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Happy Birthday Dodd-Frank: The Whistleblower Program Milestones and How They’ve Impacted Business Ethics Training

Did you have some cake? Break out the balloons? While it’s hard to believe, it is true. Our little Dodd-Frank, signed into law by President Obama in 2010, is already four years old and about ready for pre-school. Although we...more

Data Breach Litigation – A New Wave of Class Actions by Financial Institutions

Rarely does a day go by without news of a data security breach. According to the Identify Theft Resource Center, there have been a total of 447 data breaches to date this year, which represents a 20.5% increase over the same...more

Federal Judge Concludes Restitution May Be Covered Under Commonly Used Professional Liability Policy Language

A federal judge in Minnesota recently held that “restitution” paid to settle a class action lawsuit was covered under the terms of a professional liability policy. The court in U.S. Bank National Ass’n et al. v. Indian Harbor...more

Private Equity Fund Charged by SEC with Violation of the Pay-to-Play Rules for Investment Advisors

The Securities and Exchange Commission ("SEC") recently announced that it had charged TL Ventures, a Philadelphia-area private equity firm (the "Firm") with the first ever case involving a violation of the "pay-to-play...more

Enforceability of Settlement Terms in California Courts

California’s public policy has long been to encourage settlement over litigation in the interests of efficiency and economy for the courts and for the parties involved. See, e.g., Kaufman v. Goldman, 195 Cal. App. 4th 734,...more

Morgan Stanley Settles RMBS Charges with SEC

On July 24, the SEC announced that it had charged three Morgan Stanley entities with misleading investors with regard to two RMBS securitizations that the firms underwrote, sponsored and issued and that the firm agreed to...more

Court Grants in Part and Denies in Part Nomura’s Motion to Dismiss Trustee Repurchase Action

On July 18, Justice Marcy Friedman of the New York County Supreme Court, Commercial Division, granted in part and denied in part Nomura Credit & Capital Inc.’s motion to dismiss claims brought by HSBC, as Trustee for the NAAC...more

SEC Denies Whistleblower Award Claim for Harbinger-Falcone Recovery

As recently reported by Ed Benson of Law 360, on July 4th, 2014, the United States Securities and Exchange Commission (the “SEC” or “Commission”) issued a final order that denied a whistleblower award claim on the $18 million...more

SEC Approves Amended FINRA Rule 2081 Prohibiting Settlements Conditioned on Expungement

On July 22, the SEC approved amendments to FINRA Rule 2081 that prohibit member firms from conditioning arbitration settlements (or seeking to) upon a customer’s assent to CRD expungement relief. The Rule amendments prohibit...more

Keeping the Benefit of Your Bargain: Strengthening Your Right to Prepayment Premiums

Anyone involved in commercial lending transactions is familiar with provisions of loan agreements that provide for compensation to the lender in the event the indebtedness is paid in advance of the contemplated due date....more

Wisconsin Supreme Court’s Decision in Associated Bank N.A. v. Collier Changes the Rules for Collecting Judgments

In Wisconsin, supplemental proceedings under Wis. Stat. ch. 816 are the principal tool by which a judgment creditor can discover assets of the judgment debtor in aid of collection. But for the last 15 years, they have also...more

U.S. Bank Wins Coverage Under Delaware Law For $55 Million Overdraft-Related Settlement

Three class actions were filed against U.S. Bank in 2009 with identical allegations. The plaintiffs claimed that instead of applying transactions in chronological order, the bank posted transactions from the highest amount to...more

Delaware's New Data Destruction Law Takes Effect January 1, 2015

Delaware House Bill 295 was signed into law on July 1. The law provides that if a commercial entity seeks to dispose of records containing consumers' personal identifying information, the commercial entity must take...more

Six Months in Review: Florida Case Law

Florida has witnessed developments in three areas of mortgage foreclosure litigation already this year. The opinions offered by various courts of appeal have come at a time when litigants crave guidance more than ever, but...more

Delaware Court of Chancery Finds Contract Rate Applies to Post-Judgment Interest

The Delaware Court of Chancery recently held that, in a case alleging breach of a loan agreement for more than $100,000, post-judgment interest accrues at the rate set forth in the agreement and not at the lower statutory...more

Construction Lenders Beware: Unbonded Stop-Payment Notices May Be Worth More Than The Paper They Are Written On

A common perception in the construction industry is that the most valuable part of an unbonded stop payment notice is the paper it is written on, at least when it is served on a construction lender. While an unbonded stop...more

Laidler v. Hesco Bastion Environmental, Inc., C.A. No. 7561-VCG (Del. Ch. May 12, 2014) (Glasscock, V.C.)

In this memorandum opinion, the Court of Chancery determined the fair value of the petitioner’s stock in a statutory appraisal proceeding arising from the short-form merger of Hesco Bastion USA, Inc. (the “Company”) into the...more

Bankruptcy Beat : Choice of Law & Liquidated Damages Analyses Result in Significant Reduction of Creditor’s Claim

In the context of an objection to claim proceeding, the Bankruptcy Court (Dabrowski, J.) engaged in choice of law and liquidated damages analyses and as a result disallowed approximately a million dollars of Best Western’s...more

The Washington Court of Appeals Strengthens the Ability of Lenders to Obtain Summary Judgment Against Commercial Guarantors on...

Post-foreclosure deficiency lawsuits against guarantors of commercial loans can be expensive and time consuming — particularly when measured against the sometimes uncertain collectability of the deficiency judgment. Under...more

Virginia Supreme Court Allows Damages Claim for Violation of HUD Regulation Requiring Face-to-Face Meeting before Seeking...

The Virginia Supreme Court recently expanded the grounds under which a private borrower can sue a lender for violations of HUD regulations. In Squire v. Virginia Housing Development Authority, a decision issued on April 17,...more

Damages for Breach of a 12-Month Non-Compete Covenant

In Merlin Financial Consultants Ltd v Cooper [2014] EWCH 1196, the High Court awarded damages to an employer where the employee had breached a 12-month non-compete covenant in a business (rather than employment) agreement. ...more

Borrowers Can Avoid Liability Even After a Trustee’s Sale

Since a lender must have a valid debt and valid lien to conduct a trustee’s sale, a borrower that allows the foreclosure sale to occur impliedly agrees that the debt and lien are valid. In Madison v. Groseth and BT Capital,...more

State Blue Sky Claims Under the Uniform Securities Act Can Be Won by Sellers, But at a Cost

An emerging tool for plaintiff-side securities litigators is the use of state claims under the Uniform Securities Act, such as Massachusetts’ so-called “Blue Sky” statute, Mass. Gen. L. c. 110A, § 410. ...more

A Settlement Agreement's Liquidated Damages Clause That Bears No Reasonable Relationship To Actual Damages Constitutes An...

In Purcell v. Schweitzer (2014) 224 Cal.App.4th 969, the Court of Appeal disapproved of a settlement agreement providing the entire amount in dispute would be due if the debtor breached the agreement. The court determined...more

Unmitigated Waivers: Guarantors Remain Liable Despite 4-Year Delay in Foreclosure Sale

If a lender delays foreclosure allowing years of default interest to accrue such that a guarantor’s obligation increases from $6 million to $12 million, should the guarantor remain on the hook for the full $12 million? In...more

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