Civil Remedies › Securities Law › Commercial Law & Contracts

Law360 Quotes Lloyd Chinn on the U.S. Supreme Court’s Granting of Certiorari in Lawson

In a Law360 article (subscription required) today, Lloyd Chinn, Co-head of Proskauer’s Whistleblower & Retaliation Group, commented on the U.S. Supreme Court’s decision to hear its first-ever whistleblower case under the...more

U.S. Supreme Court to Decide Whether SOX’s Whistleblower Provision Protects Employees of Publicly Traded Company’s Contractors

On May 20, 2013, the United States Supreme Court granted a petition for a writ of certiorari to review the United States Court of Appeals for the First Circuit’s decision holding that SOX’s whistleblower protection does not...more

Federal Authorities Announce FCPA Action, First SEC Non-Prosecution Agreement

On April 22, the DOJ and the SEC announced parallel actions against a clothing company to resolve allegations that a subsidiary of the company paid bribes to Argentine officials over a several-year period to obtain improper...more

Eluv Holdings (BVI) Ltd., et al. v. Dotomi, LLC, C.A. No. 6894-VCP (Del. Ch. Mar. 26, 2013) (Parsons, V.C.)

The Court of Chancery’s memorandum opinion in Eluv Holdings (BVI) Ltd. v. Dotomi, LLC awarded a defendant company summary judgment on plaintiffs’ claim for declaratory judgment regarding their purported ownership of...more

Federal Court Sides With Second DCA In Privity Split

In Moss v. Kroner, 197 Cal. App. 4th 860 (2011), the Second District Court of Appeal found that rescission was available to a plaintiff under Corporations Code Section 25504 even though the plaintiff was not in privity with...more

Board Enjoined from Impeding Hostile Consent Solicitation Without First Approving Rival Director Slate under Credit Agreement...

The Delaware Chancery Court recently enjoined a board of directors from impeding a stockholder’s solicitation of written consents to replace the board, unless the board first approved the stockholder’s nominees for purposes...more

Growth Equity: Who is in Control?

As I discussed in an earlier article, growth equity (or growth capital) resides on the continuum of private equity investing at the intersection of venture capital and control buyouts. Growth capital is designed to facilitate...more

Federal District Court Issues First Ever Post-Trial Order Requiring Bank To Reimburse Monoline Insurer Over Loans Backing MBS

On February 6, the U.S. District Court for the Southern District of New York found that loans underlying two trusts issued by a Michigan bank breached the representations and warranties in the contracts the bank entered with...more

Trustee Brings $640 Million RMBS Suit Against Deutsche Bank

On November 27, HSBC Bank, acting as trustee for a Real Estate Mortgage Investment Conduit Trust, filed suit against DB Structured Products, Inc., a Deutsche Bank affiliate, in the federal district court for the Southern...more

Even When You Expect To Win The Value Of Your Suit May Be Negative

In prior posts, I’ve written about risk. See “To The SEC, ‘Risk’ Is A Four Letter Word“. In my view, risk should be understood as the product of the probabilities of a range of outcomes and the consequences of those outcomes....more

SEC Releases Whistleblower Program’s 2012 Annual Report

On November 15, 2012, the Securities and Exchange Commission (“SEC” or the “Commission”) released its Annual Report on the Dodd-Frank Whistleblower Program (the “Report”). The Report – which was prepared by the Commission’s...more

SEC Rejects Motion to Stay Resource Extraction Disclosure Rules

On November 8, the Securities and Exchange Commission denied a motion to stay the effective date of the recently enacted resource extraction disclosure rules. These rules, adopted by the SEC on August 22, require public...more

SEC Releases First Full-Year Report on the Dodd-Frank Whistleblower Program: No Speedy Recoveries for Whistleblowers

On November 15, 2012, the Securities and Exchange Commission released its Fiscal Year 2012 Annual Report on the Dodd-Frank Whistleblower Program (the “Report”), the first full-year report issued since the enactment of...more

Expert’s Trick (changed damage calculation) Does Not Entitle Arbitration Loser to a Treat (a/k/a vacatur)

The Fifth Circuit recently refused to vacate an arbitration award, despite the loser’s arguments that: the arbitrators decided claims outside the scope of the arbitration agreement; and the winner’s expert used incorrect...more

SEC’s Conflict Minerals Rule Challenged

On October 19, 2012, the National Association of Manufacturers and the U.S. Chamber of Commerce petitioned the D.C. Circuit Court of Appeals to request that the SEC’s scheme of disclosure related to so-called “conflict...more

Trade Associations Sue SEC to Block Resource Extraction Disclosure Rules

On October 10, various trade associations, including the American Petroleum Institute, the Independent Petroleum Association of America and the National Foreign Trade Council, as well as the Chamber of Commerce of the United...more

DZ Bank AG Sues UBS in New York State Court In Connection With $160 Million of RMBS

On July 25, Deutsche Zentral-Genossenschaftsbank AG (“DZ Bank”) filed a summons with notice against several UBS entities in the Supreme Court of the State of New York. DZ Bank alleges that UBS misrepresented the underwriting...more

Second Circuit Addresses Hybrid Convertible Securities and the "Debt Previously Contracted" Exceptions to Section 16(b) of the...

In Analytical Surveys, Inc. v. Tonga Partners, L.P., 2012 WL 1970389 (2d Cir. June 4, 2012), the United States Court of Appeals for the Second Circuit addressed (among other things) the scope of two exceptions that apply to...more

Confidentiality Agreements Matter – Three Recent Cases Impacting Private Equity Transactions

SUMMARY OF THE CASES A confidentiality agreement (“CA”) is typically the first negotiated document in a purchase transaction. These agreements are often negotiated by junior members of the transaction team prior to one...more

RMBS Trust Files $293 Million Suit Against EMC Mortgage and JPMC

On May 25, 2012, the securitization trust of two RMBS sold in 2006 by EMC Mortgage LLC filed a summons with notice in New York State Supreme Court. The action seeks specific performance, compensatory damages in the amount of...more

Martin Marietta Materials, Inc. v. Vulcan Materials Co., C.A. 7102-CS (Del. Ch. May 4, 2012) (Strine, C.) - May 04, 2012

In this memorandum opinion, the Court of Chancery construed two confidentiality agreements executed by direct competitors at the outset of friendly negotiations regarding a possible business combination. Although neither of...more

ICI and Chamber of Commerce Challenge CFTC Amendment to Rule 4.5

On April 17, the Investment Company Institute and the U.S. Chamber of Commerce filed a complaint challenging the Commodity Futures Trading Commission’s recent changes to its Rule 4.5, which governs registration of registered...more

Section 2(a)(iii): the Suspense Continues

Anyone with a passing knowledge of derivatives law will be aware of the controversy created by section 2(a)(iii) of the ISDA Master Agreement. Differing interpretations of 2(a)(iii) have emerged in litigation in London and...more

Assured Guaranty Sues Bear Stearns and JPMorgan

On March 15, 2012, Assured Guaranty Corp. filed a complaint in New York state court against Bear Stearns, its affiliate, EMC Mortgage LLC, and its successor, JPMorgan, alleging that Bear Stearns misrepresented the risk of...more

Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156

Limitation in Misrepresentation Cases: Damage v. Damages

Last week, the Ontario Court of Appeal addressed the important distinction between damage and damages with respect to the limitation issue in misrepresentation cases. In Hamilton (City) v. Metcalfe & Mansfield Capital...more