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Applying The "Common Legal Interest" Privilege In The Context Of A Financial Transaction

Sophisticated and complex commercial litigation and criminal investigations often involve many participants and their lawyers. In these cases, it is often beneficial for the lawyers to share confidential information pursuant...more

Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders

The Second Circuit held last week that a borrower did not waive the attorney-client privilege by providing documents to a consortium of lender banks that shared a common legal interest with the borrower in the tax treatment...more

Ninth Circuit Rejects Adverse-Interest Exception in Fraud-on-the Market Securities Class Actions

Last week, the Ninth Circuit issued a decision that could affect analyses of corporate scienter in securities class actions. The court reversed the dismissal of In re ChinaCast Education Corporation Securities Litigation and...more

Examination in England of a Non-Resident Foreign Officer of a Judgment Debtor

Obtaining a judgment is one thing, enforcing it is another. The location of a judgment debtor’s assets can be unknown or deliberately hidden. A judgment creditor may therefore wish to obtain information from a judgment debtor...more

Inside M&A - October 2015

Overview of SPACs and Latest Trends - A number of recent successful business combination transactions involving special-purpose acquisition companies (SPACs) led by prominent sponsors have driven a resurgence in the SPAC...more

Delaware Court of Chancery Cautions Directors: Be Vigilant in Recognizing Advisor’s Conflict of Interests

Shareholders challenged the merger of Zale Corporation with Signet Jewelers Ltd. In a decision dated October 1, 2015, the Delaware Court of Chancery credited allegations that the board of directors of Zale breached its...more

Shareholder Suit Challenging Groundbreaking Minimum-Support-To-Sue Bylaw Dismissed

In what is believed to be the first case nationwide seeking to strike down a groundbreaking corporate bylaw aimed at combatting frivolous shareholder class actions, Emergent Capital, Inc., has secured the dismissal with...more

Ninth Circuit Affirms Dismissal of '40 Act Section 36(b) Excessive Fee Action Against Davis

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of an amended complaint asserted by a shareholder of the Davis New York Venture Fund (the “Fund”) under section 36(b) of the Investment Company...more

New DOJ Corporate Prosecution Guidelines

On September 9, 2015, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing,” the latest in a series of corporate prosecution guidelines written by...more

Wrongful Trading: Robin Hood’s not-so Merry Men

Brooks and another v Armstrong and another [2015] EWHC 2289 (Ch) 0 - In a rare judgment considering wrongful trading in detail, the memorably-named “Robin Hood” case considers at which point the directors ought to have...more

Financial Services Quarterly Report - Third Quarter 2015: Recent Developments in U.S. “Excessive Fee” Litigation

The U.S. mutual fund industry is poised to see significant developments in the ongoing wave of Section 36(b) “excessive fee” litigation. Days apart in August, the Seventh Circuit Court of Appeals affirmed the grant of summary...more

Focus on Tax Strategies & Developments - October 2015

Regulatory Developments Under § 367 Affecting Transfers of Appreciated Property to Foreign Corporations - Introduction: On September 14, the U.S. Department of the Treasury (Treasury) and the Internal Revenue...more

Securities Claims Based on Item 303 of Regulation S-K: It Just Doesn’t Matter

In January 2015, the Second Circuit held in Stratte-McClure v. Morgan Stanley, 776 F.3d 94 (2nd Cir. 2015), that Item 303 of Regulation S-K imposes a duty to disclose for purposes of Section 10(b), meaning that the omission...more

"Delaware LLCs and UK Entity Classification: The Fallout From the Curious Case of George Anson"

Fundamental to any developed tax policy is knowing who the taxpayer is (or should be) with respect to any particular transaction. Although that can be relatively straightforward in purely domestic situations, a cross-border...more

SEC Proposes Amendments to Rules Governing Administrative Proceedings

The Securities and Exchange Commission appears to be hearing the music. In response to the many voices that have expressed dissatisfaction with the procedures used in SEC administrative hearings, the SEC today issued proposed...more

Disclosure-Only Settlements Face Continued Scrutiny In Delaware

On Thursday, September 17, 2015, in In re Riverbed Technology, Inc. Stockholders Litigation, the Delaware Chancery approved a disclosure-only settlement related to the go-private deal for Riverbed Technology, Inc. Although...more

Fourth Circuit: Business Judgment Rule May Not Protect Bank Officers in FDIC Action

Why it matters - Bank officers may be liable in a lawsuit brought by the Federal Deposit Insurance Corp. (FDIC) while the directors escaped liability, in a new ruling from the Fourth Circuit Court of Appeals interpreting...more

Eleventh Circuit Court of Appeals Clarifies the Meaning Of “Debt Collector” under the FDCPA

Action Item: In light of the Eleventh Circuit Court of Appeals decision in Davidson, the definition of “debt collector,” for purposes of the Fair Debt Collection Practices Act (the “FDCPA”), is strictly limited to the...more

New York Appellate Court Limits Application of “Separate Entity Rule” in Post-Judgment Discovery Context

In In re B&M Kingstone, LLC v. Mega International Commercial Bank Co., Ltd.,1 the New York Supreme Court, Appellate Division, First Department, held that the “separate entity rule” does not insulate a non-US bank’s New York...more

Ninth Circuit Holds that Absolute Waiver of Subrogation Rights Insulates Insider-Guarantor from Preference Exposure

In Stahl v. Simon (In re Adamson Apparel, Inc.), 785 F.3d 1285 (9th Cir. 2015), the United States Court of Appeals for the Ninth Circuit considered an unresolved issue of bankruptcy law: whether a corporate insider who...more

Ninth Circuit: Multiemployer Plan Calling Unpaid Contributions “Plan Assets” Does Not Make Persons Controlling Contribution...

The Ninth Circuit recently held that a multiemployer pension plan (MEP) cannot label unpaid contributions as “plan assets” so as to impose ERISA fiduciary status on persons controlling the payment of employer contributions to...more

Don’t Be Caught Dead Handed: Avoiding Legal Challenges to Dead Hand Proxy Puts in Loan Agreements

A number of public companies have become the target of shareholder books and records inspection demands and litigation related to certain “change of control” provisions in their loan agreements. The type of provisions at...more

French Supreme Court rules out liability for undercapitalising companies

Minimum share capital requirements have disappeared from French legislation over the last few years, leaving the société anonyme as the last and only commercial company with such a requirement, set by the French Commercial...more

UK Supreme Court Decision in Anson v. HMRC Reverses Established Tax Treatment of US LLCs

In its July 1, 2015 decision in the case of Anson v. HM Revenue & Customs (2015 UKSC 44), the Supreme Court of England and Wales ruled that a Delaware limited liability company was “transparent” for UK income tax purposes. A...more

Petrobras Shareholders’ Brazilian-Law Claims Are Subject to Mandatory Arbitration Provision

The travails of Petrobras have generated a lot of attention – and litigation – in the past year. On July 30, 2015, District Judge Jed Rakoff, of the Southern District of New York, issued an opinion explaining his prior order...more

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