A. W. "Chip" Phinney III

A. W. "Chip" Phinney III

Mintz Levin

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Federal Court Holds That Lack of Loss Causation Is Not a Defense Under Massachusetts Blue Sky Law

The United States District Court for the District of Massachusetts recently held in Massachusetts Mutual Life Insurance Co. v. Residential Funding Co., LLC, that lack of loss causation is not available even as an affirmative...more

11/20/2014 - Blue Sky Laws False Statements Insurers Loss Causation Material Misstatements Securities Act of 1933

SEC’s Increased Use of Administrative Proceedings Draws Criticism and Legal Challenges

The SEC’s plan to bring more enforcement actions as administrative proceedings before its own administrative law judges rather than in the federal district courts — even in insider trading cases — has been drawing increasing...more

11/13/2014 - Administrative Hearings Enforcement Actions Federal Rules of Civil Procedure Federal Rules of Evidence Judge Rakoff SEC

Supreme Court Seems Likely to Adopt Reasonable Basis Standard for Section 11 Claims Concerning Statements of Opinion in...

If Monday’s oral argument in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund is a reliable indicator, it seems likely that the Court will adopt the “reasonable basis” standard advocated by the...more

11/6/2014 - Omnicare Omnicare v Laborers District Council Reasonableness Factors Registration Statement SCOTUS SEC Section 11 Securities Act of 1933 Solicitor General

The High Cost of Whistleblowing

In a number of recent posts, we have highlighted the SEC’s whistleblower program, which offers awards of 10%-30% of the money collected where a whistleblower provides high-quality, original information that results in an SEC...more

11/4/2014 - Criminal Prosecution Enforcement Actions Penalties SEC Whistleblower Awards Whistleblowers

Business Judgment Rule Protects Board's Decision to Maximize the Value of an Insolvent Delaware Corporation Even If It Puts...

Directors of an insolvent corporation face a host of difficult questions. Should they wind up operations or file for bankruptcy to preserve assets for creditors, or chart a riskier course that could lead the company back to...more

11/3/2014 - Commercial Bankruptcy Controlling Stockholders Insolvency Shareholder Litigation Shareholders

How to Tailor Your Strategies for Engaging With Shareholder Activists

When it comes to engaging with shareholder activists, one size does not fit all. It’s crucial to think about the activist’s goals and possible outcomes. Is the activist seeking governance reforms, or a short-term return on...more

10/30/2014 - Corporate Counsel Corporate Governance Shareholder Activism Shareholder Litigation Shareholders

Upcoming Supreme Court Securities Cases

As the Supreme Court begins its 2014-15 term this month, it will be considering a number of securities cases, including the Omnicare case, which is scheduled for oral argument on November 3rd, and three other cases in which...more

10/2/2014 - Compliance Omnicare SCOTUS Securities Litigation

SEC Awards $30 Million to Overseas Whistleblower

Last week, the SEC announced its largest-ever whistleblower award – more than $30 million. Indeed, the SEC order in the case indicates that the final award could be as high as $35 million, depending on the amount of...more

9/30/2014 - Enforcement Enforcement Actions SEC Whistleblower Awards Whistleblowers

SEC Uses Data Analytics to Identify and Punish Late Form Filers

Can merely late filing of “routine” forms get you in trouble with the SEC? Yes, at least if it happens too often. On Wednesday the SEC announced charges and financial penalties totaling $2.6 million against 28 officers,...more

9/15/2014 - Enforcement Actions Filing Deadlines Filing Requirements Publicly-Traded Companies Reporting Requirements SEC

Delaware Court of Chancery Upholds North Carolina Forum Selection Bylaw for Delaware Corporation

Yesterday, in City of Providence v. First Citizens BancShares, Inc., Chancellor Andre Bouchard of the Delaware Court of Chancery held in a case of first impression that the board of a Delaware corporation may validly adopt a...more

9/10/2014 - Board of Directors Bylaws Chevron Corporate Counsel Derivative Suit Fiduciary Duty Fiduciary Liability Forum Selection Clause

SEC Gives $300,000 Whistleblower Award to Audit and Compliance Employee

Last week the SEC announced that, for the first time, it had made a whistleblower award to an employee who performs audit and compliance functions at a company. As the SEC noted in its order in the case, although its...more

9/4/2014 - Audits SEC Securities Exchange Act Whistleblower Awards Whistleblowers

What Does Delaware’s Wal-Mart Decision Mean for the Attorney-Client Privilege and Internal Investigations?

The Delaware Supreme Court’s decision in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, No. 614, 2014 Del. LEXIS 336, 2014 WL 3638848 (July 23, 2014), a Section 220 “books and records” case...more

9/3/2014 - Attorney-Client Privilege Breach of Duty Bribery Delaware General Corporation Law Garner Internal Investigations Mexico Shareholders Subsidiaries Wal-Mart Young Lawyers

Second Circuit Holds That Dodd-Frank Act Does Not Protect Whistleblower Outside U.S. Territory

Thursday's post on the SEC’s whistleblower program discussed among other topics the question of whether the Dodd-Frank Act protects employee whistleblowers from retaliation by their employers where the employees only raise...more

8/18/2014 - Dodd-Frank Extraterritoriality Rules Whistleblower Protection Policies Whistleblowers

What’s Happening with Whistleblowing?

This summer the SEC and the Wall Street Journal have reported several noteworthy items concerning the SEC’s whistleblower program, one of the most controversial components of the Dodd-Frank Act of 2010....more

8/15/2014 - Compliance Dodd-Frank SEC Whistleblower Protection Policies Whistleblowers

Puerto Rico Bonds: Legislation and Litigation

For municipal bond investors and insurers, recent events in Puerto Rico have become a major concern. Puerto Rico has tried to address its mounting debt crisis by enacting legislation that would create, in effect, a...more

7/15/2014 - Bonds Foreign Jurisdictions NFMA Utilities Sector

What Are the Regulators Thinking?

Recently the New England Chapter of the National Association of Corporate Directors presented a distinguished panel of current and former securities regulators discussing enforcement and governance issues facing boards of...more

6/24/2014 - Compliance Corporate Governance Cybersecurity Directors Dodd-Frank Enforcement FCPA Insider Trading Regulation FD SEC

SEC Commissioner Aguilar Speaks on Cybersecurity Issues for the Boardroom

Last week SEC Commissioner Luis A. Aguilar gave a speech at the New York Stock Exchange on ”Boards of Directors, Corporate Governance and Cyber-Risks,” in which he strongly urged directors to focus on the need for increased...more

6/16/2014 - Board of Directors Corporate Counsel Corporate Governance Cybersecurity Risk Management SEC SEC Commissioner

Second Circuit’s Citigroup Decision Protects SEC’s Discretion in Settling Enforcement Cases

Wednesday’s decision by the U.S. Court of Appeals for the Second Circuit in the Citigroup case is significant because it clarifies the standards for judicial review of consent decrees in SEC enforcement proceedings and...more

6/6/2014 - Chevron Deference Citigroup Consent Decrees Enforcement Enforcement Actions Interlocutory Appeals Judge Rakoff Mortgage-Backed Securities Risk Management SEC SEC v Citigroup Settlement

Using Corporate Bylaws and Charters to Set the Rules for Shareholder Litigation

Recent court decisions, including the Delaware Supreme Court’s opinion earlier this month in ATP Tour, Inc. v. Deutscher Tennis Bund, have focused new attention on the use of corporate bylaws and charters to establish the...more

6/2/2014 - American Rule ATP Tours Attorney's Fees Board of Directors Bylaws Corporate Charters Corporate Counsel Corporate Governance Corporate Officers Delaware General Corporation Law Fee-Shifting Statutes Officers Shareholder Litigation Shareholders

SEC Cybersecurity Initiative: Five Steps ALL Broker-Dealers and Investment Advisers Should be Taking

Last week, the U.S. Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (OCIE) released a Risk Alert announcing its Cybersecurity Initiative....more

5/6/2014 - Broker-Dealer Cyber Attacks Cyber Insurance Cybersecurity Cybersecurity Framework Data Breach Data Protection Identity Theft OCIE Red Flags Rule SEC

SEC Steps Up Scrutiny of Municipal Bonds: Recently Filed Enforcement Actions

As Bret Leone-Quick discussed in a post last week, the SEC has been stepping up its scrutiny of municipal bond offerings. Indeed, in the last year the SEC has filed a number of enforcement actions against municipal bond...more

4/9/2014 - Bonds Enforcement Enforcement Actions Municipal Bonds SEC

Massachusetts SJC Rules on Fiduciary Duties Owed to and By Shareholder-Employee in Closely Held Corporation

A recent decision by the Massachusetts Supreme Judicial Court (SJC), Selmark Associates v. Ehrlich, illustrates the complex web of fiduciary obligations owed to and by shareholder-employees in a closely held corporation under...more

4/2/2014 - Closely Held Businesses Fiduciary Duty Shareholders

Delaware Upholds Business Judgment Review for Controlling Stockholder Mergers If Minority Is Protected

On Friday, March 14th, the Delaware Supreme Court held that controlling stockholder mergers should be subject to deferential business judgment review, rather than the more stringent entire fairness standard, where minority...more

3/18/2014 - Business Judgment Rule Controlling Stockholders Corporate Counsel Minority Shareholders Shareholders

Subjective or Objective Truth? Supreme Court to Decide What Is an “Untrue” Statement of Opinion

On Monday, the U.S. Supreme Court granted certiorari in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund (13-435), an appeal in which Omnicare has asked the Court to clarify the meaning of...more

3/6/2014 - Lying Material Misstatements Omnicare SCOTUS SEC Securities Act of 1933

Massachusetts Supreme Judicial Court Bows to U.S. Supreme Court on Class Action Waivers in Arbitration Agreements

In an abrupt but not unexpected reversal, the Massachusetts Supreme Judicial Court (SJC) has been forced to change its position on class action waivers in arbitration agreements in light of a new decision by the U.S. Supreme...more

8/7/2013 - American Express American Express v Italian Colors Restaurant Arbitration AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers Dell Federal Arbitration Act SCOTUS

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