Dechert LLP

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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Upcoming Energy Efficiency Requirements in the Rented Sector

The UK government has set a target to reduce greenhouse gas emissions by at least 80% by 2050, compared to the 1990 baseline. Since energy use in buildings is a major source of UK carbon emissions, improving their energy…more

Commercial Leases, Compliance, Energy Efficiency, Greenhouse Gas Emissions, Landlords

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Another Step Towards the Implementation of the “Unitary Patent Package”

The Court of Justice of the European Union on 5 May 2015, in cases C-146/13 and C-147/13, has followed Advocate General Yves Bot’s opinion and dismissed, as expected, the Kingdom of Spain’s actions against the Regulations…more

Dismissals, EU, Misuse of Power, Spain, Unitary Patent

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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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Reminder: Certain U.S. Reporting and Compliance Obligations for Investment Advisers and Funds

The U.S. federal securities laws and the rules of U.S. self-regulatory organizations (such as the Financial Industry Regulatory Authority) impose certain reporting and compliance obligations on investment advisers and funds…more

Brokers, CFTC, Compliance, Equity Securities, ERISA

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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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Investment Funds Update - Europe: Legal and regulatory updates for the funds industry from the key asset management centres and primary European fund domiciles: EU

UCITS: New KIID Q&A - ESMA published revised Q&A’s on the KIID on 26 March 2015. The Q&A includes a new question on the treatment of past performance information in case of fund mergers…more

AIFMD, Asset Management, EMIR, ESMA, EU

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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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Temporary Suspension of Certain Sanctions Against Iran Extended Until Mid-2015

On November 24, 2014, the United States, the United Kingdom, France, China, Russia and Germany (collectively, the “P5+1”) announced that they will continue current negotiations with Iran regarding its nuclear program and will…more

Extensions, Iran Sanctions, JPOA, P5+1 Nations

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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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Commerce Department Extends Deadline for BE-10 Reports and Important Clarifications for Asset Managers and Insurance Companies

On Thursday, May 28, the Bureau of Economic Analysis (BEA) issued an automatic one month extension to all first time filers of the BE-10 Benchmark Survey of U.S. Direct Investment Abroad. The extension grant, coming one day…more

Asset Management, BEA, Bureau of Economic Analysis, Foreign Investment, Form BE-10

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Foreclosure Attempt Blocked? What You Should Know Before the Clock Hits Zero

Just when you thought we were out of the housing crisis weeds of ’07—think again.  Apparently when an abundance of people buy homes they can’t afford and predictably fall behind on their payments, the judicial foreclosure…more

Banking Sector, Deutsche Bank, Dismissals, Foreclosure, Mortgage Lenders

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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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U.S. Risk Retention Final Rule: Capitalized Manager Vehicles, Majority Owned Affiliates and Other FAQs

Since its initial release we have received numerous inquiries from market participants (clients and non-clients alike) concerning the meaning and ramifications of the final U.S. risk retention rule (the “Final Rule”) on…more

Capitalized Manager Vehicle, Collateralized Loan Obligations, Final Rules, Majority Owned Affiliate, Market Participants

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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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Funds and the Derivatives Markets: Recent Developments and Ongoing Challenges*

INTRODUCTION AND OVERVIEW OF DODD-FRANK TITLE VII - Title VII of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act ("Title VII" or "Dodd- Frank"), enacted on July 21, 2010, provided for the first time a…more

Derivatives, Dodd-Frank, Investment Funds, OTC

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New York Supreme Court Denies Barclays’ Motion to Dismiss NYAG’s Martin Act Claim – Court Finds Martin Act Applies to Barclays’ Representations about Its “Dark Pool”

Last week, the New York Supreme Court denied Barclays’ motion to dismiss the New York Attorney General’s fraud claim against the bank, finding that the NYAG may proceed with its claim under New York’s Martin Act based on alleged…more

Alternative Trading Systems, Barclays, Dark Pool, Fraud, Martin Act

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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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Funds and the Derivatives Markets: Recent Developments and Ongoing Challenges*

INTRODUCTION AND OVERVIEW OF DODD-FRANK TITLE VII - Title VII of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act ("Title VII" or "Dodd- Frank"), enacted on July 21, 2010, provided for the first time a…more

Derivatives, Dodd-Frank, Investment Funds, OTC

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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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Credit Risk Retention Final Rule: Enforcement and Compliance Considerations

Predicting enforcement of the final rule regarding U.S. risk retention is an uncertain task. This OnPoint is designed to provide guidance on possibilities related to consequences of non-compliance, enforcement approaches by…more

Asset-Backed Securities, CMBS, Collateralized Loan Obligations, Dodd-Frank, Enforcement Guidance

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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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Distribution of Private Equity Funds in Europe after AIFMD

With the AIFMD now effective, the attention of U.S. private equity sponsors has turned to capital raising in Europe under the new regime. The key impact of the AIFMD for U.S. sponsors is the prohibition on the active marketing…more

AIFMD, Alternative Investment Funds, EEA, EU, Private Equity Funds

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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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U.S. SEC Division of Investment Management Issues Cybersecurity Guidance

The Division of Investment Management (Division) of the U.S. Securities and Exchange Commission (SEC) issued a Guidance Update on April 28, 2015 (Guidance) relating to the cybersecurity of registered investment companies and…more

Cybersecurity, Guidance Update, Investment Adviser, Investment Firms, 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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US and Cuba Seek to Normalize Relations; US to Ease Certain Restrictions

President Obama announced on December 17, 2014 that the United States and Cuba will open talks seeking to restore full diplomatic relations, and that the United States will be taking a number of steps to ease restrictions in…more

Barack Obama, Cuba, Foreign Relations

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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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U.S. SEC Division of Investment Management Issues Cybersecurity Guidance

The Division of Investment Management (Division) of the U.S. Securities and Exchange Commission (SEC) issued a Guidance Update on April 28, 2015 (Guidance) relating to the cybersecurity of registered investment companies and…more

Cybersecurity, Guidance Update, Investment Adviser, Investment Firms, SEC

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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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Starting a Hedge Fund: A Review of 2014 and Themes for 2015 and Beyond

Introduction - This is a follow up to our recent publication on Starting a Hedge Fund in 2015 and provides an overview of our thoughts on the start-up market in 2014 and themes for 2015 and beyond…more

Fund Managers, Hedge Funds, Investment Funds, Popular, Startups

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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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Commerce Department Extends Deadline for BE-10 Reports and Important Clarifications for Asset Managers and Insurance Companies

On Thursday, May 28, the Bureau of Economic Analysis (BEA) issued an automatic one month extension to all first time filers of the BE-10 Benchmark Survey of U.S. Direct Investment Abroad. The extension grant, coming one day…more

Asset Management, BEA, Bureau of Economic Analysis, Foreign Investment, Form BE-10

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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? Part II –Supreme Court Decides Excessive-Fee Case Involving 401(k) Plan

Earlier this week, the U.S. Supreme Court unanimously decided the case of Tibble v. Edison International. In Tibble, the Court held that the statute of limitations under the Employee Retirement Income Security Act of 1974…more

401k, Breach of Duty, Duty to Monitor, ERISA, Fiduciary Duty

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Doing Business with Russia Following Sanctions: What PE Firms Need to Know

It has now been over a year since the United States and the European Union began imposing sanctions on Russian and Ukrainian individuals and entities in connection with the situation in Ukraine. The sanctions have major…more

Debt Securities, Due Diligence, Equity Securities, Global Market, Private Equity

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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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Investment Funds Update - Europe: Legal and regulatory updates for the funds industry from the key asset management centres and primary European fund domiciles: Ireland

Client Monies - New Legislation Adopted and Guidance Issued - The Central Bank of Ireland issued two sets of regulations on 30 March 2015 relating to investor monies held by third parties. These are the Client Asset…more

Asset Management, Central Bank of Ireland, Companies Act, EU, ICAV

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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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US Energy Excise Tax Proposed Legislative Changes

Federal excise taxes imposed on natural gas, propane and other alternative fuels can significantly add to their cost and can create a disincentive to their use compared with more traditional fuels such as diesel and gasoline,…more

Alternative Fuel Tax Parity Act, Alternative Fuels, Energy Policy, Energy Tax Incentives, Excise Tax

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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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Starting a Hedge Fund in 2015

Hedge funds are well into the transition from bastions of alternative investment to being accepted into the mainstream investment marketplace. It is now estimated that global hedge fund assets under management amount to in…more

AIFMD, Capital Gains, EEA, ERISA, EU

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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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Consideration for Covenants

The recent UK High Court decision in Re-use Collections Limited v Sendall & May Glass Recycling Ltd, highlights to employers that new restrictive covenants will not be enforceable against employees unless substantial…more

Consideration, Employment Contract, Restrictive Covenants, UK

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Shared Parental Leave in the UK

Is it good to share? New Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) rules allow eligible employees to share up to 50 weeks' leave and 39 weeks' pay in the year following a child's birth or…more

Employee Benefits, Holiday Pay, Maternity Leave, Notice Requirements, Parental Leave

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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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Some Limited Trouble with Tibble? Part II –Supreme Court Decides Excessive-Fee Case Involving 401(k) Plan

Earlier this week, the U.S. Supreme Court unanimously decided the case of Tibble v. Edison International. In Tibble, the Court held that the statute of limitations under the Employee Retirement Income Security Act of 1974…more

401k, Breach of Duty, Duty to Monitor, ERISA, Fiduciary Duty

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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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U.S. Money Market Fund Reform: Form N-CR and Related Website Disclosure Compliance Deadline Quickly Approaching

The July 14, 2015 compliance date for certain new money market fund reporting and disclosure requirements adopted by the U.S. Securities and Exchange Commission (SEC) is quickly approaching. In particular, money market funds…more

Compliance, Disclosure Requirements, EDGAR, Form N-CR, Investment Adviser

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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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SEC IM Staff Issues Guidance Update on Mixed and Shared Funding

The staff of the U.S. Securities and Exchange Commission Division of Investment Management (Staff) has issued an IM Guidance Update regarding mixed and shared funding (Guidance Update). In the Guidance Update, the Staff…more

Exemptive Relief, Guidance Update, Investment Funds, SEC

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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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Reminder: Certain U.S. Reporting and Compliance Obligations for Investment Advisers and Funds

The U.S. federal securities laws and the rules of U.S. self-regulatory organizations (such as the Financial Industry Regulatory Authority) impose certain reporting and compliance obligations on investment advisers and funds…more

Brokers, CFTC, Compliance, Equity Securities, ERISA

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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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U.S. Money Market Fund Reform: Form N-CR and Related Website Disclosure Compliance Deadline Quickly Approaching

The July 14, 2015 compliance date for certain new money market fund reporting and disclosure requirements adopted by the U.S. Securities and Exchange Commission (SEC) is quickly approaching. In particular, money market funds…more

Compliance, Disclosure Requirements, EDGAR, Form N-CR, Investment Adviser

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U.S. Risk Retention Final Rule: Capitalized Manager Vehicles, Majority Owned Affiliates and Other FAQs

Since its initial release we have received numerous inquiries from market participants (clients and non-clients alike) concerning the meaning and ramifications of the final U.S. risk retention rule (the “Final Rule”) on…more

Capitalized Manager Vehicle, Collateralized Loan Obligations, Final Rules, Majority Owned Affiliate, Market Participants

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Investment Funds Update - Asia: Legal and regulatory updates for the funds industry from the key jurisdictions in Asia: Asia Region Funds Passport

Working Group Issues Consultation Paper - The working group consisting of six participating countries (Singapore, Australia, South Korea, New Zealand, Thailand and the Philippines) in the Asia Region Funds Passport…more

Asia, Asian Region Funds Passport, Australia, Investment Funds, New Zealand

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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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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, Corporate Financing, Investment Funds, Regulatory History, Regulatory Standards

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SEC IM Staff Issues Guidance Update on Mixed and Shared Funding

The staff of the U.S. Securities and Exchange Commission Division of Investment Management (Staff) has issued an IM Guidance Update regarding mixed and shared funding (Guidance Update). In the Guidance Update, the Staff…more

Exemptive Relief, Guidance Update, Investment Funds, SEC

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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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Funds and the Derivatives Markets: Recent Developments and Ongoing Challenges*

INTRODUCTION AND OVERVIEW OF DODD-FRANK TITLE VII - Title VII of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act ("Title VII" or "Dodd- Frank"), enacted on July 21, 2010, provided for the first time a…more

Derivatives, Dodd-Frank, Investment Funds, OTC

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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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Control Transactions in the UK Mid-Market

In a number of transactions in the UK mid-market in which we have been involved recently, we have noted a departure from the traditional private equity buy-out model, whereby the sponsor acquires 100% of the target and satisfies…more

Control Transactions, Private Equity, UK

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ABS Las Vegas 2015

A securitization community coming off of record issuances in 2014 has entered the new year with a mixture of nerves and optimism.  An estimated 6,500 finance professionals and attorneys converged for the 2015 ABS Las Vegas…more

Collateralized Loan Obligations, Equity Investors, Investors, Risk Retention

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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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Commerce Department Extends Deadline for BE-10 Reports and Important Clarifications for Asset Managers and Insurance Companies

On Thursday, May 28, the Bureau of Economic Analysis (BEA) issued an automatic one month extension to all first time filers of the BE-10 Benchmark Survey of U.S. Direct Investment Abroad. The extension grant, coming one day…more

Asset Management, BEA, Bureau of Economic Analysis, Foreign Investment, Form BE-10

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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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Appellate Court Confirms the Validity of Asymmetric Dispute Resolution Clauses

Dechert lawyers representing a major international bank in court proceedings in a number of regions in southern Russia with respect to claims to recover a total of about US$300 million in loan funds from the guarantors of a…more

Arbitration Agreements, Banks, Dispute Resolution Clauses, Foreign Jurisdictions, Forum Selection Clause

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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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Section 546(e) Protects Two Tiered Securitization Structures

What happens when a debtor, whose loan is pooled and securitized, files for bankruptcy? Are payments made to investors recoverable as fraudulent transfers or preferences? Until recently, no published court opinion…more

Bankruptcy Code, CMBS, Consumer Bankruptcy, Fraudulent Transfers, Safe Harbors

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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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Recent U.S. Tax Developments Affecting Publicly Traded Partnerships

Partnerships targeted to widespread investors are a popular investment vehicle and a significant source of funding for oil and gas projects. However, their use is affected by the publicly traded partnership (“PTP”) tax rules. If…more

Corporate Taxes, Double Taxation, Funding, Internal Revenue Code, IRS

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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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Updating Our Understanding of the FMLA

In employment law, a very hot topic continues to be the issues surrounding the Family and Medical Leave Act (FMLA) which entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family…more

Employee Rights, Employer Group Health Plans, Employer Liability Issues, FMLA, Unpaid Leave

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Investment Funds Update - Asia: Legal and regulatory updates for the funds industry from the key jurisdictions in Asia: Asia Region Funds Passport

Working Group Issues Consultation Paper - The working group consisting of six participating countries (Singapore, Australia, South Korea, New Zealand, Thailand and the Philippines) in the Asia Region Funds Passport…more

Asia, Asian Region Funds Passport, Australia, Investment Funds, New Zealand

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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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Goodyear FCPA Fine Highlights Benefits of Cooperation and Robust Compliance Controls

The Goodyear Tire & Rubber Company (“Goodyear”), one of the world’s largest tire companies, reached a significant settlement with the U.S. Securities & Exchange Commission (“SEC”) in connection with charges that two of its…more

Bribery, Chief Compliance Officers, Compliance, Enforcement Actions, FCPA

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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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Distribution of Private Equity Funds in Europe after AIFMD

With the AIFMD now effective, the attention of U.S. private equity sponsors has turned to capital raising in Europe under the new regime. The key impact of the AIFMD for U.S. sponsors is the prohibition on the active marketing…more

AIFMD, Alternative Investment Funds, EEA, EU, Private Equity Funds

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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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HSR Filing Threshold Increases to $76.3 Million

The U.S. Federal Trade Commission (“FTC”) announced on January 15, 2015 that the dollar-based thresholds applicable to the Hart-Scott-Rodino (“HSR”) premerger notification program will be raised less than one percent from the…more

FTC, Hart-Scott-Rodino Act, Premerger Notifications, Threshhold Requirements

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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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IPOs - Attractive Exit Alternative For Financial Sponsors

The strong U.S. initial public offering (IPO) market, coupled with favorable regulatory changes and market acceptance of innovative transaction structures, has increased the attractiveness of the IPO as an exit alternative to…more

Board of Directors, C-Corporation, Capital Formation, Corporate Financing, Corporate Structures

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Developments in the Luxembourg Financial Sector

The Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (CSSF), has recently issued FAQs regarding the immobilisation of bearer shares and units, as well as a press release to remind Luxembourg…more

AIFM, AIFMD, AIFS, Bearer Shares, CSSF

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The Essential Guide to UK Real Estate

This Essential Guide provides an overview of the legal and regulatory issues likely to affect developers, occupiers and investors in UK real estate. Real estate - Real estate law in England and Wales can trace its…more

Arbitration Agreements, Conservation, Construction Industry, CRC, Intellectual Property Protection

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SEC Intends to Grant Exemptive Relief to Permit Exchange-Traded Managed Funds

On November 6, 2014, the Securities and Exchange Commission (“SEC”) issued notice of its intent to grant Eaton Vance Management (“Eaton Vance”) and related parties exemptive relief from various provisions of the Investment…more

ETMFs, Exchange-Traded Products, Exemptive Relief, Investment Company Act of 1940, 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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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, Corporate Financing, Investment Funds, Regulatory History, Regulatory Standards

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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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Three Top Considerations After Omnicare

In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U. S. ____ (2015), the Supreme Court clarified issuer liability under §11 of the Securities Act. Section 11 provides that issuers are liable…more

Issuers, Material Misstatements, Omnicare v Laborers District Council, Registration Statement, SCOTUS

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Restricting Share Capital Reductions in Takeovers

The Companies Act 2006 (Amendment of Part 17) Regulations 2015 (the “Regulations”) came into force on 4 March 2015. The Regulations amend section 641 of the Companies Act 2006 to prevent a company from reducing its share capital…more

Amended Regulation, Share Capital, Stocks

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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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Underground Access

Draft legislation currently before the UK parliament proposes some significant changes to existing trespass laws to facilitate the development and growth of the geothermal and shale-gas industries in the UK. Originally…more

Energy Projects, Oil & Gas, UK

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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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Foreclosure Attempt Blocked? What You Should Know Before the Clock Hits Zero

Just when you thought we were out of the housing crisis weeds of ’07—think again.  Apparently when an abundance of people buy homes they can’t afford and predictably fall behind on their payments, the judicial foreclosure…more

Banking Sector, Deutsche Bank, Dismissals, Foreclosure, Mortgage Lenders

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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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ACE Portal, in association with NYSE, Brings Technology to Private Equity Fundraising – An Interview with the General Counsel

In the Summer 2014 issue of the PE Newsletter we reviewed a private placement platform set up by ACE Portal, in partnership with the New York Stock Exchange, to facilitate the private placement of securities by issuers. The…more

Accredited Investors, ACE Portal, Broker-Dealer, Crowdfunding, FINRA

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Developments in the Luxembourg Financial Sector

The Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (CSSF), has recently issued FAQs regarding the immobilisation of bearer shares and units, as well as a press release to remind Luxembourg…more

AIFM, AIFMD, AIFS, Bearer Shares, CSSF

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U.S. Money Market Fund Reform: Form N-CR and Related Website Disclosure Compliance Deadline Quickly Approaching

The July 14, 2015 compliance date for certain new money market fund reporting and disclosure requirements adopted by the U.S. Securities and Exchange Commission (SEC) is quickly approaching. In particular, money market funds…more

Compliance, Disclosure Requirements, EDGAR, Form N-CR, Investment Adviser

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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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Goodyear FCPA Fine Highlights Benefits of Cooperation and Robust Compliance Controls

The Goodyear Tire & Rubber Company (“Goodyear”), one of the world’s largest tire companies, reached a significant settlement with the U.S. Securities & Exchange Commission (“SEC”) in connection with charges that two of its…more

Bribery, Chief Compliance Officers, Compliance, Enforcement Actions, FCPA

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Goodyear FCPA Fine Highlights Benefits of Cooperation and Robust Compliance Controls

The Goodyear Tire & Rubber Company (“Goodyear”), one of the world’s largest tire companies, reached a significant settlement with the U.S. Securities & Exchange Commission (“SEC”) in connection with charges that two of its…more

Bribery, Chief Compliance Officers, Compliance, Enforcement Actions, FCPA

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Revision of UK Military List of Controlled Items

The list of military goods, software and technology that are subject to export controls has been revised on 24 March 2015. The changes have been made through the Export Control (Amendment) Order 2015 which replaces Schedule 2 of…more

Criminal Prosecution, Export Controls, Exports, Licenses, Military Goods

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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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Recent SEC Enforcement Action Against KBR Warns Against Restrictive Confidentiality Agreements

The SEC Enforcement Action - A recent enforcement action by the U.S. Securities and Exchange Commission aims to protect employees from signing confidentiality agreements that would prevent them from acting as…more

Confidentiality Agreements, Dodd-Frank, Enforcement Actions, Internal Investigations, KBR (formerly Kellogg Brown & Root)

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3rd Annual IMN Single Family Rental Investment Forum – 7 Thoughts on the State of the Single Family Rental Market

The 3rd Annual IMN Single Family Rental (SFR) Investment Forum was held at the Loews Hotel in Miami Beach last week.  Over 1,000 SFR professionals attended the forum, including buyers, investors, lenders and service providers. …more

Mortgage-Backed Securities, Real Estate Investments, Real Estate Market, Secured Lenders, Secured Loans

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German Fund Taxation: A Roundup of Recent Developments

Germany’s fund taxation regime continues to evolve as the country further refines and reforms domestic tax laws that were subject to significant changes towards the end of 2013 – when Germany introduced new domestic tax rules…more

AIFMD, AIFS, Germany, Income Taxes, Investment Corporations

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FLIR FCPA Action Highlights: Continued Focus on Penalizing Improper Expenditures for Government Officials

FLIR Systems, Inc. (“FLIR”), a publicly traded company based in Oregon, agreed to pay approximately $9.5 million to settle allegations of violations of the Foreign Corrupt Practices Act (“FCPA”) on April 8, 2015. The U.S…more

Compliance, Corporate Gifts, Disgorgement, DOJ, FCPA

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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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President Obama Issues New Executive Order Authorizing Sanctions Against Cyber Attackers

President Obama issued an Executive Order (the “Order”) on April 1, 2015 that authorizes financial sanctions against certain “persons” (including both individuals and entities) designated by the Treasury Secretary to be…more

Barack Obama, Cyber Attacks, Cybersecurity, Executive Orders, Sanctions

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Orderly Unwinding: Here to Stay?

The International Swaps and Derivatives Association (ISDA) recently issued the ISDA 2014 Resolution Stay Protocol (Protocol), which takes effect on 1 January 2015. The Protocol aims to prevent adhering parties from immediately…more

Banks, Derivatives, FDIC, Federal Reserve, FSB

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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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Expanded Disclosure Remedies for Claimants in International Cases Heard in England?

A valuable remedy open to a party in English civil proceedings is to seek a Norwich Pharmacal order. Such orders require a respondent to disclose certain information or documents to the applicant. The respondent party need not…more

Electronically Stored Information, Material Disclosures, Norwich Pharmacal, UK

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Investment Funds Update - Europe: Legal and regulatory updates for the funds industry from the key asset management centres and primary European fund domiciles: EU

UCITS: New KIID Q&A - ESMA published revised Q&A’s on the KIID on 26 March 2015. The Q&A includes a new question on the treatment of past performance information in case of fund mergers…more

AIFMD, Asset Management, EMIR, ESMA, EU

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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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