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Delaware Supreme Court Permits Stockholders to Overcome Corporation’s Attorney-Client Privilege for “Good Cause”

On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a...more

Second Circuit Rejects Extraterritorial Application of Dodd-Frank’s Whistleblower Anti-Retaliation Provision

On August 14, the United States Court of Appeals for the Second Circuit became the first U.S. appellate court to weigh in on the extraterritorial application of the whistleblower provisions of the Dodd-Frank Wall Street...more

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

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

Can You Hear the Whistle Blowing?: SEC Punishes Company that Did Not Address Fraud Allegations by Whistleblower

The U.S. Securities and Exchange Commission recently announced the latest whistleblower bounty awarded under the Dodd-Frank Act, which authorizes rewards for original information about violations of securities laws. ...more

Court of Appeal Clarifies Directors’ Fiduciary Duties and the Business Judgment Rule for Executive Compensation Matters

The Court of Appeal for Ontario recently affirmed the nature of directors’ and officers’ fiduciary duties and clarified the application of the business judgment rule in the context of a dispute regarding executive...more

SEC Issues Whistleblower Award, Waives Voluntary Requirement

The Securities and Exchange Commission (SEC) decided that a whistleblower who did not “voluntarily” provide information to the SEC was nonetheless eligible to receive a monetary award of $400,000. The whistleblower’s...more

Fourth Circuit Adopts More Demanding Test for Exercise of Objective Prudence by Retirement Plan Fiduciaries -Tatum v. RJR Pension...

In the latest ruling in a long-running battle arising from company stock fund divestments, the U. S. Court of Appeals for the Fourth Circuit has underscored the importance of procedural prudence in the management of plan...more

The Supreme Court Extends SOX Whistleblower

On its face, the Sarbanes-Oxley Act of 2002 (“SOX”) is concerned with the conduct of publicly-traded, not privately-held, companies. SOX, after all, grew out of the scandalous and widely damaging failures of public companies...more

2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we...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

Another Look at U.S. Federal Income Tax Treatment of Contingent Earnout Payments

The sale of a company in an M&A transaction often involves consideration to the selling shareholders that is deferred and contingent on subsequent events in the life of the company, such as the post-acquisition performance of...more

New SAFE Rules Facilitate Registration for Overseas Financing and Investment by Chinese Domestic Residents

The Chinese foreign exchange control authority recently adopted material changes to the regulatory framework on overseas financing and investment via special purpose vehicles undertaken by Chinese domestic residents and the...more

Benefits Litigation Update - Summer 2014

In this issue: - Recent Supreme Court Decisions Revise Rules for Stock Drop Cases - Hobby Lobby and the Questions Left Unanswered - Post-Amara Landscape Continues to Evolve - Supreme Court to...more

Supreme Court Protects Whistleblowing Employees of Mutual Fund Adviser

Whistleblowing law continues to develop, with a recent U.S. Supreme Court decision holding that, despite ambiguous statutory language, the Sarbanes-Oxley Act of 2002 protects employees of private companies serving as...more

IRS Pursues 409A Audits, Issues Ruling on Certain Options/SARs under 457A

IRS audits signal focus on Section 409A compliance; Revenue Ruling makes certain nonqualified options and stock appreciation rights more attractive for offshore entities. The IRS has begun its limited audit initiative...more

France Facilitates Implementation of Whistleblowing Systems

In France, before implementing a whistleblowing process, a company must inform and consult with its employees’ representatives, inform its employees and notify the French Data Protection Agency (CNIL). There are two...more

The Danger of Retaliating Against Whistleblowers

Every company claims that they encourage a “speak up” culture. As part of a “speak up” culture, companies encourage managers and employees to raise concerns about potential violations and promise not to retaliate against...more

SEC Brings First Whistleblower Retaliation Enforcement Action

In announcing its first enforcement action for retaliating against a whistleblower, the U.S. Securities and Exchange Commission (SEC) sends a strong message to firms: it is serious about bringing charges against companies...more

A Compilation of Enforcement and Non-Enforcement Actions

As reported in the May 2014 edition of Legal News: Investment Management Update, the SEC has made cybersecurity readiness a high-priority item to review when it conducts examinations of registered broker-dealers and...more

Supreme Court Nixes "Presumption of Prudence" in Employer Stock Cases

On June 25, 2014, the U.S. Supreme Court unanimously rejected the "presumption of prudence" that had been applied by lower courts in cases where a retirement plan holds stock of the employer sponsoring the plan. Fifth Third...more

Seventh Circuit Reverses Summary Judgment in Case Applying ERISA’s Statute of Limitations

A Seventh Circuit panel declined to apply ERISA’s three-year statute of limitations to bar fiduciary claims in a case arising out of a buy-out transaction involving an employee stock ownership plan. The court held that the...more

ESOP Fiduciaries Lose “Presumption of Prudence”

A unanimous U.S. Supreme Court held last week that employee stock ownership plan (ESOP) investment in employer stock is not entitled to a special ERISA “presumption of prudence”. The decision provides important guidance for...more

Supreme Court Strikes Down Presumption of Prudence For Fiduciaries Investing in Employer Securities

On June 25, 2014, the Supreme Court in Fifth Third Bancorp v. Dudenhoeffer unanimously held that no special presumption of prudence applies under ERISA for investments in employer stock. The case involved a form of employee...more

Supreme Court Rules No “Presumption of Prudence” for Employer Stock Plan Fiduciaries

In a decision that could have significant implications for certain companies and their 401(k) and other plans that invest in employer stock, the Supreme Court ruled, in Fifth Third Bancorp v. Dudenhoeffer, that there is no...more

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