Dechert LLP

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Philadelphia, PA 19104, United States

Contact: Beth Huffman

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Myriad's Possible Impact on Patent Eligibility of Isolated Non-DNA Chemical Substances

Over a century ago, in the famous Parke-Davis adrenaline patent infringement case, Judge Learned Hand articulated what many consider the origin of the legal premise that isolated components or purified extracts of natural…more

AMP v Myriad, DNA, Human Genes, Myriad, Patent-Eligible Subject Matter

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Clarifications on Liability of Officers of Russian Companies

The Plenum of the Supreme Arbitrazh Court at the end of August 2013 published Resolution No. 62 (the "Resolution"), dated 30 July 2013, which provides a number of clarifications with respect to the liability of officers of…more

Liability, Officers, Russia

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U.S. Federal Reserve Board Adopts Enhanced Prudential and Intermediate Holding Company Requirements for Foreign Banking Organizations

The Federal Reserve Board (Board) recently adopted final rules representing the most significant change in U.S. regulation of foreign banking organizations (FBOs) since the International Banking Act of 1978. Perhaps most…more

Bank Holding Company, Banks, Federal Reserve, Financial Regulatory Reform, Foreign Banks

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Russia’s Imposition of Russian Law in Crimea: What Does This Mean for Companies Operating in Crimea and How Can Investors Protect Crimean Investments?

Against the backdrop of a rapidly evolving domestic and international legal landscape in Ukraine, this OnPoint focuses on the practical steps that companies operating in Crimea may consider taking in view of the legal…more

Foreign Banks, Foreign Corporations, Foreign Investment, Foreign Subsidiaries, Investment

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Two Important Bills for IP Rights Holders Adopted in France

This OnPoint covers the implications of two important recent developments for IP rights holders in France: (i) the ratification by the French parliament of the Agreement creating the Unified Patent Court (law no. 2014-199, dated…more

EU, Patent Reform, Patents

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International Employment Law Review - January 2013, Issue 3

Welcome to the latest edition of the International Employment Law Review, presented by Dechert’s Labor and Employment Practice. In this issue, we examine the most significant employment law developments of the year thus far in…more

ADA, Classification, International Labor Laws, NLRB, Paid Leave

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Moody’s Upgrade Points to Reopening of the Chilean Pension Market to Irish UCITS

It’s been a rocky road for Dublin over the past few years, but last month’s exit from the European Union-International Monetary Fund bailout and last Friday’s welcome news that Moody’s would follow Fitch and S&P by upgrading…more

EU, Ireland, Moody's, Pensions, UCITS

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UK Government Proposes New Insider Dealing Powers in the Wholesale Energy Markets

The Department of Energy and Climate Change published a Consultation on 6 August 2014 seeking views on its proposals to introduce new criminal offences for insider dealing in and the manipulation of the wholesale energy markets…more

Energy Market, Energy Policy, EU, Insider Trading, Market Manipulation

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TUPE Changes Announced Today - Less Dramatic Reform Than Expected?

TUPE - the Transfer of Undertakings (Protection of Employment) Regulations 2006 - is seen as one of the most complex, difficult and unpredictable areas for businesses to deal with when conducting business sales, outsourcings and…more

Compliance, Financial Regulatory Reform, TUPE, UK

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London Stock Exchange to Introduce New High Growth Segment of the Main Market

Background - The Department for Business, Innovation and Skills (‘BIS’) announced in September 2012 that it had developed proposals with the London Stock Exchange (the ‘LSE’) to attract high growth companies to list their…more

Disclosure Requirements, EU, Foreign Corporations, Foreign Investment, High Growth Segment

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U.S. Federal Reserve Board Adopts Enhanced Prudential and Intermediate Holding Company Requirements for Foreign Banking Organizations

The Federal Reserve Board (Board) recently adopted final rules representing the most significant change in U.S. regulation of foreign banking organizations (FBOs) since the International Banking Act of 1978. Perhaps most…more

Bank Holding Company, Banks, Federal Reserve, Financial Regulatory Reform, Foreign Banks

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ACAS Guidance on Dress Codes

ACAS has recently published guidance for employers based in Great Britain on dress codes. This Dechert OnPoint outlines the key issues raised by the ACAS Guidance that employers should bear in mind when drafting or updating a…more

ACAS, Dress Codes, UK

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Investor Transparency Post AIFMD: What Have We Gained?

The Alternative Investment Fund Managers Directive (2011/61/EU) (the “Directive” or “AIFMD”) states in Recital 94 that its objective is: ...to ensure a high level of investor protection by laying down a common…more

AIFMD, Disclosure Requirements, EEA, Transparency

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Construction Contract Payment Terms: Timing is Everything

In 2011 you will probably recall receiving a plethora of information about the amendments to the Construction Act (the “Act”) particularly the resulting “new” payment regime. There was a flurry of activity leading up to the…more

Construction Contracts, Construction Industry, Contract Drafting, UK

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Promotional Allowances in a New Retail Environment: FTC Revises its Fred Meyer Guides

The Commission revised its guidelines for interpreting and complying with the Robinson-Patman Act to account for changes in technology and methods of marketing that have taken place since the last revision in 1990, including the…more

Fred Meyer Guides, FTC, Internet Retailers, Marketing, Retailers

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Revised Timeline for Implementing FATCA

Sections 1471 through 1474 of the U.S. Internal Revenue Code (“FATCA”) generally impose a 30% withholding tax on certain payments to a foreign financial institution (“FFI”) unless the FFI has entered into an agreement with the…more

Bank Accounts, Banks, FATCA, FFI, IGAs

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SDNY Bankruptcy Court Allows as a Claim Unamortized Original Issue Discount Generated in a Fair Market Value Exchange

The Bankruptcy Court for the Southern District of New York overseeing the Residential Capital (“ResCap”) cases issued an opinion on November 15, 2013 (the “Opinion”) allowing the unamortized interest associated with original…more

Commercial Bankruptcy, Fair Market Value, Loans, Original Issue Discount, ResCap

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Change to HM Treasury's policy in relation to receiving funds from an individual or entity subject to EU Sanctions

The UK HM Treasury (“HMT”) is changing its policy in relation to funds received in the UK that have come either directly or indirectly from an individual or entity outside of the EU that is subject to EU Sanctions (a “designated…more

EU, Frozen Assets, Iran, Sanctions, UK

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Reining In Overbroad Criminal Subpoenas – Is Some Relief In Sight?

In the wake of the national financial crisis, both the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) publicly committed themselves to enhanced enforcement of federal financial laws…more

Criminal Prosecution, DOJ, SEC, Subpoenas

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SEC Division of Investment Management Provides Guidance Regarding the Custody Rule and Privately Offered Securities

The Division of Investment Management (Division) of the U.S. Securities and Exchange Commission (SEC) recently posted an IM Guidance Update that expands the applicability of an exception from the Custody Rule (as defined below)…more

Custody Rule, GAAP, Investment Advisers Act of 1940, Investment Company Act of 1940, Investment Management

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U.S. Treasury’s Benchmark TIC SHL Survey and Implications for Investment Managers

In August 2014, the U.S. Department of the Treasury (Treasury) and the Federal Reserve Bank of New York (FRBNY) will conduct a benchmark survey of foreign holdings of U.S. issuers’ securities on Treasury International Capital…more

Federal Reserve, Foreign Investment, Form SHL, Investment Funds, Investment Management

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Dechert OnPoint: The Housing Finance Reform and Taxpayer Protection Act of 2014

Following on the heels of last year’s bi-partisan “Housing Finance Reform and Taxpayer Protection Act of 2013”, which was introduced into the Senate by Senators Corker and Warner, a similar bill was recently introduced in the…more

Housing Finance Reform, Housing Market, Income Taxes

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CIS Legal Updates - May 2013: Litigation Updates

Recent rulings by Russia’s Supreme Arbitrazh (Commercial) Court (SAC) have clarified dispute resolution procedural issues in Russian courts. In particular, the following resolutions were adopted..…more

Broadcasting, Dispute Resolution, Judicial Proceedings, Media, Summary Judgment

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Real World - Spring 2013: When can tenants escape liability for terminal dilapidations?

Most leases require the tenant to leave the property in a good state of repair at the end of the term. The amount of damages the landlord can recover if the works are not done is limited by section 18 of the Landlord and Tenant…more

Commercial Tenants, Damages, Landlords, Liability, Property Damage

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Old Wine in New Bottles: The Emergence of the P2P Small Business Lending Securitizations

This last year has seen an uptick in activity in the peer to peer commercial loan market in the U.S., which, broadly speaking, includes loans made by non-traditional financing sources to small businesses (“P2P Commercial…more

Funding, Hedge Funds, Loans, Peer-to-Peer, Popular

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FDA, IP, and FTC Developments in the Run-up to the First U.S. Biosimilar Approval

As we near the fourth anniversary of the enactment of the Biologics Price Competition and Innovation Act, which established the first abbreviated approval route for follow-on biologics in the United States, multiple federal…more

Biologics, Biologics Price Competition and Innovation Act of 2009, Biosimilars, FDA, FTC

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CMBS Issuer wins negligence claim against valuer in English High Court

In a judgement of major significance for the commercial mortgage backed securities (CMBS) market, the High Court has ordered a negligent valuer to pay €32 million damages to a CMBS issuer. This is the first time a CMBS-related…more

Asset Valuations, Credit Suisse, Mortgage-Backed Securities, Negligence

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Application of the European Market Infrastructure Regulation to Alternative Investment Fund Managers

European investment managers of non-UCITs funds will have to be authorised as an alternative investment fund manager (known as an “AIFM” under AIFMD) under the Alternative Investment Fund Managers Directive (“AIFMD”) from 22…more

AIFM, AIFMD, CCPs, CTFC, Derivatives

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United States: EEOC Challenges to Employer Separation Agreements

In Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-cv-863 (N.D. Ill., February 7, 2014), the EEOC alleged that a severance agreement used by CVS Pharmacy, Inc. (“CVS”) violates Title VII of the Civil Rights…more

Civil Rights Act, EEOC, Separation Agreement, Severance Agreements, Title VII

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UK Moroccanoil Passing Off Claim Fails Against Aldi Lookalike Product Miracle Oil

Moroccanoil Israel Limited (MIL) has lost its claim for passing off against supermarket chain Aldi Stores Limited (Aldi) in the Intellectual Property Enterprise Court. Both MIL and Aldi are retailers of argan hair oil under the…more

Misrepresentation, Patent Infringement, Patent Litigation, Patents

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A Flexible Capital Raise: Shelf Registration Statements For Closed-End Funds

Exchange-listed closed-end investment companies (closed-end funds) have historically faced challenges in raising additional capital after their initial public offering (IPO) due to the structure of such funds and certain…more

Financial Regulatory Reform, IPO, NAV, SEC, Securities Act of 1933

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Former Morgan Keegan Directors Settle Valuation Case

The U.S. Securities and Exchange Commission issued a cease and desist order on June 13, 2013 (the “Order”) against former members of the boards of directors (the “RMK Directors” or the “RMK Boards”) of five Regions Morgan Keegan…more

Board of Directors, Business Assets, Directors, Enforcement, Investment Companies

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Financial Services Quarterly Report - Second Quarter 2013

In This Issue: - UK: New Regulators; New Powers - So You Want to be a U.S. Mutual Fund Manager - The New German Rules on High Frequency Trading - Marketing and Distributing Your Fund in the Middle East: Recent…more

AIFMD, ESA Listings, EU, Financial Products, FPC

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The U.S. Supreme Court Extends Sarbanes-Oxley Whistleblower Protections to Employees of Mutual Fund Investment Advisers and Other Privately-Held Contractors to Public Companies

The Supreme Court of the United States on March 4, 2014 held that employees of a privately-held mutual fund investment adviser are protected under a whistleblower provision enacted as part of the Sarbanes-Oxley Act of 2002…more

Contractors, FMR LLC, Lawson v FMR, Sarbanes-Oxley, SCOTUS

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Preservation of Legal Privilege in Corporate Investigations – A Cross Border Comparison

A D.C. Circuit decision (In re Kellogg Brown & Root, Inc.) has confirmed privilege over employee statements during in-house investigations. Can the world take comfort? This article examines privilege in the context of…more

Attorney-Client Privilege, Corporate Counsel, Cross-Border, Deferred Prosecution Agreements, DOJ

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An early gift from the Treasury and the results of our AIMFD Readiness Survey

Following implementation of the Alternative Investment Fund Managers Directive (AIFMD or the Directive) into UK law in July 2013, the UK Financial Conduct Authority (FCA) advised UK firms in August 2013 to apply for…more

AIFMD, Compliance, FCA, UK

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UK Government Responds to BIS Transparency and Trust Discussion Paper

The Department for Business, Innovation and Skills (BIS) on 21 April 2014 published the UK Government’s response to its discussion paper Transparency & Trust: Enhancing the transparency of UK company ownership and increasing…more

BIS, Nominee Directors, Transparency, UK

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2014 CREFC High Yield Distressed Debt Summit

Earlier this month, I and a few of my colleagues here at Dechert attended CREFC’s 2014 High Yield Distressed Realty Assets Summit. The general sentiment of optimism and exuberance for 2014 felt in Miami was not as palpable at…more

Debt, Distressed Asset Stabilization Program

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SEC Staff to Conduct Broker-Dealer and Investment Adviser Examinations Focused on Cybersecurity

The Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of Compliance Inspections and Examinations (“OCIE”) announced in an April 15, 2014 Risk Alert (the “Alert”) that it will be conducting examinations…more

Cybersecurity, Data Protection, Investment Adviser, OCIE, SEC

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Revised Timeline for Implementing FATCA

Sections 1471 through 1474 of the U.S. Internal Revenue Code (“FATCA”) generally impose a 30% withholding tax on certain payments to a foreign financial institution (“FFI”) unless the FFI has entered into an agreement with the…more

Bank Accounts, Banks, FATCA, FFI, IGAs

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2013 Examination Priorities of the U.S. SEC’s Office of Compliance Inspections and Examinations

The Office of Compliance Inspections and Examinations (“OCIE”) of the Securities Exchange Commission (“SEC”) on February 21, 2013 announced its examination priorities for this year. These highlight market-wide issues such as…more

Broker-Dealer, Clearing Agents, Conflicts of Interest, Fraud, Investment Adviser

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Novel U.S. and EU Sanctions Targeting Russian Financing Activities Raise Unique Compliance Considerations for Global Financial Industry

Since March 2014, the United States and European Union have imposed multiple rounds of sanctions restricting certain activities with Russian and Ukrainian individuals and companies as a result of the ongoing crisis in Ukraine…more

EU, Financial Instruments, Russia, Sanctions, SSI List

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The Supreme Court of Pennsylvania in Butler Affirms the Long-Standing Dunham Rule and Brings Certainty to Marcellus Shale Natural Gas Rights

The Supreme Court of Pennsylvania in Butler v. Charles Powers Estate1 unanimously reversed the ruling of the Superior Court which held that an evidentiary hearing “complete with expert, scientific testimony” is necessary to…more

Dunham Rule, Expert Testimony, Marcellus Shale, Minerals, Natural Gas

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Iceland Foods Limited v Castlebrook Holdings Limited – lease term and rent on an unopposed lease renewal

The recent decision in Iceland Foods Limited v Castlebrook Holdings Limited provides a rare insight into the considerations of the court when determining the length of term and annual rent on a 1954 Act lease renewal. The…more

Commercial Leases, Grocery Stores, UK

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SEC Charges Hedge Fund Adviser with Engaging in Prohibited Principal Transactions and Retaliating Against Whistleblower

The U.S. Securities and Exchange Commission (SEC or Commission) issued a cease and desist order on June 16, 2014 (the Order) against Paradigm Capital Management, Inc. (Paradigm) and its founder, Director, President and Chief…more

Hedge Funds, Investment Advisers Act of 1940, Retaliation, SEC, Whistleblowers

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U.S. Treasury’s Benchmark TIC SHL Survey and Implications for Investment Managers

In August 2014, the U.S. Department of the Treasury (Treasury) and the Federal Reserve Bank of New York (FRBNY) will conduct a benchmark survey of foreign holdings of U.S. issuers’ securities on Treasury International Capital…more

Federal Reserve, Foreign Investment, Form SHL, Investment Funds, Investment Management

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In Halliburton II, SCOTUS Upholds Presumption of Reliance in Securities Fraud Class Actions, but Allows Defendants to Rebut with Lack of Price Impact

In a decision that has important implications for both plaintiffs and defendants in securities class actions, the Supreme Court of the United States in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), No. 13-317…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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Some Limited Trouble with Tibble? – Supreme Court Agrees to Hear Excessive-Fee Case Involving 401(k) Plan

The U.S. Supreme Court granted certiorari on October 2, 2014 in the case of Tibble v. Edison International, for the narrow purpose of reviewing the holding by the Ninth Circuit Court of Appeals that the statute of limitations…more

401k, Attorney's Fees, ERISA, Excessive Fees, SCOTUS

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Novel U.S. and EU Sanctions Targeting Russian Financing Activities Raise Unique Compliance Considerations for Global Financial Industry

Since March 2014, the United States and European Union have imposed multiple rounds of sanctions restricting certain activities with Russian and Ukrainian individuals and companies as a result of the ongoing crisis in Ukraine…more

EU, Financial Instruments, Russia, Sanctions, SSI List

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Second Circuit Overturns Lower Court's Refusal to Approve SEC Settlement With Citigroup

In an eagerly anticipated decision, the U.S. Court of Appeals for the Second Circuit vacated the 2011 decision of Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York, rejecting a proposed…more

Appeals, Chevron Deference, Citigroup, Consent Decrees, Enforcement

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France: New Obligation on the Employer Seeking External Redeployment in the Case of Redundancies (or Economic Dismissals)

Before making an employee redundant, the employer must: - Seek internal redeployment within the company and the Group (if any) and offer to the employee any internal redeployment offer. Otherwise, the employee’s…more

EU, Foreign Deployment, Redundancy Dismissals

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BNA's Banking Report: Enforcement 2013: Enforcement Actions Continue Three-Year Decline; DOJ Emerges as Major Player

Overall Trends & Outlook - From an enforcement standpoint, 2013 was another historic year in a number of important ways beyond the sheer number of cases, which were again significant. Federal banking agencies1 issued 701…more

Anti-Money Laundering, Bank Secrecy Act, Banks, CFPB, DOJ

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SEC Report Embraces Communications through Social Media

The Securities and Exchange Commission (SEC) issued a report on April 2, 2013 concerning its investigation into the use of social media by public companies in the United States (Report). The Report confirms that a public company…more

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ICAV for Christmas!

In our January 2014 OnPoint - Yes - ICAV! Irish Minister for Finance Announces New Irish Corporate Fund Vehicle - we outlined details of the proposed new Irish corporate investment fund vehicle and the enhancements that it…more

Foreign Investment, Investors, Ireland

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England and Wales: Upcoming Changes to UK Family-Friendly Rights

The next year brings some major changes to family-friendly rights in the UK. Shared system of parental leave and pay - The current position in the UK is that: Mothers are entitled to up to 52 weeks of…more

Employee Rights, Parental Leave, UK

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U.S. Basel III Final Rule and its Impact on the Securitization Framework

The three U.S. federal banking agencies (the “Agencies”) have adopted a final rule (the “Rule”) that implements the Basel III regulatory capital framework and comprehensively revises the regulatory capital requirements for all…more

Banks, Basel III, Compliance, Dodd-Frank, New Regulations

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Cables Sliced on Class Action in Comcast Corp. v. Behrend

Key Points - - Comcast Corp. v. Behrend clarifies that the Court's 2011 decision in Wal-Mart v. Dukes, which requires an inquiry into the merits to the extent necessary to resolve Rule 23 issues, extends to antitrust…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Daubert Ruling

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Financial Services Quarterly Report - Third Quarter 2013: European Long-Term Investment Funds (ELTIFs)

The European Commission published its draft proposal of a regulation regarding European long-term investment funds (“Draft Proposal”) on June 26, 2013, heralding the creation of a new type of fund with a long-term investment…more

EU, European Commission, Foreign Investment, Investment Funds, Investors

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HSR Filing Threshold Increases to $75.9 Million

The Federal Trade Commission (“FTC”) announced on January 17, 2014 that the dollar-based thresholds applicable to the Hart-Scott-Rodino (“HSR”) premerger notification program will be raised 7 percent from the 2012 levels. As a…more

FTC, Hart-Scott-Rodino Act

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CLO Market Update: S&P Recovery Ratings, More’s the Merrier

While leveraged loan ETF and money market funds face an unsteady near-term future amidst ongoing retail investor outflow, the CLO market is rolling towards its busiest year ever. With year-to-date global issuance at…more

Collateralized Loan Obligations, ETFs, Money Market Funds, S&P, Volcker Rule

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In Halliburton II, SCOTUS Upholds Presumption of Reliance in Securities Fraud Class Actions, but Allows Defendants to Rebut with Lack of Price Impact

In a decision that has important implications for both plaintiffs and defendants in securities class actions, the Supreme Court of the United States in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), No. 13-317…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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February 2013 U.S. Labor and Employment Update

In This Issue: - Supreme Court to Address “Changing Clothes” under the FLSA - First Appellate Court Decision on FLSA’s Nursing Mother Provision - Courts Continue Trend in Favor of Class Waivers in Arbitration…more

Arbitration Agreements, Breastfeeding, Class Action Arbitration Waivers, Discrimination, Doffing

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Final Credit Risk Retention Rules Adopted for Asset Backed Securities and Residential Mortgage Backed Securities

The Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Department of Housing and Urban Development, Federal Housing Finance Agency, and Securities…more

Asset-Backed Securities, Compliance, Dodd-Frank, FDIC, Federal Reserve

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England and Wales: Early Conciliation - What Is It and Why Does It Matter?

The new rules on early conciliation will be seen by some as another obstacle in the path of the poor put upon litigant employees and by others as a sensible way to encourage employers and employees to try to resolve disputes…more

Employer Liability Issues, EU, Labor Disputes, New Regulations

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SEC Staff to Conduct Broker-Dealer and Investment Adviser Examinations Focused on Cybersecurity

The Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of Compliance Inspections and Examinations (“OCIE”) announced in an April 15, 2014 Risk Alert (the “Alert”) that it will be conducting examinations…more

Cybersecurity, Data Protection, Investment Adviser, OCIE, SEC

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Department of Labor Opens the Door to Questioning Brokerage Windows Under 401(k) Plans

A request for information ("RFI") by the U.S. Department of Labor ("DOL") was published on August 21, 2014 regarding the use of so-called "brokerage windows" under retirement plans, such as many Section 401(k) plans, that allow…more

401k, DOL, Employee Benefits, Request For Information, Retirement

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Major Changes to New York State Transfer Tax and Fiduciary Income Tax Laws

Governor Andrew Cuomo signed into law on April 1, 2014 the 2014-2015 New York State budget. The new law, which was widely debated after Governor Cuomo introduced it on January 21, includes a number of changes to New York State’s…more

Income Taxes, State Taxes, Tax Reform, Transfer Taxes

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SEC Targets Another Fund Board in Recent Enforcement Case

The U.S. Securities and Exchange Commission (“SEC”) recently issued an Order Instituting Proceedings (“Order”) against the administrator and compliance services provider, as well as current and former members of the boards of…more

Board of Trustees, Compliance, Disclosure Requirements, Enforcement, Penalties

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Update on Lifting of SEC Moratorium on Active ETF Use of Derivatives

The staff of the U.S. Securities and Exchange Commission (the “SEC”) released no action relief (the “Letter”) addressed to recipients of 18 prior orders (the “Prior Orders”) granting exemptive relief to launch actively-managed…more

CFTC, ETFs, Moratorium, No-Action Letters, SEC

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The U.S. Securities and Exchange Commission Approves Amendments to Rules Governing Money Market Funds: Implications for Boards

The U.S. Securities and Exchange Commission (SEC) has approved sweeping amendments to Rule 2a-7 under the Investment Company Act of 1940 and other rules governing the operations of money market funds (money funds) (Amendments)…more

Disclosure Requirements, Floating NAV, Investment Company Act of 1940, Liquidity Fees, Money Market Funds

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CMBS Issuer wins negligence claim against valuer in English High Court

In a judgement of major significance for the commercial mortgage backed securities (CMBS) market, the High Court has ordered a negligent valuer to pay €32 million damages to a CMBS issuer. This is the first time a CMBS-related…more

Asset Valuations, Credit Suisse, Mortgage-Backed Securities, Negligence

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International Employment Law Review - March 2014 - Issue 5

Welcome to the latest edition of the International Employment Law Review, presented by Dechert’s Labor and Employment Practice. In this issue, we examine the most significant employment law developments in Belgium, England and…more

Collective Bargaining, Employee Rights, EU, International Labor Laws, Russia

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SEC Issues Guidance Update on Social Media Commentary in Investment Adviser Advertising

The staff of the Division of Investment Management (Staff) of the Securities and Exchange Commission (SEC) has issued an IM Guidance Update (Guidance Update) on the use of social media in investment adviser advertising. The…more

Advertising, Guidance Update, Investment Adviser, Investment Advisers Act of 1940, Ratings

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CIS Legal Update - September 2013: Recent Developments of Russian Court Practice on Lease of Real Estate

The Supreme State Commercial Court of the Russian Federation (the "Supreme State Commercial Court") issued Decree No. 13 (the "Decree") on 25 January 2013 clarifying certain issues relating to lease agreements. The Decree offers…more

Commercial Leases, Land Titles, Leases, Permits, Registration

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FATCA: IRS Relaxes Impending Deadlines for FATCA Compliance, but does not Eliminate the Need to Comply

Compliance with the Foreign Account Tax Compliance Act (“FATCA”) has been causing a great deal of anxiety as the July 1, 2014, start date for FATCA withholding grows nearer. Compliance has been partially hampered by the lack of…more

FATCA, Filing Deadlines, International Tax Issues, IRS

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SEC Charges Private Equity Fund Adviser with Misallocating Expenses between Portfolio Companies

The U.S. Securities and Exchange Commission (SEC or Commission) issued a cease and desist order on September 22, 2014 (Order) against private equity fund adviser Lincolnshire Management, Inc. (Lincolnshire). The Order alleged…more

Cease and Desist Orders, Investment Adviser, Investment Advisers Act of 1940, Misallocation of Funds, OCIE

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CLO Update: New FDIC Rules on "Higher Risk Securitizations"

The FDIC's new rules (promulgated per the requirements of the Dodd-Frank Act) for calculating deposit insurance assessments for insured depository institutions, including "large institutions" and "highly complex institutions,"…more

Asset-Based Methodology, CAMELS, Collateralized Loan Obligations, Dodd-Frank, FDIC

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CIS Legal Update - May 2013: Cyprus Bailout: Legal Issues Arising

Many with significant balances in certain Cyprus banks are going to suffer substantial losses as a result of the terms of the Cyprus bailout and the restructuring of the Bank of Cyprus and Laiki Bank. Account holders will…more

Breach of Duty, Cyprus Bailout, Misrepresentation

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The U.S. Securities and Exchange Commission Approves Amendments to Rules Governing Money Market Funds: Implications for Boards

The U.S. Securities and Exchange Commission (SEC) has approved sweeping amendments to Rule 2a-7 under the Investment Company Act of 1940 and other rules governing the operations of money market funds (money funds) (Amendments)…more

Disclosure Requirements, Floating NAV, Investment Company Act of 1940, Liquidity Fees, Money Market Funds

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U.S. Risk Retention Final Rule: Playing it Forward for CLOs

We will leave the hand wringing and teeth gnashing to others. We expect there will be a lot of that in the days ahead. We have had our say on the misguided premises and tortured statutory interpretation underpinning the final…more

Collateralized Debt Obligations, Collateralized Loan Obligations, Dodd-Frank, FDIC, Risk Retention

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A New Era for Private Funds in China?

Several years ago, alternative asset managers were enthusiastically regarding China as a new frontier for fundraising. Indeed, in 2011, Chinese private equity and venture capital firms raised substantially more money from local…more

China, Foreign Investment, Investors, Private Funds, Venture Capital

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New UK Sentencing Guidelines - What Does This Mean For Corporates?

The Sentencing Council’s Definitive Guidance for Fraud, Bribery and Money Laundering Offences (the “UK Guidelines”) came into force on 1 October 2014. The UK Guidelines set out a ten step process for sentencing and apply to all…more

Bribery, Corporate Crimes, Corporate Criminal Fines, Criminal Prosecution, Federal Sentencing Guidelines

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Court Sides with FTC on Sweeping Data Security Role

Executive Summary: Federal Trade Commission v. Wyndham Worldwide Corp. A U.S. District Court has ruled this week that the Federal Trade Commission (FTC) has authority under Section 5 of the FTC Act to bring enforcement…more

Cybersecurity, Data Protection, FTC, Wyndham

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SEC Enforcement Initiative to Root Out Repeated Late Filers of Ownership Forms Due Under Sections 13 and 16 — Reminder to Ensure Internal Controls Are Adequate

On September 10, the U.S. Securities and Exchange Commission (“SEC”) announced charges against 28 officers, directors and major shareholders for violating Sections 13 and 16 of the Securities Exchange Act of 1934 (the “Exchange…more

Enforcement, Enforcement Actions, Internal Controls, SEC, Securities Exchange Act

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Data Privacy and Cyber Security in Hong Kong: The New Enforcement Imperative

Introduction - Cyber security has gained increasing attention in recent years and cyber attacks have become more sophisticated and more frequent. Cyber attacks and other data breaches can affect millions of customers and…more

Cybersecurity, Data Breach, Data Protection, Enforcement, Hong Kong

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Chilean Pension Funds Market Officially Open for Business for Irish UCITS.

Following Dechert’s series of reports in relation to the Chilean pension funds market and its accessibility to Irish UCITS, see Dechert OnPoint - Moody’s Upgrade Points to Reopening of the Chilean Pension Market to Irish UCITS…more

Bailout, Cross-Border, Equity Markets, EU, Fitch

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Are exclusivity clauses and restrictions on user in leases in breach of competition law?

Although the UK competition regime has applied to land agreements since 29 June 2010 [with the enactment of The Competition Act 1998 (Land Agreements Exclusion Revocation) Order 2010], until recently there has been only an…more

Competition, Section 9, UK

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SEC Adopts New Financial Responsibility and Reporting Requirements for U.S.-Registered Broker-Dealers

The Securities and Exchange Commission (“SEC” or “Commission”) recently approved amendments to its net capital, customer protection, books and records, notification and reporting requirements for broker-dealers, in an effort to…more

Audits, Broker-Dealer, Financial Regulatory Reform, New Regulations, Reporting Requirements

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A Grading Scale to Help Facilitate Post-Termination Settlements

A new lump-sum grading scale has been introduced, by Decree n° 2013-721 of August 2, 2013, to help facilitate post-termination settlements at the conciliation hearing stage. The scale may also prove useful for out of court…more

EU, Settlement, Termination

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Lease renewal proceedings and section 30(1)(c) Landlord and Tenant Act 1954

It is unusual for landlords to oppose a lease renewal under section 30(1)(c) of the Landlord and Tenant Act 1954, but a recent decision by the Court of Appeal in the case of Horne & Meredith Properties v Cox and Billingsley has…more

Landlords, Tenants

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U.S. Department of Justice Awaits Swiss Banks’ Voluntary Disclosure of Banking Activities

The U.S. Department of Justice (“DOJ”) established a Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks (the “Program”) on August 29, 2013. The Program is intended to facilitate a resolution with the…more

Banks, DOJ, EU, Foreign Bank Accounts, Non-Prosecution Agreements

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Trade Secrets: Proposals to Improve Protection of Confidential Information Across the EU

Proposals have recently been put forward by the European Commission to reform European law on trade secrets by harmonising protection across all EU member states. The proposals are in the form of a draft directive which has…more

Confidential Information, EU, Trade Secrets

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Private Equity - Winter/Spring 2013

In This Issue: - ILPA Guidelines Have Noticeable Impact - Extracting Tax Value in Debt Refinancings and Modifications - Private Equity and Venture Capital Investing in China: Exit Strategy and Circular 698 - BDCs…more

ILPA Guidelines, Private Equity, Private Equity Funds, Venture Capital

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Application of the European Market Infrastructure Regulation to Alternative Investment Fund Managers

European investment managers of non-UCITs funds will have to be authorised as an alternative investment fund manager (known as an “AIFM” under AIFMD) under the Alternative Investment Fund Managers Directive (“AIFMD”) from 22…more

AIFM, AIFMD, CCPs, CTFC, Derivatives

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How the Ukraine Crisis is Redefining European, Russian and US Energy Relations

The continuing turmoil in Ukraine has once again heightened Europe’s concern over its energy security and rehashed memories of the gas disputes of January 2006 and 2009 when supplies to Europe were disrupted. Following these…more

Energy, EU, Foreign Policy, Popular, Russia

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Volcker Rule Regulations Issued: Understanding the Practical Implications for U.S. and Foreign Banking Entities, Funds and Securitization Vehicles

The Volcker Rule (“Volcker Rule” or “Rule”) is intended to limit risks to the financial system that Congress believes may be created by (i) proprietary trading operations of insured depository institutions, foreign banking…more

Banking Sector, Collateralized Debt Obligations, Dodd-Frank, Financial Regulatory Reform, Hedge Funds

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Major Changes to New York State Transfer Tax and Fiduciary Income Tax Laws

Governor Andrew Cuomo signed into law on April 1, 2014 the 2014-2015 New York State budget. The new law, which was widely debated after Governor Cuomo introduced it on January 21, includes a number of changes to New York State’s…more

Income Taxes, State Taxes, Tax Reform, Transfer Taxes

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Revised Timeline for Implementing FATCA

Sections 1471 through 1474 of the U.S. Internal Revenue Code (“FATCA”) generally impose a 30% withholding tax on certain payments to a foreign financial institution (“FFI”) unless the FFI has entered into an agreement with the…more

Bank Accounts, Banks, FATCA, FFI, IGAs

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Novel U.S. and EU Sanctions Targeting Russian Financing Activities Raise Unique Compliance Considerations for Global Financial Industry

Since March 2014, the United States and European Union have imposed multiple rounds of sanctions restricting certain activities with Russian and Ukrainian individuals and companies as a result of the ongoing crisis in Ukraine…more

EU, Financial Instruments, Russia, Sanctions, SSI List

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SEC Approves Final Rules that (1) Permit General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings and (2) Disqualify “Bad Actors” from Using Rule 506 to Offer Securities

The SEC has amended Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (Securities Act) to (1) permit, in certain circumstances, an issuer to engage in general solicitation and general advertising in…more

Accredited Investors, Advertising, Bad Actors, Broker-Dealer, Dodd-Frank

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The Supreme Court of Pennsylvania in Butler Affirms the Long-Standing Dunham Rule and Brings Certainty to Marcellus Shale Natural Gas Rights

The Supreme Court of Pennsylvania in Butler v. Charles Powers Estate1 unanimously reversed the ruling of the Superior Court which held that an evidentiary hearing “complete with expert, scientific testimony” is necessary to…more

Dunham Rule, Expert Testimony, Marcellus Shale, Minerals, Natural Gas

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CIS Legal Update - September 2013: Russian Financial Regulator Announces the First Case Involving Insider Trading

On July 1, 2013, the Federal Service for Financial Markets (“FSFM”) announced that it had opened its first investigation into a potential violation of the Insider Trading Law, which had entered into force in June 2010. However,…more

Bank of Russia, FSFM, Insider Trading, Russia, Vladimir Putin

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France: Courts Limit Claims for Constructive Dismissal

Constructive dismissal is, in effect, a resignation treated as a dismissal. The employee terminates the employment contract in response to an employer’s alleged breach and the Employment Tribunal then assesses the employer’s…more

Breach of Contract, Constructive Discharge, Employer Liability Issues, Employment Contract, Employment Tribunals

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Final Credit Risk Retention Rules Adopted for Asset Backed Securities and Residential Mortgage Backed Securities

The Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Department of Housing and Urban Development, Federal Housing Finance Agency, and Securities…more

Asset-Backed Securities, Compliance, Dodd-Frank, FDIC, Federal Reserve

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When Are Securities Act Claims Untimely? The Court of Appeals for the Third Circuit Places a Heavier Burden on Defendants

The Securities Act of 1933, 15 U.S.C. § 77a et seq., provides for civil liability when a registration statement or prospectus contains material misrepresentations or omissions. Section 13 of the Securities Act, 15 U.S.C. § 77m,…more

Misrepresentation, Pleading Standards, Registration, Securities Act of 1933, Statute of Limitations

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DOJ Probes Subprime Auto-Lending under FIRREA

Two of the largest subprime auto-lenders disclosed last week that they have received subpoenas from the U.S. Department of Justice (DOJ). The U.S. Attorney’s Office for the Southern District of New York is leading an…more

Automotive Loans, DOJ, Enforcement, Enforcement Actions, FIRREA

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National Labor Relations Board’s Threatened Expansion of Joint Employer Doctrine Would Increase Employment Law Risks for US Private Equity Firms

To bring their full financial and operational expertise to portfolio companies, private equity firms frequently adopt an active approach to overseeing their investments. However, the greater a firm’s involvement in the…more

Employee Rights, Franchises, Franchisors, Joint Employers, McDonalds

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U.S. Risk Retention Final Rule: Playing it Forward for CLOs

We will leave the hand wringing and teeth gnashing to others. We expect there will be a lot of that in the days ahead. We have had our say on the misguided premises and tortured statutory interpretation underpinning the final…more

Collateralized Debt Obligations, Collateralized Loan Obligations, Dodd-Frank, FDIC, Risk Retention

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CIS Legal Update - September 2013: New Law Officially Bans Foreign Banks from Opening Branches on the Territory of the Russian Federation

In keeping with the commitments it made prior to joining the World Trade Organization (WTO) to remove inconsistencies in legislation regulating the Russian banking sector, the Russian Government passed the Federal Law “On…more

Foreign Banks, Russia, WTO

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PEA PME-ETI: An Enhanced Version of the French PEA of Interest for EU Asset Managers

A new French tax law, effective since the beginning of this year, has generated much excitement by creating an enhanced favorable tax regime – the PEA PME-ETI – for individual investors. The new regime is similar to the Plan…more

Capital Gains, Corporate Taxes, EU, Income Taxes, Shared Savings Program

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The New Landscape for Inversions: IRS and Treasury Change the Rules

The Internal Revenue Service (“IRS”) and Treasury Department issued Notice 2014-52 (the “Notice”) targeting corporate inversions on September 22, 2014 (the “Notice Date”) in the U.S. Tax considerations are important for…more

Controlled Foreign Corporations, Corporate Taxes, Cross-Border, Foreign Subsidiaries, Inversions

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ICAV for Christmas!

In our January 2014 OnPoint - Yes - ICAV! Irish Minister for Finance Announces New Irish Corporate Fund Vehicle - we outlined details of the proposed new Irish corporate investment fund vehicle and the enhancements that it…more

Foreign Investment, Investors, Ireland

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February 2013 U.S. Labor and Employment Update

In This Issue: - Supreme Court to Address “Changing Clothes” under the FLSA - First Appellate Court Decision on FLSA’s Nursing Mother Provision - Courts Continue Trend in Favor of Class Waivers in Arbitration…more

Arbitration Agreements, Breastfeeding, Class Action Arbitration Waivers, Discrimination, Doffing

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New Route to Trade Shanghai-Listed Securities

The Shanghai-Hong Kong Stock Connect program, expected to launch this fall, will give many European and U.S. funds, managers and individuals their first opportunity to trade Shanghai-listed equities. Stock Connect represents a…more

China, Hong Kong, Stocks, UCITS

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Risk Retention Reproposal’s Impact on CLOs: Loan Arrangers Get Invited to the Party that No One Wants to Attend

CLO managers and lead arrangers of syndicated loans received special attention in a proposal jointly released by six federal agencies to implement the credit risk retention requirements of Section 941 of the Dodd-Frank Act…more

Collateralized Loan Obligations, FDIC, Federal Reserve, FHFA, HUD

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The United States Supreme Court Will Review the Scope of Federal Preclusion of State Securities Claims

On January 18, 2013, the United States Supreme Court granted certiorari to resolve a circuit split concerning the extent to which the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) preempts state law claims that…more

Brokers, Equity Securities, Federal Preclusion, Fraud, Investors

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White House Issues Executive Order on CyberSecurity

The Obama Administration has long expressed concerns about the vulnerability of America’s critical infrastructure to cyber-attack. On February 12, 2012, the day of the President’s State of the Union address, the Administration…more

Barack Obama, Critical Infrastructure Sectors, Cybersecurity, Cybersecurity Framework, DHS

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SEC Approves Final Rules that (1) Permit General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings and (2) Disqualify “Bad Actors” from Using Rule 506 to Offer Securities

The SEC has amended Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (Securities Act) to (1) permit, in certain circumstances, an issuer to engage in general solicitation and general advertising in…more

Accredited Investors, Advertising, Bad Actors, Broker-Dealer, Dodd-Frank

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Transfer Pricing: Major Developments for Certain French Companies Engaging in Transactions with Related Entities

The following sets out a summary of recently announced major changes affecting the transfer pricing policy of certain French companies. New Provisions of French Law - Provisions Already Adopted - Within the…more

Corporate Taxes, EU, OECD, Required Documentation, Transfer Pricing

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Private Equity Newsletter - Autumn 2013 Edition: Investing in Emerging Markets: Are You Managing Your Risks?

In times of austerity in Europe and America, emerging markets such as Africa, China, India, Latin America, the Middle East and CIS are increasingly offering the key opportunities for growth and investment returns for private…more

Bribery, Corruption, Emerging Markets, Investors, Private Equity

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Draft of the Amendment to the Investment Ordinance - Effects on Fund Investments

The Federal Ministry of Finance (BMF) issued a draft ordinance for the amendment of the Investment Ordinance (Anlageverordnung – AnlV) and the Pension Fund Capital Investment Ordinance for consultation (“Amendment Ordinance”) on…more

Foreign Markets, Investment Funds, Pensions

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Promotional Allowances in a New Retail Environment: FTC Revises its Fred Meyer Guides

The Commission revised its guidelines for interpreting and complying with the Robinson-Patman Act to account for changes in technology and methods of marketing that have taken place since the last revision in 1990, including the…more

Fred Meyer Guides, FTC, Internet Retailers, Marketing, Retailers

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Here's How Young Associates Actually Impress Law Firm Partners

How might a young associate make a positive impression on partners in their new law firm? What to do to make a meaningful impact and stand out in ways that matter? For a perspective on this oft-asked question, we turned…more

Career Development, Firm Leadership, Young Lawyers

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Novel U.S. and EU Sanctions Targeting Russian Financing Activities Raise Unique Compliance Considerations for Global Financial Industry

Since March 2014, the United States and European Union have imposed multiple rounds of sanctions restricting certain activities with Russian and Ukrainian individuals and companies as a result of the ongoing crisis in Ukraine…more

EU, Financial Instruments, Russia, Sanctions, SSI List

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Private Equity Newsletter - Autumn 2013 Edition: The Impact of the Alternative Investment Fund Managers Directive on Private Equity Transactions - Key Issues and Practical Thoughts

Much has been written about the impact of the Alternative Investment Fund Managers Directive (the “AIFMD”) on the marketing and management of private equity and other alternative investment funds, but the impact of the AIFMD is…more

AIFM, AIFMD, EU, Private Equity

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SEC Staff to Conduct Broker-Dealer and Investment Adviser Examinations Focused on Cybersecurity

The Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of Compliance Inspections and Examinations (“OCIE”) announced in an April 15, 2014 Risk Alert (the “Alert”) that it will be conducting examinations…more

Cybersecurity, Data Protection, Investment Adviser, OCIE, SEC

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Fisher Revisits "Strict Scrutiny" As Applied to Affirmative Action in College Admissions Programs

In an Opinion authored by Justice Anthony Kennedy for a 7-1 majority, the United States Supreme Court in Fisher v. University of Texas at Austin, et al., allowed public colleges and universities to retain their affirmative…more

Affirmative Action, College Admissions, Diversity, Fisher v University of Texas, SCOTUS

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Application of the European Market Infrastructure Regulation to Alternative Investment Fund Managers

European investment managers of non-UCITs funds will have to be authorised as an alternative investment fund manager (known as an “AIFM” under AIFMD) under the Alternative Investment Fund Managers Directive (“AIFMD”) from 22…more

AIFM, AIFMD, CCPs, CTFC, Derivatives

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Colorado Ruling Raises Stakes in Fracking Litigation and Beyond

In an Independence Day gift to plaintiffs, the Colorado Court of Appeals ruled in Strudley v. Antero Resources Corp., No. 12CA1251 (July 3, 2013), that Colorado law does not allow pre-discovery Lone Pine orders, often used by…more

Energy, Environmental Claims, Fracking, Fracking Bans, Natural Resources

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German Federal Court of Justice simplifies delisting: Renunciation of the obligation to offer cash compensation

In a recent decision, the German Federal Court of Justice (Bundesgerichtshof, BGH) abandoned its previous holding whereby, in the event of a delisting, the outstanding minority shareholders could demand cash compensation for…more

Breach of Duty, EU, Fiduciary Duty, Shareholders, Stocks

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Private Equity - Winter/Spring 2013

In This Issue: - ILPA Guidelines Have Noticeable Impact - Extracting Tax Value in Debt Refinancings and Modifications - Private Equity and Venture Capital Investing in China: Exit Strategy and Circular 698 - BDCs…more

ILPA Guidelines, Private Equity, Private Equity Funds, Venture Capital

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Developments in the Luxembourg Financial Sector

Developments in the Luxembourg Financial Sector - The Luxembourg financial regulator, the Commission de Surveillance du Secteur Financier, has published two circulars pertaining to UCITS. The first is aimed at protecting…more

EU, Financial Regulatory Reform, Foreign Banks, UCITS

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Update on Lifting of SEC Moratorium on Active ETF Use of Derivatives

The staff of the U.S. Securities and Exchange Commission (the “SEC”) released no action relief (the “Letter”) addressed to recipients of 18 prior orders (the “Prior Orders”) granting exemptive relief to launch actively-managed…more

CFTC, ETFs, Moratorium, No-Action Letters, SEC

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2014 LCIA International Arbitration Rules Now Apply: Procedural Efficiency, Emergency Arbitrators and Complex Arbitrations

The London Court of International Arbitration (“LCIA”) is firmly established as one of the world’s truly international arbitral institutions - in 2013 over 80% of the parties to LCIA arbitrations were non-UK - and London is…more

Arbitration, International Arbitration, LCIA, UK

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US and EU Impose Additional Sanctions on Russia

The United States and European Union implemented new sanctions against Russia on 12 September 2014 as a result of the ongoing crisis in Ukraine. While the new US and EU measures share many similarities, companies subject to both…more

EU, Russia, Sanctions, Ukraine

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Financial Services Quarterly Report - Fourth Quarter 2013: Leveling the Playing Field: Recent Developments in Benchmarks Regulation

The individuals and entities responsible for setting financial market reference rates or, more broadly, financial benchmarks, have not historically been subject to extensive regulation. Recent misconduct by banks with regard to…more

AIFM, Banks, Benchmarks, Compliance, ESMA

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PACE Yourself

Property Assessed Clean Energy (PACE) loans allow property owners to finance clean energy improvements to their properties generally secured by property liens senior to mortgages through tax assessments. Moody’s recently…more

Clean Energy, CMBS, Energy Projects, Lenders, Moody's

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Equity Capital Markets: New ABI Transaction Guidelines

The Association of British Insurers (“ABI”) has published guidance on the expectations and views of ABI members on various aspects of equity capital market transactions. The guidance is split into three sections, ‘Initial Public…more

Corporate Governance, Equity Investors, Insurers, IPO, Private Equity

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New UK Sentencing Guidelines - What Does This Mean For Corporates?

The Sentencing Council’s Definitive Guidance for Fraud, Bribery and Money Laundering Offences (the “UK Guidelines”) came into force on 1 October 2014. The UK Guidelines set out a ten step process for sentencing and apply to all…more

Bribery, Corporate Crimes, Corporate Criminal Fines, Criminal Prosecution, Federal Sentencing Guidelines

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Drilling at depth – proposed changes to subterranean rights

The government’s consultation on underground drilling access for the extraction of gas, oil and geothermal energy came to an end on 15 August 2014. The consultation sought views on the government’s proposal to introduce new…more

Fracking, Mineral Exploration, Mineral Rights, Natural Resources, Oil & Gas

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U.S. v. Ganias: Second Circuit Limits Government’s Ability to Use Electronic Material Seized Beyond Scope of Warrant for Different Prosecution

In a recent decision that provides important guidance in the developing law related to government seizure of electronic records in criminal investigations, on June 17, 2014, the United States Court of Appeals for the Second…more

Data Collection, Electronically Stored Information, Fourth Amendment, Search Warrant, Warrantless Searches

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UK Government Announces Revised Timetable for Employment Law Reform

The Government has announced an updated and revised timetable for the implementation of its proposed employment law reforms over the next two years. The Government’s Employment Law Review was launched in 2010 to improve…more

EU, Job Creation, Medical Leave, Minimum Wage, Pre-Termination Notice

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On Appeal: The Michigan Court of Appeals Overturns It's Prior Ruling and Affirms the State's 2012 Legislation, Nonrecourse Mortgage Loan Act, Which Invalidates Recourse Carveout Guaranties Triggered by Borrower Insolvency

As we have discussed numerous times in this blog, the downturn in the commercial real estate market resulted in much litigation as to guarantor liability for non-recourse debt. As a brief refresher, many of the non-recourse…more

Borrowers, Insolvency, Liability, Mortgages, Nonrecourse Loans

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Georgian International Arbitration Centre Adopts New Arbitration Rules

The Georgian International Arbitration Centre (“GIAC”) has recently finalised the GIAC Arbitration Rules (“GIAC Rules”), following the completion of the work of the Commission for Final Revision of the Arbitration Rules (the…more

ICC, International Arbitration, New Regulations

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2014 LCIA International Arbitration Rules Now Apply: Procedural Efficiency, Emergency Arbitrators and Complex Arbitrations

The London Court of International Arbitration (“LCIA”) is firmly established as one of the world’s truly international arbitral institutions - in 2013 over 80% of the parties to LCIA arbitrations were non-UK - and London is…more

Arbitration, International Arbitration, LCIA, UK

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Developments in the Luxembourg Financial Sector

Developments in the Luxembourg Financial Sector - The Luxembourg financial regulator, the Commission de Surveillance du Secteur Financier, has published two circulars pertaining to UCITS. The first is aimed at protecting…more

EU, Financial Regulatory Reform, Foreign Banks, UCITS

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The U.S. Securities and Exchange Commission Approves Amendments to Rules Governing Money Market Funds: Implications for Boards

The U.S. Securities and Exchange Commission (SEC) has approved sweeping amendments to Rule 2a-7 under the Investment Company Act of 1940 and other rules governing the operations of money market funds (money funds) (Amendments)…more

Disclosure Requirements, Floating NAV, Investment Company Act of 1940, Liquidity Fees, Money Market Funds

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SEC Approves Final Rules that (1) Permit General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings and (2) Disqualify “Bad Actors” from Using Rule 506 to Offer Securities

The SEC has amended Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (Securities Act) to (1) permit, in certain circumstances, an issuer to engage in general solicitation and general advertising in…more

Accredited Investors, Advertising, Bad Actors, Broker-Dealer, Dodd-Frank

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New UK Sentencing Guidelines - What Does This Mean For Corporates?

The Sentencing Council’s Definitive Guidance for Fraud, Bribery and Money Laundering Offences (the “UK Guidelines”) came into force on 1 October 2014. The UK Guidelines set out a ten step process for sentencing and apply to all…more

Bribery, Corporate Crimes, Corporate Criminal Fines, Criminal Prosecution, Federal Sentencing Guidelines

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DOJ Probes Subprime Auto-Lending under FIRREA

Two of the largest subprime auto-lenders disclosed last week that they have received subpoenas from the U.S. Department of Justice (DOJ). The U.S. Attorney’s Office for the Southern District of New York is leading an…more

Automotive Loans, DOJ, Enforcement, Enforcement Actions, FIRREA

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US and EU Impose Additional Sanctions on Russia

The United States and European Union implemented new sanctions against Russia on 12 September 2014 as a result of the ongoing crisis in Ukraine. While the new US and EU measures share many similarities, companies subject to both…more

EU, Russia, Sanctions, Ukraine

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FDA, IP, and FTC Developments in the Run-up to the First U.S. Biosimilar Approval

As we near the fourth anniversary of the enactment of the Biologics Price Competition and Innovation Act, which established the first abbreviated approval route for follow-on biologics in the United States, multiple federal…more

Biologics, Biologics Price Competition and Innovation Act of 2009, Biosimilars, FDA, FTC

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German Federal Court of Justice simplifies delisting: Renunciation of the obligation to offer cash compensation

In a recent decision, the German Federal Court of Justice (Bundesgerichtshof, BGH) abandoned its previous holding whereby, in the event of a delisting, the outstanding minority shareholders could demand cash compensation for…more

Breach of Duty, EU, Fiduciary Duty, Shareholders, Stocks

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The Financial Services Act 2012 – Misleading Statements, Impressions and Financial Promotions

Background - In our previous DechertOnPoints, The Draft Financial Services Bill in the Contextof the Proposed New UK Financial Regulatory Structure and Draft UK Financial Services Bill and the New UK Financial Regulatory…more

Benchmarks, EU, Financial Promotions, Financial Services Act, Financial Services and Markets Act

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Restricting Shareholders’ Ability to Challenge Corporations: Delaware Chancery Court Upholds Companies’ Right to Select Forum for Suits Against Them

The U.S. state of Delaware’s courts, particularly the Court of Chancery, are usually thought of as doughty protectors of shareholder rights. But some recent decisions have, in fact, narrowed such rights. Following close upon the…more

Forum, Forum Selection Clause, Forum Shopping, Shareholder Litigation, Shareholder Rights

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UK-UAE Trade and Investment Promoted by Memorandum between English Commercial Court and Dubai’s DIFC Court

The Commercial Court of England and Wales and the Dubai International Financial Centre Courts (DIFC Courts) signed a Memorandum of Guidance (MoG) on 23 January 2013 concerning the enforcement of judgments between the two Courts…more

Arbitration Awards, Enforcement, Foreign Investment, Foreign Judgments, International Arbitration

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Private Equity Newsletter - Winter 2014 Edition: It is Time for Public to Private Deals in France for PE Funds

With covenant pressure, softness on business plans and uncertainties on market perspectives, mid-cap listed companies are facing increased downward pressure on their stock prices, luring private equity specialists and strategic…more

EU, Foreign Investment, Going-Private Transactions, Investors, Private Equity

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Pre-Budget Review: Changes to the Taxation of Mixed Partnerships in the UK

Background - HMRC published a consultation document on 20 May 2013 which proposed major changes to the taxation of partnerships. This was of particular relevance to investment management LLPs – and especially to those…more

Business Taxes, LLPs, Partnerships, UK

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Chinese Developer Makes Large Footprint in U.S.

We have previously written here on CrunchedCredit about Chinese banks lending in the U.S. With recent news that Chinese state-owned developer Greenland Group has agreed to purchase a 70% stake in Brooklyn’s Atlantic Yards…more

China, Foreign Investment, Real Estate Market

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Amended German Investment Tax Act

The German Federal States on 29 November 2013 approved the bill for the adjustment of the German Investment Tax Act (see also DechertOnPoint: German Investment Tax Act for Alternative Investment Funds) as adopted by the German…more

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New OFAC Guidance on 50% Rule Expands Reach of US Sanctions

The U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) revised its guidance with respect to entities owned 50 percent or more in the aggregate by more than one blocked persons. The new guidance, issued on…more

Extraterritoriality Rules, OFAC, Russia, Sanctions, Ukraine

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Financial Services Quarterly Report - First Quarter 2013: Marketing and Distributing Your Fund in the Middle East: If “Tolerated Practice” is Changing, Should “Market Practice” Change With It?

Those familiar with fundraising in the Middle East will be familiar with the concept of what is loosely dubbed “market” or “tolerated” practice. The terms are, in most people’s minds, interchangeable, but in fact look at the…more

Investors, Market Practice, Middle East, Passports, Private Placements

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SEC Staff to Conduct Broker-Dealer and Investment Adviser Examinations Focused on Cybersecurity

The Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of Compliance Inspections and Examinations (“OCIE”) announced in an April 15, 2014 Risk Alert (the “Alert”) that it will be conducting examinations…more

Cybersecurity, Data Protection, Investment Adviser, OCIE, SEC

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FCA Unveils New UK Listing Rules to Strengthen Minority Investor Rights

In the wake of recent high-profile corporate governance controversies the UK Financial Conduct Authority (“FCA”) has, this week, issued its proposed new Listing Rules which, when implemented, will give enhanced rights to…more

FCA, Foreign Investment, Investors, Listing Standards, Minority Shareholders

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SEC Targets Another Fund Board in Recent Enforcement Case

The U.S. Securities and Exchange Commission (“SEC”) recently issued an Order Instituting Proceedings (“Order”) against the administrator and compliance services provider, as well as current and former members of the boards of…more

Board of Trustees, Compliance, Disclosure Requirements, Enforcement, Penalties

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Changes to the UK Tax Residence Rules for AIFs and Pitfalls to Avoid

In a previous article, we reported that draft legislation had been published to extend the scope of section 363A of the Taxation (International and Other Provisions) Act 2010 to ensure that alternative investment funds (AIFs)…more

Alternative Investment Funds, Foreign Investment, Foreign Investment Fund, Tax Planning, UK

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2014 LCIA International Arbitration Rules Now Apply: Procedural Efficiency, Emergency Arbitrators and Complex Arbitrations

The London Court of International Arbitration (“LCIA”) is firmly established as one of the world’s truly international arbitral institutions - in 2013 over 80% of the parties to LCIA arbitrations were non-UK - and London is…more

Arbitration, International Arbitration, LCIA, UK

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Class Certification Derailed: D.C. Circuit Applies Supreme Court’s Comcast Decision

Key Points: - Defendants in antitrust cases may be able to defeat class certification by demonstrating that the plaintiffs’ damages model yields false positives – i.e., that the model calculates injury where none could…more

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Why should, and when can, international parties litigate before the English courts?

The international caseload of the English commercial court is enormous. A survey of 705 commercial court judgments handed down in the past five years showed that about 62% of the litigants involved were based outside England and…more

Foreign Judgments, Foreign Jurisdictions, UK

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An early gift from the Treasury and the results of our AIMFD Readiness Survey

Following implementation of the Alternative Investment Fund Managers Directive (AIFMD or the Directive) into UK law in July 2013, the UK Financial Conduct Authority (FCA) advised UK firms in August 2013 to apply for…more

AIFMD, Compliance, FCA, UK

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Financial Services Quarterly Report - Second Quarter 2013

In This Issue: - UK: New Regulators; New Powers - So You Want to be a U.S. Mutual Fund Manager - The New German Rules on High Frequency Trading - Marketing and Distributing Your Fund in the Middle East: Recent…more

AIFMD, ESA Listings, EU, Financial Products, FPC

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Financial Services Quarterly Report - First Quarter 2013: Dealing With Investment Errors: A U.S. Perspective

No professional investment adviser would intentionally make a trade or investment error. However, such errors occur from time to time. Formulating an appropriate response to investment errors can be challenging for investment…more

Damages, Duty of Care, Fiduciary Duty, Hedge Clauses, Investment Adviser

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Ninth Circuit Rules that Say-On-Pay Suit Belongs in State Court

In a recent ruling, the United States Court of Appeals for the Ninth Circuit concluded that certain related shareholder derivative suits arising out of a say-on-pay decision involving Pico Holdings, Inc. (the “Company”) were…more

Board of Directors, Derivative Suit, Dodd-Frank, Executive Compensation, Fiduciary Duty

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SEC Approves Amendments to Rules Governing Money Market Funds

Yesterday, the U.S. Securities and Exchange Commission (“SEC”), by a vote of 3 to 2, approved amendments to Rule 2a-7 and other rules that govern money market funds under the Investment Company Act of 1940 (the “Amendments”)…more

Liquidity Fees, Mary Jo White, Money Market Funds, NAV, New Amendments

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Identifying Further Restructuring Risks in Germany - Federal Court of Justice Clarifies Liability for Continuing the Business of an Insolvent Company

The Financial Crisis, a difficult market situation and a tense liquidity status have led to remarkable difficulties for mid-sized businesses within the past years. Strategic and financial investors have and continue to utilize…more

Corporate Restructuring, EU, Insolvency, Restructuring

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CFTC Permits Additional Third-Party Recordkeepers for Registered CPOs

The Division of Swap Dealer and Intermediary Oversight (DSIO Staff) of the U.S. Commodity Futures Trading Commission (CFTC) issued exemptive relief on September 8, 2014 to permit a registered commodity pool operator (CPO) to…more

CFTC, CPO, Recordkeeping Requirements, SEC, Swap Dealers

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Hong Kong’s Long-Awaited FATCA Announcement

With deadlines looming, Hong Kong’s government announced on May 9th a much-anticipated agreement with the United States regarding the U.S. Foreign Account Tax Compliance Act (FATCA). Without this intergovernmental agreement…more

Banking Sector, FATCA, FATCA Timeline, Hong Kong, Intergovernmental Agreements

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Legal and Ethical Risks of Healthcare Businesses in China

Recent disputes and controversies involving Chinese subsidiaries of foreign pharmaceutical companies have sounded warning bells on legal and ethical issues regarding participation in China’s rapidly growing and evolving…more

China, Enforcement Actions, FCPA, Healthcare, Pharmaceutical Manufacturers

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New Rights to Time Off Work to Accompany a Pregnant Woman to Ante-Natal Appointments and to Attend Adoption Appointments

Employees and certain agency workers in England and Wales who have a “qualifying relationship” with a pregnant woman will have the statutory right to unpaid time off work in order to accompany the woman to no more than two…more

Employer Liability Issues, Family Members, Maternity Leave, UK, Unpaid Leave

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Reining In Overbroad Criminal Subpoenas – Is Some Relief In Sight?

In the wake of the national financial crisis, both the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) publicly committed themselves to enhanced enforcement of federal financial laws…more

Criminal Prosecution, DOJ, SEC, Subpoenas

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Private Equity - Winter/Spring 2013

In This Issue: - ILPA Guidelines Have Noticeable Impact - Extracting Tax Value in Debt Refinancings and Modifications - Private Equity and Venture Capital Investing in China: Exit Strategy and Circular 698 - BDCs…more

ILPA Guidelines, Private Equity, Private Equity Funds, Venture Capital

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SEC IM Staff Issues Guidance on Proxy Voting Responsibilities of Investment Advisers

The U.S. Securities and Exchange Commission’s (SEC) Divisions of Investment Management (IM) and Corporate Finance (CF) released a staff legal bulletin (Bulletin) on June 30, 2014, covering various issues involved with proxy…more

Compliance, Investment Adviser, Investment Management, Proxy Voting Guidelines, SEC

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The Dragon's Skin Shed: The New HKIAC Arbitration Rules

Introduction - The dragon’s skin began to shed in 2011, when the Hong Kong International Arbitration Centre (“HKIAC”) initiated the revision process of its 2008 Arbitration Rules for Administered Cases (“Old Rules”)…more

Arbitration, Hong Kong, International Arbitration

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In RE MFW Shareholders Litigation: Delaware Chancery Court Answers Novel Question of Law and Applies Business Judgment Rule to a Controlling Stockholder-backed Going-Private Merger

Addressing an unsettled area of Delaware law, the Delaware Court of Chancery (the “Chancery Court”) revisited the appropriate standard of review for a going-private merger with a controlling stockholder…more

Business Judgment Rule, Going-Private Transactions, Mergers, Shareholder Litigation, Shareholders

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Financial Services Quarterly Report - Second Quarter 2013

In This Issue: - UK: New Regulators; New Powers - So You Want to be a U.S. Mutual Fund Manager - The New German Rules on High Frequency Trading - Marketing and Distributing Your Fund in the Middle East: Recent…more

AIFMD, ESA Listings, EU, Financial Products, FPC

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German Retail Investor Protection Act

The German Federal Ministry of Finance published the draft Retail Investor Protection Act (Kleinanlegerschutzgesetz, or Act)1 on 28 July 2014. The Act is intended to strengthen the protection of German retail investors – in…more

EU, Grey Market, Investors, Retailers

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Tiger Asia Case – Hong Kong Regulators Take Insider Dealing Enforcement to New York Fund

The Securities and Futures Commission (the SFC), Hong Kong’s principal securities regulator, won a significant victory this past April in a long-running, high-profile case against New York hedge fund Tiger Asia Management LLC…more

China, Hedge Funds, Injunctions, Insider Trading, SFC

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Investment Portals Addressed in SEC Staff Guidance Under JOBS Act; No-Action Letters Also Issued

Technology has spawned the formation of new internet-based marketplaces for illiquid and restricted securities. In most instances, these markets are operated by entities registered with the U.S. Securities and Exchange…more

AngelList, Broker-Dealer, Fundersclub.com, Funding Portal, Investors

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CIS Legal Update - September 2013: The Legality of Smoking Lounges in Offices Following the Passage of the Tobacco Control Law in Russia

In an attempt to address and potentially reduce Russia’s incredibly high smoking rate, Russian legislative authorities have enacted a new law that aims to effectively restrict tobacco smoking in certain areas. However, Federal…more

Russia, Smoking Bans

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In Halliburton II, SCOTUS Upholds Presumption of Reliance in Securities Fraud Class Actions, but Allows Defendants to Rebut with Lack of Price Impact

In a decision that has important implications for both plaintiffs and defendants in securities class actions, the Supreme Court of the United States in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), No. 13-317…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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Real World - May 2013: Mind the gap – insurance issues for tenant fit-out works

Imagine the following scenario; your company has acquired a lease of a prime piece of real estate to accommodate its fast expanding business. The building’s footprint lies in the heart of the city’s commercial centre. The…more

Contractors, Insurers, Landlords, Tenants

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Financial Services Quarterly Report - First Quarter 2013: Dealing With Investment Errors: A U.S. Perspective

No professional investment adviser would intentionally make a trade or investment error. However, such errors occur from time to time. Formulating an appropriate response to investment errors can be challenging for investment…more

Damages, Duty of Care, Fiduciary Duty, Hedge Clauses, Investment Adviser

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United States: U.S. Supreme Court Dramatically Expands Whistleblower Law

On March 4, 2014, the U.S. Supreme court in Lawson v. FMR, LLC, 134 S.Ct. 1158, held in a 6-3 decision that employees of a private company that is a contractor or subcontractor of public company are entitled to whistleblower…more

Appeals, Contractors, Lawson v FMR, Privately Held Corporations, Publicly-Traded Companies

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Dudenhoeffer Eschews Moench Presumption But Encourages Careful Scrutiny Of Complaints: Future for ERISA Stock-Drop Litigation Is Unclear

Certain retirement plans, such as employee stock ownership plans (“ESOPs”), are specifically designed to invest all or a portion of their assets in stock of the sponsoring employer. For nearly twenty years, the federal courts…more

ERISA, ESOP, Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer, Fifth Third Mortgage Company

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Credit Risk Retention Final Rule: Steering CMBS through the Regulatory Wake

Introduction and Summary of CMBS Updates - After more than three and a half years since the publication by regulators of the first proposals for credit risk retention, we now have a final rule that has brought with it a…more

CMBS, Compliance, Dodd-Frank, Loans, Mortgage-Backed Securities

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UK Government Proposes New Insider Dealing Powers in the Wholesale Energy Markets

The Department of Energy and Climate Change published a Consultation on 6 August 2014 seeking views on its proposals to introduce new criminal offences for insider dealing in and the manipulation of the wholesale energy markets…more

Energy Market, Energy Policy, EU, Insider Trading, Market Manipulation

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Private Equity Investors Are Not Immune to Antitrust Risks in the EU

Earlier this month, the European Commission imposed fines totaling nearly EUR 302 million on producers of underground and high-voltage power cables, based on allegations that the producers had engaged in illicit market sharing…more

Antitrust Litigation, Antitrust Provisions, EU, IPO, Private Equity

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Reining In Overbroad Criminal Subpoenas – Is Some Relief In Sight?

In the wake of the national financial crisis, both the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) publicly committed themselves to enhanced enforcement of federal financial laws…more

Criminal Prosecution, DOJ, SEC, Subpoenas

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Financial Services Quarterly Report - Fourth Quarter 2013: Political Intelligence Firms – Insider Trading and Enforcement Shifts from Wall Street to K Street

Insider trading remains a top priority for the Securities and Exchange Commission (SEC) and Department of Justice (DoJ). In fiscal year 2012, the SEC filed 58 enforcement actions against 131 individuals and entities and the DoJ…more

DOJ, Enforcement, Enforcement Actions, GAO, Hedge Funds

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Recent Developments in Acquisition Finance

Several recent legal and regulatory developments in the U.S. will likely alter the makeup of the group of arrangers and financiers willing to arrange and provide financing for certain highly leveraged transactions, and also…more

Acquisition Finance, EBITDA, FDIC, Federal Reserve, Financing

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Private Equity Newsletter - Winter 2014: Is the Swim Worth It? Weighing a U.S. Listing as Exit Strategy

Over the past two years, Dechert has witnessed a noticeable increase in interest from non-U.S. companies in pursuing a listing of equity securities on a U.S. securities exchange. This has been due in part to the continued…more

Dodd-Frank, Exit Strategies, JOBS Act, Private Equity, Sarbanes-Oxley

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Karen Millen Court of Justice of the European Union Decision

On 19 June 2014, the Court of Justice of the European Union (“CJEU”) delivered a judgment in the ongoing seven-year legal battle between Karen Millen Fashions and Dunnes Stores in Ireland. Background - This battle,…more

CJEU, EU, Fashion Design

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SEC Division of Investment Management Issues Guidance on Filing Requirements for Social Media

The U.S. SEC’s Division of Investment Management recently released a Guidance Update (the “Update”) concerning the application of SEC filing requirements for certain fund-related communications on “real-time” interactive…more

Facebook, Filing Requirements, FINRA, Investment Adviser, Investment Management

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CFTC Staff Issues Self-Executing CPO Delegation Relief

The staff of the Commodity Futures Trading Commission (CFTC Staff) on October 15, 2014 simplified the process for a natural person or entity that the CFTC considers to be a commodity pool operator (CPO) to delegate its CPO…more

CFTC, Commodities, Commodity Pool, Compliance, CPOs

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Pennsylvania Court Dismisses Shareholder Derivative Action Against Directors of H.J. Heinz Under Cuker v. Mikalauskas and the ALI Principles of Corporate Governance

The Honorable Christine Ward of the Allegheny County Court of Common Pleas in Pittsburgh dismissed a consolidated shareholder derivative suit against the Board of Directors of H.J. Heinz Co. (“Heinz”) following a recommendation…more

Corporate Governance, Derivative Suit, Heinz, Shareholders, Special Litigation Committee

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SEC Staff Issues Interpretive Guidance on Recently Adopted Amendments to Rule 506 Addressing General Solicitation and Bad Actors

Effective September 2013, the U.S. Securities and Exchange Commission (SEC) amended Rule 506 of Regulation D to (1) permit, in certain circumstances, an issuer to engage in general solicitation and general advertising in…more

Bad Actors, Compliance, General Solicitation, Regulation D, Rule 506 Offerings

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In Halliburton II, SCOTUS Upholds Presumption of Reliance in Securities Fraud Class Actions, but Allows Defendants to Rebut with Lack of Price Impact

In a decision that has important implications for both plaintiffs and defendants in securities class actions, the Supreme Court of the United States in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), No. 13-317…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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SEC Staff to Conduct Broker-Dealer and Investment Adviser Examinations Focused on Cybersecurity

The Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of Compliance Inspections and Examinations (“OCIE”) announced in an April 15, 2014 Risk Alert (the “Alert”) that it will be conducting examinations…more

Cybersecurity, Data Protection, Investment Adviser, OCIE, SEC

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Russia: Citizens with Dual Citizenship Have to Inform Migration Services of Their Second Citizenship

As of August 4, 2014, citizens with dual citizenship have to inform Migration Services of their second citizenship. Criminal liability for non-compliance with the requirements is fee from RUB 200,000 or compulsory community…more

Citizenship, Dual Citizenship, Russia

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U.S. Fund Litigation Update: Where We are Now and Where We Could be Headed

Five years removed from the credit crisis and “great recession” of 2008, the U.S. fund industry still faces substantial litigation risk, both in terms of ongoing cases that challenge the core of the advisory/sub-advisory model…more

Investment Companies, Investment Company Act of 1940, Investment Funds, SEC, Securities Act of 1933

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Russia: Citizens with Dual Citizenship Have to Inform Migration Services of Their Second Citizenship

As of August 4, 2014, citizens with dual citizenship have to inform Migration Services of their second citizenship. Criminal liability for non-compliance with the requirements is fee from RUB 200,000 or compulsory community…more

Citizenship, Dual Citizenship, Russia

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Deferred Prosecution Agreements: A Powerful New Tool for UK Prosecutors?

The Crime and Courts Bill which received Royal Assent on 25 April 2013 has introduced a new enforcement tool in the UK for fraud, bribery and money laundering offences. The Crime and Courts Act 2013 (the “Act”) which is expected…more

Deferred Prosecution Agreements, Enforcement, EU

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Pennsylvania Court Dismisses Shareholder Derivative Action Against Directors of H.J. Heinz Under Cuker v. Mikalauskas and the ALI Principles of Corporate Governance

The Honorable Christine Ward of the Allegheny County Court of Common Pleas in Pittsburgh dismissed a consolidated shareholder derivative suit against the Board of Directors of H.J. Heinz Co. (“Heinz”) following a recommendation…more

Corporate Governance, Derivative Suit, Heinz, Shareholders, Special Litigation Committee

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CIS Legal Update - May 2013: Developing Russia’s Military-Industrial Complex

On October 16, 2012 the President of the Russian Federation signed a federal law establishing the Advanced Research Foundation (“ARF”) , a specialized legal entity that will be responsible for research and development in the…more

National Security, Research Funding, Russian Military Procurement, Technology

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SEC Report Embraces Communications through Social Media

The Securities and Exchange Commission (SEC) issued a report on April 2, 2013 concerning its investigation into the use of social media by public companies in the United States (Report). The Report confirms that a public company…more

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Clarifications on Liability of Officers of Russian Companies

The Plenum of the Supreme Arbitrazh Court at the end of August 2013 published Resolution No. 62 (the "Resolution"), dated 30 July 2013, which provides a number of clarifications with respect to the liability of officers of…more

Liability, Officers, Russia

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U.S. Fund Litigation Update: Where We are Now and Where We Could be Headed

Five years removed from the credit crisis and “great recession” of 2008, the U.S. fund industry still faces substantial litigation risk, both in terms of ongoing cases that challenge the core of the advisory/sub-advisory model…more

Investment Companies, Investment Company Act of 1940, Investment Funds, SEC, Securities Act of 1933

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Leading Cases in Pennsylvania Takeover Case Law: You’re Not in Delaware Anymore

Presented below is a brief survey of leading cases interpreting Pennsylvania corporate law in situations involving takeovers, proxy fights or other matters affecting corporate changes of control. This summary is by no means…more

Change of Ownership, Fiduciary Duty, Poison Pill, Proxy Contests, Takeover Code

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Second Circuit Overturns Lower Court's Refusal to Approve SEC Settlement With Citigroup

In an eagerly anticipated decision, the U.S. Court of Appeals for the Second Circuit vacated the 2011 decision of Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York, rejecting a proposed…more

Appeals, Chevron Deference, Citigroup, Consent Decrees, Enforcement

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CIS Legal Update - September 2013: The Supreme Arbitrazh Court Provides Case Studies on Defending Property Rights

In defending their property rights in the Russian Federation (the “RF”), plaintiffs sometimes fail to either establish the appropriate legal means to pursue a claim in court or correctly identify the defendant. In an attempt to…more

Private Property Rights, Russia

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PEA PME-ETI: An Enhanced Version of the French PEA of Interest for EU Asset Managers

A new French tax law, effective since the beginning of this year, has generated much excitement by creating an enhanced favorable tax regime – the PEA PME-ETI – for individual investors. The new regime is similar to the Plan…more

Capital Gains, Corporate Taxes, EU, Income Taxes, Shared Savings Program

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Final Credit Risk Retention Rules Adopted for Asset Backed Securities and Residential Mortgage Backed Securities

The Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Department of Housing and Urban Development, Federal Housing Finance Agency, and Securities…more

Asset-Backed Securities, Compliance, Dodd-Frank, FDIC, Federal Reserve

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Legal and Ethical Risks of Healthcare Businesses in China

Recent disputes and controversies involving Chinese subsidiaries of foreign pharmaceutical companies have sounded warning bells on legal and ethical issues regarding participation in China’s rapidly growing and evolving…more

China, Enforcement Actions, FCPA, Healthcare, Pharmaceutical Manufacturers

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Ninth Circuit Affirms Conviction in Harkonen, Rejects the Defendant’s “Off-Label” First Amendment Challenge

On March 4, 2013, a panel of the United States Court of Appeals for the Ninth Circuit issued its opinion in United States v. Harkonen,1 a case in which the CEO of a pharmaceutical company was prosecuted for transmitting…more

First Amendment, Free Speech, Marketing, Off-Label Promotion, Off-Label Use

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An Appreciation for Hedging Your Bets on Deferred Compensation

Under Section 457A of the U.S. Internal Revenue Code of 1986 (the “Code”), certain offshore and other entities are limited in their ability to provide tax-effective deferred compensation to providers of services to those…more

Deferred Compensation, Equity Compensation, Investment Funds, IRC, IRS

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DOJ and SEC Scrutinize Potential Misuse of Rule 10b5-1 Trading Plans by Corporate Directors Affiliated with Investment Advisers

Over the past four years, the U.S. Department of Justice (“DOJ”) and U.S. Securities and Exchange Commission (“SEC”) have focused on insider trading involving private funds as one of their key targets in the fight against white…more

DOJ, Insider Trading, Investigations, Private Funds, Rule 10b-5

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The New Landscape for Inversions: IRS and Treasury Change the Rules

The Internal Revenue Service (“IRS”) and Treasury Department issued Notice 2014-52 (the “Notice”) targeting corporate inversions on September 22, 2014 (the “Notice Date”) in the U.S. Tax considerations are important for…more

Controlled Foreign Corporations, Corporate Taxes, Cross-Border, Foreign Subsidiaries, Inversions

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Draft of the Amendment to the Investment Ordinance - Effects on Fund Investments

The Federal Ministry of Finance (BMF) issued a draft ordinance for the amendment of the Investment Ordinance (Anlageverordnung – AnlV) and the Pension Fund Capital Investment Ordinance for consultation (“Amendment Ordinance”) on…more

Foreign Markets, Investment Funds, Pensions

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Transfer Pricing: Major Developments for Certain French Companies Engaging in Transactions with Related Entities

The following sets out a summary of recently announced major changes affecting the transfer pricing policy of certain French companies. New Provisions of French Law - Provisions Already Adopted - Within the…more

Corporate Taxes, EU, OECD, Required Documentation, Transfer Pricing

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U.S. Supreme Court Rejection of the “Scope of the Patent” Test in FTC v. Actavis Has Wide-Ranging Implications

Key Points: - Patent settlements must be analyzed under the rule of reason, requiring a full analysis of the net competitive effects - Payments to an alleged infringer may be permissible if justified by, for…more

Actavis Inc., FTC, FTC v Actavis, Generic Drugs, Hatch-Waxman

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Funds Passporting in Asia has Arrived!

Background to the Regional Passporting Proposals - The “ASEAN Framework for Cross-Border Offering of CIS (Collective Investment Scheme)” (ASEAN CIS Framework, or Framework) finally went “live” on 25 August 2014, amid much…more

ASEAN Funds, Asia, Foreign Investment, Investment Schemes, Investors

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Georgian International Arbitration Centre Adopts New Arbitration Rules

The Georgian International Arbitration Centre (“GIAC”) has recently finalised the GIAC Arbitration Rules (“GIAC Rules”), following the completion of the work of the Commission for Final Revision of the Arbitration Rules (the…more

ICC, International Arbitration, New Regulations

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Seventh Circuit Increasingly Problematic for Directors and Officers Defending Shareholder Derivative Suits

With its recent decision in Westmoreland County Employee Retirement System v. Parkinson, et al., the United States Court of Appeals for the Seventh Circuit has confirmed that the courts of the Seventh Circuit can be a…more

Board of Directors, Business Judgment Rule, Derivative Suit, Directors, Officers

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CRA3: ESMA publishes final draft Regulatory Technical Standards on disclosure requirements for Structured Finance Instruments

Executive Summary - Following the consultation paper published by the European Securities and Markets Authority (ESMA) in February 2014, on 24 June 2014 ESMA published its final draft of the Regulatory Technical Standards…more

Compliance, CRA, Disclosure Requirements, ESMA, EU

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Private Equity - Winter/Spring 2013

In This Issue: - ILPA Guidelines Have Noticeable Impact - Extracting Tax Value in Debt Refinancings and Modifications - Private Equity and Venture Capital Investing in China: Exit Strategy and Circular 698 - BDCs…more