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Samuel Abrams

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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Marat Agabalyan

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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Valentin Agafonov

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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Francesca Albert

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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Pierre-Olivier Ally

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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Samer Amro

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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Karen Anderberg

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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Jonah Anderson

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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Kate Anderson

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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Jonathan Angell

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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David Ansell

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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Peter Astleford

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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Irene Ayzenberg-Lyman

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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Adrienne Baker

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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Negisa Balluka

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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Chloe Barker

Export Control: Transparency in Export Licensing

The UK Government is determined to increase transparency and public accountability on export control issues. The Government's “Transparency Initiative” aims to make public, information regarding so-called “open” export licences,…more

Export Controls, Licenses, Transparency, UK

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Ben Barnett

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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Andrea Baron

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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Matthew Barsamian

TIC B Forms Are Amended to Explicitly Cover U.S. Investment Managers

In January 2014, U.S. investment managers may experience increased reporting obligations as a result of recent changes to the Treasury International Capital ("TIC”) reporting system effective for certain reports regarding…more

Compliance, Fund Managers, Investors, Reporting Requirements, TIC

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Linda Ann Bartosch

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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Maryana Batalova

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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Gillian Baxter

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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Daniel M. Becker, M.D.

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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Abigail Bell

Reform of the Derivative Markets in the European Union

The phased-in implementation of the European Market Infrastructure Regulation1 (EMIR), the European Union’s wide-ranging reform of its derivative markets, is due to continue throughout 2014. Risk mitigation rules were…more

AIFM, AIFMD, Derivatives, EMIR, EU

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Alan Berkowitz

International Employment Law Review: August 2013 - Issue 4: Recent Employment Law Developments in the United States

U.S. Supreme Court Decisions - Court Limits Definition of “Supervisor” Under Federal Anti-Discrimination Law - In Vance v. Ball State University (June 24, 2013), in a 5-4 decision, a majority of the Supreme Court…more

Adverse Employment Action, American Express v Italian Colors Restaurant, Anti-Discrimination Policies, Arbitration, Arbitration Agreements

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Jamiee Bickel

New '.uk' Domain Names to be Introduced

Nominet, the company that manages the UK domain space, will shortly be introducing .uk domain names. This means that from 10 June 2014 shorter domain names such as will be available for the first time, alongside…more

Domain Names, Internet, UK

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Sander Bieber

FSB and IOSCO to Consider Standards for Treating Investment Funds and Asset Managers as Global Systemically Important Financial Institutions

The Financial Stability Board (FSB), in consultation with the International Organization of Securities Commissions (IOSCO), issued “Assessment Methodologies for Identifying Non-Bank Non-Insurer Global Systemically Important…more

Banking Sector, Broker-Dealer, Financial Companies, FSB, Global Economy

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William Bielefeld

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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Stephen Bier

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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Alexander Bilus

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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Caroline Black

What Price a DPA? Navigating Unchartered Waters

From today, Deferred Prosecution Agreements (“DPA”s) will be available in the UK to the Serious Fraud Office (“SFO”) and the Crown Prosecution Service (“CPS”) as a method for disposal of corporate criminal cases relating to…more

Criminal Prosecution, Deferred Prosecution Agreements, SFO, UK

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Gus Black

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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Krystyna Blakeslee

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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Timothy Blank

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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Andrew Bloom

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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James E.B. Bobseine

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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Thomas Bogle

US, EU and Russia Swap Sanctions

President Obama issued yet another new Executive Order (E.O.) blocking property of additional Russian persons the U.S. Government holds responsible for the situation in Ukraine on 20 March 2014. For its part, on 21 March 2014,…more

EU, Foreign Policy, Russia, Sanctions, Ukraine

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Christopher Boisvert

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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Catherine Botticelli

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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Julien Bourgeois

TIC B Forms Are Amended to Explicitly Cover U.S. Investment Managers

In January 2014, U.S. investment managers may experience increased reporting obligations as a result of recent changes to the Treasury International Capital ("TIC”) reporting system effective for certain reports regarding…more

Compliance, Fund Managers, Investors, Reporting Requirements, TIC

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Steven Bradbury

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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Andrew Braid

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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Laura Brank

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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Kristopher Brown

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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Mark Browne

Central Bank brings Exempt Unit Trusts into the AIFMD net, REITs may escape, SPVs exempt for now

The Central Bank of Ireland (the “Central Bank”) issued feedback on 28 March 2014 to its consultation in relation to whether investment structures, most notably exempt unit trusts (“EUTs”), should be considered to be Alternative…more

AIFMD, Banks, Mortgage REITS, SPVs

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Margaret Budnik

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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Carolyn Budzinski

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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Timo Buehler

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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C.B. Buente

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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Ashley Burden

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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Jennifer Burdick

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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Jason Butwick

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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Susan M. Camillo

Let Their Summary Be Your Guide - U.S. Department of Labor Proposes Fee-Disclosure Guide Requirements Under ERISA

Section 408(b)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA") provides an exemption from the “prohibited transaction” provisions of ERISA for certain compensation arrangements with employee benefit plans…more

Disclosure Requirements, DOL, ERISA, Fees

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Stephanie Capistron

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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Christopher Carlson

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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Brenden Carroll

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices - The U.S. Securities and Exchange Commission’s Office of Compliance Inspections and…more

Compliance, Due Diligence, Enforcement Actions, OCIE, SEC

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Sabrina Chekroun

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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Albert Chen

SEC Issues No-Action Letter Expanding Interpretation of the Definition of “Knowledgeable Employee”

The staff of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “Staff”) has issued a no-action letter in response to a request by the Managed Funds Association (the “MFA Letter”),…more

Actual or Constructive Knowledge, No-Action Letters, SEC

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Anna Chizhova

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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YoungYee Cho

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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Matthew Clark

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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Robert Cohen

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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Stephen Cohen

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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Daniel Colaizzi

Federal Reserve Extends Volcker CLO Compliance Period

On April 7th the Federal Reserve Board (the “Fed”) announced that it would provide banking entities with two additional one-year extensions to conform their ownership of CLOs covered by the Volcker Rule. The Fed stated that it…more

Banks, Collateralized Loan Obligations, Federal Reserve, Financial Markets, Time Extensions

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Karen Coppens

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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MIke Cowie

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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Cody Cowper

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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Barbara Cronin

Financial Services Quarterly Report - First Quarter 2013: The UCITS Agenda

The first item on the UCITS agenda for 2013 – the ESMA Guidelines on ETFs and Other UCITS Issues (the “Guidelines”) – has gone live. This article provides an update and clarity around the recently finalised Guidelines2 since the…more

AIFM, AIFMD, Commodities, Derivatives, EFTs

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Scott Curtis

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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Elliott Curzon

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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Alize Dabry

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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Elizabeth Dale

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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Karen Daly

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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Diane Siegel Danoff

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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Carl de Brito

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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Daniel Deacon

Reform of the Derivative Markets in the European Union

The phased-in implementation of the European Market Infrastructure Regulation1 (EMIR), the European Union’s wide-ranging reform of its derivative markets, is due to continue throughout 2014. Risk mitigation rules were…more

AIFM, AIFMD, Derivatives, EMIR, EU

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Christopher Desmond

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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Amanda Dewyer

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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Darshak Dholakia

US, EU and Russia Swap Sanctions

President Obama issued yet another new Executive Order (E.O.) blocking property of additional Russian persons the U.S. Government holds responsible for the situation in Ukraine on 20 March 2014. For its part, on 21 March 2014,…more

EU, Foreign Policy, Russia, Sanctions, Ukraine

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Nicholas DiLorenzo

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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Argia DiMarco

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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Timur Djabbarov

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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Patrick D. Dolan

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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Michael Doluisio

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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J. Ian Downes

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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Andrey Dukhin

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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Olivier Dumas

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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Daniel Dunn

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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Conor Durkin

UCITS V - Aligning with AIFMD!

The European Parliament voted to adopt the UCITS V Directive (“UCITS V”) on 15 April 2014, in advance of Parliamentary elections next month. The final vote followed a period of uncertainty where there was potential for the…more

AIFM, AIFMD, EU, Financial Regulatory Reform, UCITS

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Linda Dwoskin

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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Karl Paulson Egbert

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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Ahmad Elkhouly

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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Steven Engel

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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Kate Ericsson

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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David Eshmoili

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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Damien Fenard

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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Lloyd Firth

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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Carsten Fischer

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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James Fishkin

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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Joseph R. Fleming

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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John Forrest

Russian Trade and Economic Sanctions Draw Even Closer

Trade and economic sanctions against Russia now look unavoidable unless diplomatic efforts can be revived. As such, it is now an important opportunity for companies to assess, and to start thinking about possible plans to…more

Asset Freeze, EU, Sanctions, Ukraine

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Alexander Forster-Jones

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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Owen C.J. Foster

SEC and CFTC Issue Identity Theft Red Flags Rules Applicable to Financial Institutions and Creditors

The SEC and CFTC recently issued joint Identity Theft Red Flags Rules (the “Rules”), which are rules and guidelines requiring certain financial institutions worldwide to adopt comprehensive data security programs to detect red…more

Broker-Dealer, CFTC, CPO, Data Protection, FCMs

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Vernon Francis

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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Richard Frase

Reform of the Derivative Markets in the European Union

The phased-in implementation of the European Market Infrastructure Regulation1 (EMIR), the European Union’s wide-ranging reform of its derivative markets, is due to continue throughout 2014. Risk mitigation rules were…more

AIFM, AIFMD, Derivatives, EMIR, EU

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Hope Freiwald

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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Dr. Markus J. Friedl

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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Thomas Friedmann

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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Jean-Louis Frognet

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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Allison Fumai

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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Daniel Gal

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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Ana Gallo-Alvarez

Russian Trade and Economic Sanctions Draw Even Closer

Trade and economic sanctions against Russia now look unavoidable unless diplomatic efforts can be revived. As such, it is now an important opportunity for companies to assess, and to start thinking about possible plans to…more

Asset Freeze, EU, Sanctions, Ukraine

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Christopher Gardner

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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Sean Geraghty

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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Neil Gerrard

What Price a DPA? Navigating Unchartered Waters

From today, Deferred Prosecution Agreements (“DPA”s) will be available in the UK to the Serious Fraud Office (“SFO”) and the Crown Prosecution Service (“CPS”) as a method for disposal of corporate criminal cases relating to…more

Criminal Prosecution, Deferred Prosecution Agreements, SFO, UK

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David Gervais

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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Michael Gilbert

In What Circumstances Can Foreign Nationals Be Held Liable for Violating The Foreign Corrupt Practices Act?

In the last two weeks, in two separate SEC enforcement actions, judges in the United States District Court for the Southern District of New York issued rulings addressing when the United States Securities and Exchange Commission…more

Bribery, Email, Enforcement Actions, FCPA, Foreign Nationals

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Abi Gillett

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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Matthew Ginsburg

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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Archil Giorgadze

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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Patrick Goebel

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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Richard Goldberg

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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Linda Goldstein

The United States Court of Appeals for the Second Circuit Rejects Aiding and Abetting Liability for Civil Damage Claims Under the Anti-Terrorism Act

The United States Court of Appeals for the Second Circuit issued an opinion on February 14, 2013, holding that the civil liability provision of the Anti-Terrorism Act of 1990, 18 U.S.C.§ 2333(a) (the “ATA”) does not permit…more

Aiding and Abetting, Anti-Terrorism Act, Article III, Damages, Extended Custodial Inventory

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Miriam Gonzalez

Russian Trade and Economic Sanctions Draw Even Closer

Trade and economic sanctions against Russia now look unavoidable unless diplomatic efforts can be revived. As such, it is now an important opportunity for companies to assess, and to start thinking about possible plans to…more

Asset Freeze, EU, Sanctions, Ukraine

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George Gordan

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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Gottfried Graf von Bassewitz

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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Amy Grammer

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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Mayer Grashin

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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Lynsey Gregory

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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Matthieu Grollemund

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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David Gubbay

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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Kenneth Hackman

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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Dr. Martin Haisch

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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Hrishikesh Hari

US, EU and Russia Swap Sanctions

President Obama issued yet another new Executive Order (E.O.) blocking property of additional Russian persons the U.S. Government holds responsible for the situation in Ukraine on 20 March 2014. For its part, on 21 March 2014,…more

EU, Foreign Policy, Russia, Sanctions, Ukraine

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Chris Harran

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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David Harris

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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Andrew Harrow

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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Christopher Harvey

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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Daniel Hawthorne

UK Enters into Tax Agreements with the Cayman Islands and Other Offshore Jurisdictions

The UK and the Cayman Islands recently entered into an agreement to improve international tax compliance (ITC). Similar to the US Foreign Account Tax Compliance Act (FATCA), the ITC imposes wide-ranging UK financial reporting…more

FATCA, International Tax Issues, ITC, UK

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Carolyn Hazard

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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Andrew Hearn

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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Richard Heffner

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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David Heinen

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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Robert Helm

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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Frederick Herold

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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Richard Hervey

IRS Proposes De Minimis Exception to Wash Sale Rules in Connection with SEC Money Market Fund Floating NAV Proposal

The U.S. Internal Revenue Service (IRS) has proposed a new Revenue Procedure (Proposed Revenue Procedure) regarding the application of the wash sale rules under Section 1091 of the U.S. Internal Revenue Code (Code) to floating…more

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

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Dr. Katja Heuterkes

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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Philip Hinkle

CFTC Proposes New Position Limits for Futures, Options, and Swaps and Amended Aggregation Requirements

Introduction - The U.S. Commodity Futures Trading Commission (“CFTC”) has proposed a comprehensive set of regulations imposing speculative position limits on exchange-traded futures and options contracts and economically…more

Aggregation Rules, CEA, CFTC, Dodd-Frank, Futures

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Michael Hirschfeld

OECD Sets Out Ambitious Global Plan to Tackle Tax Fairness Issues

The Organisation for Economic Co-operation and Development (OECD) issued an “Action Plan” to tackle “Base Erosion and Profit Shifting” (“BEPS”) on 19 July 2013. The concept of BEPS covers a range of international tax principles…more

Enforcement Actions, Fairness Hearings, G20, OECD, Tax Rates

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Lewis Ho

Defense Strategies for Navigating Patent Litigation in China

We have observed a stark increase in the number of clients exposed to patent litigations in China. As China has become both an R&D and manufacturing base as well as one of the fastest growing consumer markets of multinational…more

China, Litigation Strategies, Patent Infringement, Patent Litigation, Patents

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Ed Holmes

UK's Information Commissioner’s Office issues guidance on dealing with requests from individuals for personal information

Dealing with a subject access request (SAR), whether or not the person making the request is an employee, can be very time consuming. The Information Commissioner’s Office (ICO) issued a Code of Practice in August 2013 on…more

Data Protection, EU, Personally Identifiable Information, Subject Access Request, UK

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Nathaniel Hopkins

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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Richard Horowitz

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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Emilie Hu

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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Andrew Hulsh

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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Aisha Hunt

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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Martin Hüwel

Simplified Authorization Procedure for Cross-Border Marketing of Swiss Securities Funds and German UCITS

At the beginning of this year – to the (pleasant) surprise of market participants – an agreement came into force to implement a simplification in the marketing of Swiss securities funds (Effektenfonds) in Germany, and German…more

Cross-Border, EU, FINMA, UCITS

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Basil Hwang

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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Thor Imsdahl

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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Elena Ivankina

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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Joni Jacobsen

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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Navpreet Janduar

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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Megan Johnson

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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Thomas Johnson

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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David Jones

IRS Liberalizes the "Use-It-or-Lose-It" Rule for Flexible Spending Accounts and Offers Other Transition Relief

In Notice 2013-71 (the “Notice”), the Internal Revenue Service (the “IRS”) has modified the so-called “use-it-or-lose-it” rule for health flexible spending accounts (“FSAs”) under cafeteria plans to allow participants to carry…more

Affordable Care Act, Cafeteria Plans, Flexible Spending Accounts, Healthcare, IRS

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Rick Jones

Time for Regulatory Reset

It’s still in the early days of 2014. I think it’s finally stopped snowing in the East, the sun has come out and the stock market is continuing to outperform the woe purveyors. Republicans and Democrats have gotten something…more

Banking Crisis, Banking Sector, Basel III, Financial Regulatory Reform, Proprietary Trading

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Andreas Kafetzopoulos

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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Rebecca Kahan

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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Jane Kanter

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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Jeffrey M. Katz

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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Derick Kauffman

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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Paul Kavanaugh

New '.uk' Domain Names to be Introduced

Nominet, the company that manages the UK domain space, will shortly be introducing .uk domain names. This means that from 10 June 2014 shorter domain names such as will be available for the first time, alongside…more

Domain Names, Internet, UK

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Joseph Kelly II

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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Matthew Kerfoot

CFTC Proposes New Position Limits for Futures, Options, and Swaps and Amended Aggregation Requirements

Introduction - The U.S. Commodity Futures Trading Commission (“CFTC”) has proposed a comprehensive set of regulations imposing speculative position limits on exchange-traded futures and options contracts and economically…more

Aggregation Rules, CEA, CFTC, Dodd-Frank, Futures

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Michael Kichline

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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Steven Kirberger

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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David Kistenbroker

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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Evgenia Korotkova

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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David Kotler

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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Tatiana Kozlova

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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Cheryl Krause

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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Peter Kreher

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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Irina Kulyba

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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Betsy Kunz

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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Dmitry Kurochkin

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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Matthew Larrabee

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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William Lawlor

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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Alexander Lazarev

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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Yann Le Garrec

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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Robert H. Ledig

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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Monique Lee

Defense Strategies for Navigating Patent Litigation in China

We have observed a stark increase in the number of clients exposed to patent litigations in China. As China has become both an R&D and manufacturing base as well as one of the fastest growing consumer markets of multinational…more

China, Litigation Strategies, Patent Infringement, Patent Litigation, Patents

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Thomas Lee

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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Young Eung Lee

Maybe Not Such a Bad Actor – Department of Labor Clarifies Anti-Criminal Rule Under ERISA Rules

The U.S. Department of Labor (the “Department”) on November 1, 2013 issued Advisory Opinion 2013-05A (the “Opinion”) concerning the application of certain anti-criminal provisions under the Employee Retirement Income Security…more

Convictions, DOL, ERISA, QPAM

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Stephen Leitzell

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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Angelo Lercara

Simplified Authorization Procedure for Cross-Border Marketing of Swiss Securities Funds and German UCITS

At the beginning of this year – to the (pleasant) surprise of market participants – an agreement came into force to implement a simplification in the marketing of Swiss securities funds (Effektenfonds) in Germany, and German…more

Cross-Border, EU, FINMA, UCITS

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Bruno Leroy

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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Christine Levin

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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Angelyn Lim

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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Timothy Lindsay

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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Angela Liu

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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Judith Livingstone

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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Steven Lorch

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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Gregory Louvel

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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Ross MacConnell

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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Vivian Maese

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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Matthew Magee

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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Yuri Makhonin

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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Nauman Malik

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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Charles Malpass

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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Renzo Marchini

Safe Harbor in a Storm

The Federal Trade Commission has flexed its muscles in relation to the Safe Harbor privacy framework, but has it done enough to placate European sceptics? The US Federal Trade Commission (“FTC”) announced on 21 January…more

Compliance, EU, FTC, Misrepresentation, Safe Harbors

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Nicola Mariani

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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Stuart Martin

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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Jonathan R. Massey

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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Kathleen Massey

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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Christian Matarese

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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Marques Matthews

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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Ralph R. Mazzeo

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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Edward McDonald

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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Emma McDonnell

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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William McEnroe

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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Asha Mehrotra

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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Gary J. Mennitt

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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Prof. Dr. Hans Jürgen Meyer-Lindemann

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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Joshua Milgrim

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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Gordon L. Miller

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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Allie Misner

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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Elizaveta Molosnova

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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James Moore

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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Carl Morales, Ph.D.

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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Aaron Mulcahy

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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Roger Mulvihill

Private Equity Newsletter - Winter Edition 2014: Limited Partner Co-investment Heats Up

It seems that co-investment by limited partners is more popular than ever. According to a recent study by Preqin, 43% of Limited Partners tracked by Preqin are actively seeking co-investment opportunities and 11% more are…more

Co-Investment Rights, Limited Partnerships, Private Equity

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Jack Murphy

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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Sean Murphy

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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Marc Nawyn

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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Laurie Nelson

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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Christian Timm Neugebauer

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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Antonios Nezeritis

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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Kate Norman

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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Martin Nussbaum

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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Justin Nuttall

CRA3: ESMA Proposes Wide-Ranging Disclosure Requirements on EU Originators, Sponsors and Issuers

The European Securities and Markets Authority (ESMA) published a consultation paper in February 2014, setting out (amongst other things) the draft Regulatory Technical Standards (RTS) on disclosure requirements for structured…more

Credit Ratings, Disclosure Requirements, ESMA, EU, European Commission

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Richard O'Brien

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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Debra D. O'Gorman

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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Declan O’Sullivan

UCITS V - Aligning with AIFMD!

The European Parliament voted to adopt the UCITS V Directive (“UCITS V”) on 15 April 2014, in advance of Parliamentary elections next month. The final vote followed a period of uncertainty where there was potential for the…more

AIFM, AIFMD, EU, Financial Regulatory Reform, UCITS

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Sophie Ogilvie

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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Taras Oksyuk

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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Andrew L. Oringer

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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Rhodri Owen

UK Government Proposals to Change the Share Buyback Regime

On 15 February 2013, the government published a set of proposals relating to the implementation of the Nuttall Review’s recommendations on share buybacks. The changes are designed to reduce the barriers that disincentivise…more

Buyback Programs, EU, Incentive Stock Options, Share Buybacks

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Harraj Panesar

Cheaper to Dismiss?

Legislation came into force in the UK on 29 July 2013, limiting the amount an employee can receive by way of compensation for unfair dismissal to the lower of £74,200 or 52 weeks’ gross pay…more

Employer Liability Issues, Just Compensation, New Legislation, Termination, UK

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Igor Panshensky

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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Michael H. Park

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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Rodolphe R.A. Pellerin

Private Equity Newsletter - Fall/Winter 2012 Edition: Negotiating Private Equity and M&A Deals in the Middle East

After a number of ebullient years of activity until late 2007, the Middle Eastern private equity industry is facing new challenges as fund-raising is getting tougher and investors across the board have become more demanding. In…more

Bilateral Investment Treaties, Dispute Resolution Clauses, Due Diligence, Foreign Investment, Middle East

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Justin Pentz

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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Michelle Peters

SEC Proposes Additional Requirements to Regulation D, Form D and Rule 156

The Securities and Exchange Commission (SEC) has proposed a suite of amendments to Regulation D, Form D and Rule 156 under the Securities Act of 1933 (Securities Act) (Proposed Rules). According to the SEC, the Proposing Release…more

Form D Filing, Proposed Regulation, Regulation D, Rule 156, SEC

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Jonathan Pickworth

What Price a DPA? Navigating Unchartered Waters

From today, Deferred Prosecution Agreements (“DPA”s) will be available in the UK to the Serious Fraud Office (“SFO”) and the Crown Prosecution Service (“CPS”) as a method for disposal of corporate criminal cases relating to…more

Criminal Prosecution, Deferred Prosecution Agreements, SFO, UK

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Reza Pishva

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices - The U.S. Securities and Exchange Commission’s Office of Compliance Inspections and…more

Compliance, Due Diligence, Enforcement Actions, OCIE, SEC

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Edward Pittman

Private Equity Newsletter - Autumn 2013 Edition: Recent Statements by SEC Staff Generate Controversy over Whether Advisers to Private Equity Funds Must Register as Broker-Dealers

On April 5, 2013, David W. Blass, Chief Counsel of the Securities and Exchange Commission’s (“SEC”) Division of Trading and Markets, warned an American Bar Association (“ABA”) committee that private equity funds should consider…more

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Galia Porat

The First Circuit Court of Appeals Articulates a Stricter Independence Standard for Fund Directors When Evaluating Demand Futility in Shareholder Derivative Cases

The U.S. Court of Appeals for the First Circuit, in Unión de Empleados de Muelles de Puerto Rico PRSSA Welfare Plan, v. UBS Financial Services Inc. of Puerto Rico, No. 11-1605, --- F.3d ----, 2013 WL 49818 (1st Cir. Jan. 4,…more

Appeals, Board of Directors, Demand Futility, Derivative Suit, Investment Adviser

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Frederick Quenzer

CFTC Issues Cross-Border Swaps Regulation Guidance and Exemptive Order

The U.S. Commodity Futures Trading Commission (“CFTC”) recently approved and issued its eagerly anticipated: i. final interpretive guidance and policy statement on the cross-border application of the swap regulation…more

CFTC, Commodities Exchange Act, Cross-Border, Cross-Border Transactions, Exemptive Orders

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Isabelle Rahman

Reverse payment deals under the microscope in the EU

Lessons from the latest Commission decision on agreements affecting generic entry: - The European Commission’s crack down on so-called “reverse payment” agreements continues. - In the EU these agreements may…more

Competition, Corporate Counsel, EU, European Commission, Fines

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Anneka Randhawa

What Price a DPA? Navigating Unchartered Waters

From today, Deferred Prosecution Agreements (“DPA”s) will be available in the UK to the Serious Fraud Office (“SFO”) and the Crown Prosecution Service (“CPS”) as a method for disposal of corporate criminal cases relating to…more

Criminal Prosecution, Deferred Prosecution Agreements, SFO, UK

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Kennety Rasamny

Private Equity Newsletter - Winter 2014 Edition: SEC Approves Final Rules that Disqualify “Bad Actors” from Using Rule 506 to Offer Securities

Most private equity funds that are subject to the U.S. securities laws rely on Rule 506(b) of Regulation D, a safe harbor under Section 4(a)(2) of the Securities Act of 1933 (Securities Act), in forming funds and soliciting…more

Bad Actors, JOBS Act, Private Equity, Regulation D, Rule 506 Offerings

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Robert Rhatigan

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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Emma Richardson

UK Employment Law Update: Be Careful With Your Employment Procedures

This OnPoint reports on two recent UK employment law decisions which remind employers of the perils of failing to comply with appropriate procedures in relation to the conduct of disciplinary, grievance and other matters…more

Compliance, Employer Liability Issues, Grievance Process, UK

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Keith Robinson

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices

U.S. SEC’s Office of Compliance Inspections and Examinations Issues Risk Alert on Alternative Investment Due Diligence Practices - The U.S. Securities and Exchange Commission’s Office of Compliance Inspections and…more

Compliance, Due Diligence, Enforcement Actions, OCIE, SEC

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Corey Rose

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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Benjamin Rosenberg

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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David S. Rosenthal

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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Laura Rossi

CIS Legal Update - May 2013: Luxembourg Holding Companies and Other Structures

With the continuing banking crisis in Cyprus, it is not surprising that other jurisdictions with legislation conducive to holding structures are receiving increased attention. Luxembourg, for example, is known for having a world…more

Asset Management, EU, Limited Partnerships, LLC, Share Capital

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Georgina Rowley

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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Shannon Rushing

Still Tied Up In Knots - IRS and DOL Guidance on Same-Sex Marriage Following Supreme Court’s Windsor Decision

As we previously reported, in United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court held section 3 of the Defense of Marriage Act to be unconstitutional. Section 3 of the Defense of Marriage Act provides that,…more

DOL, DOMA, Employee Benefits, ERISA, FICA Taxes

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Giovanni Russo

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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Michael Sage

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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Antoine Sarailler

Financial Services Quarterly Report - Fourth Quarter 2013: Management of French Funds and Access to the French Market: New Opportunities Offered by the AIFM Directive

Further to the implementation of the AIFM Directive in France, new cross-border management and distribution possibilities are now available for investment products in the form of alternative investment funds (AIFs)…more

AIFM, AIFMD, Cross-Border, EU, UCITS

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Kevin Scanlan

Recent SEC Actions Focus on Broker-Dealer Activity of Private Funds, Highlight Perils, and Generate Controversy

A recent public statement by a member of the senior staff (“Staff”) of the Securities and Exchange Commission (“SEC”) and recent SEC enforcement actions have reminded private equity and other private fund managers (such as hedge…more

Broker-Dealer, Finders, Fund Managers, Investment Adviser, Marketing

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Marianne Schaffner

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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Mikhaelle Schiappacasse

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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Sven Schulte-Hillen

Mexico Opens Up Its Energy Industry: The Liberalization of Mexico’s Energy Sector May Lead to New Opportunities for Investors

Mexico’s president, Enrique Peña Nieto, introduced a reform in August 2013, according to which the Mexican state will give up absolute control over the supply of oil, gas and electricity. The relevant bill changing the Mexican…more

Electricity, Energy Exploration, Energy Reform, Foreign Investment, Mexico

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Marc Seimetz

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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Elshat Seksembayeva

CIS Legal Update - September 2013: Kazakhstan National ID Scheme and Issues for Foreign Executives

Six years after the passage of the Law of the Republic of Kazakhstan on National Registers of Identification Authorities (“National Registry Law”) of 12.01.2007 (as amended on 21.06.2013), on January 1, 2013, obtaining an…more

Foreign Workers, IDs, Residency Status

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Jeremy Senderowicz

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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Ramil Shafigulan

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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Emily Shea

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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Joshua Sherman

Think the Government’s Claim Against You Is Time-Barred? Not So Fast!

When a company understands that the United States Government may have a claim against it, the company’s directors and officers are usually very aware of the applicable statute of limitations and the passage of time. When the…more

False Claims Act, FIRREA, Fraud, HUD, Statute of Limitations

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Michael L. Sherman

SEC Issues No-Action Letter Expanding Interpretation of the Definition of “Knowledgeable Employee”

The staff of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “Staff”) has issued a no-action letter in response to a request by the Managed Funds Association (the “MFA Letter”),…more

Actual or Constructive Knowledge, No-Action Letters, SEC

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Eric Siegel

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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Chris P. Sioufi

Private Equity Newsletter - Fall/Winter 2012 Edition: Negotiating Private Equity and M&A Deals in the Middle East

After a number of ebullient years of activity until late 2007, the Middle Eastern private equity industry is facing new challenges as fund-raising is getting tougher and investors across the board have become more demanding. In…more

Bilateral Investment Treaties, Dispute Resolution Clauses, Due Diligence, Foreign Investment, Middle East

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Kirill Skopchevskiy

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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Aline Smith

Financial Services Quarterly Report - Third Quarter 2013: U.S. SEC’s Proposal to Amend Rules Governing Money Market Funds: Implications for Boards

The U.S. Securities and Exchange Commission (“SEC”) has proposed sweeping amendments to Rule 2a-7 under the Investment Company Act of 1940 (“1940 Act”) and other rules relating to money market funds (“money funds”).1 The…more

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

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Nathan Smith

New '.uk' Domain Names to be Introduced

Nominet, the company that manages the UK domain space, will shortly be introducing .uk domain names. This means that from 10 June 2014 shorter domain names such as will be available for the first time, alongside…more

Domain Names, Internet, UK

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Sean Solis

Federal Reserve Extends Volcker CLO Compliance Period

On April 7th the Federal Reserve Board (the “Fed”) announced that it would provide banking entities with two additional one-year extensions to conform their ownership of CLOs covered by the Volcker Rule. The Fed stated that it…more

Banks, Collateralized Loan Obligations, Federal Reserve, Financial Markets, Time Extensions

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Melissa Squire

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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Hans Stamm

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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Mark Stapleton

UK Enters into Tax Agreements with the Cayman Islands and Other Offshore Jurisdictions

The UK and the Cayman Islands recently entered into an agreement to improve international tax compliance (ITC). Similar to the US Foreign Account Tax Compliance Act (FATCA), the ITC imposes wide-ranging UK financial reporting…more

FATCA, International Tax Issues, ITC, UK

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Neil Steiner

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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Stuart Strauss

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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John Sun

New Legislation Introduced to Allow Discharge of Private Student Debt

The Consumer Financial Protection Bureau (the “CFPB”) reported in 2012 that U.S. borrowers are burdened by more than $1 trillion in student debt, including over $150 billion of private student loans. According to TransUnion, a…more

BAPCPA, CFPB, Federal Student Loans, Private Student Loan Bankruptcy Fairness Act, Private Student Loans

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Justin Tait

The Debate Continues – U.S. Money Market Fund Update

Since the U.S. Financial Stability Oversight Council (“FSOC”) issued proposed recommendations to the U.S. Securities and Exchange Commission (“SEC”) regarding additional reforms to money market fund (“money fund”) regulation on…more

FSOC, Money Market Funds, SEC

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Jingzhou Tao

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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Phillippe Thomas

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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John Timperio

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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Lindsay Trapp

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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Jeremy Trinder

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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Justin True

Real World - January 2013

Welcome to the Winter edition of Real World from Dechert’s London Finance and Real Estate Group, keeping you up to date with recent developments in real estate law and practice. In this issue: - An A-Z for 2013 – A…more

Anti-Avoidance, EU, Higher-Priced Mortgage Loans, Judicial Review

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Christian Tuddenham

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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Claude Tusk

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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Thomas P. Vartanian

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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David A. Vaughan

SEC Issues No-Action Letter Expanding Interpretation of the Definition of “Knowledgeable Employee”

The staff of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “Staff”) has issued a no-action letter in response to a request by the Managed Funds Association (the “MFA Letter”),…more

Actual or Constructive Knowledge, No-Action Letters, SEC

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Romain Viret

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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Jacques Visser

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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Carl Volz

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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Karla Vuyts

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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James Waddington

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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L. Audrey Wagner

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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James Wald

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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Kenneth Wang

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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Paul Wang

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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Adam Wasserman

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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Olga Watson

CIS Legal Update - May 2013: Measures Taken to Strengthen Russian Anti-Corruption Laws

Despite Russia’s reputation for corruption, the anti-bribery climate in Russia is evolving. A recent flurry of anti-bribery legislation, as well as Russia’s ratification of the OECD Convention on Combating Bribery of Foreign…more

Anti-Bribery, Anti-Corruption, Compliance, Enforcement, FCPA

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Michael Weiner

FTC Report Shows that Oil Sector and Pharmaceutical Sector Mergers Are Under the Antitrust Spotlight

The U.S. Federal Trade Commission (“FTC”) issued a data report on January 4 regarding its horizontal merger investigation and enforcement action record over the past fifteen years. The report shows, sector by-sector, the level…more

FTC, Horizontal Mergers, Oil & Gas, Pharmaceutical

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M. Holland West

International Arbitration of Financial Disputes: Key Questions Answered

This article addresses key questions concerning the use of international arbitration in cross-border financial transactions, and includes a discussion of the International Swaps and Derivatives Association (ISDA) September 2013…more

Arbitration, Cross-Border, International Arbitration, ISDA, Swaps

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Duncan Wiggetts

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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Cynthia Williams

European Commission Publishes Final Regulatory Technical Standards on Risk Retention

The European Commission published the final regulatory technical standards on 13 March 2014 specifying the requirements for investor, sponsor, original lenders and originator institutions relating to exposures to transferred…more

EU, European Commission, Risk Retention

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Deborah Williams

Thematic Review by FCA of Asset Managers in the UK

The Financial Conduct Authority has now completed its thematic review of Anti-Money Laundering and Anti-Bribery and Corruption Systems and Controls: Asset Management and Platform Firms (TR13/9). The review of 22 wealth and asset…more

Anti-Bribery, Anti-Corruption, Anti-Money Laundering, Compliance, FCA

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Jeanette Wingler

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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Aaron Withrow

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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Michelle Wong

SEC Proposes Additional Requirements to Regulation D, Form D and Rule 156

The Securities and Exchange Commission (SEC) has proposed a suite of amendments to Regulation D, Form D and Rule 156 under the Securities Act of 1933 (Securities Act) (Proposed Rules). According to the SEC, the Proposing Release…