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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Update on the UK Confiscation and Restraint Regime

The National Audit Office has published a report dated 17 December 2013 (the “NAO Report”) on confiscation orders, which are the main mechanism that the UK Government uses in carrying out its policy to deprive criminals of the…more

Criminal Proceeds, EU, Forfeiture, Frozen Assets, Restraining Orders

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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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Malta Financial Services Authority Launches Its New AIFM Directive Rulebooks and Applications Process

The Malta Financial Services Authority (MFSA) published its new Investment Services Rulebooks on 27 June 2013. The MFSA is now accepting applications for licences for managers which wish to be authorised as Alternative…more

AIFM, AIFMD, EU, Licenses

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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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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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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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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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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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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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Additional EU Sanctions Imposed on Russia

The European Union announced its intention to adopt a broad package of trade and economic sanctions against Russia, targeting access to EU capital markets, defence exports, energy related equipment and technology and sensitive…more

Capital Markets, Energy Sector, EU, Export Controls, Exports

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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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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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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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Russia Bans the Import of Certain Agricultural and Food Products from the US, EU, Canada, Australia, and Norway

In response to the recent round of sanctions and export restrictions imposed on Russia, Russian Federation President Putin signed a decree on 6 August 20141 (the “Decree”) effectively banning or limiting for a period of one year…more

Australia, Canada, EU, Foreign Policy, Imports

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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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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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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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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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Financial Conduct Authority Guidance on AIFM Directive Remuneration Provisions

The UK Financial Conduct Authority (FCA) released proposed guidance on 6 September 2013 on its implementation of the remuneration provisions in the AIFM Directive (the AIFM Remuneration Code) for UK alternative investment fund…more

AIFM, AIFMD, ESMA, EU, FCA

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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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Lawsuit Regarding Computer-Generated Advice to 401(k) Participants Revs Up Against Financial Engines

Last week, in a complaint dated August 8, 2014, plaintiffs commenced a lawsuit in the US District Court for the Eastern District of Texas against Financial Engines, Inc. and Financial Engines Advisors L.L.C. asserting a…more

401k, Financial Institutions, Patent Infringement, Patent Litigation, Patents

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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. SEC Approves Sweeping Amendments to Rules Governing Money Market Funds

The U.S. Securities and Exchange Commission (SEC or Commission) on July 23, 2014 approved, by a vote of 3- 2, sweeping amendments to Rule 2a - 7 and other rules that govern money market funds (money funds) under the Investment…more

Investment Company Act of 1940, Money Market Funds, NAV, SEC

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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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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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U.S. SEC Approves Sweeping Amendments to Rules Governing Money Market Funds

The U.S. Securities and Exchange Commission (SEC or Commission) on July 23, 2014 approved, by a vote of 3- 2, sweeping amendments to Rule 2a - 7 and other rules that govern money market funds (money funds) under the Investment…more

Investment Company Act of 1940, Money Market Funds, NAV, SEC

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Fed Issues Additional Guidance on Extended Conformance Period – Be Careful What You Ask For

A few steps forward and a giant leap back. This familiar phrase might be the perfect summary of the CLO market’s Volcker Rule roller coaster since December 2013. A few weeks ago we wrote about the Federal Reserve Board’s (the…more

Banks, Collateralized Loan Obligations, Federal Reserve, Volcker Rule

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No Financial Incentives for Whistleblowers in the UK

The Financial Conduct Authority (FCA) and the Bank of England Prudential Regulation Authority (PRA) published a report on 30 July 2014 that recommends that no financial incentives are given to whistleblowers. This differs from…more

FCA, Prudential Regulation Authority, UK, Whistleblower Awards, Whistleblowers

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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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New ISS Position on Third Party Compensation Director Disqualification Bylaws in the US

In connection with the upcoming annual meeting of Provident Financial Holdings, Inc., the Proxy Advisory Services arm of Institutional Shareholder Services has recommended that Provident Financial’s stockholders withhold their…more

Bylaws, Compensation Committee, Corporate Counsel, Corporate Governance, Executive Compensation

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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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The Taking Control of Goods Regulations 2013 - The Death of Distress?

The common law right to levy distress has long been considered by commercial landlords as a quick, simple and cheap self-help remedy to recover rent arrears. But this right will soon be abolished and replaced by a new remedy,…more

CRAR, Goods, 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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The Benefit/Burden Principle - How a Buyer of Land Could Be Required to Perform Positive Covenants Without Having Expressly Agreed to Do So

The recent case of Goodman and others v Elwood (2013) in the Court of Appeal shows that, where a buyer acquires the benefit of a right over neighbouring land, the buyer must also take on the obligations which relate to that…more

Buyers, Easements, Land Titles

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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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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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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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The Housing Finance Reform and Taxpayer Protection Act of 2014

This article provides a brief summary of the key provisions of a new bi-partisan Senate bill, based on the Housing Finance Reform and Taxpayer Protection Act of 2013, as well as a brief discussion of a new House of…more

Housing Finance Reform, Housing Market

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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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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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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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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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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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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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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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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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Russia Bans the Import of Certain Agricultural and Food Products from the US, EU, Canada, Australia, and Norway

In response to the recent round of sanctions and export restrictions imposed on Russia, Russian Federation President Putin signed a decree on 6 August 20141 (the “Decree”) effectively banning or limiting for a period of one year…more

Australia, Canada, EU, Foreign Policy, Imports

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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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The New Luxembourg Limited Partnership Regime

At the time of the transposition of the AIFMD into Luxembourg law, the Luxembourg government took the opportunity to reform the limited partnership regime, from both a corporate and fiscal perspective. The reform aims to make…more

AIFM, AIFMD, EU, Fund Managers, Limited Partnerships

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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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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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Russia Bans the Import of Certain Agricultural and Food Products from the US, EU, Canada, Australia, and Norway

In response to the recent round of sanctions and export restrictions imposed on Russia, Russian Federation President Putin signed a decree on 6 August 20141 (the “Decree”) effectively banning or limiting for a period of one year…more

Australia, Canada, EU, Foreign Policy, Imports

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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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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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No Financial Incentives for Whistleblowers in the UK

The Financial Conduct Authority (FCA) and the Bank of England Prudential Regulation Authority (PRA) published a report on 30 July 2014 that recommends that no financial incentives are given to whistleblowers. This differs from…more

FCA, Prudential Regulation Authority, UK, Whistleblower Awards, Whistleblowers

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Chancel Repair Liability - The New Regime

Provisions contained in the Land Registration Act 2002 were finally implemented from 13 October 2013. From that date, chancel repair liability no longer binds a buyer of land for value (i.e. where a payment in money or in kind,…more

Land Titles, Repairs, 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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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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CIS Legal Update - September 2013: Highlights of the Recently Adopted Amendments to the Georgian Labor Code

Following months of legislative deliberation involving multiple parties, including the International Chamber of Commerce, the American Chamber of Commerce, and other similar international groups, the Parliament of Georgia…more

Employee Rights, Employment Contract, Hiring & Firing, Termination

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Luxembourg AIFMD Transposition – Where Are We Now?

As previously reported in Dechert's Fourth Quarter 2013 Financial Services Quarterly Report and DechertOnPoint, Luxembourg Law Transposing the AIFMD Passed by Luxembourg Parliament, Luxembourg’s transposition of the AIFMD into…more

AIFM, AIFMD, EU

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U.S. SEC Approves Sweeping Amendments to Rules Governing Money Market Funds

The U.S. Securities and Exchange Commission (SEC or Commission) on July 23, 2014 approved, by a vote of 3- 2, sweeping amendments to Rule 2a - 7 and other rules that govern money market funds (money funds) under the Investment…more

Investment Company Act of 1940, Money Market Funds, NAV, SEC

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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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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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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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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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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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Update on the EU's Proposed Financial Transactions Tax

The Court of Justice of the European Union (CJEU) recently issued a decision rejecting the UK government’s initial legal challenge against the proposed introduction of a financial transactions tax (FTT) in Europe. The following…more

CJEU, EU, Financial Regulatory Reform, Financial Transaction Tax

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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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SEC Adopts Certain Final Rules Relating to Cross-Border Security-Based Swap Activities

The U.S. Securities and Exchange Commission (SEC) adopted its final rules on the definition of the term “U.S. person” solely for purposes of certain aspects of cross-border security-based swap activities (Final Rules) on July 9,…more

CFTC, Credit Default Swaps, Cross-Border, Dodd-Frank, SEC

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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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LLP Members and Pensions Auto-Enrolment: An Update

The UK Supreme Court ruled in May 2014, in Clyde & Co LLP and another v Bates van Winkelhof, that members of Limited Liability Partnerships (LLPs) are to be treated as “workers” and therefore are covered by the protections which…more

Automatic Enrollment, Employee Rights, LLPs, Pensions, 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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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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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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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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Flex Frac Decision Highlights Need for Employers to Reexamine Confidentiality Policies

In recent years, the National Labor Relations Board (the “Board”) has waged a campaign against what it considers to be “overbroad” employer confidentiality policies. In dozens of decisions, the Board and administrative law…more

Confidentiality Policies, Corporate Counsel, Employee Rights, Employer Liability Issues, Employment Policies

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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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Complexity Is Not The Enemy

I’m getting pretty annoyed at the calumny heaped upon “complexity.” Everyone wants to “hit the ball down the middle of the fairway”; “keep it simple, stupid”; “Stick to the knitting…”; “Plain vanilla only, please.” Don’t do…more

Capital Markets

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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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Private Equity Newsletter - Winter 2014: Recent Developments in Acquisition Finance

Several recent legal developments will likely impact acquisition finance. A recent decision of the U.S. Bankruptcy Court for the Southern District of New York examines who is an “Eligible Assignee” entitled to acquire…more

Acquisitions, Chapter 11, Commercial Bankruptcy, Commercial Loans, Dish Network

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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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SEC Adopts Certain Final Rules Relating to Cross-Border Security-Based Swap Activities

The U.S. Securities and Exchange Commission (SEC) adopted its final rules on the definition of the term “U.S. person” solely for purposes of certain aspects of cross-border security-based swap activities (Final Rules) on July 9,…more

CFTC, Credit Default Swaps, Cross-Border, Dodd-Frank, SEC

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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’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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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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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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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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The Volcker Rule: Overview and Recent Developments Affecting Banking Entities, Funds and Securitization Vehicles

Following years of incubation, in December 2013, five U.S. regulatory agencies – the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation, the Office of the Comptroller of the…more

CFTC, Comptroller, 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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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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Financial Services Quarterly Report - Fourth Quarter 2013: A New Age of Electronic Trading Regulation in Asia?

Hong Kong introduces a new electronic trading regulatory regime with effect from 1 January 2014, when all licensed and registered persons in Hong Kong that conduct electronic trading of securities and futures contracts listed or…more

Algorithmic Trading, Australia, Brokers, Electronic Trading, Foreign Investment

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Planning for Disputes in Cross-Border Private Equity Deals: Managing Risk (and Getting Some Benefits) with International Arbitration

Planning for future disputes is essential to managing the risk of any transaction — but it is ever more so for private equity managers, who are increasingly investing in foreign assets and in industries exposed to sovereign risk…more

Arbitration, Arbitration Agreements, Cross-Border, Cross-Border Transactions

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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

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

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Financial Services Quarterly Report - Fourth Quarter 2013: Widening Distribution Channels for Mutual Funds in China

Prior to 2013, the door to the People’s Republic of China’s domestic mutual fund market was closed to outsiders. Foreign fund managers had only one choice: to team up with local Chinese managers in joint ventures, controlled by…more

China, Foreign Banks, Foreign Investment, Fund Managers, Mutual Funds

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The SEC Revamps Regulation A with Proposed Regulation A+

Introduction - The Securities & Exchange Commission (the “SEC”) proposed significant revisions to Regulation A on December 18, 2013, as mandated by Congress under Title IV of the Jumpstart Our Business Startups Act of…more

JOBS Act, Regulation A, SEC, Securities Act of 1933, Title IV

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It’s Time to Revisit Business Continuity Planning: What Works and What Does Not Work

Recently, the Securities and Exchange Commission (“SEC”) and other U.S. financial regulators (collectively, “Regulators”) issued important guidance related to the need for industry participants to maintain business continuity…more

CFTC, Continuity of Enterprises, Disaster Preparedness, Financial Regulatory Reform, FINRA

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Pre-action Investigations: A Cautionary Tale

When there is the suspicion of wrongdoing, it is common practice for companies to carry out an investigation by commissioning reports, whether internally or with the outside assistance of lawyers or other professionals. If…more

Investigations, KPMG, SFO, UK

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CIS Legal Update - September 2013: Summary of Key Changes to the Russian Civil Code

The Russian Civil Code (the “Civil Code”), one of the fundamental laws underlying most Russian legislation, is now undergoing a number of important changes that will likely affect all companies doing business in Russia. Due to…more

Proposed Legislation, Russia, Russian Civil Code

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CFTC Extends Certain SEF Reporting, Confirmation, and Documentation Compliance Dates

commoThe Division of Market Oversight (“Division”) of the U.S. Commodity Futures Trading Commission (“CFTC”) on September 27 and 30, 2013 issued several no-action letters to temporarily registered swap execution facilities…more

Asset Class, CFTC, Commodities Exchange Act, Compliance, Confirmation Proceedings

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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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Court of Justice of the European Union Finds Individuals Have a “Right to be Forgotten” Under Data Protection Law

Court defines its territorial reach and obliges Google to remove “old” unwanted personal data from web search results - In a landmark ruling on 13 May 2014,1 the Court of Justice of the European Union (“CJEU”), the EU’s…more

CJEU, Data Processors, Data Protection, EU, Google

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CIS Legal Update - September 2013: Highlights of the Recently Adopted Amendments to the Georgian Labor Code

Following months of legislative deliberation involving multiple parties, including the International Chamber of Commerce, the American Chamber of Commerce, and other similar international groups, the Parliament of Georgia…more

Employee Rights, Employment Contract, Hiring & Firing, Termination

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FCA Publishes Final Rules and Guidance to Implement AIFM Directive

The UK Financial Conduct Authority (FCA) published its Policy Statement 13/5 on 28 June 2013, containing its (substantially) final rules and guidance to implement the Alternative Investment Fund Managers Directive (AIFMD)....We…more

AIFM, AIFMD, Alternative Investment Funds, ESMA, False Claims Act

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CFTC Adopts New CPO Rules for Registered Investment Companies and Others

Introduction - The U.S. Commodity Futures Trading Commission (“CFTC”) recently released its long-awaited “Final Rule” to harmonize CFTC disclosure, reporting, and recordkeeping requirements with parallel U.S. Securities…more

CFTC, Commodity Pool, CPO, International Harmonization, Investment Company Act of 1940

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U.S. Supreme Court Rules That the Government Does Not Have an Unlimited Amount of Time in Which to Bring Civil Penalty Actions

In a unanimous decision written by Chief Justice John G. Roberts, Jr., the United States Supreme Court has ruled that the Government does not have an unlimited amount of time to bring civil penalty actions based on fraud. In…more

Cause of Action Accrual, Discovery Rule, Enforcement Actions, Fraud, Gabelli v SEC

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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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SEC Approves Exchanges’ Proposed Rules for Compensation Committees and Their Advisers

The U.S. Securities and Exchange Commission (“SEC”) formally approved several new listing rules proposed by NASDAQ and the NYSE on January 11, 2013. The new listing rules are designed to bring the listing standards of each…more

Compensation Committee, Dodd-Frank, Executive Compensation, Independence Rules, Investment Adviser

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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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The Housing Finance Reform and Taxpayer Protection Act of 2014

This article provides a brief summary of the key provisions of a new bi-partisan Senate bill, based on the Housing Finance Reform and Taxpayer Protection Act of 2013, as well as a brief discussion of a new House of…more

Housing Finance Reform, Housing Market

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U.S. Supreme Court Rules That the Government Does Not Have an Unlimited Amount of Time in Which to Bring Civil Penalty Actions

In a unanimous decision written by Chief Justice John G. Roberts, Jr., the United States Supreme Court has ruled that the Government does not have an unlimited amount of time to bring civil penalty actions based on fraud. In…more

Cause of Action Accrual, Discovery Rule, Enforcement Actions, Fraud, Gabelli v SEC

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UCITS V Bonus Plans and Remuneration Rules for Fund Managers

First bankers, now managers of UCITS funds are in the firing line for the European Union assault on bonuses. As widely reported in the financial press this week, the European Parliament’s Economic and Monetary Affairs…more

Asset Management, Bonuses, EU, European Commission, UCITS

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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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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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U.S. Supreme Court Curbs Extraterritorial Reach of the Alien Tort Statute

Last week, the U.S. Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 pertaining to the reach of the Alien Tort Statute (“ATS”). This decision states that the ATS does not apply to conduct…more

Alien Tort Statute, Extraterritoriality Rules, Foreign Corporations, Jurisdiction, Kiobel v. Royal Dutch Petroleum Co.

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Recent EU Decisions Highlight Risks of “Gun Jumping”

The European Commission (“the Commission”) last month levied a fine of EUR 20 million on Marine Harvest ASA (“Marine Harvest”), a Norwegian seafood company, for acquiring a 48.5% stake in its competitor Morpol ASA (“Morpol”)…more

Corporate Counsel, ECJ, Energy, EU, EUMR

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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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U.S. Office of Financial Research Issues Report on Asset Management and Financial Stability

The Office of Financial Research (“OFR”), an office of the U.S. Department of the Treasury, recently issued a report that may provide a roadmap for future designations by the Financial Stability Oversight Council (“FSOC”) of…more

Asset Management, FSOC, Office of Financial Research, Risk Management, SEC

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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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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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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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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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Irish Central Bank Opens Its Door for AIFMD Business

The Central Bank of Ireland (Central Bank) is now accepting applications for authorisation under the Alternative Investment Fund Managers Directive (AIFMD) on an informal basis. Applications can be made on the Central Bank’s…more

AIFM, AIFMD, EU, Risk Management

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New ACE Portal/NYSE Platform Could Facilitate Private Equity Fund Raising

An enduring challenge of private equity is fund raising, whether in connection with fund formations, portfolio company financings or limited partner secondary sales. The recent modification of the SECs rules on general…more

Advertising, Compliance, General Solicitation, NYSE, Private Equity

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U.S. SEC Approves Sweeping Amendments to Rules Governing Money Market Funds

The U.S. Securities and Exchange Commission (SEC or Commission) on July 23, 2014 approved, by a vote of 3- 2, sweeping amendments to Rule 2a - 7 and other rules that govern money market funds (money funds) under the Investment…more

Investment Company Act of 1940, Money Market Funds, NAV, SEC

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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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Is There Quality to the Argument That Severance Payments Are Not Taxable "Wages"? – Supreme Court Holds That Severance Payments Are Subject to Social Security Taxation

Earlier this week, on March 25, 2014, the U.S. Supreme Court handed down a highly publicized decision in the case of United States v. Quality Stores. In Quality Stores, the Court unanimously held that the severance payments at…more

FICA Taxes, Income Taxes, Quality Stores, SCOTUS, Severance Agreements

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HUD's Final Rule on Fair Housing Act Liability Explained in New Dechert OnPoint

February has certainly been a big month for federal agencies to issue long-awaited final rules. The latest agency to throw its hat into the ring is the U.S. Department of Housing and Urban Development, which recently codified…more

Burden-Shifting, Discrimination, Disparate Impact, FHA, Housing Discrimination

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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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Luxembourg AIFMD Transposition – Where Are We Now?

As previously reported in Dechert's Fourth Quarter 2013 Financial Services Quarterly Report and DechertOnPoint, Luxembourg Law Transposing the AIFMD Passed by Luxembourg Parliament, Luxembourg’s transposition of the AIFMD into…more

AIFM, AIFMD, EU

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Marks and Spencer's use of INTERFLORA trade marks as Google AdWords is held to constitute trade mark infringement by UK High Court

The UK High Court handed down its judgment in the long running Google AdWords case, Interflora v Marks and Spencer on 21 May 2013. Mr Justice Arnold has found that Marks and Spencer's bidding on various INTERFLORA trade marks as…more

Advertising, AdWords, Brand, EU, Google

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New ISS Position on Third Party Compensation Director Disqualification Bylaws in the US

In connection with the upcoming annual meeting of Provident Financial Holdings, Inc., the Proxy Advisory Services arm of Institutional Shareholder Services has recommended that Provident Financial’s stockholders withhold their…more

Bylaws, Compensation Committee, Corporate Counsel, Corporate Governance, Executive Compensation

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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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CIS Legal Update - May 2013: London Stock Exchange to Introduce New High-Growth Segment to the Main Market

The London Stock Exchange (the ‘LSE’) recently launched a new segment of the Main Market of the LSE for high growth businesses (to be called the ‘High Growth Segment’), which is a new route available for Russian businesses…more

Admissions, EU, High Growth Segment, Key Advisers, London Stock Exchange

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U.S. Supreme Court Curbs Extraterritorial Reach of the Alien Tort Statute

Last week, the U.S. Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 pertaining to the reach of the Alien Tort Statute (“ATS”). This decision states that the ATS does not apply to conduct…more

Alien Tort Statute, Extraterritoriality Rules, Foreign Corporations, Jurisdiction, Kiobel v. Royal Dutch Petroleum Co.

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A Borrower and a Lender Be! Irish Loan Origination Funds Move a Step Closer

Dechert commented on the Central Bank's Discussion Paper on Loan Origination by Investment Funds in our OnPoint “After AIFMD, the Central Bank turns its attention to loan origination funds” (July 2013)…more

AIFM, AIFMD, Foreign Banks, Ireland, Loans

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Business Rates - Is There Any Relief?

A number of recent cases have considered the validity of mitigation schemes adopted by landlords to avoid business rates liability. Exemption from liability for business rates - the law The Non-Domestic Rating…more

Business Rates, Exemptions, Landlords, Mitigation, Occupancy

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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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