning one of President Trump’s vetoes for the first time. By large bipartisan majorities, the House and Senate overturned a presidential veto and enacted the 2021 National Defense Authorization Act (“NDAA”). Tucked away in the $740.5 billion defense bill were provisions granting the U.S. Securities and Exchange Commission (“SEC”) statutory authority to seek disgorgement in federal court and providing a 10-year statute of limitations for that remedy.


Related Attorney(s): Lex Urban, Kendra Wharton, Wesley Wintermyer
Related Practice(s): White Collar Defense and Investigations
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