Securities Wills, Trusts, & Estate Planning

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Court Of Chancery Explains How To Prove Bad Faith

While not a corporate case, this decision is useful in explaining how to prove a party acted in bad faith so as to be outside the exculpation provisions of a trust or Sec. 102(b)(7). ...more

CIMA: Proposed changes to outsourcing arrangements for funds service providers

The Cayman Islands Monetary Authority (“CIMA”) has recently released a draft Statement of Guidance: Outsourcing All Regulated Entities (Excluding Regulated Mutual Funds) (“SOG”) and Consultation Paper (“Paper”). The...more

Uses and Advantages of Delaware Statutory Trusts and Delaware Limited Liability Companies in Structured Finance Transactions

Over the past 10-20 years, a large number of secured equipment finance and asset securitization transactions have been structured using either a Delaware Statutory Trust (a “DST”) created pursuant to the Delaware Statutory...more

NCUA Sues U.S. Bank and Bank of America for Allegedly Failing to Comply with RMBS Trustee Duties

On December 16, National Credit Union Administration filed a lawsuit in the United States District Court for the Southern District of New York against U.S. Bank N.A. and Bank of America N.A., in their capacity as trustees for...more

U.S. Bank Reaches $6 Million Settlement of Claims for Breach of RMBS Trustee Duties

On December 17, the parties in Oklahoma Police Pension and Retirement System v. U.S. Bank, N.A., No. 11-cv-8066 (S.D.N.Y.) asked the court to approve a $6 million settlement of class action claims asserted against U.S. Bank...more

Family Office Key Employees’ Use of Employee Investment Trusts

Recent Development - Family office key employees have new flexibility under recent SEC guidance regarding the nature and range of persons who can properly be involved in the administration of their trusts. ...more

SEC to Require Living Wills and Stress-Testing for Investment Advisers

In a speech on December 11, 2014, SEC Chair Mary Jo White announced three broad “proactive initiatives” to address the risks of “increasingly complex portfolio composition and operations” in the asset management industry. ...more

Extraordinary Turnout and Discussions at ULC Unclaimed Property Drafting Meeting

Failing to attend last week’s Uniform Law Commission’s (ULC’s) Drafting Committee meeting to revise the 1995 Uniform Unclaimed Property Act (the Act) was worse than missing the 2012 Extravakranza. On November 7 and 8, 2014,...more

"The Estate Planner" – November/December 2014

In this issue: - The Sec. 1031 Exchange - A Powerful Estate Planning Tool - Worried About Challenges To Your Estate Plan? Make It No Contest! - Don't Underestimate The Impact Of State Estate...more

The Lehman Client Money Litigation

When it was placed into administration on the morning of 15 September 2008, Lehman Brothers International (Europe) (in administration) ("LBIE") could account for approximately $2.16 billion of money in its segregated client...more

S.D.N.Y. Judge Permits Novel Theory And Allows SEC To Use Unpaid Taxes As Measure Of Disgorgement In Securities Fraud Case

In a case against Dallas billionaires Sam Wyly and the estate of his late brother, Charles, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York agreed with the U.S. Securities and Exchange...more

Delaware Court of Chancery Dismisses Derivative Suit Brought by Expired Trust

The Delaware Court of Chancery recently held that the trustee of an expired trust does not have capacity to pursue a derivative suit unless authorized by state law, or in the trust instrument. In April 2009, shareholders of...more

The confusion being engendered by the Uniform Trust Code’s default trust-revocation methodologies (§ 602(c)).

In the pre-Uniform Trust Code UTC), unless the terms of a revocable inter vivos trust provided otherwise, the trust could not have been revoked by the settlor’s will. A will speaks at the time of the testator’s death, an...more

SEC “Common Trust Fund” Exception Narrowly Construed for Private Trust Companies

Recent years have seen a dramatic increase in the number of Private Trust Companies (“PTCs”) established by wealthy families. PTCs are used to consolidate the trustee function of multiple trusts within a family, and because...more

Tax Court Rules on Built-In Gains Discount and Appraiser Qualification

On February 11, 2014, the United States Tax Court issued a memorandum opinion (i) determining the proper method for valuing a holding company (i.e., an S or C corporation holding marketable securities or appreciated...more

Why infect the law of trusts with good faith doctrine?

The law’s good faith principle has traditionally regulated legal relationships, such as the contractual relationship. Equity’s more intense fiduciary principle has generally regulated equitable relationships, such as the...more

Updated PFIC And CFC Definitions And Reporting Rules

The IRS has issued updated reporting regulations under Code Sections 1291, 1298, 6038 and 6046. A lot of the changes are technical definitions, and relate to updates from proposed regulations going back to 1992. ...more

Discerning the true settlor of a trust

The person designated in the terms of a trust as its settlor (creator) may not necessarily be its true settlor (creator). Appearances are often deceiving in the world of the trust. Charles E. Rounds, Jr. explains in §8.43 of...more

Trustees Holding Interests in the Family Business: Intersection of Shareholder and Member Rights and Fiduciary Duties

Trustees holding interests in family enterprises may have conflicting duties to the beneficiaries as well as unrelated shareholders and members of the business. ...more

NY Attorney General Wants to “Fire” Donald Trump from Education Industry

NY Attorney General Wants to “Fire” Donald Trump from Education Industry by Dan Brecher on September 3, 2013 While Donald Trump is well known for his antics on the air and in the boardroom, he may soon be spending some...more

Uniform Acts, Modern Portfolio Theory, and An Unintended Consequence

Uniform Acts, Modern Portfolio Theory, and An Unintended Consequence by James F. McDonough, Jr. on August 8, 2013 Trustees had been governed by the Reasonable Man standard for investing trust assets that were designed...more

Beware: Active Participation of Trustee S-Corporation Shareholder is Required – Technical Advice Memorandum 201317010

Differing points of view have arisen regarding determining the active participation of S-Corporation shareholdings held in Trust....more

CFTC Issues Final Guidance and Accompanying Exemptive Order on Cross-Border Application of Certain Swap Regulations

At a public meeting on July 12, 2013, the Commodity Futures Trading Commission (CFTC or Commission) adopted final guidance on how Dodd-Frank Act requirements will apply to cross-border swap activities (Guidance). In...more

Planning for Carried Interests & Avoiding Section 2701

Alternative investments in private equity and hedge funds have gained in popularity over the last two decades and have become a regular allocation of many investment portfolios....more

SEC Approves Advertised Rule 506 Offerings

Final regulations allowing advertised Rule 506 offerings. ...more

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