Proskauer Rose LLP

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Eleven Times Square
(Eighth Avenue & 41st Street)
New York, NY 10036-8299, United States
Phone: 212.969.3000
Fax: 212.969.2900
Practice Groups
Areas Of Practice
  • Administrative Law
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Business Organizations
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Constitutional Law
  • Construction Law
  • Criminal Law
  • Debtor/Creditor
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Immigration Law
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Mergers & Acquisitions
  • Privacy
  • Products Liability
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Wills, Trusts, & Estate Planning
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Florida
  • Illinois
  • Louisiana
  • Massachusetts
  • New York
Other Countries
  • Brazil
  • China
  • France
  • Hong Kong
  • United Kingdom
Number of Attorneys
400+ Attorneys

Three Point Shot - September 2023

Welcome to Three Point Shot, a newsletter brought to you by the Sports Law Group at Proskauer. Three Point Shot brings you the latest in sports law-related news and provides you with links to related materials. In this issue, we…more

Antitrust Provisions, Appeals, Arbitration, Constitutional Challenges, DMCA

See all updates »

Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

See all updates »

CTA – The Large Operating Company Exemption – Not Everybody Can Be A “Big BOI”

In 2021, the Corporate Transparency Act (the “CTA”) was enacted into U.S. federal law as part of a multi‑national effort to rein in the use of entities to mask illegal activity. The CTA directs the U.S. Department of the…more

Beneficial Owner, Corporate Transparency Act, FinCEN, Foreign Corporations, Full-Time Employees

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Understanding Proposed Changes to Noncompete Agreements

Noncompete agreements are under siege, facing attacks on the state and federal fronts. This is vividly illustrated by what's happening within the Federal Trade Commission and the New York State Legislature. In the…more

Acquisitions, Compensation, Federal Trade Commission (FTC), Mergers, New York

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Tax Court Decision Interprets Profits Interest “Safe Harbor” under IRS Rev. Proc. 93-27

The Tax Court’s May 3, 2023, decision in ES NPA Holding, LLC v. Commissioner (T.C. Memo 2023‑55), upholding a taxpayer’s position to characterize a partnership interest as a profits interest under the “safe harbor” of IRS…more

Compensation, Investment, IRS, Private Equity, Revenue Procedures

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SEC Adopts Treasury Clearing Rules

On December 13, 2023, the Securities and Exchange Commission (“SEC”) adopted new rules that will have the effect of requiring central clearing of a broad range of cash transactions and repurchase transactions in U.S. treasury…more

Broker-Dealer, Derivatives, Mandatory Clearing Rule, Proposed Rules, Securities and Exchange Commission (SEC)

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IRS Releases Annual Increases to Health FSA and Transportation Fringe Benefit Limits for 2024

On November 9th, the IRS announced additional inflation adjustments for 2024, including to the annual contribution and carryover limits for healthcare flexible spending accounts and the monthly limit for qualified transportation…more

Flexible Spending Accounts, Fringe Benefits, Healthcare, Inflation Adjustments, IRS

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Seventh Circuit Rules: Just Saying it Doesn’t Make it So, for Class Certification

Defendants on the losing side of a class certification order were recently provided with a roadmap of how to challenge a district court’s analysis on appeal. On April 12, 2023, the United States Court of Appeals for the…more

Appeals, Class Certification, Coronavirus/COVID-19, Federal Rules of Civil Procedure, Putative Class Actions

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

See all updates »

Wealth Management Update - December 2023

Shining a Light on the Corporate Transparency Act: FinCEN’s Rules for Beneficial Ownership Reporting - On January 1, 2021, Congress enacted the Corporate Transparency Act (the “CTA”) as part of the Anti-Money Laundering Act…more

Anti-Money Laundering, Beneficial Owner, Commodity Trading Advisors (CTAs), Corporate Transparency Act, Due Diligence

See all updates »

Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

See all updates »

Private Credit Deep Dives – Covenant Cures

Notwithstanding at least some deterioration in documentation standards towards the top-end of the private credit market in recent years, maintenance leverage covenants have remained a pervasive feature of unitranche as an asset…more

Borrowers, Cure Periods, EBITDA, Investment, Lenders

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[Podcast] Private Market Talks: Thinking Different in Direct Lending with Hayfin’s Tim Flynn

On this episode of Private Market Talks, we’re joined by Tim Flynn, Co-Founder and CEO of Hayfin, an alternative asset manager that has invested €35 billion of capital across more than 470 portfolio companies since its founding…more

Asset Management, Financial Markets, Financial Services Industry, Investment, Investment Management

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SEC Strengthens Regulation 13D-G Rules for Beneficial Ownership Reporting

On October 10, 2023, the Securities and Exchange Commission adopted amendments to the rules governing beneficial ownership reporting under Sections 13(d) and 13(g) of the Securities Exchange Act of 1934. The adopting release is…more

Beneficial Owner, Compliance, Disclosure Requirements, Hedge Funds, Initial Public Offering (IPO)

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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U.S. Chamber Strikes Back At NLRB Joint-Employer Rule

On November 9, 2023, the United States Chamber of Commerce (“Chamber”) and a coalition of business groups filed suit in the Eastern District Court of Texas against the National Labor Relations Board (“NLRB”), alleging the…more

Administrative Procedure Act, Chamber of Commerce, Employees, Federal Trade Commission (FTC), Independent Contractors

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Where Do We Go From Here? Practical Considerations When Multidistrict Litigation Comes to an End

When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a…more

Case Consolidation, Commercial Litigation, Daubert Ruling, Depositions, Disclosure Requirements

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New Jersey Employers be Warned: Changes to New Jersey WARN Likely on the Horizon

Almost three years ago – in January of 2020 – New Jersey Governor Phil Murphy signed Senate Bill 3170 into law, which provided significant amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act – also known…more

Coronavirus/COVID-19, Executive Orders, New Jersey, WARN Act

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From cryptic to (some) clarity: English law and policy rising to the challenge of cryptoassets

Sir Geoffrey Vos, the Master of the Rolls wants English law to be at the forefront of developments relating to cryptoassets and smart contracts. In his thought-provoking foreword to the government-backed UK Jurisdictional…more

Cryptoassets, Cryptocurrency, Digital Assets, Financial Regulatory Reform, Financial Transactions

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HMRC updates guidance on UK tax status of non-UK entities and US LLCs post Anson

On 6 December, HMRC updated the section in its International Manual discussing the UK tax characterisation of overseas entities, and of Delaware (and other US) limited liability companies (LLCs) in particular (in INTM180000 and…more

Business Entities, Foreign Entities, HMRC, Limited Liability Company (LLC), Regulatory Requirements

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No Time Like Today for an Ultra-fast Restructuring

As we prepare for the next restructuring cycle, the US private credit industry is becoming more intrigued with ultra-fast bankruptcy cases. These chapter 11 cases grab headlines and last less than a day. Specifically, FullBeauty…more

Bankruptcy Code, Bankruptcy Reform, Chapter 11, Commercial Bankruptcy, Corporate Restructuring

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Coronavirus: A Checklist for the Hospitality Industry Executive

As the Coronavirus (COVID-19) continues to disrupt travel and almost every other aspect of day-to-day life, the hospitality industry faces unprecedented challenges. Hotel closings, employee furloughs and other drastic measures…more

Acquisitions, Commercial Contracts, Coronavirus/COVID-19, Mergers, OSHA

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Question of the Week: Why is it still important to link corporate ESG strategy to M&A?

In my view, it is now an essential part of the M&A investment thesis. Increasingly, we are seeing institutional investors align their portfolio companies towards better ESG compliance and performance, underlining that ESG is now…more

Acquisitions, Environmental Social & Governance (ESG), Investment, Investors, Mergers

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Is Arbitration Becoming “Just Somebody That We Used to Know”? — The Beginning of the End of Arbitration

When Congress passed and President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“the Act”) last year, we predicted it was just the beginning of an all-out federal assault on…more

ADEA, Arbitration, Arbitration Agreements, California, Cause of Action Accrual

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New Massachusetts Law Creates Expanded Definition of Racial Discrimination in Employment and Other Areas to Encompass “Natural or Protective Hairstyles”

On July 26, 2022, Massachusetts Governor Charlie Baker signed the Creating a Respectful and Open World for Natural Hair Act (“CROWN Act”) into law, making Massachusetts the 18th state to enact legislation aimed at protecting…more

Anti-Discrimination Policies, Governor Baker, Hairstyle Discrimination, Race Discrimination

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Effect of the New NYSE and Nasdaq Clawback Listing Standards on Registered Funds and BDCs

Beginning on December 1, 2023, companies listed on the New York Stock Exchange (“NYSE”) and the Nasdaq Stock Market (“Nasdaq”) will need to adopt and comply with policies providing for the recovery, or “clawback”, of erroneously…more

Business Development Companies, Clawbacks, Incentive Compensation, Investment Adviser, Investment Company Act of 1940

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Implications of U.S. Supreme Court Decision Overturning Affirmative Action Precedent in Higher Education

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race-conscious admissions programs at Harvard College and the University of North Carolina…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity and Inclusion Standards (D&I), Employment Discrimination

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

President Biden Announces New Price Fixing “Strike Force”: Government Continues Antitrust Crusade

Earlier this month, President Biden announced the formation of a “Strike Force on Unfair and Illegal Pricing.” This strike force will be an interagency group co-chaired by the FTC and DOJ. President Biden stated the group will…more

Antitrust Division, Biden Administration, Competition, Enforcement, Federal Trade Commission (FTC)

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First Circuit Treads “Unchartered Waters”: Holds Copyright Sublicenses Can Be Implied

On March 13, 2020, the U.S. Court of Appeals for the First Circuit, in a case of first impression, held that a copyright licensee given the unrestricted right to grant sublicenses may do so without using express language. The…more

Copyright, Copyright Infringement, Copyright Litigation

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

U.S. District Court in Alabama Finds the Corporate Transparency Act Unconstitutional

On March 1, 2024, Judge Liles C. Burke of the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (the “CTA”) is unconstitutional, leaving its future uncertain. The CTA requires…more

Appeals, Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, FinCEN

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Reform of the English Arbitration Act 1996 – The Law Commission’s Final Report

We have previously reported on changes the Law Commission was considering to the Arbitration Act 1996 (the Act). The Law Commission has now published its final report (the Final Report, available here). The report draws to…more

Arbitration, Arbitration Agreements, Arbitration Awards, Confidentiality Agreements, Regulatory Reform

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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Can Open Justice Be Too Open? A Review of Proposals to Provide Non-Parties Greater Access to Court Documents in England & Wales

In July 2019, the UK Supreme Court (UKSC) handed down a judgment in a case that concerned the extent and operation of the principle of open justice (Cape v Dring). The question before the UKSC was how much of the written…more

Commercial Litigation, Documentation, Rules of Civil Procedure, UK Supreme Court

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California Lemon Law Just Got a Little Sweeter for Consumers

On March 4, 2024, the California Supreme Court ruled in Niedermeier v. FCA that consumers forced to trade in or sell their defective vehicles due to a manufacturer’s failure to comply with the Song-Beverly Consumer Warranty Act,…more

Appeals, CA Supreme Court, California, Civil Code, Consumer Protection Laws

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Updated Federal Overtime Rule Cleared by White House

The White House Office of Information and Regulatory Affairs (OIRA) completed its review of the updated federal overtime rule on April 10, 2024. We can expect publication of the final rule in the Federal Register any day now,…more

Biden Administration, EAP, Final Rules, Highly Compensated Employees, New Rules

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New York Appellate Division Says No Private Action for Violations of Weekly Pay Law, Creating Split in Precedent

In a hotly anticipated decision, the Appellate Division, Second Department held on January 17, 2023 that no private right of action exists for a violation of Labor Law § 191(1)(a), which—absent a waiver by the Commissioner of…more

Appellate Jurisdiction, Employees, Employer Liability Issues, Labor Law Violations, New York

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NLRB GC Issues Guidance Memorandum on “Quickie” Election Rules That Go Into Effect On December 26, 2023

As recently discussed, on December 26, 2023, representation case procedures will change under a rule published by the National Labor Relations Board (“NLRB” or “Board”) in August earlier this year. Background: When a union…more

Cemex, Labor Relations, NLRB, Quickie Election Rules, Union Elections

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Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding the…more

Breach of Contract, Controlling Stockholders, Corporate Counsel, Derivative Suit, Fee Reductions

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

See all updates »

DOL Unveils Final Amendment to QPAM Exemption

On April 3, 2024, the U.S. Department of Labor (the “DOL”) published in the federal register a final amendment to Prohibited Transaction Class Exemption 84-14 (the “QPAM Exemption”) that makes considerable changes to the…more

Benefit Plan Sponsors, Criminal Convictions, Deferred Prosecution Agreements, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA)

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LIBOR Transition Update

This LIBOR transition update, directed primarily at private credit lenders, provides a recap of recent trends and reflects new developments on the eve of LIBOR transition for banks, including new SOFR issuance by private credit…more

Banks, Borrowers, Consumer Financial Products, Credit Facilities, Financial Regulatory Reform

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Talking Trends

In our latest Q&A series, we delve into the world of private credit through the lens of eminent women in the field — from professionals at the forefront of industry leadership to our own lawyers. Together, we navigate the trends…more

Acquisitions, Creditors, Interest Rates, Investment, Investors

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Ninth Circuit Clears Airline’s Arbitration by Estoppel Argument for Takeoff

Earlier this month, in Herrera v. Cathay Pacific Airways Ltd., a divided Ninth Circuit panel reversed the district court’s order denying Cathay Pacific Airways Ltd.’s motion to compel arbitration of a putative class action…more

Appeals, Arbitration, Arbitration Agreements, Estoppel, Third-Party Service Provider

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Question of the Week: Sports-focused capital investment remains strong. What is driving the influx of private capital into sports? - Insights

"In recent years, the value of professional sports leagues and teams has skyrocketed, as reflected by a number of record-breaking transactions. At the same time, we experienced an unprecedented accumulation of capital by private…more

Asset Management, Capital Investments, Investment, Investment Management, Investors

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OFCCP Releases 2024 VEVRAA Hiring Benchmark

The Office of Federal Contract Compliance Programs (“OFCCP”) has released its 2024 Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) benchmark. Effective March 31, 2024, the new benchmark is 5.2%, a slight decrease…more

Federal Contractors, OFCCP, Veterans, Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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NLRB Rules That Graduate Students Are Employees

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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Do California’s New Restrictions on Independent Contractors Apply Retroactively?

On May 1, we reported on the California Supreme Court’s opinion in Dynamex Operations West, Inc. v. Superior Court, in which the Supreme Court set forth the standard for determining if a worker may properly be classified as an…more

ABC Test, CA Supreme Court, Employer Liability Issues, Employment Litigation, Independent Contractors

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Privacy Class Action Spotlight: Latest Wave of Wiretap Class Actions Continues Despite Dismissals as Plaintiffs Try New Approaches

Over a hundred cases are pending from the wave of privacy class actions that commenced last year alleging violations of state wiretap statutes based on use of website session replay, chatbot and pixel technologies…more

Analytics, California, CIPA, Class Action, Dismissals

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The Case for a PAGA Adequacy Requirement

In Arias v. Superior Court, 46 Cal. 4th 969 (2009), the California Supreme Court ruled that Private Attorneys General Act (PAGA) actions need not satisfy class action requirements, and in the fourteen years since, PAGA…more

Adequacy Requirement, Appeals, CA Supreme Court, Class Action, Enforcement

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New York City Council Introduces Three New Bills Aimed at Non-Competes

Joining an emerging trend of legislative and regulatory hostility towards non-compete agreements, on February 28, 2024, the New York City Council introduced three new bills proposing restrictions on non-compete agreements in New…more

Disclosure Requirements, Enforcement, Financial Industry Regulatory Authority (FINRA), Good Faith, Independent Contractors

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Another SEC Whistleblower Amicus Brief On Whether Dodd-Frank Covers Internal Complaints

On February 6, the SEC filed its third amicus brief defending its interpretive rule on Dodd-Frank’s anti-retaliation provision, 15 U.S.C. §78u-6(h)(1). The impetus is a ruling out of the Southern District of New York in Berman…more

Anti-Retaliation Provisions, Dodd-Frank, Employer Liability Issues, Internal Reporting, Securities and Exchange Commission (SEC)

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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PBGC Provides Temporary Flexibility for Variable-Rate Premium Calculations

In late September, the Pension Benefit Guaranty Corporation (the “PBGC”) published Press Release 20-04 and issued Technical Update 20-2 providing flexibility in the calculation of variable-rate premiums for plan sponsors who…more

Benefit Plan Sponsors, CARES Act, Employee Benefits, Employee Contributions, IRS

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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U.S. Department of Labor Steps into the Cybersecurity Discussion

Formally wading into the cybersecurity discussion for the first time, on April 14, 2021, the U.S. Department of Labor (DOL) posted on its website a suite of new guidance, including Tips for Hiring a Service Provider with Strong…more

Benefit Plan Sponsors, Best Practices, Corporate Counsel, Cyber Crimes, Cybersecurity

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A Closer Look At Antitrust Agencies' Chat Platforms Guidance

The Federal Trade Commission's Bureau of Competition and the U.S. Department of Justice Antitrust Division earlier this year released a joint statement reiterating document preservation obligations for companies and individuals…more

Antitrust Division, Antitrust Litigation, Department of Justice (DOJ), Document Preservation Notices, Electronic Communications

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SEC Adopts New SPAC Rules

On January 24, 2024, the SEC adopted new rules that apply to SPAC transactions and the adopted rules largely track the agency’s proposals with some notable exceptions. The new rules will become effective 125 days after…more

Capital Markets, Conflicts of Interest, Dilution, Disclosure Requirements, Enforcement Actions

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Commercial Fishermen Urge Supreme Court to Reel In Agency Authority

The U.S. Supreme Court has agreed to hear a case challenging its landmark 1984 decision in Chevron v. Natural Resources Defense Council. The high court’s ruling could have important implications on federal officials’ discretion…more

Chevron, Chevron Deference, Chevron v NRDC, Environmental Protection Agency (EPA), Fishing Industry

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"Commercially Reasonable Efforts” Clauses in Drug Development Deals: What Level of Protection Do They Really Provide?

Pharmaceutical drug development is expensive. One recent study estimates that the median cost to develop a new drug is $985 million, while the average is $1.3 billion. And those figures appear to be on the low end of a broad…more

Commercially Reasonable Efforts, Contract Terms, Drug Design, Funding Arrangements, IP License

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Pre-Petition Settlement Agreement Not an Assumable, Assignable, Executory Contract

In Svenhard’s Swedish Bakery v. United States Bakery, Bk. No. 19-15277, 2023 WL 5541420 (9th Cir. Aug. 29, 2023), the Ninth Circuit held that a settlement agreement that resolved an employer’s withdrawal liability to a…more

Chapter 11, Employee Retirement Income Security Act (ERISA), Executory Contracts, Proof of Claims, Releases

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Alumni Reflections: The Power of Mentorship & Camaraderie

Proskauer partner Mike Callahan sat down with alums Julie Kim, vice president and senior counsel at Warner Bros. Discovery, and Marjan Elbaum, general counsel at Banyan Software. Julie and Marjan developed an early bond at…more

Acquisitions, Career Development, Commercial Contracts, Mentor-Protege Program, Mergers

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BridgeBio Transaction Reflects Healthy Market for FDA Priority Review Vouchers

BridgeBio’s recently announced sale of an FDA Priority Review Voucher for $110 million reflects a robust secondary market for these regulatory fast passes. Prices for Priority Review Voucher (“PRVs”) reflect the high stakes…more

Biologics, Expedited FDA Approval, Food & Drug Regulations, Food and Drug Administration (FDA), Healthcare

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Ninth Circuit Provides Further Guidance on Trademark Lawsuits Involving “Expressive Works”

We previously discussed the United States Supreme Court’s June 2023 Jack Daniel’s Properties, Inc. v. VIP Products, LLC decision, which altered the way the “Rogers test,” a doctrine designed to protect First Amendment interests…more

Appeals, Corporate Counsel, First Amendment, Jack Daniels Properties Inc v VIP Products LLC, Lanham Act

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USPTO Announces 2019 Revised Patent Subject Matter Eligibility Guidance

On January 4, 2019, the United States Patent and Trademark Office (“USPTO”) released a significant, much-awaited revision to its patentable subject matter eligibility guidance. The “2019 Revised Patent Subject Matter Eligibility…more

Abstract Ideas, Guidance Update, Patent Applications, Patent Examinations, Patent-Eligible Subject Matter

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Three Point Shot - November 2022

NBA Properties Lands Slam Dunk in Intellectual Property Win Heard Around the Globe - NBA Properties, Inc. (“NBAP”), the exclusive licensee of the National Basketball Association (“NBA”) and NBA teams’ distinctive trademarks,…more

Adidas, Appeals, Counterfeiting, Defamation, E-Commerce

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Game On! Microsoft and Activision Deal is One Step Closer to Actual Reality

On January 18, 2022, Microsoft’s acquisition of Activision, one of the world’s most-valuable gaming companies, was announced. In April 2023, the United Kingdom’s Competition and Markets Authority (CMA) blocked the deal on…more

Activision, Antitrust Provisions, Appeals, Federal Trade Commission (FTC), Mergers

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BE-11 Survey: Reporting Deadline Approaching

In April 2023, we published an overview of the BE-12, a benchmark survey conducted every five years by the Department of Commerce’s Bureau of Economic Analysis (“BEA”) to gather information about foreign direct investment in the…more

Bureau of Economic Analysis, Filing Deadlines, Financial Institutions, Foreign Corporations, Foreign Direct Investment

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Question of the Week: As the use cases for NFTs continue to evolve, what are some key considerations for brands, NFT issuers and holders and marketplaces?

As use cases for NFTs evolve from digital collectibles to more functional assets, sellers need to be more mindful than ever of what they are selling. There are still intellectual property related risks for any content associated…more

Artificial Intelligence, Cryptocurrency, Digital Assets, Non-Fungible Tokens (NFTs)

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SEC Adopts New SPAC Rules

On January 24, 2024, the SEC adopted new rules that apply to SPAC transactions and the adopted rules largely track the agency’s proposals with some notable exceptions. The new rules will become effective 125 days after…more

Capital Markets, Conflicts of Interest, Dilution, Disclosure Requirements, Enforcement Actions

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FINRA Proposes to Amend Rule 2210 to Permit Projected Performance and Targeted Returns in Institutional Communications

On November 13, 2023, FINRA filed with the SEC a proposal to amendment to Rule 2210 that would create a tailored exception from the general prohibition on projections in marketing materials and other communications with…more

Financial Industry Regulatory Authority (FINRA), Institutional Investment, Institutional Investors, Investment Company Act of 1940, Marketing

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Wealth Management Update - January 2021

January 2021 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - Certain federal interest rates increased slightly for January of 2021 while others remained…more

Charitable Trusts, Constitutional Amendment, Estate Planning, Estate Tax, FBAR

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Duty of Candor Continues Before the PTAB or Does it?     

In an unprecedented PTAB decision involving Spectrum Solutions LLC (“Spectrum”) (Petitioner) and Longhorn Vaccines & Diagnostics (“Longhorn”) (Patent Owner), the Board found all five challenged patents invalid and imposed…more

AIA Construction Forms, Claim Construction, Covenant of Good Faith and Fair Dealing, Duty of Candor, Inter Partes Review (IPR) Proceeding

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Affirmations over Affidavits: Highly Anticipated NY Bill Promises to Simplify Civil Action

A welcome change may be afoot for New York lawmakers, as New York Senate Bill S5162 recently passed the Senate and Assembly judiciary committees. The bill, which may soon be delivered to the Governor for signature, would amend…more

Affidavits, Perjury, Proposed Legislation

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Fifth Circuit Supports Restrictions on Medication Abortion, But No Immediate Impact on Group Health Plans (For Now)

Last week, the U.S. Court of Appeals for the Fifth Circuit affirmed in part and vacated in part a Texas federal district court order revoking the U.S. Food and Drug Administration (FDA) approval of the drug mifepristone, which…more

Abortion, Food and Drug Administration (FDA), Health Plan Sponsors, SCOTUS

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CA District Court Upholds $1.5 Million Jury Verdict and Awards $2.4 Million for Attorneys’ Fees in Long-Running SOX Whistleblower Lawsuit

On September 28, 2023, the U.S. District Court for the Southern District of California issued two separate orders in a long-running SOX whistleblower lawsuit. Following a jury trial, the court upheld the jury’s $1.5 million…more

Anti-Retaliation Provisions, Attorney's Fees, California, Jury Verdicts, Sarbanes-Oxley

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District Court Enforces Arbitration Clause in ERISA Plan Document

A federal district court judge in the Eastern District of Kentucky has enforced an ESOP’s arbitration clause, sending P.L. Marketing Inc. employees’ breach of fiduciary duty claims on behalf of a putative class to individual…more

Breach of Duty, Class Arbitration, Defined Contribution Plans, Employee Retirement Income Security Act (ERISA), Enforcement

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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SEC Proposes Extensive New Rules Applicable to SPACs and de-SPAC Transactions

On March 30, 2022, the Securities and Exchange Commission (the “SEC”) proposed a set of rules and amendments governing special purpose acquisition companies (“SPACs”) that will, if adopted, impose significant new regulatory…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Investment, Securities and Exchange Commission (SEC)

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Question of the Week: What do you expect the biggest impacts of Generative AI (GenAI) to be on M&A in the next 12-18 months?

"I expect to see an increased focus on GenAI-specific inquiries in the due diligence process and corresponding representations and warranties in purchase and merger agreements. Governing legal terms and conditions vary greatly…more

Acquisitions, Artificial Intelligence, Automation Systems, Bots, Copyright

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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Antitrust Enforcers Preview Incoming Spotlight on Blockchain

The tide of regulation of cryptocurrency and blockchain could be turning in the United States. Following comments by newly-confirmed Treasury Secretary (and former Federal Reserve Chair) Janet Yellen describing Bitcoin as…more

Antitrust Division, Bitcoin, Blockchain, CFTC, Competition

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Primarily Non-Financial Corporate Reporting: Climate Change

Version 2.0 following publication of the U.S. Securities and Exchange Commission (“SEC”) Climate-Related Disclosure Rules - A wave of new legislation and regulation in the U.S. and Europe has the potential to significantly…more

Capital Markets, Climate Change, Corporate Governance, Disclosure Requirements, Environmental Social & Governance (ESG)

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Massachusetts District Court Grants Motion to Dismiss 401(k) Fiduciary Breach and Prohibited Transaction Claims

A federal district court in Massachusetts dismissed ERISA fiduciary breach and prohibited transaction claims against 401(k) plan fiduciaries, ruling that the prohibited transaction claims were time-barred and the fiduciary…more

401k, Attorney's Fees, Breach of Duty, Class Action, Employee Retirement Income Security Act (ERISA)

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Question of the Week: As the impact of return-to-office policies take shape and climbing interest rates increase capitalization rates, how are real estate deals being affected?

Yes, interest rates have skyrocketed when you look at the last 10 years, but the reality is also that folks were able to be quite successful in the ‘90s, with interest rates hovering around 7%. The better questions will all…more

Capitalization, Coronavirus/COVID-19, Interest Rates, Investors, Real Estate Market

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TikTok Challenges Montana’s Unprecedented Statewide Ban

Last month, TikTok sued Montana’s attorney general—alleging the state’s recent TikTok ban is unconstitutional and is preempted by federal law. On May 17, Montana Governor Greg Gianforte signed a first-of-its-kind law…more

China, Commerce Clause, Cybersecurity, National Security, Preemption

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SEC Brings First Liquidity Rule Enforcement Action Against Investment Adviser and Fund Board

On May 5, 2023, the Securities and Exchange Commission ("SEC") filed charges against Pinnacle Advisors LLC ("Pinnacle Advisers"), an investment adviser, for allegedly aiding and abetting violations of Rule 22e-4 (the "Liquidity…more

Civil Monetary Penalty, Enforcement Actions, Investment Adviser, Liquidity, Liquidity Risk Management Rule

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Antitrust Agencies Propose Updates to IP Licensing Guidelines and Invite Comments

In 1995, the Federal Trade Commission and the Department of Justice first issued the Antitrust Guidelines for the Licensing of Intellectual Property. They represent the antitrust enforcement policy of the agencies with respect…more

Antitrust Provisions, Comment Period, Competition, Copyright, Federal Trade Commission (FTC)

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DOJ Announces New Guidance for Prosecuting Corporate Crime in Speech by Deputy Attorney General Lisa Monaco

Late last month, Deputy Attorney General Lisa O. Monaco delivered a keynote speech at the ABA’s National Institute on White Collar Crime event in Washington, DC.  Her remarks outlined observed trends in white collar crime as…more

Compliance Management Systems, Compliance Monitoring, Corporate Crimes, Corporate Misconduct, Corruption

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Delaware Court Of Chancery Refuses To Enforce Both Choice of Law Provision And Nationwide Non-Compete

On August 31, 2023, the Delaware Court of Chancery held, with respect to a non-compete provision in an employment agreement, that: (1) the choice of law provision selecting Delaware was “not necessarily binding”; and (2) the…more

Corporate Counsel, Delaware, Employment Policies, Non-Compete Agreements, Pre-Employment Agreements

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NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned…more

Administrative Law Judge (ALJ), Collective Bargaining Agreements (CBA), Discipline, Duty to Bargain, Employer Liability Issues

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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In the Orphan Drug Approval Race, Winner Takes All? Ramifications of Catalyst Pharms. v. Becerra

How is orphan drug exclusivity affected when the FDA-approved use for an orphan drug is arguably narrower than the treatment of the rare disease it was designated for? By way of background, a sponsor can obtain orphan drug…more

Biopharmaceutical, FDA Approval, Food and Drug Administration (FDA), Generic Drugs, Life Sciences

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Tax Relief for American Families and Workers Act of 2024

On January 17, 2024, Senate Finance Committee Chairman Ron Wyden (D-Ore.) and House Ways and Means Committee Chairman Jason Smith (R-Mo.) released a bill, the “Tax Relief for American Families and Workers Act of 2024” (“TRAFA”…more

1099s, Child Tax Credit, EBITDA, IRS, Popular

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Victory for a Vet

As part of Proskauer’s collaboration with the New York City Bar Justice Center, I recently had the honor of assisting an Army veteran in his claim for disability benefits before the U.S. Department of Veteran Affairs (VA)…more

Department of Veterans Affairs, Disability Benefits, Veterans, Veterans' Benefits

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Targeting Small and Medium Size d Businesses, OpenAI Announces New ChatGPT Team “Game Changer” Licensing Structure

Last week, OpenAI rolled out ChatGPT Team, a flexible subscription structure for small-to-medium sized businesses (with two or more users) that are not large enough to warrant the expense of a ChatGPT Enterprise subscription…more

Artificial Intelligence, Machine Learning, Small and Medium-Sized Enterprises (SMEs), Subscription Services

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Supreme Court Affirms Andy Warhol’s Prince Series Not Transformative Fair Use

On May 18th, the Supreme Court handed down its much‑anticipated opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. We’ve tracked the progress of this case through the trial court, Second Circuit, and…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Copyright, Copyright Infringement, Copyright Litigation, Derivative Works

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New York’s New Notice Requirement for Practice Management Deals Demonstrates a Trend That Should be Carefully Watched

Following New York State Governor Kathy Hochul’s proposal in February of this year (see our previous alert), the New York legislature passed and Governor Hochul signed a law on May 3, 2023, which significantly increases the…more

Confidentiality Policies, Disclosure Requirements, Health Care Providers, New York, Proposed Regulation

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The New York Court of Appeals Approves CPLR 3025 (b) Complaint Amendment After Appellate Court Dismissal

The New York Court of Appeals recently endorsed the trial court’s discretion to grant leave to amend a complaint under CPLR 3025 (b), holding that when the appellate court dismisses the plaintiffs’ complaint without prejudice,…more

Appellate Courts, Commercial Litigation, Counterclaims, Dismissals, Investors

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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SEC’s Whistleblower Program Grants Fourth Largest Award in its History

On August 4, 2023, the Securities and Exchange Commission announced awards totaling more than $104 million to seven whistleblowers in connection with a successful SEC enforcement action. The SEC’s Press Release can be found…more

Dodd-Frank, Enforcement Actions, Securities and Exchange Commission (SEC), Securities Violations, Whistleblower Awards

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Undergraduate Bargaining Units Are Here to Stay—and 20,000 Members Stronger

A growing trend of union organizing among undergraduate student workers reached a crescendo last week when a unit of 20,000 student assistants at California State University voted in favor of unionization. California State…more

Collective Bargaining, Compensation & Benefits, Financial Aid, Graduate Students, Information Technology

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Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a…more

Bankruptcy Court, Chapter 11, Chapter 7, Commercial Bankruptcy, Debtors

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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California Considers New Restrictions as Health Care Notice Requirements Go Live for Transactions Closing on or After April 1

In August 2023, we published a blog post about the California Office of Health Care Access and Information’s (“OHCA”) proposed cost and market impact review (“CMIR”) regulations under the California Health Care Quality and…more

Acquisitions, California, Consent, Fair Market Value, Governance Standards

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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The “Board Flip”: How Effective is the Pre-Petition Exercise of Proxy Rights in the Face of Bankruptcy?

When debt restructuring discussions are at an impasse and the reservoir of goodwill between the parties has run dry, stakeholders face difficult choices. For a lender, one of the most powerful tools available is the exercise of…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Borrowers, Debt Restructuring

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2018 Amendments to Rule 23 – Summarized

Effective December 1 of this year, Rule 23 of the Federal Rules of Civil Procedure – governing class action lawsuits – was amended. Among other things, the amendments modernize the rule with respect to electronic communications,…more

Amended Rules, Bad Faith, Class Action, Class Members, Federal Rules of Civil Procedure

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Do All Class Members Have Standing For Mere Statutory Violations? The Supreme Court Will Decide

On March 30, the Supreme Court will hear arguments on whether a damages class action, is permitted by Article III of the Constitution or Rule 23 of the Federal Rules of Civil Procedure where the majority of the class has…more

Article III, Class Members, Fair Credit Reporting Act (FCRA), FRCP 23, Office of Foreign Assets Control (OFAC)

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

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Retailer’s Status as a “Financial Institution” Immunizes $1 Billion Fraudulent Transfer

When leveraged buyouts (“LBOs”) fail, the selling shareholders are litigation targets. A common suit is a claim by a bankruptcy trustee asserting constructive fraudulent transfer claims seeking to claw-back payments to the…more

Bankruptcy Code, Corporate Counsel, Financial Institutions, Fraudulent Transfers, Leveraged Buyout

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SPAC Disclosures – SEC Focuses in on Conflicts of Interests

On December 22, 2020, the staff of the Securities and Exchange Commission's Division of Corporation Finance issued new guidance with disclosure considerations for special purpose acquisition companies ("SPACs"). The new guidance…more

Capital Markets, Division of Corporate Finance, Initial Public Offering (IPO), New Guidance, Publicly-Traded Companies

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Arbitration Clause Not Binding on the United States Patent Office

The Federal Circuit’s recent ruling in MaxPower Semiconductor Inc. et al v. Rohm Semiconductor USA, LLC highlights the interplay between the liberal federal policy favoring arbitration agreements and the Patent Trial and Appeal…more

Arbitration, Arbitration Agreements, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Patent Infringement

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SEC Proposes Significant Amendments to Form PF

On January 26, 2022, the U.S. Securities and Exchange Commission (the “SEC”) proposed amendments to Form PF and related rules (the “Proposed Amendments”) under the Investment Advisers Act of 1940 (“Advisers Act”). Form PF is…more

Filing Requirements, Form PF, Hedge Funds, Investment Adviser, Investment Advisers Act of 1940

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Circuit Split Deepens as Eleventh Circuit Rejects “Risk of Identity Theft” Theory of Standing in Data Breach Suit

On February 4, 2021, the Eleventh Circuit affirmed the dismissal of a customer’s proposed class action lawsuit against a Florida-based fast-food chain, PDQ, over a data breach. The three-judge panel rejected the argument that an…more

Article III, Class Action, Cyber Attacks, Cybersecurity, Data Breach

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Supreme Court Holds that Persons Who Do Not “Make” Misstatements Can Nevertheless Be Liable for Other Securities-Fraud Violations

The Supreme Court held today that persons who do not “make” material misstatements or omissions, but who disseminate them to potential investors with fraudulent intent, can be held to have violated other provisions of the…more

Appeals, Enforcement Actions, False Statements, Fines, Intent to Defraud

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Court Temporarily Stays New SEC Climate Change Disclosure Rules Amidst Widening Legal Challenges

Multiple legal challenges have already been launched against the SEC’s new climate change disclosure rules. Plaintiffs include Attorneys General from several states, a large business trade organization and a private energy…more

Climate Change, Corporate Governance, Disclosure Requirements, Enforcement Actions, Greenhouse Gas Emissions

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Question of the Week: As infrastructure assets evolve, how has that presented new opportunities for investors?

Infrastructure assets are going to remain highly attractive. This is partly because they offer all the characteristics that investors are looking for like long-term protection on revenues, decorrelation from economic cycles and…more

Asset Management, Inflation Adjustments, Infrastructure, Internal Revenue Code (IRC), Investors

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NLRB Clarifies Burden Shifting Framework in Mixed-Motive Cases

On August 28, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying the standard by which the General Counsel satisfies her initial…more

Administrative Law Judge (ALJ), Adverse Employment Action, Employment Discrimination, NLRA, NLRB

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ARPA COBRA Subsidy – Special Second Election Period (Two Bites at the Apple and Some Additional Food for Thought)

The American Rescue Plan Act of 2021 (“ARPA”) provides a 100% COBRA premium subsidy for “assistance eligible individuals” for periods of coverage occurring between April 1, 2021 and September 30, 2021. An “assistance eligible…more

American Rescue Plan Act of 2021, Benefit Plan Sponsors, COBRA, Coronavirus/COVID-19, Employee Benefits

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Three Point Shot - November 2022

NBA Properties Lands Slam Dunk in Intellectual Property Win Heard Around the Globe - NBA Properties, Inc. (“NBAP”), the exclusive licensee of the National Basketball Association (“NBA”) and NBA teams’ distinctive trademarks,…more

Adidas, Appeals, Counterfeiting, Defamation, E-Commerce

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New York State Department of Labor Issues Proposed Rule for HERO Act Workplace Safety Committees

On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued a proposed rule regarding workplace safety committees under the HERO Act. As we have previously reported, the HERO Act requires all employers in New…more

Coronavirus/COVID-19, Health and Essential Rights (HERO) Act, Infectious Diseases, Labor Reform, New York

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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SEC Increases Advisers Act Qualified Client Threshold

On June 17th, the Securities and Exchange Commission (the “Commission”) issued an order adjusting the dollar amount thresholds for clients of registered advisers to be “qualified clients” under rule 205-3 of the Investment…more

Dodd-Frank, Inflation Adjustments, Investment Adviser, Investment Advisers Act of 1940, Performance Fee Rule

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Florida’s High Court Clarifies that Incorporating AAA Rules into an Arbitration Provision Delegates Arbitrability to Arbitrator

When a litigant seeks to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), there are two issues that must be resolved: (1) whether there is an agreement to arbitrate; and, if so, (2) whether the dispute at…more

AirBnB, American Arbitration Association, Arbitration, Arbitration Agreements, Federal Arbitration Act

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Value Insights: Delivering Value in Labor and Employment Law survey

Proskauer's Labor and Employment Law Department released its Value Insights: Delivering Value in Labor and Employment Law survey, a resource that illuminates current practices and future trends in managing labor and employment…more

Alternative Fee Arrangements, Arbitration Agreements, Class Action, Electronically Stored Information, Fair Labor Standards Act (FLSA)

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Final Ruling in Serta Reaches Decision on “Open Market Purchase”

Background In November 2016, Serta Simmons Bedding, LLC and certain affiliates (collectively, the “Debtors”) entered into credit facilities which provided for (i) $1.95 billion in first lien term loans (the “2016 Credit…more

Bankruptcy Court, Credit Agreements, Debtors, Final Rules, Good Faith

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Court Temporarily Stays New SEC Climate Change Disclosure Rules Amidst Widening Legal Challenges

Multiple legal challenges have already been launched against the SEC’s new climate change disclosure rules. Plaintiffs include Attorneys General from several states, a large business trade organization and a private energy…more

Climate Change, Corporate Governance, Disclosure Requirements, Enforcement Actions, Greenhouse Gas Emissions

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Home Is Where the Health Care Is: New Study Shows Increase in Number of Homebound Older Adults While CMS Expands Home Health Reimbursement Model

JAMA Internal Medicine recently published an article finding that the number of homebound adults aged 70 or older more than doubled during the last decade. In 2011, approximately 5% of adults aged 70 or older were homebound…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Healthcare Reform, Home Health Care, Medicare

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Jury Awards $450,000 For Employer’s Termination of Employee After Receiving Notice About Anxiety Disorder

On March 31, 2022, a Kentucky jury unanimously awarded $450,000 to an employee, who was terminated following two panic attacks the employee suffered at work. The jury concluded the employee’s anxiety disorder was a disability…more

Adverse Employment Action, Damages, Disability Discrimination, Employer Liability Issues, Employment Litigation

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SEC Proposes Broad New Climate Change Disclosure Requirements

In a 500-page release, the SEC has proposed significant new public company climate change disclosure requirements for both domestic companies and foreign private issuers, including the actual and potential impacts of climate…more

Annual Reports, Climate Change, Corporate Governance, Corporate Social Responsibility, Disclosure Requirements

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[Ongoing Program] Private Credit Summit 2021 - February 25th, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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Q&A: What will be the biggest trend or issue impacting the European private funds market in 2023?

Private equity is resilient and has been innovative in how it invests a large amount of dry powder. However, as we enter an uncertain market, what are the biggest factors that will impact how private markets raise and form their…more

Enforcement, Environmental Social & Governance (ESG), EU, Investment Adviser, Investors

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Artificially Unintelligent: Attorneys Sanctioned for Misuse of ChatGPT

ChatGPT may be smart enough to pass the bar exam, but lawyers should take caution before relying on the Artificial Intelligence (“AI”) platform to conduct any legal business. On June 22, 2023, Judge P. Kevin Castel of the…more

Artificial Intelligence, Machine Learning, Motion to Dismiss, Rule 11, Sanctions

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Ten Years for a Second Chance? New York’s Sealing Statute Lags Behind Other States

In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of…more

Background Checks, Criminal Background Checks, Expungement, Felonies, Legal Aid

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Calls for USPTO to Adopt Policies to Modulate Drug Pricing

In the wake of the nomination of Kathi Vidal as Director of the USPTO, there will be significant attention paid to the agency’s responses to calls from both the executive and legislative branches to remake the agency’s perceived…more

Biden Administration, Biosimilars, Biotechnology, Competition, Drug Pricing

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Cryptocurrency in 401(k) Plans? Might be More Like “Crypto-nite,” Says the DOL in Its Latest Release

Kryptonite is a fictional substance that causes the mighty Superman to lose all his strength. According to a recent release from the U.S. Department of Labor Employee Benefits Security Administration (“DOL”), cryptocurrency…more

401k, Compensation & Benefits, Cryptocurrency, Defined Benefit Plans, Department of Labor (DOL)

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SEC Amends Rules to Facilitate Capital Raising in Private Offerings

On November 2, 2020, the Securities and Exchange Commission adopted amendments to facilitate the use of private, or “exempt,” offerings. The changes will impact offerings structured pursuant to Section 4(a)(2), Regulation D and…more

Accredited Investors, Anti-Fraud Provisions, Capital Formation, Capital Markets, Capital Raising

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A Fund Managers’ Guide to Maximizing D&O and E&O Insurance Coverage

As the economic impact of COVID-19 continues to reverberate across all global industries, there is an increased risk of claims being asserted against private fund managers, their funds and portfolio companies, as well as key…more

Contract Negotiations, Coronavirus/COVID-19, D&O Insurance, E&O Insurance, Fund Managers

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NLRB GC Provides Guidance to Regions on “Securing Full Remedies for All Victims of Unlawful Conduct”

On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s…more

Corporate Counsel, Labor Law Violations, NLRA, NLRB, NLRB General Counsel

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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Del. Ruling Shows Tension Between 363 Sale And Labor Law

Navigating the Bankruptcy Code can present many traps for unsuspecting debtors, creditors or asset buyers. The U.S. District Court for the District of Delaware recently reminded bankruptcy participants of an often overlooked…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Creditors, Debtors

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Regulation Round Up - September 2022

Welcome to the Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation. Key developments in August 2022: 24 August - The Financial Conduct Authority…more

Alternative Investment Fund Managers Directive (AIFMD), Cryptoassets, Diversity and Inclusion Standards (D&I), EU, European Central Bank

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Here We Go Again: Board Resurrects “Quickie” Election Rules

With over 58,000 workers reportedly unionizing so far in 2023 and the number of representation petitions on the rise, it comes as no surprise that the National Labor Relations Board (“NLRB” or the “Board”) continues to make…more

Appeals, NLRB, Quickie Election Rules, Rulemaking Process, Union Elections

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Proposed Changes to UK Insolvency Laws in Response to COVID-19

The UK Government has announced changes to the existing UK insolvency laws in order to ease pressure on companies and give them breathing space to trade through the COVID-19 pandemic. Exact timing for implementation of the…more

Commercial Bankruptcy, Coronavirus/COVID-19, Debt Restructuring, Insolvency, Relief Measures

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Del. Ruling Shows Tension Between 363 Sale And Labor Law

Navigating the Bankruptcy Code can present many traps for unsuspecting debtors, creditors or asset buyers. The U.S. District Court for the District of Delaware recently reminded bankruptcy participants of an often overlooked…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Creditors, Debtors

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Corporate Caution during COVID-19

The COVID-19 pandemic has brought great economic uncertainty and significant market volatility, creating an environment where investors that are trying to assess the financial impact of the virus are looking to glean any insight…more

Capital Markets, Coronavirus/COVID-19, Disclosure Requirements, Form 8-K, Infectious Diseases

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Don’t Get Caught Up in the Mix: OFAC Sanctions Another Crypto Mixer for Potential Violations of Sanctions Regulations and FinCEN Proposes New Rule

U.S. government agencies continue to take action against cryptocurrency mixing services that enable cybercriminals to obfuscate the trail of stolen proceeds on public blockchains stemming from illicit cyber activity. On November…more

Blockchain, Cryptocurrency, Cyber Crimes, Enforcement, FinCEN

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Implications of U.S. Supreme Court Decision Overturning Affirmative Action Precedent in Higher Education

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race-conscious admissions programs at Harvard College and the University of North Carolina…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity and Inclusion Standards (D&I), Employment Discrimination

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Practical Considerations for New Pay vs. Performance Disclosure Requirement

The SEC’s final rule on Pay Versus Performance becomes effective on October 8, 2022, and will require new executive compensation disclosures for the upcoming proxy season (for annual proxy statements that include executive…more

Business Development, CD&A, Disclosure Requirements, Dodd-Frank, Employee Benefits

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Corporate Caution during COVID-19

The COVID-19 pandemic has brought great economic uncertainty and significant market volatility, creating an environment where investors that are trying to assess the financial impact of the virus are looking to glean any insight…more

Capital Markets, Coronavirus/COVID-19, Disclosure Requirements, Form 8-K, Infectious Diseases

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TALF Program Update: Master Loan and Security Agreement and Updated FAQs - November 2020

On October 22, 2020, the Federal Reserve Bank of New York (“New York Fed”) released an amended form of Master Loan and Security Agreement (the “MLSA”), which governs loans issued under its Term Asset-Backed Loan Facility…more

Asset-Backed Securities, CARES Act, Collateral, Master Loan and Security Agreement (MLSA), SBA

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Election Protection 2020: Preparing Voters for Election Day

For the past 14 years, Proskauer has partnered with the Lawyers’ Committee for Civil Rights Under Law in its Election Protection initiative, a nonpartisan project mobilizing law firms, law schools, in-house counsel, and other…more

Absentee Voting, Coronavirus/COVID-19, Hotlines, Pro Bono, Volunteers

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Fifth Circuit Upholds Dismissal of Diversification and Prudence Claims Targeting A Single Stock Fund in a 401(k) Plan

The Fifth Circuit in Schweitzer v. Inv. Comm. of Phillips 66 Sav. Plan dismissed claims against 401(k) plan fiduciaries related to allowing plan participants to hold a single stock that was not an employer security as a plan…more

401k, Benefit Plan Sponsors, Breach of Duty, Defined Benefit Plans, Diversification Requirements

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Section 1061 Final Regulations on the Taxation of Carried Interest

On January 7, 2021, the Internal Revenue Service (the “IRS”) and the U.S. Department of the Treasury (the “Treasury”) issued final regulations (the “Final Regulations”) providing guidance on Section 1061 of the Internal Revenue…more

Capital Gains, Carried Interest, Final Rules, Holding Periods, IRS

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Glass Lewis and ISS Announce Updates For 2024 Proxy Season

Glass Lewis (“GL”) recently released its annual Benchmark Policy Guidelines for 2024.  This update makes several changes to how the proxy advisory firm will evaluate company policies related to executive compensation. …more

Clawbacks, Dodd-Frank, Executive Compensation, Glass Lewis, Institutional Shareholder Services (ISS)

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SEC Brings Enforcement Action Against Space SPAC for Alleged Misleading Disclosure and Due Diligence Failures

The U.S. Securities and Exchange Commission (“SEC”) has brought an enforcement action against a special purpose acquisition company (“SPAC”) and its major participants, highlighting enhanced regulatory scrutiny of SPACs and…more

Due Diligence, Enforcement Actions, National Security, Securities and Exchange Commission (SEC), Securities Regulation

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Option Grant Practices: A Trap for the Unwary – Spring-Loading and Bullet-Dodging

A potentially overlooked but important issue that public companies should have in mind when granting option or option-like awards is avoiding the unintentional appearance of “spring-loading” and “bullet-dodging,” both of which…more

Compensation, Corporate Governance, Disclosure Requirements, Incentive Compensation, Investigations

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NLRB GC Provides Guidance to Regions on “Securing Full Remedies for All Victims of Unlawful Conduct”

On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s…more

Corporate Counsel, Labor Law Violations, NLRA, NLRB, NLRB General Counsel

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Big Tech, Biometrics and BIPA: Meta’s Recent $68.5M Class Action Settlement

In July, Instagram’s parent company Meta Platforms, Inc. (“Meta”) agreed to a $68.5 million class-action biometric privacy settlement in connection with the company’s alleged violation of Illinois’ Biometric Information Privacy…more

Big Tech, Biometric Information, Class Action, Data Collection, Data Privacy

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The Supreme Court Kept the Door Open to Genus Claims

The U.S. Supreme Court on May 18, 2023 delivered its decision on the scope of the patent enablement requirement, set forth in 35 U.S.C. § 112, in the antibody dispute Amgen, Inc. v. Sanofi. While the parties obtained finality,…more

Amgen, Biosimilars, Biotechnology, CAFC, Genus

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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Question of the week: There are an increasing number of partnerships between media companies and sports betting operators. How have these deals evolved and changed over the past two years?

“At Proskauer, we had the privilege of a front row seat at sports betting’s “first pitch,” which was the strategic alliance we worked on between The Stars Group (TSG) and FOX to form FOX Bet. At least in the US, we are still in…more

Internet Streaming, Media, Partnerships, Sports, Sports Betting

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Third Circuit Recognizes Trade Secret Misappropriation Claim by Party Possessing (But Not Owning) the Trade Secret

It is not often that a United States Court of Appeals issues a decision on trade secrets, much less one involving the review of a bench trial that drew legal conclusions on the scope of trade secret law and the propriety of…more

Aiding and Abetting, Appeals, Bench Trial, Breach of Duty, Compensatory Damages

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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New York Nonprofit Revitalization Act Rollout Challenges

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the "Revitalization Act") quickly approaches, many charities operating in New York are confronting some difficult rollout challenges…more

Board of Directors, Corporate Officers, Economic Development, IRS, Nonprofits

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Recent Updates from the IRS and Treasury on the Superfund Chemical Tax

I. Executive Summary - On February 15, 2024, the IRS and Treasury issued a supplemental notice to a prior notice from December 2022, to correct a petition requesting that the Superfund Chemical Tax apply to polyphenylene…more

Internal Revenue Code (IRC), IRS, Notice of Proposed Rulemaking (NOPR), Proposed Regulation, Superfund

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The New Workplace: Key Issues Facing In-House Counsel Today

On September 17, 2019, Labor & Employment partner and member of the Proskauer Executive Committee Elise Bloom moderated “The New Workplace” panel at the Benchmark Women in Litigation NYC Forum where Proskauer was a sponsor. The…more

#MeToo, Gender-Based Pay Discrimination, Pay Equity Laws, Women in the Law

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Three Point Shot - December 2018

Welcome to Three Point Shot, a newsletter brought to you by the Sports Law Group at Proskauer. Three Point Shot brings you the latest in sports law-related news and provides you with links to related materials. Your feedback,…more

Attorney's Fees, Claim Construction, Copyright, Copyright Infringement, DMCA

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SEC Sues Crowd Machine for Allegedly Fraudulent and Unregistered ICO

In its first enforcement action of the year involving ICOs, the U.S. Securities and Exchange Commission (SEC) charged two companies and their founder for violations of antifraud and registration provisions of the federal…more

Cryptocurrency, Enforcement Actions, False Statements, Financial Markets, Initial Coin Offering (ICOs)

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Delaware Supreme Court Validates Forfeiture-For-Competition Provision in Unanimous Reversal of Chancery Court

In a win for businesses that rely on restrictive covenants to protect their assets and investments, on January 29, 2024, the Delaware Supreme Court unanimously reversed a Chancery Court decision that invalidated a…more

Compensation, Compliance, DE Supreme Court, Disbursement Issues, Employment Policies

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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UK Tax Round Up - March 2024

Welcome to March’s edition of our UK Tax Round Up. This month has seen a number of interesting cases covering a range of issues, from the deductibility of costs against employment income to the place of effective management of a…more

Acquisitions, Asset Management, Corporate Governance, HMRC, Income Taxes

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Tenth Circuit Addresses Damages for Excessive Recordkeeping Fee Claims

One of the multitude of recent cases challenging the recordkeeping fees of 401(k) plans recently made its way to the Tenth Circuit Court of Appeals. Ramos v. Banner Health, No. 20-1231, — F.3d —- (10th Cir. June 11, 2021). …more

Employee Retirement Income Security Act (ERISA), Excessive Fees, Expert Testimony, Fiduciary Duty, Investment Management

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Volcker Rule Amendments: Implications for Asset Managers

On June 25, 2020, the Federal Reserve Board, the OCC, the FDIC, the SEC and the CFTC (collectively, the "Agencies") adopted amendments (the "Amendments") to the regulations implementing section 13 of the Bank Holding Company…more

Asset Management, Bank Holding Company Act, Banking Sector, CFTC, Covered Funds

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DOJ and FTC Release New Merger Guidelines

The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines on December 18, 2023. Following a 60-day public comment period that solicited over 30,000 comments from a variety of…more

Antitrust Provisions, Biden Administration, Competition, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Second Circuit Ruling Could “Impact” Discrimination Claims Brought by Remote Workers under NYS Human Rights Law

In King v. Aramark Services, Inc., No. 22-1237 (March 20, 2024), a Second Circuit panel affirmed the dismissal of claims under the New York State Human Rights Law (“NYSHRL”), concluding that under New York’s “impact test,”…more

Anti-Discrimination Policies, Civil Rights Act, Continuing Violation Theory, Corporate Counsel, Family and Medical Leave Act (FMLA)

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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CA Federal Court Dismisses Whistleblower Claims After Bench Trial

On July 26, 2021, the United States District Court for the Northern District of California held, after a bench trial, that Plaintiff Botta failed to prove that Defendant PricewaterhouseCoopers LLP (“PwC”) terminated his…more

Accounting Fraud, Employer Liability Issues, Hiring & Firing, Internal Controls, PricewaterhouseCoopers

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California State Senate Proposes “Intersectional” Approach to Overlapping Discrimination Claims

On February 14, 2024, California State Senator Lola Smallwood-Cuevas introduced Senate Bill 1137 (“SB 1137”), a bill that would make California the first state to specifically recognize the concept of “intersectionality.”…more

Anti-Discrimination Policies, California, Civil Rights Act, FEHA, Proposed Legislation

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FTC Continues to Stake Out Role as Key AI Regulator

While speaking at the annual conference of the National Advertising Division on September 19, 2023, the Federal Trade Commission (“FTC”) announced a generative AI (“AI”) policy that is consistent with Chairwoman Khan’s focus on…more

Artificial Intelligence, Civil Monetary Penalty, Corporate Counsel, Enforcement Actions, Federal Trade Commission (FTC)

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DOJ Announces Development of a Pilot Whistleblower Rewards Program

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (“DOJ”) is creating a pilot whistleblower rewards program, which will be developed and implemented over the next 90 days, with a…more

CFTC, Corporate Governance, Department of Justice (DOJ), Federal Pilot Programs, FEPA

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TALF Program Update: Master Loan and Security Agreement and Updated FAQs - November 2020

On October 22, 2020, the Federal Reserve Bank of New York (“New York Fed”) released an amended form of Master Loan and Security Agreement (the “MLSA”), which governs loans issued under its Term Asset-Backed Loan Facility…more

Asset-Backed Securities, CARES Act, Collateral, Master Loan and Security Agreement (MLSA), SBA

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Sports and Sports Betting

The “The Age of AI – Sports and Sports Betting” Webinar offered a brief overview of how generative AI (“GenAI”) works and how AI is being used or is planning to be used in the sports and sports betting industries, and finished…more

Artificial Intelligence, Cybersecurity, Machine Learning, Proprietary Information, Social Media

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UPDATE: The SEC Extends Temporary Conditional Relief for Investment Advisers, Registered Funds and BDCs in Connection with Coronavirus Outbreak

On Wednesday, March 25, 2020, the U.S. Securities and Exchange Commission (the "SEC") issued an order under the Investment Advisers Act of 1940, as amended (the "Advisers Act") and an order under the Investment Company Act of…more

Coronavirus/COVID-19, Investment Adviser, Investment Advisers Act of 1940, Securities and Exchange Commission (SEC)

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PBGC Issues Guidance on New Special Financial Assistance Program for Troubled Multiemployer Pension Plans

As we previously reported, the American Rescue Plan Act of 2021 (“ARPA”) created a special financial assistance program that is administered by the Pension Benefit Guaranty Corporation (“PBGC”) and intended to extend the…more

American Rescue Plan Act of 2021, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), Interim Final Rules (IFR)

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Retailer’s Status as a “Financial Institution” Immunizes $1 Billion Fraudulent Transfer

When leveraged buyouts (“LBOs”) fail, the selling shareholders are litigation targets. A common suit is a claim by a bankruptcy trustee asserting constructive fraudulent transfer claims seeking to claw-back payments to the…more

Bankruptcy Code, Corporate Counsel, Financial Institutions, Fraudulent Transfers, Leveraged Buyout

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U.S. FinCEN Extends Timeframe for Reporting Companies Created in 2024 to File Beneficial Ownership Information Reports

Today, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued a final rule aimed to ease compliance with certain aspects of the regulations promulgated under the Corporate Transparency Act. The…more

Beneficial Owner, Corporate Transparency Act, FinCEN, Notice of Proposed Rulemaking (NOPR)

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Ninth Circuit Holds Clause Delegating Authority to Decide Arbitrability Is Valid Even If Broader Arbitration Agreement Is Not

Parties to an arbitration agreement sometimes choose to include a delegation clause, which is a provision that delegates to the arbitrator—rather than a court—gateway questions of arbitrability, such as whether the agreement…more

Arbitration, Arbitration Agreements, Delegation Clauses, Enforcement, Mandatory Arbitration Clauses

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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Court Orders Significant Sanctions Against Plaintiff for Wiping Company Laptop but Stops Short of Dismissing Complaint

A recent order from a federal magistrate judge provides helpful insight to parties concerning the destruction of evidence and the proof required to obtain the ultimate sanction of dismissal of a case as a result of such…more

Age Discrimination, Data Wiping, Destruction of Evidence, Federal Rules of Civil Procedure, Reimbursements

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SEC Adopts Expedited Exemptive Relief Process for Registered Funds and BDCs

On July 6, 2020, the Securities and Exchange Commission (the “Commission”) adopted rule amendments (the “Amendments”) to the exemptive relief application process under the Investment Company Act of 1940, as amended (the “1940…more

Business Development Companies, Exemptive Relief, Expedited Actions Process, Filing Requirements, Investment Company Act of 1940

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Implications of U.S. Supreme Court Decision Overturning Affirmative Action Precedent in Higher Education

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race-conscious admissions programs at Harvard College and the University of North Carolina…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity and Inclusion Standards (D&I), Employment Discrimination

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A Fund Managers’ Guide to Maximizing D&O and E&O Insurance Coverage

As the economic impact of COVID-19 continues to reverberate across all global industries, there is an increased risk of claims being asserted against private fund managers, their funds and portfolio companies, as well as key…more

Contract Negotiations, Coronavirus/COVID-19, D&O Insurance, E&O Insurance, Fund Managers

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Private Credit Restructuring Trends: New Delaware Law Aids Secured Creditors in Getting Deals Done Out of Court

In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del. 2022) (“Stream TV”), which held an insolvent corporation could not…more

Chapter 11, Creditors, DE Supreme Court, Debt Forgiveness, Insolvency

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Venezuela Mines for a Reversal in Federal Appeals Court

Venezuela is taking its fight over a $1.4 billion arbitral award to the District of Columbia’s federal court of appeals. The award capped a bitter dispute between Venezuela and Crystallex International Corporation, a Canadian…more

Appeals, Arbitration Award Challenges, Arbitration Awards, Bilateral Investment Treaties, Breach of Contract

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NYC Set to Enforce Law to Regulate Use of Automated Hiring Tools Starting July 5

New York City will begin enforcing the New York City Automated Employment Decision Tools (“AEDT”) Law, on July 5, 2023, delaying the previously announced enforcement date of April 15. On April 6, 2023, after two sets of…more

Automated Decision Systems (ADS), City of New York, Comment Period, Employer Liability Issues, Hiring & Firing

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

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The Journey vs. The Destination: Analyzing Jury Deliberation Styles

The role of juries in adjudicating cases has long been the subject of consternation and debate by those in the legal system. In civil jury trials, the jury acts as the fact-finder and must determine the proper level of liability…more

Evidentiary Standards, Jury Deliberations, Jury Selection, Jury Trial, Jury Verdicts

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Total Security Recall:  Recent Decision May Lead to Reinstatement of Bargaining Requirement for Discipline Pre-CBA

A recent Administrative Law Judge ruling in Starbucks Corp.sets up a possibility for the National Labor Relations Board to reinstate an employer’s obligation to bargain with a union before imposing serious discretionary…more

Administrative Law Judge (ALJ), NLRB, Starbucks, Unions

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[Ongoing Program] Private Credit Summit 2021 - March 9th, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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H1B Updates: Cap H1B Electronic Registration Opens, Trump Era Wage Level Selection Process Delayed

The H1B cap registration period for this fiscal year FY 2022 will open at noon EST on March 9, 2021 and will close at noon EST on March 25, 2021. Similar to last year, all H1B cap registrations will cost $10 per registration…more

Department of Homeland Security (DHS), Foreign Nationals, H-1B, Highly-Skilled Workers Visa, Immigration Procedures

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Jury Awards $450,000 For Employer’s Termination of Employee After Receiving Notice About Anxiety Disorder

On March 31, 2022, a Kentucky jury unanimously awarded $450,000 to an employee, who was terminated following two panic attacks the employee suffered at work. The jury concluded the employee’s anxiety disorder was a disability…more

Adverse Employment Action, Damages, Disability Discrimination, Employer Liability Issues, Employment Litigation

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DC Mayor Signs Act Creating Near Total Ban on Non-Compete Agreements for DC Employees

On January 11, 2020, Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) into law, moving the District one step closer to implementing one of the broadest, if not the broadest bans on…more

Employer Liability Issues, Employment Contract, Hiring & Firing, Intellectual Property Protection, Non-Compete Agreements

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[Podcast]: In a World Without Non-Competes

In this episode of The Proskauer Brief we are joined by Daryl Leon, one of the leads of Proskauer’s Restrictive Covenants, Trade Secrets and Unfair Competition Group and Edna Guerrasio, senior counsel in the Labor & Employment…more

Competition, Employer Liability Issues, Employment Contract, Hiring & Firing, Intellectual Property Protection

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Words Matter: Three Key Steps to Mitigate SEC Enforcement Risks Relating to Whistleblower Carveout Language

Since 2015, the SEC has brought nearly two dozen enforcement actions for violations of the whistleblower protection rules under Rule 21F-17(a) against employers for actions taken to impede reporting to the SEC. The bulk of these…more

Carve Out Provisions, Compliance, Confidentiality Agreements, Enforcement Actions, Financial Industry Regulatory Authority (FINRA)

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NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

An age old question under the National Labor Relations Act is what constitutes “picketing”? By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer. An issue that…more

Administrative Law Judge (ALJ), Coercion, First Amendment, Free Speech, Labor Disputes

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Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Entertainment Industry

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The Seventh Circuit Asks, “What’s Wrong With Having Lots of Patents?”

The answer? Not much, in itself. If one patent is good, 132 is probably fine too. That was Judge Easterbrook’s reasoning in a recent decision addressing indirect purchasers’ antitrust challenge to AbbVie’s so-called “patent…more

Patents, Pharmaceutical Patents, Sherman Act

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Extension of FBAR Filing Deadline for Certain Filers

On December 9, 2020, the Financial Crimes Enforcement Network (“FinCEN”) issued Notice 2020-1, extending the filing deadline for the Report of Foreign Bank and Financial Accounts, FinCEN Form 114 (FBAR), for certain individuals…more

FBAR, Filing Deadlines, FinCEN, Foreign Bank Accounts, Foreign Financial Accounts

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Tax Relief for American Families and Workers Act of 2024

On January 17, 2024, Senate Finance Committee Chairman Ron Wyden (D-Ore.) and House Ways and Means Committee Chairman Jason Smith (R-Mo.) released a bill, the “Tax Relief for American Families and Workers Act of 2024” (“TRAFA”…more

1099s, Child Tax Credit, EBITDA, IRS, Popular

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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ERISA Newsletter - Third Quarter 2019

In this edition of our Newsletter, we take a look at a pair of cases that, while unrelated, together remind us of the importance of having clear plan rules in place that reflect the plan sponsor’s intention. The first article…more

401k, 403(b) Plans, Affordable Care Act, Benefit Plan Sponsors, Breach of Duty

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Roots of Confusion Over “v1” CryptoPunks NFTs Raise Key Copyright and Practical Considerations for NFT Minters, Acquirers and Platform Operators

Minters of collectible non-fungible tokens (NFTs) have taken a wide range of approaches. In addition to variations in the means of distribution, token standards, governing smart contracts and platforms on which initial sales or…more

Blockchain, DMCA, Intellectual Property Protection, Non-Fungible Tokens (NFTs), Sales & Distribution Agreements

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It Is Time to Address the VA’s Enormous Backlog of Claims for Disability Benefits

Nearly half of the 20 million veterans in the United States use at least one government benefit or service offered by U.S. Department of Veterans Affairs (commonly known as the “VA”). Many of these veterans have developed mental…more

Administrative Backlogs, Appeals, Bar Associations, Coronavirus/COVID-19, Delays

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Fifth Circuit Vacates $365 Million Punitive Damages Award for Title VII Discrimination and Retaliation Claims

In Harris v. FedEx Corp. Servs., Inc., No. 23-2003, a Fifth Circuit panel vacated a $365 million punitive damages award in race discrimination and retaliation case, finding that the plaintiff Jennifer Harris (“Harris”) failed to…more

Civil Rights Act, Corporate Counsel, Disability Discrimination, Punitive Damages, Retaliation

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U.S. Supreme Court Stays OSHA Vaccine/Testing Mandate for Employers with 100 or More Employees

On January 13, 2022, the U.S. Supreme Court, in a per curiam opinion, stayed OSHA’s Emergency Temporary Standard (“ETS”) mandating that employers with 100 or more employees require all employees to be fully vaccinated against…more

Biden Administration, Centers for Medicare & Medicaid Services (CMS), Constitutional Challenges, Coronavirus/COVID-19, Department of Labor (DOL)

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

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Personal Planning Strategies - December 2021

The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017, the Tax Cuts and Jobs Act (the "2017 Act") significantly increased the…more

Crummey Trusts, Estate Planning, Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer

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Legislating Around AI-Driven Algorithm Concerns

Pricing algorithms are nothing new. They are, generally speaking, computer programs intended to help sellers optimize prices in real time, or close to it. These programs can use data on demand, costs, or even competitors’ prices…more

Algorithms, Anti-Competitive, Artificial Intelligence, Department of Justice (DOJ), Federal Trade Commission (FTC)

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UK Tax Round Up - July 2021

In Haworth v HMRC the Supreme Court (SC) upheld the Court of Appeal’s (CA’s) decision to quash a follower notice (FN) and accelerated payment notice (APN) issued to the taxpayer, Mr Haworth. An FN can be issued by HMRC where a…more

Accelerated Payments, Bonuses, Charitable Trusts, GAAR, HMRC

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SPAC Procedural Issues & Risks

Viewed as involving fewer regulatory hurdles than an IPO, SPACs became the most popular way to take a company public in 2020, and deal volume continued to rise in 2021. This increase in popularity brings increased attention from…more

Capital Raising, Corporate Sales Transactions, Initial Public Offering (IPO), Investment, Proxy Statements

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U.S. District Court in Alabama Finds the Corporate Transparency Act Unconstitutional

On March 1, 2024, Judge Liles C. Burke of the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (the “CTA”) is unconstitutional, leaving its future uncertain. The CTA requires…more

Appeals, Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, FinCEN

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Precious Metals Now Deemed Tangible Personal Property in Florida

Effective July 1, 2020, there is a new law in Florida (Section 731.1065 of the Florida Probate Code) that treats "precious metals in any tangible form, such as bullion or coins, kept and acquired for their historical, artistic,…more

Beneficiaries, Estate Planning, Personal Property, Revocable Trusts, Tangible Property

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Private Credit Deep Dives – Covenant Cures

Notwithstanding at least some deterioration in documentation standards towards the top-end of the private credit market in recent years, maintenance leverage covenants have remained a pervasive feature of unitranche as an asset…more

Borrowers, Cure Periods, EBITDA, Investment, Lenders

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Question of the Week: In 100 words or less, what are your expectations for M&A in 2023?

Based on what I have been seeing in the market, great opportunities exist for buyers and sellers in M&A despite indications of economic headwinds. Interest is still high for businesses with strong fundamentals, or those in…more

Acquisitions, Debt Market, Environmental Social & Governance (ESG), Interest Rates, Investment

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Why Mentoring Matters: Proskauer's Brianna Reed

In our “Why Mentoring Matters” series, Proskauer tax associate Brianna Reed shares how participating in the firm’s Women’s Sponsorship Program led her to meet and learn from a partner mentor in a different practice group. This…more

Career Development, Mentors, Professional Development, Professional Networking, Women in the Law

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UK Arbitration H1 2020: 6 Months and 6 Key Messages from the English Courts, Part 2

With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. We identified 6 key developments…more

Arbitration, Arbitration Agreements, Arbitration Awards, Enforcement of Foreign Judgments, International Arbitration

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Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a…more

Bankruptcy Court, Chapter 11, Chapter 7, Commercial Bankruptcy, Debtors

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Second Circuit Establishes Practical Pleading Requirement for Prohibited Transaction Claims Under ERISA Section 406(a)(1)(C)

The Second Circuit recently held that in order to state a claim for a prohibited transaction pursuant to ERISA section 406(a)(1)(C), it is not enough to allege that a fiduciary caused the plan to compensate a service provider…more

Breach of Duty, Employee Retirement Income Security Act (ERISA), Fees, Fiduciary Duty, Investment Funds

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IRS and Treasury Provide Guidance on the Excise Tax on Repurchases of Corporate Stock under Section 4501

On December 27, 2022, the Internal Revenue Service (“IRS”) and the U.S. Department of the Treasury (the “Treasury”) released Notice 2023-2 (the “Notice”), which provides guidance regarding the application of the 1% excise tax on…more

Excise Tax, Fair Market Value, IRS, New Guidance, REIT

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

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Tethered to the Court: Ninth Circuit Holds that 100-Mile Limitation Applies to Remote Testimony

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the…more

Federal Rules of Civil Procedure, Good Cause, Remote Proceedings, Testimony

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SEC Enforcement’s 2020 Annual Report Reflects Shifting Priorities for Fund Managers: Four Key Takeaways

On Monday the SEC announced its enforcement results for FY 2020, accompanied by a report from the Director of its Division of Enforcement. This report confirms what we have seen over the past year for private fund managers:…more

Annual Reports, Disgorgement, Enforcement Actions, Investor Protection, Material Nonpublic Information

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021. The SBA is currently reviewing submitted SVO Grant applications and issuing awards. As of September 7, 2021, the SBA had made decisions on 93% of all…more

Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants, Infectious Diseases

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U.S. District Court in Alabama Finds the Corporate Transparency Act Unconstitutional

On March 1, 2024, Judge Liles C. Burke of the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (the “CTA”) is unconstitutional, leaving its future uncertain. The CTA requires…more

Appeals, Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, FinCEN

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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Personal Planning Strategies - November 2023

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the “2012 Act”). In 2017,…more

American Taxpayer Relief Act of 2012 (ATRA), Estate Planning, Estate Tax, Generation-Skipping Transfer, Gift Tax

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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Final Regulations on Executive Compensation Excise Tax (Section 4960) Carries Forward Most Concepts from Proposal

On January 19, 2021 the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) published in the Federal Register Final Regulations (the “Final Regulations”) interpreting the excise tax under Section…more

Compensation & Benefits, Deferred Compensation, Excise Tax, Executive Compensation, Final Rules

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UK National Security and Investment Act 2021 (NSIA) – Annual Report 2022

The UK Government recently published its Annual Report on the application of the National Security and Investment Act 2021 (NSIA). This first annual report covers the period from the commencing of the NSIA (4 January 2022) to 31…more

Annual Reports, Corporate Sales Transactions, Foreign Acquisitions, Foreign Direct Investment, Foreign Investment

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SEC Brings Charges against Blockchain-Based Trading Platform over Alleged Violations of Disclosure Rules

On January 10, 2022, the Securities and Exchange Commission (“SEC” or the “Commission”) announced it settled charges in In re tZERO ATS, LLC, No. 93938 (SEC Order Jan. 10, 2022) (“Order”)…more

Alternative Trading System (ATS), Blockchain, Cease and Desist Orders, Cryptocurrency, Digital Currency

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What Happens Abroad, Apparently Does Not Stay Abroad – DOL Revokes Trump Administration Guidance That Provided Relief to QPAMs for Convictions Under Foreign Law

On November 3, 2020, the U.S. Department of Labor’s Office of the Solicitor of Labor (the “DOL”) issued an opinion letter (the “2020 Letter”) to the Securities Industry and Financial Markets Association (“SIFMA”) stating that it…more

Department of Labor (DOL), EBSA, Employee Benefits, Employee Retirement Income Security Act (ERISA), Prohibited Transactions

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Low Wage and Employee Classification Limits on Non-Compete Agreements - Update

Over the past few years, states across the country have sought to limit or reduce the use of employee non-compete agreements. While some have imposed outright bans on such agreements, many more have passed laws that narrow the…more

Employee Definition, Low-Wage Workers, Non-Compete Agreements

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Two Sides of a Different Coin: Separating Businesses and Subsidiaries for Liability Protection

A parent corporation is typically not held liable for the acts of a subsidiary. As such, disregarding the corporate form (i.e., by piercing the corporate veil) and holding the parent liable is an extraordinary remedy. That said,…more

Compensation, Liability, Misappropriation, Parent Corporation, Piercing the Corporate Veil

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

See all updates »

Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

See all updates »

Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a…more

Bankruptcy Court, Chapter 11, Chapter 7, Commercial Bankruptcy, Debtors

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A Closer Look At Antitrust Agencies' Chat Platforms Guidance

The Federal Trade Commission's Bureau of Competition and the U.S. Department of Justice Antitrust Division earlier this year released a joint statement reiterating document preservation obligations for companies and individuals…more

Antitrust Division, Antitrust Litigation, Department of Justice (DOJ), Document Preservation Notices, Electronic Communications

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Lending & Secured Finance 2022

Analysis and Update on the Continuing Evolution of Terms in Private Credit Transactions - Introduction - For the past 11 years, The Private Credit Group at Proskauer Rose LLP has tracked deal data for private credit…more

Borrowers, Credit, Financial Services Industry, Financial Transactions, Lenders

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New York Proposes First State Bitcoin Regulations

One might have thought the biggest news in the digital currency world lately was Dell announcing that it was now accepting bitcoin. However, after a series of highly-publicized hearings in January, New York State rolled out its…more

Bitcoin, Dell, Digital Assets, Licensing Rules, Proposed Regulation

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New Guidance Allows Publicly-Offered REITs and RICs to Issue up to 90% of Qualifying Dividends in the REIT or RIC’s Own Stock Through June 2022

On November 30, 2021, the IRS issued Revenue Procedure 2021-53, which temporarily allows publicly offered RICs and REITs to make distributions that are treated as dividends of up to 90% stock and the remainder in cash…more

Distribution Rules, IRS, REIT, Revenue Procedures, RICs

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Notice 2024-02: IRS Offers Guidance on (Some) SECURE 2.0 Questions

Approximately one year after Congress enacted the SECURE 2.0 Act of 2022 (“SECURE 2.0”), the IRS issued Notice 2024-02, which addresses SECURE 2.0 implementation issues and extends the plan amendment deadline. Although Notice…more

401k, Automatic Enrollment, Benefit Plan Sponsors, Employer Contributions, Incentives

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Duty of Candor Continues Before the PTAB or Does it?     

In an unprecedented PTAB decision involving Spectrum Solutions LLC (“Spectrum”) (Petitioner) and Longhorn Vaccines & Diagnostics (“Longhorn”) (Patent Owner), the Board found all five challenged patents invalid and imposed…more

AIA Construction Forms, Claim Construction, Covenant of Good Faith and Fair Dealing, Duty of Candor, Inter Partes Review (IPR) Proceeding

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Executive Order Curbs China-Bound Tech Investment as Treasury Unveils New Rules

On August 9, 2023, President Biden signed Executive Order 14105 addressing investments by U.S. persons in certain identified national security technologies in “Countries of Concern,” initially naming The People’s Republic of…more

Advanced Notice of Proposed Rulemaking (ANPRM), Artificial Intelligence, China, Cybersecurity, Executive Orders

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The Axon Side-Step: Defendants’ New Dance to Avoid Agency Enforcement Actions

The FTC and SEC have their own administrative dispute resolution regime, presided over by their own administrative judges (“ALJs”). Until now, those regimes were virtually immune from attack on a constitutional basis, because…more

Administrative Law Judge (ALJ), Article III, Constitutional Challenges, Enforcement Actions, Federal Trade Commission (FTC)

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New York Passes Law Recognizing Post-Mortem Right of Publicity and Creating Private Right of Action for Sexually Explicit Deepfakes

Celebrities domiciled in New York State at the time of their death will soon have a transferable post-mortem right of publicity, bringing the law in New York closer in line to several other states, like California, that…more

Advertising, Celebrities, Commercial Use, Deceased, Deep Fake

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Tell Me Why with a Side of Fries: Second Circuit Rules Fast Food Employers Must Comply with New York Notice of Discharge Requirements

On January 5, 2024, the U.S. Court of Appeals for the Second Circuit, in Rest. Law Center, New York State Rest. Ass’n v. City of New York, et al., No. 22-491 (2nd Cir. 2024), held that a New York law protecting workers in the…more

Commerce Clause, Dormant Commerce Clause, Fast-Food Industry, Minimum Wage, New York

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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The SEC Makes Sweeping Changes to The M&A Financial Statement and Pro Forma Requirements

On May 21, 2020, the Securities and Exchange Commission (the “SEC”) amended the financial statement and other disclosure requirements that apply when public companies acquire or dispose of a business or real estate operations…more

Acquisitions, Disclosure Requirements, Financial Reporting, Financial Statements, Form 8-K

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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Massachusetts District Court Grants Motion to Dismiss 401(k) Fiduciary Breach and Prohibited Transaction Claims

A federal district court in Massachusetts dismissed ERISA fiduciary breach and prohibited transaction claims against 401(k) plan fiduciaries, ruling that the prohibited transaction claims were time-barred and the fiduciary…more

401k, Attorney's Fees, Breach of Duty, Class Action, Employee Retirement Income Security Act (ERISA)

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Preferred Equity PIPEs Provide Flexibility in the Age of COVID-19

PIPEs (private investments in public equity) provide investors and public companies with a flexible vehicle for bespoke capital solutions that can be executed quickly in the volatile markets that have arisen in the COVID-19…more

Common Stock, Corporate Governance, Corporate Issuers, Investors, Nasdaq

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CFTC Acts to Ensure Covered Entities Are Considering Evolving Risks from Digital Assets and Other Technologies

In a post-FTX environment, several financial regulators are taking action to emphasize a policy of sound custody and disclosure practices and to better understand certain risks to protect customers in the event of an insolvency…more

Advanced Notice of Proposed Rulemaking (ANPRM), CFTC, Crypto Exchanges, Digital Assets, Investment Advisers Act of 1940

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Insights on the NAV Lending Market

We conducted an informal, small-scale survey during March to May 2023 to gather insights from prominent non-bank lenders on their activity over the past twelve months in the net asset value (NAV) lending market. In this report,…more

Banks, Financial Institutions, Lending

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OFCCP Releases 2024 VEVRAA Hiring Benchmark

The Office of Federal Contract Compliance Programs (“OFCCP”) has released its 2024 Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) benchmark. Effective March 31, 2024, the new benchmark is 5.2%, a slight decrease…more

Federal Contractors, OFCCP, Veterans, Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

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Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a…more

Bankruptcy Court, Chapter 11, Chapter 7, Commercial Bankruptcy, Debtors

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Nasdaq Proposes New Board Diversity Requirements for Listed Companies

On December 1, 2020, Nasdaq proposed new listing rules that, if approved by the SEC following a public comment period, would require Nasdaq-listed companies either to have, or explain why they do not have, at least two diverse…more

Board of Directors, Diversity, Diversity and Inclusion Standards (D&I), Environmental Social & Governance (ESG), LGBTQ

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SECURE 2.0 Opens the Door on Retirement Match Based on Student Loan Payments

The grab bag of retirement provisions in the SECURE 2.0 legislation that was enacted at the end of 2022 included an expansion of the ability for a section 401(k) or 403(b) plan, or a governmental section 457(b) plan, to provide…more

401k, 403(b) Plans, 457(b) Plans, Internal Revenue Code (IRC), Retirement Plan

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Question of the Week: What do companies need to know if the Federal Trade Commission's proposed merger review changes are implemented?

“Merger review is about to get thornier. While the FTC and DOJ have been tightening the merger review process incrementally over the course of the Biden administration, the newly proposed HSR rule changes represent a wholesale…more

Acquisitions, Department of Justice (DOJ), Disclosure Requirements, Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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NLRB General Counsel Announces Commitment to Inter-Agency Coordination

On February 7, 2022, the White House Task Force on Worker Organizing and Empowerment issued a report recommending, among other things, increased coordination among agencies working on labor and employment matters…more

Interagency Agreement, Labor Relations, NLRB, NLRB General Counsel, Policy Statement

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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BREAKING:  Texas District Court Strikes Down NLRA Joint Employer Rule

On March 8, just three days before the National Labor Relations Board’s (the “Board”) new joint-employer standard was set to take effect, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas…more

Appeals, Chamber of Commerce, Contract Terms, Joint Employers, NLRA

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States and Healthcare Leaders Must Respond to New Health Equity Regulations

This year, the federal government’s new health equity regulations began taking effect. The regulations represent the government’s increased commitment to health equity advancement as a major part of its regulatory enforcement..…more

Centers for Medicare & Medicaid Services (CMS), Equity, Fee-for-Service, Healthcare, Inpatient Quality Reporting

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Understanding the Federal Reserve’s New Bank Term Funding Program in Response to Recent Bank Failures

On March 12, 2023, in the wake of shutdowns of Silicon Valley Bank and Signature Bank by regulators in their respective states, the Federal Reserve Board announced the creation of a new Bank Term Funding Program (“BTFP”)…more

Banking Sector, Borrowers, Federal Reserve, Mortgage-Backed Securities, Popular

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No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers. In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the…more

Bargaining Units, Collective Bargaining, Employer Liability Issues, Employment Policies, Labor Relations

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Legal Separateness: The Boundaries on Written Discovery

The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies from various kinds of liability and litigation. However, how much…more

Affiliated-Business Arrangements, Business Ownership, Commonality, Data Collection, Data Preservation

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OpenAI’s “Copyright Shield” Broadens User IP Indemnities for AI-created Content

In a previous post, we highlighted three key items to look out for when assessing the terms and conditions of generative artificial intelligence (“GAI”) tools: training rights, use restrictions and responsibility for outputs…more

Artificial Intelligence, Copyright, Copyright Infringement, Indemnification, Innovative Technology

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Without Equitable Monetary Relief, No Need for Asset Freeze or Receivership to Preserve Resources, and More Takeaways from the Eleventh Circuit

The Eleventh Circuit’s opinion last month in FTC v. On Point Capital Partners LLC, et al.,clarifies the ramifications of the Supreme Court’s ruling in AMG Capital Management regarding the prohibition of equitable monetary relief…more

AMG Capital Management LLC v FTC, Asset Freeze, Commercial Litigation, Disgorgement, Enforcement Authority

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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SPAC Disclosures – SEC Focuses in on Conflicts of Interests

On December 22, 2020, the staff of the Securities and Exchange Commission's Division of Corporation Finance issued new guidance with disclosure considerations for special purpose acquisition companies ("SPACs"). The new guidance…more

Capital Markets, Division of Corporate Finance, Initial Public Offering (IPO), New Guidance, Publicly-Traded Companies

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Court Gives Vanilla Ice Cream False Advertising Claims a Frosty Reception

Judge Louis L. Stanton of the Southern District of New York recently granted defendant Wegmans Food Markets’motion to dismiss claims alleging that Wegmans falsely labels its vanilla ice cream. Plaintiffs sued Wegmans for false…more

Class Action, De Minimis Claims, False Advertising, Food Manufacturers, Motion to Dismiss

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Rear View Mirror: Criminal Exposure for Companies that Received PPP Loans Under the CARES Act

On April 28, 2020, Treasury Secretary Mnuchin announced that companies that received loans of more than $2 million through the Paycheck Protection Program (“PPP”) of the CARES Act will be closely scrutinized. Mr. Mnuchin’s…more

CARES Act, Coronavirus/COVID-19, Criminal Liability, False Claims Act (FCA), Loan Applications

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California Supreme Court Clarifies Scope of Compensable “Hours Worked”

On March 25, 2024, the California Supreme Court issued its opinion in Huerta v. CSI Electrical Contractors, Case No. S275431, providing additional guidance on compensable “hours worked” under California law. In a class action…more

CA Supreme Court, Compensation, Hours of Service, Inspections, Wage and Hour

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Undergraduate Bargaining Units Are Here to Stay—and 20,000 Members Stronger

A growing trend of union organizing among undergraduate student workers reached a crescendo last week when a unit of 20,000 student assistants at California State University voted in favor of unionization. California State…more

Collective Bargaining, Compensation & Benefits, Financial Aid, Graduate Students, Information Technology

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EEOC Issues Proposed Rule for the Pregnant Workers Fairness Act

On August 11, 2023, the EEOC issued a proposed rule regarding the Pregnant Workers Fairness Act (“PWFA”). The PWFA, which took effect on June 27, 2023 requires covered employers to provide reasonable accommodations to qualified…more

Americans with Disabilities Act (ADA), Equal Employment Opportunity Commission (EEOC), Pregnancy, Pregnancy Discrimination, Pregnant Workers Fairness Act

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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Proposed Regulations Provide Guidance to Exempt Organizations on Identifying Separate Unrelated Trade or Businesses

On April 23, the Treasury Department and the Internal Revenue Service (the "IRS") issued helpful proposed regulations under section 512(a)(6) of the Internal Revenue Code (the "proposed regulations"). Section 512(a)(6) was…more

Business Taxes, CARES Act, IRS, NAICS, Partnerships

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California Considers New Restrictions as Health Care Notice Requirements Go Live for Transactions Closing on or After April 1

In August 2023, we published a blog post about the California Office of Health Care Access and Information’s (“OHCA”) proposed cost and market impact review (“CMIR”) regulations under the California Health Care Quality and…more

Acquisitions, California, Consent, Fair Market Value, Governance Standards

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Hawaii is Latest State to Implement a Regulatory Sandbox to Attract Cryptocurrency Business

On March 17, 2020, the governor of Hawaii announced the Digital Currency Innovation Lab, a collaborative effort between Hawaii’s Department of Commerce and Consumer Affairs, the Division of Financial Institutions (DFI) and…more

Cryptocurrency, Digital Currency, Financial Services Industry, Sandbox, State Pilot Programs

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Recent FCA and AKS Litigation Highlights Use of Different Standards in Different Circuits

In an important decision limiting the reach of the Federal Anti-Kickback Statute (42 U.S.C. 1320a-7b(b)) (“AKS”) and its application to violations of the False Claims Act (31 U.S.C. 3729, et seq.) (“FCA”), the U.S. Court of…more

Anti-Kickback Statute, Appeals, But For Causation, Causation, Department of Health and Human Services (HHS)

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Snack Bar Class Action Powers On After USDA Action and FDA Inaction

Unlike a fine wine, a snack bar does not get better with age. Neither, apparently, does litigation. Last month, Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND…more

All Natural, Disclosure Requirements, Food and Drug Administration (FDA), Food Labeling, Food Manufacturers

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Second Circuit Affirms Bankruptcy Courts’ Inherent Authority to Impose Civil Contempt Sanctions

Addressing an issue of first impression, the Second Circuit held recently that bankruptcy courts have inherent authority to impose non-nominal civil contempt sanctions, including per diem sanctions and attorneys’ fees, arising…more

Article III, Attorney's Fees, Bankruptcy Court, Chapter 15, Civil Contempt Orders

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Real Estate Loan Acquisitions – A Guide for Purchasers

In light of significant deterioration in cash flows and asset values in many classes of real estate caused by the COVID-19 pandemic, many real estate lenders are finding some of their otherwise well-underwritten loans to be…more

Borrowers, CMBS, Commercial Tenants, Coronavirus/COVID-19, Foreclosure

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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One More Year: Attorney General Issues Final Regulations as CA Legislature Delays Some Compliance Obligations

Qualifying businesses have another year to complying with certain, major provisions of the CCPA. The CCPA, or the California Consumer Privacy Act of 2018, is a California law that gives California consumers, defined broadly to…more

B2B Organizations, B2B Transactions, California Consumer Privacy Act (CCPA), Consumer Privacy Rights, Cybersecurity

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Thomson Reuters v. Ross Intelligence: D. Del. SJ Decision Provides Insight as Copyright Litigation Tests the Legality of Generative AI

Generative AI has taken the world by storm since OpenAI launched ChatGPT in November 2022. But the buzz and excitement of GAI has come with difficult legal questions that threaten the new technology. Several lawsuits—some of…more

Artificial Intelligence, Bots, Copyright, Copyright Infringement, Copyright Litigation

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Feast or Famine: Private Credit Restructuring Year in Review

With the explosion of private credit over the last decade, it felt almost inevitable that this past year, one marked by prolonged anticipation of a global economic slowdown, would experience its share of restructuring activity…more

Bankruptcy Code, Bankruptcy Court, Centers for Medicare & Medicaid Services (CMS), Chapter 11, Corporate Governance

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It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances

The National Labor Relations Board (“NLRB”), in a 3-1 decision, held that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of the…more

Administrative Law Judge (ALJ), Black Lives Matter, Corporate Counsel, Employees, Employer Liability Issues

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The “Golden Share”: All That Glitters Is Not Gold

A recent, highly anticipated ruling by a Bankruptcy Court in Delaware has reilluminated the concept of a "golden share". While an appeal of the ruling seems likely, this latest ruling by Delaware Bankruptcy Judge Mary F. Walrath…more

Bankruptcy Court, Chapter 11, Corporate Charters, Creditors, Debtors-in-Possession

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Minneapolis Approves Paid Sick Leave Law

The Minneapolis city council has approved an ordinance requiring employers with six or more employees to provide up to 48 hours of paid sick leave each year. Employers with five or fewer employees will be required to provide up…more

City Councils, Employee Rights, Local Ordinance, New Legislation, Notice Requirements

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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Portfolio Companies in Distress: Navigating the Risks from SVB and Other Threats to Liquidity and Solvency

Everything, everywhere, all at once is our risk thesis for 2023, but one must not forget about concentration risk. This issue has rocketed up diligence agendas for LPs and GPs alike as the collapse of Silicon Valley Bank proved…more

FDIC, Financial Distress, Financial Solvency, Fraud, Insolvency

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The “Board Flip”: How Effective is the Pre-Petition Exercise of Proxy Rights in the Face of Bankruptcy?

When debt restructuring discussions are at an impasse and the reservoir of goodwill between the parties has run dry, stakeholders face difficult choices. For a lender, one of the most powerful tools available is the exercise of…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Borrowers, Debt Restructuring

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California Pay Data Reporting Is Due May 8, 2024 (Now With New Requirements!)

As readers may know, California requires private employers of 100 or more employees and/or 100 or more workers hired through labor contractors to annually report pay, demographic, and other workforce data to the Civil Rights…more

Anti-Discrimination Policies, California, Filing Deadlines, Labor Contractor, Pay Data

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Wealth Management Update - November 2023

November Interest Rates for GRATS, Sales to Defective Grantor Trusts, Intra-Family Loans and Split-Interest Charitable Trusts - The November Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs…more

AFR, Beneficiaries, Gift Tax, Grantor Retained Annuity Trusts (GRATs), Intentionally Defective Grantor Trusts

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Tax Court Decision Interprets Profits Interest “Safe Harbor” under IRS Rev. Proc. 93-27

The Tax Court’s May 3, 2023, decision in ES NPA Holding, LLC v. Commissioner (T.C. Memo 2023‑55), upholding a taxpayer’s position to characterize a partnership interest as a profits interest under the “safe harbor” of IRS…more

Compensation, Investment, IRS, Private Equity, Revenue Procedures

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IRS Issues FAQs Regarding COVID-19 Relief for Estate and Gift Tax Filings

On April 23, 2020, the IRS issued FAQs regarding "COVID-19 Relief for Estate and Gift" in response to issues raised by the extension of time granted to taxpayers to fulfill their estate, gift and generation-skipping transfer…more

Coronavirus/COVID-19, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption, IRS

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Paycheck Protection Program – SBA Clarifies PPP Guidance

Third-Party Payroll Providers Cleared - On June 13, 2023, the U.S. Small Business Administration (“SBA”) issued new FAQ 72 (“FAQ 72”) to help clarify whether amounts paid by borrowers to third-party payers for the third-party…more

501(c)(3), American Rescue Plan Act of 2021, IRS, Loans, New Guidance

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Coronavirus: Details Matter

As the Coronavirus (COVID-19) continues to disrupt markets and industries globally, businesses face significant internal and external challenges with how to identify and plan for issues caused by the outbreak. In response,…more

Business Interruption, Centers for Disease Control and Prevention (CDC), Contract Negotiations, Contract Terms, Coronavirus/COVID-19

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No Fighting! CalOSHA Releases its Long-Awaited Model Workplace Violence Prevention Plan.

On September 30, 2023, Governor Newsom signed Senate Bill 553 (“SB 553”) into law. Among other things, the new legislation added section 6401.9 to the California Labor Code (“Section 6401.9”), which requires that virtually all…more

Cal-OSHA, California, Governor Newsom, Labor Code, Labor Reform

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New York Bans Mandatory Captive Audience Meetings

On September 6, New York State Governor Kathy Hochul signed into law (A6604 / S4982) a bill banning businesses from requiring employees to attend meetings or listen to communications where the “primary purpose” of such meetings…more

Damages, Equitable Relief, General Meetings, New York, NLRA

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Supreme Court Clarifies Specific Jurisdiction and Ends Forum Shopping Spree

The Supreme Court has put an end to a jurisdictional contrivance used by the plaintiffs’ bar to shop for a friendly state forum, even if neither the plaintiff, nor the defendant, nor the actionable conduct took place in those…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, CA Supreme Court, Forum Shopping, Minimum Contacts, Out-of-State Companies

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

Question of the Week: In 100 words or less, what are your expectations for M&A in 2023?

Based on what I have been seeing in the market, great opportunities exist for buyers and sellers in M&A despite indications of economic headwinds. Interest is still high for businesses with strong fundamentals, or those in…more

Acquisitions, Debt Market, Environmental Social & Governance (ESG), Interest Rates, Investment

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New Proposed Regulations Would Impact the Determination of Domestically Controlled REIT and Structures for Sovereign Wealth Funds’ US Real Estate Investments

On December 28, 2022, the Internal Revenue Service (the “IRS”) and the Treasury Department released proposed regulations (the “Proposed Regulations”) under sections 892 and 897 of the Internal Revenue Code (the “Code”). If…more

FIRPTA, Income Taxes, IRS, Proposed Regulation, Real Estate Investments

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Circuit Split Deepens as Eleventh Circuit Holds Administrative Feasibility is Not a Requirement for Class Certification

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of…more

Administrative Feasibility, Ascertainable Class, Class Action, Class Certification, Class Members

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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Making a Difference for Families with Disabled Children

For low-income families with disabled children, receiving Supplemental Security Income (SSI) benefits is critically important to the safety and security of their households. Navigating the difficult claims process without legal…more

Access to Legal Counsel, Claim Procedures, Disability, Documentation, Evidence

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TALF Program Update: Master Loan and Security Agreement and Updated FAQs - November 2020

On October 22, 2020, the Federal Reserve Bank of New York (“New York Fed”) released an amended form of Master Loan and Security Agreement (the “MLSA”), which governs loans issued under its Term Asset-Backed Loan Facility…more

Asset-Backed Securities, CARES Act, Collateral, Master Loan and Security Agreement (MLSA), SBA

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SEC Issues Final Rules on Registered Investment Company and Business Development Company Acquisition and Financial Statement Disclosure

The Securities and Exchange Commission (the “SEC”) recently adopted final rules (the “Final Rules”) amending Regulation S-X and related rules and forms in a manner that directly impacts registered investment companies and…more

Acquisitions, Amended Regulation, Business Development Companies, Final Rules, Financial Reporting

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Private Credit Restructuring Trends: No AAL, No Problem?

Bankruptcy Considerations for Unitranche Transactions with Super-Priority Revolvers without an AAL - Unitranche debt is not new to the private credit market. It has, however, evolved over time. In the earlier years of the…more

Chapter 11, Creditors, Debt Restructuring, Enforcement, Post-Petition Interest

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COVID Alert: California Releases “Employer Playbook for a Safe Reopening”

California Governor Gavin Newsom has released a 32-page “Employer Playbook” that’s designed to help employers “plan and prepare for reopening their business and to support a safe, clean environment for workers and customers.”…more

CDPH, Coronavirus/COVID-19, Employer Responsibilities, Governor Newsom, Infectious Diseases

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Court Sides with SEC in Ruling to Prevent Telegram from Distributing Grams

In the latest development in the ongoing dispute between the SEC and Telegram Group Inc. (Telegram), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York in a March 24, 2020 opinion granted the…more

Cryptocurrency, Initial Coin Offering (ICOs), Securities and Exchange Commission (SEC), Securities Violations

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An Alternative to Foreign Service of Process

A recent opinion from the U.S. District Court for the Southern District of California may help plaintiffs facing the difficulties related to serving foreign defendants, especially in light of challenges caused by the current…more

Email, Foreign Corporations, Foreign Defendants, Hague Convention, International Litigation

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Quant Firm Applies to Issue ETF Share Classes in Mutual Funds

Dimensional Fund Advisors LP ("Dimensional"), a quantitative investment firm, recently filed an application for exemptive relief ("Application") with the Securities and Exchange Commission ("SEC"), seeking permission to offer…more

Board of Directors, Conflicts of Interest, ETFs, Exemptive Relief, Investment Adviser

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Question of the Week: As the impact of return-to-office policies take shape and climbing interest rates increase capitalization rates, how are real estate deals being affected?

Yes, interest rates have skyrocketed when you look at the last 10 years, but the reality is also that folks were able to be quite successful in the ‘90s, with interest rates hovering around 7%. The better questions will all…more

Capitalization, Coronavirus/COVID-19, Interest Rates, Investors, Real Estate Market

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Volcker Rule Amendments: Implications for Asset Managers

On June 25, 2020, the Federal Reserve Board, the OCC, the FDIC, the SEC and the CFTC (collectively, the "Agencies") adopted amendments (the "Amendments") to the regulations implementing section 13 of the Bank Holding Company…more

Asset Management, Bank Holding Company Act, Banking Sector, CFTC, Covered Funds

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OFCCP Proposes Changes to the Self-Identification of Disability Form

On October 3, 2019 OFCCP submitted a request to the Office of Management and Budget for approval of proposed changes to its Voluntary Self-Identification of Disability Form. OFCCP explained that it had proposed the changes “in…more

Comment Period, Disability Discrimination, Employer Liability Issues, Federal Contractors, Hiring & Firing

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Cryptocurrency Companies: Enforceable Terms of Use Matter

It is not unusual for users of a platform or of software to challenge the enforceability of a company’s terms of use if they take issue with the company’s product or service and decide to bring suit. As most terms of use contain…more

Coinbase, Crypto Exchanges, Cryptocurrency, Enforcement, Mandatory Arbitration Clauses

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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Real Estate Investments by Qualified Foreign Pension Funds After the PATH Act

The Protecting Americans from Tax Hikes Act of 2015 (“PATH Act”) included a number of significant changes to the U.S. federal income tax rules related to real estate investment trusts (“REITs”) and investments by non-U.S…more

FIRPTA, Foreign Investment, Income Taxes, IRS, Pension Funds

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H1B Updates: Cap H1B Electronic Registration Opens, Trump Era Wage Level Selection Process Delayed

The H1B cap registration period for this fiscal year FY 2022 will open at noon EST on March 9, 2021 and will close at noon EST on March 25, 2021. Similar to last year, all H1B cap registrations will cost $10 per registration…more

Department of Homeland Security (DHS), Foreign Nationals, H-1B, Highly-Skilled Workers Visa, Immigration Procedures

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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Proskauer’s Second Annual Survey on Trends in Private Credit Markets

We are delighted to share with you the results from our second annual Trends in Private Credit survey. This year’s survey was conducted via web from January 9th to February 9th 2018. In this report, we will share respondents’…more

Banking Sector, Borrowers, Competition, Consumer Financial Products, E-Commerce

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

See all updates »

Key Issues When Navigating A Tenant's Bankruptcy

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid Corp. and WeWork Inc., each filed Chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

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New York City Bar Report Recommends Changes in the Appointment and Assignment Process for Family Court Judges

Delays in New York City Family Court proceedings too often result from an inadequate number of judges combined with a court structure that makes it difficult to allocate judges where they are most needed. Although these…more

Data Collection, Family Law Courts, Judges, Local Ordinance, Pro Bono

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SEC Answers Questions on New Tailored Shareholder Report Requirements

The staff of the Division of Investment Management (the “Staff”) has issued a FAQ pertaining to the rule and form amendments adopted by the Securities and Exchange Commission (the “SEC”) in October 2022, which require open-end…more

Compliance, Corporate Governance, Disclosure Requirements, ETFs, Exchange-Traded Products

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Wealth Management Update - July 2021

July 2021 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts AFRs - The July applicable federal rate ("AFR") for use with a sale to a defective grantor trust,…more

Biden Administration, Capital Gains Tax, Divorce, Estate Planning, Estate Tax

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Oregon CPOM Bill Inches Closer to Becoming Law, Targeting Investors and the PPM/Friendly PC Model

As described in our blog post last year, an increasing number of states across the country are seeking to regulate physician practice management (“PPM”) and private equity transactions in the health care sector. As part of this…more

Healthcare, Healthcare Reform, Investors, New Legislation, Oregon

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New York State Department of Labor Issues Proposed Regulations on Salary Transparency Law

On September 13, 2023, the New York State Department of Labor published proposed regulations on the state’s salary transparency statute that took effect on September 17, 2023. As we previously reported, the statute applies…more

Compensation, Disclosure Requirements, Job Ads, Job Applicants, Job Descriptions

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Arbitrator Should Decide Whether NY Or CA Law Should Apply

A California court has ruled that an arbitrator (not a judge) should decide on the applicability of California Labor Code Section 925 to a dispute between a law firm partner and his former law firm. Zhang v. Superior Court, 2022…more

Arbitration Agreements, Arbitrators, California, Labor Code, New York

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SEC Approves Exchange Listing Applications for Spot Bitcoin ETPs

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a…more

Bitcoin, Broker-Dealer, Chicago Mercantile Exchange (CME), Compliance, Conflicts of Interest

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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SEC Approves Exchange Listing Applications for Spot Bitcoin ETPs

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a…more

Bitcoin, Broker-Dealer, Chicago Mercantile Exchange (CME), Compliance, Conflicts of Interest

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

See all updates »

Hearing Scheduled On Proposed Amendments to Massachusetts Paid Family and Medical Leave Law

On June 11, 2020, the Department of Family and Medical Leave (“DFML”) will hold a virtual public hearing on its recent proposed amendments to the final regulations pertaining to the Massachusetts Paid Family and Medical Leave…more

Anti-Retaliation Provisions, Disability Benefits, Employee Benefits, Independent Contractors, Medical Leave

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

The Corporate Transparency Act: Key Considerations for Health Systems and Practice Management Companies (MSOs/DSOs)

In 2021, Congress enacted the Corporate Transparency Act (the “CTA”) to “better enable critical national security, intelligence, and law enforcement efforts to counter money laundering, the financing of terrorism, and other…more

Anti-Terrorism Financing, Beneficial Owner, Corporate Transparency Act, FinCEN, Healthcare

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SEC Chair Gensler Signals SEC Policies for Private Funds

On November 10, 2021, in prepared remarks before a meeting sponsored by the Institutional Limited Partners Association (ILPA), Securities and Exchange Commission (SEC) Chair Gary Gensler presented his views on the role and…more

Capital Markets, Fiduciary Duty, Form PF, Gary Gensler, Hedge Funds

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11th Circuit Rejects Litigant’s “Creative Effort” To Escape Forum Selection Clause Requiring Federal Forum

Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh…more

Carnival Cruise Lines, Contract Terms, Forum, Forum Selection, Forum Shopping

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Congress Passes American Rescue Plan: What Employers Need to Know

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“Rescue Plan”), a $1.9 trillion COVID-19 relief package intended to provide continued economic relief to individuals, businesses, and state and local…more

American Rescue Plan Act of 2021, Biden Administration, CARES Act, Coronavirus/COVID-19, Covered Employer

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

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Wealth Management Update - October 2020

Important federal interest rates continue to hold relatively steady. The October Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 0.4%, which is unchanged from a month ago…more

Charitable Trusts, Estate Planning, Estate Tax, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts

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EEOC Prepares to Tackle Artificial Intelligence and Algorithmic Bias

On October 28, 2021, Equal Employment Opportunity Commission (“EEOC”) Chair Charlotte A. Burrows announced that the agency is launching an initiative to ensure that artificial intelligence (“AI”) used at all stages of the…more

Algorithms, Artificial Intelligence, Employer Liability Issues, Employment Discrimination, Equal Employment Opportunity Commission (EEOC)

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French DPA Issues Guidance Surrounding Practice of Web Scraping

On April 30, 2020, the French data protection authority, the CNIL, published a guidance surrounding considerations behind what it calls “commercial prospecting,” meaning scraping publicly available website data to obtain…more

Data Collection, Data Privacy, Data Protection Authority, Direct Marketing, General Data Protection Regulation (GDPR)

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The Impact of COVID-19 on Adjusted EBITDA

As COVID-19 sends shockwaves through the global economy, many experts are predicting one of the deepest recessions in U.S. history. The hospitality, employment services, transportation, travel, leisure, mining, and oil…more

Coronavirus/COVID-19, Credit Agreements, Credit Facilities, EBITDA, Leveraged Finance

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Ecuador Welcomes Arbitration (Back)

2021 marked a new chapter for arbitration in Ecuador: after re-joining the International Centre for Settlement of Investment Disputes Convention in June, Ecuadorian Executive Decree No. 165 in August introduced Regulations to…more

Arbitration, Arbitration Agreements, Arbitration Awards, Arbitrators, Business Disputes

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Tennessee District Court: Dodd-Frank is Not a General Anti-Retaliation Law

The United States District Court for the Western District of Tennessee recently emphasized the limited scope of what constitutes protected activity under the Dodd-Frank Act’s (the Act) whistleblower protection provision, noting…more

Anti-Retaliation Provisions, Dodd-Frank, Internal Reporting, Motion to Dismiss, Retaliation

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Act Fast (If You Get the Letter)! IRS Pre-Examination Retirement Compliance Pilot Program is Extended

On February 7, 2024, the IRS announced the second phase of its Pre-Examination Retirement Compliance Program... Under this program, sponsors will be notified that their plan is selected for examination and will have 90 days to…more

Benefit Plan Sponsors, Employee Benefits, IRS, Retirement Plan, Self-Correction Programs

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Where is Main Street?—Fed Provides Guidance on the Main Street Lending Program - September 2020

Fed Releases Updated Frequently Asked Questions for Business and Nonprofit Facilities and Instructions for Lender Required Documentation - On September 18, 2020, the Federal Reserve Bank of Boston (the “Boston Fed”) released…more

CARES Act, Coronavirus/COVID-19, EBITDA, Eligibility, Federal Reserve

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California Supreme Court Clarifies Scope of Compensable “Hours Worked”

On March 25, 2024, the California Supreme Court issued its opinion in Huerta v. CSI Electrical Contractors, Case No. S275431, providing additional guidance on compensable “hours worked” under California law. In a class action…more

CA Supreme Court, Compensation, Hours of Service, Inspections, Wage and Hour

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Change to non-domicile tax regime forms part of UK Spring Budget 2024

As part of the UK’s Spring Budget 2024, the Chancellor of the Exchequer, Jeremy Hunt, has announced the abolition of the remittance basis for income tax and capital gains tax for non-UK domiciled, UK resident individuals (the…more

Capital Gains, Capital Gains Tax, Foreign Assets, Income Taxes, Inheritance Tax

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Section 1446(f) Final Regulations: Key Changes to Guidance on Non-Publicly Traded Partnership Interest Transfers by Non-U.S. Persons

On October 7, 2020, the U.S. Internal Revenue Service (“IRS”) and Treasury Department released final regulations providing guidance on the rules imposing withholding and reporting requirements under the Code on dispositions of…more

Final Rules, Income Taxes, International Tax Issues, IRS, Partnership Interests

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Proskauer on Price Gouging Compendium

A Unique Resource for Businesses Managing Price Gouging Compliance - The Proskauer on Price Gouging Compendium provides a detailed analysis of price gouging statutes over the 2020 to 2023 pandemic period, covering how price…more

Compliance, Coronavirus/COVID-19, Price Gouging

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Pro Bono Spotlight: Ameelio.org - Bridging Financial Barriers for Incarcerated Individuals Trying to Stay in Touch with Loved Ones

Staying in touch with loved ones has become more important today than ever before. While technology offers many ways to stay in contact, incarcerated individuals face barriers to communication. Several prisons have paused…more

Coronavirus/COVID-19, Criminal Justice Reform, Department of Corrections, Low-Income Issues, Mobile Apps

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Key UK Real Estate Concerns: Alarm bells sound clear warning to landlords over consequences of tenant planning breaches

This article explores a recent decision impacting landlords with property in the UK. In the case, the Proceeds of Crime Act 2002 (“POCA”) was utilised to confiscate rent monies collected from a tenant which had failed to comply…more

Breach of Contract, Compliance, Enforcement, Landlords, Proceeds of Crime Act 2002 (POCA)

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Employers To Face More Concurrent EEOC and Tort Suits after Second Circuit Decision

Last week the U.S. Court of Appeals for the Second Circuit held that filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) does not toll the statute of limitations for state-law tort…more

Discrimination, Equal Employment Opportunity Commission (EEOC), Sex Discrimination, Statute of Limitations

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New York Bans Mandatory Captive Audience Meetings

On September 6, New York State Governor Kathy Hochul signed into law (A6604 / S4982) a bill banning businesses from requiring employees to attend meetings or listen to communications where the “primary purpose” of such meetings…more

Damages, Equitable Relief, General Meetings, New York, NLRA

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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H1B Updates: Cap H1B Electronic Registration Opens, Trump Era Wage Level Selection Process Delayed

The H1B cap registration period for this fiscal year FY 2022 will open at noon EST on March 9, 2021 and will close at noon EST on March 25, 2021. Similar to last year, all H1B cap registrations will cost $10 per registration…more

Department of Homeland Security (DHS), Foreign Nationals, H-1B, Highly-Skilled Workers Visa, Immigration Procedures

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Governor Newsom Signs A Slew of New Employment Laws for 2022

As the 2021 legislative season came to a close, Governor Gavin Newsom signed numerous bills into law. From arbitration to workplace safety, these laws will impact employers across the state…more

Arbitration, Bias, Coronavirus/COVID-19, Emotional Support Animals, Employee Training

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Oregon CPOM Bill Inches Closer to Becoming Law, Targeting Investors and the PPM/Friendly PC Model

As described in our blog post last year, an increasing number of states across the country are seeking to regulate physician practice management (“PPM”) and private equity transactions in the health care sector. As part of this…more

Healthcare, Healthcare Reform, Investors, New Legislation, Oregon

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Judge Talwani Dismisses Diagnostic Patent Infringement Case under Section 101

In a recent patent infringement case relating to a method for diagnosing a neuro-muscular disorder, Judge Indira Talwani in the District of Massachusetts found the asserted patent claims to be patent ineligible because the…more

Dismissals, Mayo Clinic, Naturally Occurring, Patent Infringement, Patent Litigation

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Public Service and Summer Associates: A Q&A with Caroline Menes, Legal Recruiting Officer

Wendy Dessy, Manager of Corporate Social Responsibility: What role does public service play in Proskauer’s summer program? Caroline: Proskauer has a longstanding tradition of public service, and I’m proud to call it a big part…more

Corporate Social Responsibility, Law Firm Associates, Law Firm Ownership, Law Firm Partners, Law Students

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Retailer’s Status as a “Financial Institution” Immunizes $1 Billion Fraudulent Transfer

When leveraged buyouts (“LBOs”) fail, the selling shareholders are litigation targets. A common suit is a claim by a bankruptcy trustee asserting constructive fraudulent transfer claims seeking to claw-back payments to the…more

Bankruptcy Code, Corporate Counsel, Financial Institutions, Fraudulent Transfers, Leveraged Buyout

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Proving the Good Moral Character of VAWA Self-Petitioners with Convictions Connected to their Status as Domestic Violence Survivors

The Violence Against Women Act (VAWA) allows immigrant survivors of domestic violence to self-petition for legal status in the United States without relying on their abusive U.S. citizen spouses to sponsor their adjustment of…more

Adjustment of Status, Criminal Convictions, Disorderly Conduct, Domestic Violence, I-485 Applications

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Feeling Bullish: A Career in Private Credit

Interest in private credit has grown significantly in the past 12 months. As the syndicated market has slowed, direct lenders (and borrowers) are finding better deal flow and increased opportunities. Market pundits have deemed…more

Capital Markets, Investment, Investment Adviser, Investment Management, Investors

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FTC Ramps up COVID-19 Activity After Improving its Data Security Enforcement Orders

With the spread of the novel coronavirus (COVID-19), cybersecurity criminals and scammers are ramping up their efforts to target vulnerable employers and workforces. The FTC announced today that since January they have received…more

Bring Your Own Device (BYOD), Business Continuity Plans, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Cybersecurity

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

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Price Gouging Weekly Round Up - July 2021

Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information for our clients and friends…more

Antitrust Provisions, Antitrust Violations, Coronavirus/COVID-19, Goods or Services, Price Gouging

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UK Tax Round Up - March 2024

Welcome to March’s edition of our UK Tax Round Up. This month has seen a number of interesting cases covering a range of issues, from the deductibility of costs against employment income to the place of effective management of a…more

Acquisitions, Asset Management, Corporate Governance, HMRC, Income Taxes

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Guide To Hybrid Funds - May 2022

Hybrid funds offer managers the flexibility to invest in a range of assets and to offer various liquidity structures to their investors. Though not a new phenomenon, hybrid funds gained in popularity after the 2008 financial…more

Fund Managers, Hedge Funds, Hybrid Capital Instruments, Investment, Investment Fund Vehicles

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Enforceable Terms and Arbitration Provisions Important for Providers in Current Crypto Cyberthreat Environment

According to a recent Bloomberg Law article [subscription required], in the past year there has been a sharp decline in active civil suits against cryptocurrency exchanges, digital wallet, mobile phone providers and others…more

Arbitration, Blockchain, California, Coinbase, Coinbase Inc v Bielski

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UK Tax Round Up - March 2024

Welcome to March’s edition of our UK Tax Round Up. This month has seen a number of interesting cases covering a range of issues, from the deductibility of costs against employment income to the place of effective management of a…more

Acquisitions, Asset Management, Corporate Governance, HMRC, Income Taxes

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SECURE 2.0 Includes PBGC Premium Relief… for Some Plans

As previously discussed, the SECURE 2.0 Act of 2022 (“SECURE 2.0”) that was signed into law on December 29, 2022 as part of the 2023 Consolidated Appropriations Act includes a slew of changes for retirement plan sponsors and…more

21st Century Cures Act, Consolidated Appropriations Act (CAA), PBGC, Pensions, Retirement

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Question of the Week: What kind of competition do you expect in the private credit mid-market in the coming months?

“Lenders that can write bigger checks will have a competitive advantage for the remainder of the year. Many sponsors have accepted the fact that pricing and terms have tightened and now their main concern is ensuring they can…more

Competition, Lenders, Middle Market

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Another Public Health Crisis: The Intersection of Gun Violence & COVID-19

As COVID-19 ravages communities across the United States, another serious public health crisis is also escalating: gun violence. Everytown for Gun Safety, a nonprofit organization and longtime Proskauer partner dedicated to…more

Background Checks, Coronavirus/COVID-19, Criminal Background Checks, Crisis Management, Domestic Violence

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DOJ Announces Development of a Pilot Whistleblower Rewards Program

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (“DOJ”) is creating a pilot whistleblower rewards program, which will be developed and implemented over the next 90 days, with a…more

CFTC, Corporate Governance, Department of Justice (DOJ), Federal Pilot Programs, FEPA

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Protecting the Unhoused: Proskauer Files Amicus Brief on Behalf of the Coalition for the Homeless

In a major victory for unhoused New Yorkers, the New York Court of Appeals recently adopted the analysis of an amicus brief that was filed by Proskauer on behalf of the Coalition for the Homeless. The amicus brief supported the…more

Amicus Briefs, Appeals, Department of Buildings (DOB), Homeless Issues, Law Firm Associates

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Broadway Ruling Puts Discrimination Claims In The Limelight

Does the First Amendment right to free speech permit an employer to hire or fire an employee based on race? On its face, the proposition may seem absurd, especially as we approach the 60th anniversary of the Civil Rights Act —…more

Affirmative Defenses, Anti-Discrimination Policies, Anti-SLAPP, Appeals, Civil Rights Act

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Price Gouging Weekly Round Up - April 2021

Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information for our clients and friends. New…more

Antitrust Provisions, Goods or Services, Natural Gas, Price Gouging, Public Utility

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

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HHS Seeks to Remove Silos and Unleash Patient Data with Final Patient Data-Sharing Rules

On March 9, 2020, the Centers for Medicare and Medicaid Services ("CMS") and the Office of the National Coordinator for Health Information Technology ("ONC") each released final rules generally intended to ease both access to…more

Centers for Medicare & Medicaid Services (CMS), Data-Sharing, Department of Health and Human Services (HHS), Final Rules, Health Information Technologies

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Time to Work Off the COVID 19 (lbs)… California Fitness Employers Reopen!

California has long been considered one of the “capitals” of the fitness industry as it is home to thousands of gyms and boutique fitness studios. COVID-19 hit the state’s fitness industry particularly hard when…more

Coronavirus/COVID-19, Employer Responsibilities, Fitness, Governor Newsom, Health and Safety

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Private Credit Deep Dives – Call Protection (United States)

“Call protection” (which is referred to as a “prepayment fee”, “prepayment premium”, “call premium”, “prepayment penalty”, “non call”, “hard call”, “soft call” or “make whole”) is a core economic term in leveraged financings…more

Creditors, Initial Public Offering (IPO), Lenders, Loans, Prepaid Payment Products

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COVID-19 Designated as an Airborne Infectious Disease under New York State’s HERO Act

On Monday, September 6, 2021, New York Governor Kathy Hochul announced that the Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Essential Rights (HERO) Act, Infectious Diseases, New York

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Recent Updates from the IRS and Treasury on the Superfund Chemical Tax

I. Executive Summary - On February 15, 2024, the IRS and Treasury issued a supplemental notice to a prior notice from December 2022, to correct a petition requesting that the Superfund Chemical Tax apply to polyphenylene…more

Internal Revenue Code (IRC), IRS, Notice of Proposed Rulemaking (NOPR), Proposed Regulation, Superfund

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Legislating Around AI-Driven Algorithm Concerns

Pricing algorithms are nothing new. They are, generally speaking, computer programs intended to help sellers optimize prices in real time, or close to it. These programs can use data on demand, costs, or even competitors’ prices…more

Algorithms, Anti-Competitive, Artificial Intelligence, Department of Justice (DOJ), Federal Trade Commission (FTC)

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SEC Focus on Adviser-Led Secondaries Continues

Adviser-led secondary transactions have seen explosive growth over the last five years. That growth has brought increased regulatory concerns over the conflicts of interests inherent in these transactions and a perceived lack…more

Compensation, Consent, Investment Adviser, LPAC, Private Equity Funds

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Paycheck Protection Program – Where Are We Now? An Up-To-Date Guide to the Paycheck Protection Program (UPDATED)

Since the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020, Congress has enacted subsequent laws and the U.S. Small Business Administration (the “SBA”) and the U.S Treasury…more

CARES Act, Coronavirus/COVID-19, Federal Loans, Infectious Diseases, Paycheck Protection Program (PPP)

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Exodus From The Energy Charter Treaty – What is Left of Europe’s Protections for Investors?

As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the…more

Arbitration, Asset Management, Energy Charter Treaty, Energy Market, Energy Reform

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Inclusion of Government Grants in EBITDA

In response to the COVID-19 epidemic, the U.S. government has provided relief to companies through various grant programs. The receipt of these grant proceeds represents a meaningful lifeline to many companies and the revenue…more

Accounting Standards, CARES Act, Coronavirus/COVID-19, Credit Agreements, EBITDA

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Data At Issue: FTC Focus on Browsing Information and Location Data

Since the start of the year, the Federal Trade Commission (FTC) has brought actions against – and reached proposed settlements with – three business ventures engaged in the collection, use and sharing of certain consumer…more

Consent, Data Brokers, Data Collection, Data Privacy, Enforcement Actions

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Wealth Management Update - June 2021

June 2021 Interest Rates for Sales to Defective Grantor Trusts, Intra-Family Loans, Split-Interest Charitable Trusts and GRATs - The June applicable federal rate ("AFR") for use with a sale to a defective grantor trust,…more

Administrative Law Judge (ALJ), Beneficiaries, Estate Planning, Grantor Retained Annuity Trusts (GRATs), Income Taxes

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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When (Patent) Success Isn’t Obvious

In Univ. of Strathclyde v. Clear-Vu Lighting LLC, the Federal Circuit grappled with the issue of whether claims directed to methods and systems for inactivating bacteria using blue light were obvious in view of a prior art…more

Biotechnology, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Life Sciences, Patent Infringement

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Q&A: The Bottom Line of Complying with the SEC’s New Marketing Rule

In the late fall of 2020, the SEC implemented rule amendments which created a single rule, the Marketing Rule, that replaces the current Advertising and Cash Solicitation Rules. The Marketing Rule represents both significant…more

Advertising, Anti-Fraud Provisions, Cash Solicitation Rule, Compliance, Disclosure Requirements

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Energy Transition: A New Risk Climate for Investors

Go to any private equity event in the last 12 months, and “energy transition” will have been discussed, meaning the shift in energy production away from fossil‑based systems to low or zero carbon ones. As fund managers continue…more

Climate Change, Energy Sector, Enforcement, Environmental Social & Governance (ESG), Investment

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NLRB Takes One Step Closer to Expanding The Possible Damages Awarded to Employees Fired in Violation of the Act

On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what…more

Damages, Employer Liability Issues, Hiring & Firing, Labor Reform, Layoffs

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

See all updates »

“Side Car” Funds – Solutions for Sourcing Capital

Given the current market volatility resulting from the COVID-19 pandemic, many fund sponsors are seeking additional sources of capital to protect and/or enhance their investment portfolios. There are many circumstances in which…more

Conflicts of Interest, Fund Sponsors, Institutional Investors, Investment Funds, Investment Management

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New York and New Jersey Legislatures Introduce Bills That Seek to Regulate Artificial Intelligence (“AI”) Tools in Employment

Employers who rely on artificial intelligence driven tools for their recruiting and hiring processes may face new regulations in New York and New Jersey. In the past few weeks, three bills have been proposed (two in New Jersey…more

Artificial Intelligence, Audits, Automated Decision Systems (ADS), Bias, Department of Labor (DOL)

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SPAC Disclosures – SEC Focuses in on Conflicts of Interests

On December 22, 2020, the staff of the Securities and Exchange Commission's Division of Corporation Finance issued new guidance with disclosure considerations for special purpose acquisition companies ("SPACs"). The new guidance…more

Capital Markets, Division of Corporate Finance, Initial Public Offering (IPO), New Guidance, Publicly-Traded Companies

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As NFTs Blur the Line Between “Receipt” and “Product”, Trademarks Owners Fight Over New Virtual Markets

Last month, our post about art NFTs and the DMCA highlighted the distinction between non-fungible tokens and the copyrighted works they represent. In the context of copyright, this dichotomy is generally uncontroversial: In most…more

Blockchain, Corporate Counsel, Fashion Industry, First Sale Doctrine, Intellectual Property Protection

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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Question of the Week: As infrastructure assets evolve, how has that presented new opportunities for investors?

Infrastructure assets are going to remain highly attractive. This is partly because they offer all the characteristics that investors are looking for like long-term protection on revenues, decorrelation from economic cycles and…more

Asset Management, Inflation Adjustments, Infrastructure, Internal Revenue Code (IRC), Investors

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Biden Administration Announces White House Task Force on Worker Organizing and Empowerment

On Monday, April 26, 2021, the White House released a press briefing detailing the establishment of a new White House Task Force on Worker Organizing and Empowerment (the “Task Force”). The Task Force, which the White House…more

Biden Administration, Collective Bargaining, Employer Liability Issues, Labor Reform, Labor Regulations

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“Champion” Petfoods: Seventh Circuit Affirms Dismissal of False Advertising Suit Against Pet Food Company

We recently blogged about Champion Petfoods’ success in a Minnesota district court case alleging that it misrepresented the quality of its dog food and ingredients. Well, Champion Petfoods came back to defend its title in…more

Advertising, Animal Food, Article III, Class Action, Evidence

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Broadway Ruling Puts Discrimination Claims In The Limelight

Does the First Amendment right to free speech permit an employer to hire or fire an employee based on race? On its face, the proposition may seem absurd, especially as we approach the 60th anniversary of the Civil Rights Act —…more

Affirmative Defenses, Anti-Discrimination Policies, Anti-SLAPP, Appeals, Civil Rights Act

See all updates »

Proskauer on Price Gouging Compendium

A Unique Resource for Businesses Managing Price Gouging Compliance - The Proskauer on Price Gouging Compendium provides a detailed analysis of price gouging statutes over the 2020 to 2023 pandemic period, covering how price…more

Compliance, Coronavirus/COVID-19, Price Gouging

See all updates »

DOL Proposes Significant Changes to the QPAM Exemption – What You Need to Know

On July 27, 2022, the U.S. Department of Labor (the “DOL”) issued notice of a proposed amendment (the “Proposed Amendment”) to Prohibited Transaction Class Exemption 84-14 (which is commonly referred to as the “QPAM Exemption”)…more

Criminal Convictions, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Exemptions, Proposed Amendments

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Personal Planning Strategies - November 2023

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the “2012 Act”). In 2017,…more

American Taxpayer Relief Act of 2012 (ATRA), Estate Planning, Estate Tax, Generation-Skipping Transfer, Gift Tax

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Question of the Week: What do companies need to know if the Federal Trade Commission's proposed merger review changes are implemented?

“Merger review is about to get thornier. While the FTC and DOJ have been tightening the merger review process incrementally over the course of the Biden administration, the newly proposed HSR rule changes represent a wholesale…more

Acquisitions, Department of Justice (DOJ), Disclosure Requirements, Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Digital Music Provider Grooveshark Dismantled in Major Victory for Music Recording Industry

On April 30, 2015, digital music provider Grooveshark—owned by Escape Media Group, Inc. ("Escape")—agreed to permanently shut down its controversial music streaming website following several years of litigation with major record…more

Digital Media, Internet Streaming, Music, Music Industry, Popular

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Private Credit Lenders: What’s a “Structured Dismissal” and Why Should You Care?

Despite the Supreme Court’s rejection of a structured dismissal in 2017, there is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Private Lenders

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When Is Less Really More for a Patent Licensee?

In Apple v. Qualcomm, Federal Circuit Finds No Standing to Challenge Validity of a Few Patents When Many Were Licensed - The development timeline for small-molecule drugs and biologics is lengthy, estimated to take between…more

Apple, Article III, Inter Partes Review (IPR) Proceeding, IP License, Patent Litigation

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Alleged Theft of Drug Pricing Trade Secrets Could Cost Both Victim and Thief

Life Sciences is an area ripe for trade secrets misappropriation litigation. In recent news, Merz Pharmaceuticals, LLC filed a lawsuit under the North Carolina Uniform Trade Secrets Act alleging that its former director of…more

Commercial Litigation, Confidentiality Agreements, Customer Lists, Drug Pricing, Employment Contract

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Cos. Should Plan To Protect DEI Before Supreme Court Ruling

With the U.S. Supreme Court poised to reverse course on affirmative action, companies may soon find their corporate diversity and inclusion programs facing scrutiny. The court this term is considering whether to overturn the…more

Affirmative Action, Harvard University, Mandated Diversity Requirements, Oral Argument, SCOTUS

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Feeling Bullish: A Career in Private Credit

Interest in private credit has grown significantly in the past 12 months. As the syndicated market has slowed, direct lenders (and borrowers) are finding better deal flow and increased opportunities. Market pundits have deemed…more

Capital Markets, Investment, Investment Adviser, Investment Management, Investors

See all updates »

New FTC Resolution Confirms Commission’s Intent to Regulate AI and Paves the Way for Future Investigations and Enforcement Actions

Making do on its promise to “use every tool” in its arsenal to regulate artificial intelligence (‘AI”), the Federal Trade Commission (“FTC”) unanimously approved a resolution on November 21, 2023 authorizing the use of…more

Artificial Intelligence, Civil Investigation Demand, Competition, Enforcement Actions, Federal Trade Commission (FTC)

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All Will Be Forgiven (or Not): What to Consider When Acquiring a Business with a PPP Loan

Since the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020, millions of businesses have applied for and received a Paycheck Protection Program (the “PPP”) loan from the U.S…more

CARES Act, Certification Requirements, Coronavirus/COVID-19, Loan Forgiveness, Loan Repayment Issues

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The Second Set of Proposed Opportunity Zone Regulations

Introduction - On April 17, 2019, the Internal Revenue Service (the “IRS”) and the U.S. Department of the Treasury (the “Treasury”) issued a second set of proposed regulations (the “Proposed Regulations”) under section…more

Anti-Abuse Rule, Capital Gains, Carried Interest, Holding Periods, Opportunity Zones

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[Ongoing Program] Private Credit Summit 2021 - March 2nd, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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Physician Fee Schedule Final Rule for Calendar Year 2022 – CMS Cuts Rates and Extends Telehealth

On November 2, 2021, the Centers for Medicare and Medicaid Services (“CMS”) issued its Calendar Year (CY) 2022 Physician Fee Schedule (“PFS”) Final Rule. In this post, we sample some key highlights from the Final Rule…more

Centers for Medicare & Medicaid Services (CMS), FQHC, Health Care Providers, Healthcare, Healthcare Reform

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Key UK Real Estate Concerns: Alarm bells sound clear warning to landlords over consequences of tenant planning breaches

This article explores a recent decision impacting landlords with property in the UK. In the case, the Proceeds of Crime Act 2002 (“POCA”) was utilised to confiscate rent monies collected from a tenant which had failed to comply…more

Breach of Contract, Compliance, Enforcement, Landlords, Proceeds of Crime Act 2002 (POCA)

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DOJ Announces Development of a Pilot Whistleblower Rewards Program

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (“DOJ”) is creating a pilot whistleblower rewards program, which will be developed and implemented over the next 90 days, with a…more

CFTC, Corporate Governance, Department of Justice (DOJ), Federal Pilot Programs, FEPA

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

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Federal Court Upholds Arbitral Award Despite Failures to Disclose Potential Bias

The Eleventh Circuit upheld an arbitral award last month despite the arbitrators’ failure to make certain disclosures regarding potential sources of bias. The litigation involved a dispute between the Panama Canal Authority, the…more

Arbitration Awards, Bias, Construction Project, Disclosure Requirements, Federal Arbitration Act

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Notice of Proposed Rulemaking under the Bank Merger Act to Increase Transparency

The U.S. Office of the Comptroller of Currency (OCC) released a notice of proposed rulemaking (NPR) seeking to “increase the transparency of the standards that apply to the agency’s review of business combinations involving…more

Bank Merger Act, Banking Sector, Banks, Financial Institutions, Hart-Scott-Rodino Act

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021. The SBA is currently reviewing submitted SVO Grant applications and issuing awards. As of September 20, 2021, the SBA had made decisions on 95% of all…more

Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants, Infectious Diseases

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Courts Are Overwhelmingly Staying Non-Individual Claims When Compelling Individual PAGA Claims to Arbitration

As we wrote previously, last summer’s blockbuster decision in Adolph v. Uber Technologies, Inc., 14 Cal. 5th 1104 (2023) contained a notable silver lining. In ruling that a Private Attorneys General Act (“PAGA”) plaintiff’s…more

Appeals, Arbitration, CA Supreme Court, California, Coinbase Inc v Bielski

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Crypto Asset Regulation: Is the US or UK Keeping Up Best With This Emerging Market?

One driver for the first widely adopted cryptocurrency Bitcoin was to create a store of value that existed outside of government control. It is therefore no surprise that attempts to regulate the rapidly developing crypto asset…more

Bitcoin, CFTC, Cryptoassets, Cryptocurrency, Enforcement Actions

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UK Tax Round Up - March 2024

Welcome to March’s edition of our UK Tax Round Up. This month has seen a number of interesting cases covering a range of issues, from the deductibility of costs against employment income to the place of effective management of a…more

Acquisitions, Asset Management, Corporate Governance, HMRC, Income Taxes

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NYS DFS Revisits PBM Regulation with Scaled-Back Draft Rules

On February 6, 2024, the New York State Department of Financial Services (“DFS”) released “pre-proposed” consolidated rulemaking related to the business practices of Pharmacy Benefit Managers (“PBMs”) licensed to operate in New…more

Audits, Licensing Rules, NYDFS, Pharmacies, Pharmacy Benefit Manager (PBM)

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New York Appellate Division Says No Private Action for Violations of Weekly Pay Law, Creating Split in Precedent

In a hotly anticipated decision, the Appellate Division, Second Department held on January 17, 2023 that no private right of action exists for a violation of Labor Law § 191(1)(a), which—absent a waiver by the Commissioner of…more

Appellate Jurisdiction, Employees, Employer Liability Issues, Labor Law Violations, New York

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

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President Biden Signs Executive Order Requiring Project Labor Agreements for Large-Scale Federal Construction Projects ($35 Million)

On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”), which requires the federal government to require a project labor agreement…more

Biden Administration, Construction Project, Executive Orders, Federal Contractors, Labor Reform

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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SEC Approves Exchange Listing Applications for Spot Bitcoin ETPs

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a…more

Bitcoin, Broker-Dealer, Chicago Mercantile Exchange (CME), Compliance, Conflicts of Interest

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Supreme Court Rules That Agency Interpretive Rules Are Not Subject to Notice-and-Comment Rulemaking

Recently, the Supreme Court issued a unanimous judgment that government agency "interpretive rules" are not subject to notice-and-comment rulemaking, but cautioned that those same rules do not carry the "force and effect of…more

Administrative Procedure Act, Department of Labor (DOL), Fair Labor Standards Act (FLSA), Interpretive Rule, Notice and Comment

See all updates »

2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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No Amendment to Federal Rule of Evidence 702, At Least For Now

Federal Rule of Evidence 702, which governs the admissibility of expert testimony, was most recently amended in 2000 in response to Daubert and its progeny. In response to concerns about misapplication, the Advisory Committee on…more

Admissibility, Daubert Standards, Evidence, Expert Testimony, Expert Witness

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New York State Governor and Legislature Amend and Extend Brownfield Cleanup Program

Governor Andrew Cuomo and the New York State Legislature have reached an agreement to amend and extend the State's Brownfield Cleanup Program (BCP) in advance of December 31, 2015, when tax credit eligibility under the program…more

Brownfield Properties, Governor Cuomo, Tax Credits

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Undergraduate Bargaining Units Are Here to Stay—and 20,000 Members Stronger

A growing trend of union organizing among undergraduate student workers reached a crescendo last week when a unit of 20,000 student assistants at California State University voted in favor of unionization. California State…more

Collective Bargaining, Compensation & Benefits, Financial Aid, Graduate Students, Information Technology

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Private Credit Deep Dives – Change of Control (United States)

After an unprecedented post-COVID boom, M&A activity has slowed in recent months, with overall global M&A value down as much 44% in the first five months of 2023, according to a recent report by Bain & Company. Against this…more

Acquisitions, Beneficial Owner, Controlling Stockholders, Investment, Liquidity

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Scope of Issued Patents May be Limited by Prosecution Estoppel Created in Child Cases

Cell therapy products in the U.S. are estimated to be worth approximately $4.5 billion currently and expected to grow to over $30 billion in the next ten years. As market value increases litigation is bound to heat up…more

Doctrine of Equivalents, Estoppel, Intellectual Property Protection, Patent Infringement, Patent Litigation

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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U.S. FinCEN Extends Timeframe for Reporting Companies Created in 2024 to File Beneficial Ownership Information Reports

Today, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued a final rule aimed to ease compliance with certain aspects of the regulations promulgated under the Corporate Transparency Act. The…more

Beneficial Owner, Corporate Transparency Act, FinCEN, Notice of Proposed Rulemaking (NOPR)

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A Time for Clauses – Santa and No Gag

As we approach December, the impending arrival of Santa Claus is no doubt dominating discussions in many households.  However, there is another, perhaps lesser known, “clause”-related item that health plan sponsors need to keep…more

Attestation Clauses, Gag Clauses, Health Plan Sponsors, Service Agreements

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SEC Adopts Rules Implementing Offering Reform for Business Development Companies and Registered Closed-End Funds

On April 8, 2020, the Securities and Exchange Commission (the "SEC") adopted a series of rule and form amendments (the "Final Offering Rules") that will modify the registration, communications and offering processes under the…more

Business Development Companies, Investment Company Act of 1940, Securities Act of 1933, Securities and Exchange Commission (SEC), Small Business Credit Availability Act (SBCAA)

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Proposed Changes to UK Insolvency Laws in Response to COVID-19

The UK Government has announced changes to the existing UK insolvency laws in order to ease pressure on companies and give them breathing space to trade through the COVID-19 pandemic. Exact timing for implementation of the…more

Commercial Bankruptcy, Coronavirus/COVID-19, Debt Restructuring, Insolvency, Relief Measures

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Oregon CPOM Bill Inches Closer to Becoming Law, Targeting Investors and the PPM/Friendly PC Model

As described in our blog post last year, an increasing number of states across the country are seeking to regulate physician practice management (“PPM”) and private equity transactions in the health care sector. As part of this…more

Healthcare, Healthcare Reform, Investors, New Legislation, Oregon

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Special Alert: Fifth Circuit Targets Make-Whole Claims in Bankruptcy - Insights

In an important decision to private credit lenders, the Fifth Circuit Court of Appeals held that a make-whole premium for an unsecured creditor tied to future interest payments is the “functional equivalent of unmatured…more

Appeals, Bankruptcy Code, Bankruptcy Court, Consumer Financial Products, Consumer Lenders

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Montana Supreme Court Finds Minimum Contacts in Social Media Posts Targeting State Residents

Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana…more

Defamation, Due Process, MT Supreme Court, Personal Jurisdiction, SCOTUS

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

See all updates »

Proskauer Hedge Fund Trading Guide 2024 – Chapter 2: Insider Trading: Focus on Subtle and Complex Issues

Proskauer’s Hedge Fund Trading Guide offers a concise, easy-to-read overview of the trading issues and questions we commonly encounter when advising hedge funds and their managers. It is written not only for lawyers, but also…more

Big-Boy Letters, Breach of Duty, Debt, Enforcement Actions, Hedge Funds

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Q&A: What will be the biggest trend or issue impacting the European private credit market in 2023?

The private credit market has proven to be an attractive prospect for investors in light of recent economic developments. As other asset classes shrunk during the global financial crisis, private credit maintained resiliency..…more

Asset Class, Economic Development, EU, Investment, UK

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Q&A: What will be the biggest trend or issue impacting the European private funds market in 2023?

Private equity is resilient and has been innovative in how it invests a large amount of dry powder. However, as we enter an uncertain market, what are the biggest factors that will impact how private markets raise and form their…more

Enforcement, Environmental Social & Governance (ESG), EU, Investment Adviser, Investors

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Supreme Court Rules That Agency Interpretive Rules Are Not Subject to Notice-and-Comment Rulemaking

Recently, the Supreme Court issued a unanimous judgment that government agency "interpretive rules" are not subject to notice-and-comment rulemaking, but cautioned that those same rules do not carry the "force and effect of…more

Administrative Procedure Act, Department of Labor (DOL), Fair Labor Standards Act (FLSA), Interpretive Rule, Notice and Comment

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Update on Artificial Intelligence as a Patent Inventor

Our previous blog posts, Artificial Intelligence as the Inventor of Life Sciences Patents? and Update on Artificial Intelligence: Court Rules that AI Cannot Qualify As “Inventor,” discuss recent inventorship issues surrounding…more

Appeals, Artificial Intelligence, Computer-Related Inventions, Innovative Technology, Intellectual Property Protection

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Glass Lewis and ISS Announce Updates For 2024 Proxy Season

Glass Lewis (“GL”) recently released its annual Benchmark Policy Guidelines for 2024.  This update makes several changes to how the proxy advisory firm will evaluate company policies related to executive compensation. …more

Clawbacks, Dodd-Frank, Executive Compensation, Glass Lewis, Institutional Shareholder Services (ISS)

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Why Mentoring Matters: Proskauer's Brianna Reed

In our “Why Mentoring Matters” series, Proskauer tax associate Brianna Reed shares how participating in the firm’s Women’s Sponsorship Program led her to meet and learn from a partner mentor in a different practice group. This…more

Career Development, Mentors, Professional Development, Professional Networking, Women in the Law

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Brexit – No Short Term Regulatory Change but Significant Longer Term Implications

The United Kingdom (UK) has voted to leave the European Union (EU). Although the vote will have long term implications, in the short term there will be no change to the current legal and regulatory status quo; the UK will remain…more

Alternative Investment Fund Managers Directive (AIFMD), Antitrust Provisions, David Cameron, EU, EU Passport

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Wealth Management Update - April 2022

April 2022 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split-Interest Charitable Trusts - The April Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs…more

Estate Planning, Grantor Retained Annuity Trusts (GRATs), Intentionally Defective Grantor Trusts, Interest Rates, Intra-Family Loans

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New Massachusetts Law Creates Expanded Definition of Racial Discrimination in Employment and Other Areas to Encompass “Natural or Protective Hairstyles”

On July 26, 2022, Massachusetts Governor Charlie Baker signed the Creating a Respectful and Open World for Natural Hair Act (“CROWN Act”) into law, making Massachusetts the 18th state to enact legislation aimed at protecting…more

Anti-Discrimination Policies, Governor Baker, Hairstyle Discrimination, Race Discrimination

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Cost-Saving Alternatives to Layoffs During the COVID-19 Pandemic

Due to the sudden economic turbulence resulting from the COVID-19 pandemic, employers have been exploring ways to temporarily reduce operating costs. Many employers are seeking alternatives to layoffs. Such alternatives may…more

CARES Act, Coronavirus/COVID-19, Employee Benefits, Fair Labor Standards Act (FLSA), Furloughs

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New York City Council Establishes Private Right of Action for NYC Earned Safe and Sick Time Act Violations

The New York City Council has passed a bill that creates a private right of action for individuals claiming violations of the NYC Earned Safe and Sick Time Act (“ESSTA”). The Council presented the bill to Mayor Eric Adams on…more

City of New York, Corporate Counsel, Labor Law Violations, New Legislation, Paid Sick Leave

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Congress Proposes SECURE 2.0 Technical Corrections Bill

As previously discussed, the SECURE 2.0 Act of 2022 (“SECURE 2.0”) was signed into law on December 29, 2022 as part of the 2023 Consolidated Appropriations Act, and included a myriad of required and optional plan design changes…more

401k, Automatic Enrollment, Consolidated Appropriations Act (CAA), Employee Retirement Income Security Act (ERISA), IRS

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TALF Program Update: Master Loan and Security Agreement and Updated FAQs - November 2020

On October 22, 2020, the Federal Reserve Bank of New York (“New York Fed”) released an amended form of Master Loan and Security Agreement (the “MLSA”), which governs loans issued under its Term Asset-Backed Loan Facility…more

Asset-Backed Securities, CARES Act, Collateral, Master Loan and Security Agreement (MLSA), SBA

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Supreme Court Holds That Securities Fraud Statute Does Not Proscribe Pure Omissions

The U.S. Supreme Court recently held that the anti-fraud provision of the Securities Exchange Act does not prohibit “pure omissions,” but only false statements or misleading half-truths. The unanimous decision in Macquarie…more

Enforcement, False Statements, Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements

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DOL Unveils Final Amendment to QPAM Exemption

On April 3, 2024, the U.S. Department of Labor (the “DOL”) published in the federal register a final amendment to Prohibited Transaction Class Exemption 84-14 (the “QPAM Exemption”) that makes considerable changes to the…more

Benefit Plan Sponsors, Criminal Convictions, Deferred Prosecution Agreements, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA)

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Ninth Circuit Enforces Forum Selection Clause in 401(k) Plan

On April 1, 2021, the Ninth Circuit became the third circuit court to conclude that a forum-selection clause in an ERISA 401(k) plan is enforceable. The Ninth Circuit thus denied a petition for mandamus seeking to overturn a…more

401k, Breach of Duty, Corporate Counsel, Duty of Loyalty, Duty of Prudence

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Front and Center: SVO Grants through the SBA (UPDATED)

[co-author: Laura Peterson] Originally published on December 30, 2020 and updated as of March 18, 2021. The Consolidated Appropriations Act, 2021 (the “CAA”), which provides $900 billion in new COVID-19 relief funding, was…more

Artists, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Economic Aid Act, Entertainment Industry

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Question of the Week: How are current levels of dry powder impacting GPs and LPs in the secondary market?

"Dedicated available capital is estimated at $227 billion (as of June 30, 2022). We expect secondary investors to closely monitor valuations and public market conditions. But as investors continue to fundraise and deploy on pace…more

Business Valuations, EU, Investors, Liquidity, Mark-To-Market

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CA Court of Appeal Confirms Narrow Construction for Anti-SLAPP Commercial Speech Exemption

A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the basis…more

Anti-SLAPP, Commercial Speech, Defamation, Exemptions, First Amendment

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Key Takeaways from the Amendment to Rule 30(b)(6)

This past year has brought lots of change, including an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Rule 30(b)(6) governs the deposition of an organization (e.g., a corporation or a partnership) and…more

Amended Rules, Depositions, Discovery, Discovery Disputes, Federal Rules of Appellate Procedure

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A Name is Not Enough: Ninth Circuit Finds No Standing for First-to-File Shareholder to Appeal Securities Class Action

Imagine you are an investor and you decide to file a lawsuit after a company that you invest in suffers a stock drop. When you get to the courthouse, you find that you are the first person to file a federal securities class…more

Appeals, Centers for Medicare & Medicaid Services (CMS), Class Action, Class Certification, Federal Rules of Civil Procedure

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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Guide to “Recycling” Options for Fund Managers

The ongoing COVID-19 crisis is presenting fund managers with numerous challenges. One key challenge is to make sure that their portfolio companies have sufficient capital available to weather this particular storm. But how can…more

Capital Markets, Coronavirus/COVID-19, Crisis Management, Fund Managers, Investment Adviser

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Recent Federal Circuit Decision Highlights Importance of Analogous Prior Art Doctrine

The Court of Appeals for the Federal Circuit recently addressed the issue of “analogous prior art,” a patent law doctrine fundamental to the legal determination of whether a patent is invalid as obvious over the prior art. The…more

Analogous Art, Appeals, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Mylan Pharmaceuticals

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New Jersey Employers be Warned: Changes to New Jersey WARN Likely on the Horizon

Almost three years ago – in January of 2020 – New Jersey Governor Phil Murphy signed Senate Bill 3170 into law, which provided significant amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act – also known…more

Coronavirus/COVID-19, Executive Orders, New Jersey, WARN Act

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New York State Legislature Approves Law That Prohibits No Fault Attendance Policies

The New York State legislature recently passed a bill (Senate Bill S1958A) that, if and when enacted into law, would amend the New York Labor Law to clarify that employers who maintain “no fault” or absence control policies may…more

Absenteeism, Adverse Employment Action, Attendance, Employer Liability Issues, Employment Policies

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Agencies Update Guidance on Group Health Plan Contraceptive Coverage Requirements

The Departments of Labor, Treasury, and Health and Human Services (the “Departments”) recently issued guidance for group health plans outlining a “therapeutic equivalence” medical management technique for required preventive…more

Affordable Care Act, Department of Health and Human Services (HHS), Department of Labor (DOL), Employer Group Health Plans, Food and Drug Administration (FDA)

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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The Supreme Court Limits EPA’s Authority to Regulate Greenhouse Gas Emissions

On June 30, 2022, the Supreme Court of the United States issued an important environmental ruling in West Virginia v. EPA, holding that while the United States Environmental Protection Agency (“EPA”) can regulate power plant…more

Affordable Clean Energy (ACE) Rule, Clean Air Act, Clean Power Plan, Climate Change, Environmental Protection Agency (EPA)

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

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Wisconsin Federal District Court Issues Five Rulings on Motions to Dismiss 401(k) Investment and Fee Cases – Is There a Way to Reconcile Them?

Defense counsel frequently lament the difficulties of defending 401(k) investment and recordkeeping fee litigation when different judges render conflicting rulings on motions to dismiss seemingly indistinguishable complaints. …more

401k, Benefit Plan Sponsors, Fees, Hughes v. Northwestern University, Investment

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Top 10 Practice Tips: Business Development Companies

Over the last several years, an increasing number of asset managers have evaluated the potential benefits of including a business development company (BDC) as part of a diversified credit platform. A BDC is a hybrid of an…more

Asset Management, Business Development Companies, Capital Raising, Common Stock, Corporate Sales Transactions

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d Cir…more

Arbitration, Auto-Renewal, Corporate Counsel, FinTech, Mandatory Arbitration Clauses

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Game of Tomes: A Guide to the DOL’s Retirement Security Rule Proposal

The new “retirement security rule” package, issued by the U.S. Department of Labor (the “DOL”) on October 31, 2023, is the latest chapter in an almost 15-year effort by the DOL to amend the five-part test in its 1975 regulation…more

401k, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary-Standards, Individual Retirement Account (IRA)

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Private Credit: Considerations for Debt Portfolio Acquisitions in Times of Uncertainty

Many markets, including the private credit markets, are facing market declines, disruptions and dislocations stemming from the policies enacted to combat the ongoing spread of COVID-19. The private credit industry has seen rapid…more

Coronavirus/COVID-19, Debt Instruments, Debt Market, Debt Securities

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Undergraduate Bargaining Units Are Here to Stay—and 20,000 Members Stronger

A growing trend of union organizing among undergraduate student workers reached a crescendo last week when a unit of 20,000 student assistants at California State University voted in favor of unionization. California State…more

Collective Bargaining, Compensation & Benefits, Financial Aid, Graduate Students, Information Technology

See all updates »

Be Smarter Than a Lizard: Overcoming Reptile Theory in the Discovery Phase

It’s no secret: plaintiffs’ attorneys want to win big. Using reptile theory, plaintiffs (and their counsel) are enjoying gargantuan jury verdicts. Through thoughtful and strategic lawyering, however, the harsh effects of reptile…more

Commercial Litigation, Discovery, Evidence, Jury Trial, Litigation Strategies

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

See all updates »

Cyber Insurance Needs in the Pandemic Landscape

While most of society struggles to flatten the curve, treat the sick and restart the economy, regrettably, some bad actors have used the COVID-19 emergency as an opportunity to exploit vulnerabilities for personal gain. One of…more

Business Interruption, Commercial Insurance Policies, Coronavirus/COVID-19, Cyber Insurance, Cybersecurity

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Ready to Sell All or a Portion of your Management Company? – A Checklist of Asset Manager M&A Considerations

Many closely-held asset management firms are considering selling their business or bringing in outside investors. Taking this next step in the life cycle of a firm can bring needed liquidity to the founders, provide capital to…more

Acquisitions, Asset Management, Change of Control, Contract Negotiations, Investment Adviser

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Dodd-Frank Clawback Policy: Additional Action Required for NYSE-Listed Companies by December 31, 2023

Public companies nationwide have spent their summer and fall compensation seasons finalizing compensation clawback policies ahead of the December 1, 2023 deadlines set by the New York Stock Exchange (the “NYSE”) and the Nasdaq…more

Clawbacks, Consumer Protection Act, Dodd-Frank, Executive Compensation, Final Rules

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Q&A: The Bottom Line of Russian Sanctions’ Impact on AML for Private Funds

Earlier this spring, following the Russian invasion of Ukraine, the Biden administration issued a series of executive orders imposing strong sanctions against Russia. Over the last few months, those sanctions have continued to…more

Anti-Money Laundering, Biden Administration, Economic Sanctions, Enforcement, Foreign Policy

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EEOC Releases Proposed Workplace Harassment Guidelines After Six Year Delay

On October 2, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) published long-anticipated proposed guidance related to workplace harassment. If adopted by the EEOC, the enforcement guidance would supersede four…more

ADEA, Anti-Discrimination Policies, Bostock v Clayton County Georgia, Canada, Causation

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DOL Unveils Final Amendment to QPAM Exemption

On April 3, 2024, the U.S. Department of Labor (the “DOL”) published in the federal register a final amendment to Prohibited Transaction Class Exemption 84-14 (the “QPAM Exemption”) that makes considerable changes to the…more

Benefit Plan Sponsors, Criminal Convictions, Deferred Prosecution Agreements, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA)

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UK Tax Round Up - March 2024

Welcome to March’s edition of our UK Tax Round Up. This month has seen a number of interesting cases covering a range of issues, from the deductibility of costs against employment income to the place of effective management of a…more

Acquisitions, Asset Management, Corporate Governance, HMRC, Income Taxes

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NYS DFS Revisits PBM Regulation with Scaled-Back Draft Rules

On February 6, 2024, the New York State Department of Financial Services (“DFS”) released “pre-proposed” consolidated rulemaking related to the business practices of Pharmacy Benefit Managers (“PBMs”) licensed to operate in New…more

Audits, Licensing Rules, NYDFS, Pharmacies, Pharmacy Benefit Manager (PBM)

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Tax Relief for American Families and Workers Act of 2024

On January 17, 2024, Senate Finance Committee Chairman Ron Wyden (D-Ore.) and House Ways and Means Committee Chairman Jason Smith (R-Mo.) released a bill, the “Tax Relief for American Families and Workers Act of 2024” (“TRAFA”…more

1099s, Child Tax Credit, EBITDA, IRS, Popular

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Coronavirus: Details Matter

As the Coronavirus (COVID-19) continues to disrupt markets and industries globally, businesses face significant internal and external challenges with how to identify and plan for issues caused by the outbreak. In response,…more

Business Interruption, Centers for Disease Control and Prevention (CDC), Contract Negotiations, Contract Terms, Coronavirus/COVID-19

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United Kingdom Legislates Against Opaque Overseas Ownership of Property

With sanction regimes taking centre-stage in the global response to the Russian invasion of Ukraine, transparency of property ownership has accelerated to become a priority of the United Kingdom’s government. On 15 March…more

Beneficial Owner, Financial Crimes, Foreign Ownership, New Legislation, Private Equity

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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Factors in Fee-Shifting for Prevailing Defendants

Statutes permitting discretionary attorney fee-shifting for prevailing defendants vary in the circumstances under which fee-shifting is permitted. Two recent cases tackling the question of why and when a lawsuit warrants…more

Attorney's Fees, Biometric Information Privacy Act, Compensation, Fee-Shifting, Google

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Seventh Circuit Holds Withdrawal Liability Cannot Be Based on Extra-Contractual Contributions

In Bulk Transp. v. Teamsters Union No. 142 Pension Fund, No. 23-1563, 2024 WL 1230236 (7th Cir. Mar. 22, 2024), the Seventh Circuit held that the contributions used to calculate an employer’s withdrawal liability may include…more

Collective Bargaining Agreements (CBA), Employee Retirement Income Security Act (ERISA), Employer Contributions, Terms and Conditions, Wages

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U.S. Supreme Court Rules on the Patentability of Software Patents

The U.S. Supreme Court issued its decision Thursday in Alice Corp. Pty Ltd. v. CLS Bank Int'l, et al., holding that an otherwise unpatentably abstract idea does not become patentable simply by implementing it on a generic…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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EU-U.S. and UK-U.S. Data Transfer Deals Advance with White House Executive Order

A new legal mechanism to allow for transfers of personal data between the EU and the U.S. is now advancing after an October 7th, 2022 Executive Order was issued by U.S. President Biden (the “Executive Order”). The new mechanism…more

Court of Justice of the European Union (CJEU), Data Protection, Data Transfers, EU, European Economic Area (EEA)

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Privacy Class Action Spotlight: Latest Wave of Wiretap Class Actions Continues Despite Dismissals as Plaintiffs Try New Approaches

Over a hundred cases are pending from the wave of privacy class actions that commenced last year alleging violations of state wiretap statutes based on use of website session replay, chatbot and pixel technologies…more

Analytics, California, CIPA, Class Action, Dismissals

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[Podcast] Episode 49: Rep and Warranty Insurance and Executive Compensation and Employees Benefits

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Employee Benefits and Executive Compensation Group, Simon Sharpe, partner and member of our Private Equity and Mergers & Acquisitions groups and Nick…more

Acquisitions, Employee Benefits, Executive Compensation, Insurance Industry, Mergers

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NLRB Sees First Challenge to the Authority of Acting NLRB General Counsel’s to Process Unfair Labor Practice Cases after Recent Shakeup

In the first known of its kind objection to an ongoing NLRB proceeding, an employer has urged the NLRB to dismiss an unfair labor charge against it, arguing that the agency is unable to prosecute the matter, in light of…more

Administrative Appointments, Biden Administration, Labor Regulations, Labor Relations, NLRB

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

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Digital Dollars: Amid the COVID-19 Crisis, Support for a U.S. Digital Currency Emerges

During congressional debates over the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a relatively novel idea was the focus of proposals from the Senate and House of Representatives: “digital dollars.” Several…more

CARES Act, Coronavirus/COVID-19, Digital Currency, Financial Stimulus, Proposed Legislation

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Coronavirus: A Checklist for the Hospitality Industry Executive

As the Coronavirus (COVID-19) continues to disrupt travel and almost every other aspect of day-to-day life, the hospitality industry faces unprecedented challenges. Hotel closings, employee furloughs and other drastic measures…more

Acquisitions, Commercial Contracts, Coronavirus/COVID-19, Mergers, OSHA

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Eleventh Circuit Affirms Rejection of Employee’s SOX Claim for Lack of Protected Activity

On September 25, 2023, the U.S. Court of Appeals for the Eleventh Circuit affirmed the Department of Labor’s Administrative Review Board’s rejection of an employee’s Sarbanes–Oxley Act (SOX) retaliation claim, holding the…more

Appeals, Corporate Counsel, Employee Misconduct, OSHA, Retaliation

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SEC Issues Guidance on the Use of Key Performance Indicators and Metrics in MD&A

On January 30, 2020, the Securities and Exchange Commission ("SEC" or "Commission") published interpretive guidance (the "Guidance") that companies should consider when disclosing key performance indicators ("KPIs") and other…more

Disclosure Requirements, GAAP, Key Performance Indicators (KPIs), MD&A Statements, New Guidance

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Deadline Dexterity: PTAB Has Authority to Issue Decisions After Statutory Deadline

Recently, in Purdue Pharma L.P. v. Collegium Pharmaceutical, Inc., the Federal Circuit held for the first time that the Patent Trial and Appeal Board (“the Board”) has the authority to issue a Final Written Decision even after…more

America Invents Act, Final Written Decisions, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents

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Patent Bar: New Changes Up Ahead for Design Patent Practitioners

In order to prepare and prosecute utility, design, and plant patent matters in front of the United States Patent and Trademark Office (“USPTO” or “Office”), the USPTO requires practitioners to demonstrate possession of the…more

Design Patent, Final Rules, Patents, USPTO

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Oracle Joins “Texit” – The Growing Exodus From California to Texas

Joining Tesla, Hewlett-Packard and Charles Schwab, Oracle, the world’s largest database management company, has announced that it will move its corporate headquarters from California to Texas. “We believe these moves best…more

California, Regulatory Burden, Relocation, Securities and Exchange Commission (SEC), Texas

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The Surprises Continue: The Biden Administration Delays Implementation of Certain Provisions of the No Surprises Act and Transparency in Coverage Final Rules Applicable to Providers and Insurers

In a FAQ published on August 20, 2021, the Departments of Labor, Health and Human Services, and the Treasury (collectively, the “Departments”) significantly delayed implementation of statutory requirements on surprise billing…more

Affordable Care Act, Consolidated Appropriations Act (CAA), Delays, Health Care Providers, Health Insurance

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The Real Price of Forced Prison Labor

The Thirteenth Amendment to the United States Constitution, adopted in 1865 at the conclusion of the Civil War, abolished slavery across the United States with one notable exception. According to the amendment, “neither slavery…more

American Civil Liberties Union (ACLU), Civil Liberties, Constitutional Challenges, Criminal Justice Reform, Forced Labor

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BREAKING: The Department of Labor and The National Labor Relations Board Announce Agreement Enhancing Cooperation Between the Agencies

On January 6, 2022, the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced that the two agencies signed a Memorandum of Understanding (MOU) detailing procedures on information-sharing, joint…more

Cooperation Initiative, Department of Labor (DOL), Enforcement Priorities, Information Sharing, Labor Regulations

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Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Entertainment Industry

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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Federal Circuit Clarifies Reach of “Artificial” Act of Patent Infringement

Litigators in the life sciences field are no doubt familiar with the so-called “artificial” act of infringement established by 35 U.S.C. § 271(e)(2)(A)-(B): namely, that a party can be sued for patent infringement by merely…more

Abbreviated New Drug Application (ANDA), Biosimilars, Patent Infringement, Patents, Pharmaceutical Patents

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Massachusetts Orders All Non-Essential Workers to Stay Home

Beginning Tuesday, March 24, 2020 at 12:00 PM, Massachusetts will join a growing number of states in closing non-essential businesses and organizations to employees, customers, and the public. Governor Charlie Baker announced…more

Business Closures, Coronavirus/COVID-19, Critical Infrastructure Sectors, Emergency Management Plans, Governor Baker

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New Proposed Regulations Would Impact the Determination of Domestically Controlled REIT and Structures for Sovereign Wealth Funds’ US Real Estate Investments

On December 28, 2022, the Internal Revenue Service (the “IRS”) and the Treasury Department released proposed regulations (the “Proposed Regulations”) under sections 892 and 897 of the Internal Revenue Code (the “Code”). If…more

FIRPTA, Income Taxes, IRS, Proposed Regulation, Real Estate Investments

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California Pay Data Reporting Is Due May 8, 2024 (Now With New Requirements!)

As readers may know, California requires private employers of 100 or more employees and/or 100 or more workers hired through labor contractors to annually report pay, demographic, and other workforce data to the Civil Rights…more

Anti-Discrimination Policies, California, Filing Deadlines, Labor Contractor, Pay Data

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DOL's “New” PAID Self-Reporting Program of Questionable Value to Employers

Earlier this week, the U.S. Department of Labor’s Wage and Hour Division announced the upcoming launch of a “new” pilot program called the Payroll Audit Independent Determination program (“PAID”). Under PAID, employers can come…more

Audits, Corporate Counsel, Department of Labor (DOL), Employer Liability Issues, Fair Labor Standards Act (FLSA)

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Appellate Court Rejects NLRB’s Findings in Employer Surveillance Case as “Nonsense”

Declaring the NLRB’s rationale to be “nonsense,” on March 26, 2024, a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia in Stern Produce Company Inc v. NLRB, refused to enforce the…more

Administrative Law Judge (ALJ), Appellate Courts, Corporate Counsel, EEO, Employee Handbooks

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DOJ, SEC Focus Should Prompt Clawback Policies Review

The fall of 2022 has been a very active period when it comes to executive compensation and regulators focusing on clawing back compensation paid to executive officers. The U.S. Securities and Exchange Commission's recent…more

Clawbacks, Compensation, Department of Justice (DOJ), Dodd-Frank, Executive Compensation

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Under The Hood Of The SEC Securitization Conflict Rule

Following the financial crisis of 2007-2009 and congressional investigations into the securitization market, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 prohibited securitization participants from…more

Conflicts of Interest, Dodd-Frank, Investors, Liquidity, Proposed Rules

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Supreme Court Affirms Andy Warhol’s Prince Series Not Transformative Fair Use

On May 18th, the Supreme Court handed down its much‑anticipated opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. We’ve tracked the progress of this case through the trial court, Second Circuit, and…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Copyright, Copyright Infringement, Copyright Litigation, Derivative Works

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Navigating Chapter 11 Reorganizations during COVID-19: New Complications or Business as Usual?

In the best of times, a chapter 11 reorganization is an uncertain and stressful process for all involved. When the disruptive effects of COVID-19 are added to the mix, and many businesses face significant economic difficulties,…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19, Creditors

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Pre-Election Drug Pricing Regulation Efforts: Where Does Congress Stand?

The regulation of drug prices has received significant recent bipartisan support in Congress. Democrats and Republicans in both houses have proposed approximately eighty bills relating to drug pricing over the past two years…more

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Drug Pricing, Legislative Agendas, Life Sciences

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UN Working Group on Arbitrary Detention Declares Detention of Sri Lankan Author Violated International Law

Working alongside Freedom Now, a nonprofit organization dedicated to advocacy for prisoners of conscience around the world, Proskauer obtained a victory before the United Nations Working Group on Arbitrary Detention (the…more

Human Rights, Prisoners, Pro Bono, Religion, Sri Lanka

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Q&A: What will be the biggest trend or issue impacting the European private funds market in 2023?

Private equity is resilient and has been innovative in how it invests a large amount of dry powder. However, as we enter an uncertain market, what are the biggest factors that will impact how private markets raise and form their…more

Enforcement, Environmental Social & Governance (ESG), EU, Investment Adviser, Investors

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UPDATE: SEC Extends Relief for In-Person Meetings of Fund Boards Through December 31, 2020

On Friday, June 19, 2020, the U.S. Securities and Exchange Commission (the "SEC") issued an order (the "Order") under the Investment Company Act of 1940, as amended (the "1940 Act"), extending the duration of previously-granted…more

Board Meetings, Board of Directors, Coronavirus/COVID-19, Corporate Governance, Investment Adviser

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The French Government Response to the COVID-19: Highlights of Measures Taken

In an effort to halt the spread of the novel coronavirus COVID-19 (“COVID-19”), on March 14, 2020 the French government mandated a shut-down of non-essential businesses and other venues open to the public. The shut-down will…more

Business Closures, Coronavirus/COVID-19, Emergency Management Plans, France, Infectious Diseases

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COVID-19 “Not a Golden Ticket” to Avoid Discovery Obligations

The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life. However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it…more

Commercial Litigation, Coronavirus/COVID-19, Court Schedules, Depositions, Discovery

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SEC Adopts Expedited Exemptive Relief Process for Registered Funds and BDCs

On July 6, 2020, the Securities and Exchange Commission (the “Commission”) adopted rule amendments (the “Amendments”) to the exemptive relief application process under the Investment Company Act of 1940, as amended (the “1940…more

Business Development Companies, Exemptive Relief, Expedited Actions Process, Filing Requirements, Investment Company Act of 1940

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Section 1446(f) Proposed Regulations: Key Guidance on Partnership Interest Transfers by Non-U.S. Persons

On May 13, 2019, the U.S. Internal Revenue Service (“IRS”) and Treasury Department published proposed regulations providing guidance on the rules imposing withholding and reporting requirements under the Code on dispositions of…more

FIRPTA, Foreign Persons, Income Taxes, International Tax Issues, IRS

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[Podcast] Episode 10: You Can Turn Your Home Into Major Estate Tax Savings

In this episode of Worth It, Proskauer associates Jacob Wonn and Nathalie Stenmark discuss qualified personal residence trusts (also known as “QPRTs”), how they work, what the potential benefits are and why clients might…more

Estate Planning, Estate Tax, Qualified Personal Residence Trust, Tax Planning

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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A Word from the IRS on Involuntary Terminations of Employment for Purposes of the ARP COBRA Premium Subsidy

One important question that arises when determining whether an individual is eligible for the COBRA premium subsidy under the American Rescue Plan Act of 2021 (“ARP”) is whether the employee has experienced an involuntary…more

American Rescue Plan Act of 2021, COBRA, Corporate Counsel, Employee Benefits, IRS

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The (Third) Party’s Over? Recent Decisions Cast Doubt on the Continued Vitality of Third Party Releases in Chapter 11 Reorganizations

Two recent decisions by U.S. District Courts have rejected attempts to include nonconsensual third party releases in chapter 11 reorganization plans. These rulings suggest third party releases may be facing increasing push back…more

Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Corporate Counsel, Creditors

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of…more

Appeals, Commercial Speech, Dairy Farmers, First Amendment, Food Labeling

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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SEC Focus on Adviser-Led Secondaries Continues

Adviser-led secondary transactions have seen explosive growth over the last five years. That growth has brought increased regulatory concerns over the conflicts of interests inherent in these transactions and a perceived lack…more

Compensation, Consent, Investment Adviser, LPAC, Private Equity Funds

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The “State of the Arts” after Andy Warhol Foundation v. Goldsmith

It has been eight months since the Supreme Court’s landmark copyright fair use decision in Andy Warhol Foundation for the Visual Art, Inc. v. Goldsmith. Much has been written on the subject, including in this forum, but in many…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Artificial Intelligence, Copyright Infringement, Fair Use, SCOTUS

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How Employers Can Prep for CROWN Act Legislation

Since 2019, community leaders, organizations, and lawmakers have influenced a movement to introduce legislation—at all levels of government—that prohibits workplace discrimination based upon hairstyle and hair…more

Anti-Discrimination Policies, Civil Rights Act, Employer Liability Issues, Employment Litigation, Hairstyle Discrimination

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

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State Tax Law Updates

A number of states have recently proposed or passed new laws related to state-level taxation, some of which are taxpayer-friendly and some of which are expected to impose additional tax burdens on taxpayers. They vary in subject…more

Carried Interest Tax Rates, Corporate Taxes, Income Taxes, Pass-Through Entities, SALT

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An Overview of Open-ended Fund Companies in Hong Kong and Practical Tips for Registering an OFC

An OFC is a collective investment scheme structured as a separate legal entity in the form of a company with variable capital established under Part IVA of the Securities and Futures Ordinance of Hong Kong (“SFO”). The OFC…more

Asset Management, Custodians, Hong Kong, Hong Kong Inland Revenue Department (IRD), Hong Kong Securities and Futures Commission (HKSFC)

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U.S. District Court in Alabama Finds the Corporate Transparency Act Unconstitutional

On March 1, 2024, Judge Liles C. Burke of the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (the “CTA”) is unconstitutional, leaving its future uncertain. The CTA requires…more

Appeals, Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, FinCEN

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New York State Legislature Proposes Amendments to Pay Transparency Law Taking Effect Later This Year

The New York State Legislature has approved chapter amendments to New York State’s pay transparency law, which is slated to take effect on September 17, 2023. The most notable revision would provide that the law applies to…more

New York, Pay Transparency, Transparency, Wage and Hour, Wages

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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Price Gouging Litigation Continues Apace

As price gouging restrictions remain in place in many states and municipalities, new and ongoing enforcement actions continue to advance or settle. Over the past several weeks, we have seen a number of noteworthy developments in…more

Amazon Marketplace, Antitrust Provisions, Antitrust Violations, Enforcement Actions, Food Supply

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IRS Releases Guidance on Treatment of Incentive Stock Options in Reorganizations

On May 8, 2015, the Office of Chief Counsel of the Internal Revenue Service released Chief Counsel Advice Memorandum No. 201519031 describing the difference in tax consequences of a disposition of shares acquired upon exercise…more

Incentive Stock Options, IRS, Mergers, Reorganizations, Tax Liability

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Ozempic Gains Popularity, Its Maker Loses First Legal Fight

With Hollywood celebrities speaking out both in favor of and against the use of drugs like Ozempic and Wegovy for weight loss, it was only a matter of time before demand outpaced supply. Although most might believe that…more

Competition, Federal Food Drug and Cosmetic Act (FFDCA), Florida, Food and Drug Administration (FDA), Intellectual Property Protection

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California Court of Appeal Holds Online-Only Business Websites Are Not “Public Accommodations”

On August 1, 2022, the California Court of Appeal joined longstanding Ninth Circuit precedent in determining that online-only businesses are not “public accommodations” covered under Title III of the Americans with Disabilities…more

Americans with Disabilities Act (ADA), Appeals, Public Accommodation, Unruh Civil Rights Act, Website Accessibility

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Glass Lewis and ISS Announce Updates For 2024 Proxy Season

Glass Lewis (“GL”) recently released its annual Benchmark Policy Guidelines for 2024.  This update makes several changes to how the proxy advisory firm will evaluate company policies related to executive compensation. …more

Clawbacks, Dodd-Frank, Executive Compensation, Glass Lewis, Institutional Shareholder Services (ISS)

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Fifth Circuit Vacates $365 Million Punitive Damages Award for Title VII Discrimination and Retaliation Claims

In Harris v. FedEx Corp. Servs., Inc., No. 23-2003, a Fifth Circuit panel vacated a $365 million punitive damages award in race discrimination and retaliation case, finding that the plaintiff Jennifer Harris (“Harris”) failed to…more

Civil Rights Act, Corporate Counsel, Disability Discrimination, Punitive Damages, Retaliation

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Preparing for Europe’s Unified Patent Court

After years of contemplation and delays, Europe’s Unified Patent Court will be operational in about one year. U.S.-based Life Sciences patent applicants should start preparing now to ensure that their applications withstand…more

Biosimilars, Biotechnology, EU, Food & Drug Regulations, Generic Drugs

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Proposed “Right to Disconnect” Law Could End Those After-Hours Emails From Your Boss

With the sweeping presence of technology today, the boundary between work life and home life has become increasingly blurred. A new bill recently introduced to the California legislature seeks to change that by protecting…more

After-Hours Work, California, Email Policies, Employment Policies, Labor Code

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No Time Like Today for an Ultra-fast Restructuring

As we prepare for the next restructuring cycle, the US private credit industry is becoming more intrigued with ultra-fast bankruptcy cases. These chapter 11 cases grab headlines and last less than a day. Specifically, FullBeauty…more

Bankruptcy Code, Bankruptcy Reform, Chapter 11, Commercial Bankruptcy, Corporate Restructuring

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Federal Court Dismisses Arizona School District’s Appeal to End Desegregation Order

Last week, the Court of Appeals for the Ninth Circuit granted a request by Proskauer and our co-counsel, the Mexican American Legal Defense and Educational Fund (MALDEF) to block efforts by the Tucson Unified School District…more

Appeals, Desegregation, Dismissals, Pro Bono, Race Discrimination

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NLRB GC Provides Guidance to Regions on “Securing Full Remedies for All Victims of Unlawful Conduct”

On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s…more

Corporate Counsel, Labor Law Violations, NLRA, NLRB, NLRB General Counsel

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Arbitration Clauses Extending to Non-Signatory Affiliates: Are They Enforceable?

A recent decision of the New Jersey Court of Appeals considered the enforceability of arbitration agreements by non-signatories. In Foti v. Toyota Motor Sales, U.S.A., Inc., the plaintiff filed a putative class action complaint…more

Affiliates, Appeals, Arbitration Agreements, Auto Lease, Enforceability

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Court Finds Access to Botox Trade Secrets and Similarity of Competitor Product Supported Inference of Trade Secrets Misappropriation

Proving access to and use of trade secrets are core elements in a trade secrets misappropriation case. Recent rulings in a trade secrets action filed by Allergan against its competitor Revance Therapeutics (“Revance”) provide…more

Anticompetitive Behavior, Botox, Commercial Litigation, Confidential Information, Documentation

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

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Private Credit Deep Dives – Call Protection (United States)

“Call protection” (which is referred to as a “prepayment fee”, “prepayment premium”, “call premium”, “prepayment penalty”, “non call”, “hard call”, “soft call” or “make whole”) is a core economic term in leveraged financings…more

Creditors, Initial Public Offering (IPO), Lenders, Loans, Prepaid Payment Products

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Reminder: Illinois Equal Pay Registration Certificate Deadline Approaching

The Illinois Equal Pay Act (“IEPA”) was previously amended to require private businesses with more than 100 employees in Illinois to obtain an Equal Pay Registration Certificate (“EPRC”) by March 23, 2024, and every two years…more

Compliance, Deadlines, Department of Labor (DOL), EEO-1, Equal Pay

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

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Exodus From The Energy Charter Treaty – What is Left of Europe’s Protections for Investors?

As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the…more

Arbitration, Asset Management, Energy Charter Treaty, Energy Market, Energy Reform

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Wealth Management Update - September 2023

September 2023 AFRs and 7520 Rate - The September 2023 Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 5%, which was the same as the August 2023 rate..…more

Beneficiaries, Estate Planning, Estate-Tax Exemption, Gift-Tax Exemption, Grantor Retained Annuity Trusts (GRATs)

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Fifth Circuit Affirms Injunction Preventing Enforcement of Contractor Vaccine Mandate Against Louisiana, Indiana, and Mississippi

On December 19, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued in response to Executive…more

Article III, Employer Mandates, Enforcement, Federal Contractors, Injunctions

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SEC Proposes Broad New Climate Change Disclosure Requirements

In a 500-page release, the SEC has proposed significant new public company climate change disclosure requirements for both domestic companies and foreign private issuers, including the actual and potential impacts of climate…more

Annual Reports, Climate Change, Corporate Governance, Corporate Social Responsibility, Disclosure Requirements

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Court Rules that Patient List and Related Medical Practice Information Qualify as Trade Secrets

The 2016 enactment of the Defend Trade Secrets Act (“DTSA”) has led to an increase in trade secret litigation. The DTSA codified into federal law the right of an owner of a trade secret to sue in federal court when its trade…more

Confidential Information, Defend Trade Secrets Act (DTSA), Healthcare, Intellectual Property Litigation, Misappropriation

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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SEC Answers Questions on New Tailored Shareholder Report Requirements

The staff of the Division of Investment Management (the “Staff”) has issued a FAQ pertaining to the rule and form amendments adopted by the Securities and Exchange Commission (the “SEC”) in October 2022, which require open-end…more

Compliance, Corporate Governance, Disclosure Requirements, ETFs, Exchange-Traded Products

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Industry and Labor Serve Up $20 Minimum Wage Deal For Fast Food Workers

A two-year standoff between the fast food industry and labor unions ended this week as stakeholders announced a deal that will increase the minimum wage to $20 for California workers at fast food chains with more than 60…more

Fast-Food Industry, Franchises, Minimum Wage, New Legislation, Preliminary Injunctions

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Revised ICC Arbitration Rules Go into Effect

On March 1st, the revised Arbitration Rules of the International Chamber of Commerce (ICC) took effect. The revised Rules seek to enhance time and cost efficiency as well as transparency, and will apply to all arbitrations…more

Amended Rules, Arbitration, Discovery, Expedited Actions Process, Final Action

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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New California Evidentiary Standard Makes Admitting Defense Expert Testimony More Challenging

California’s evidentiary rules have changed. As of January 1, 2024, defense expert testimony in medical causation cases is subject to a higher threshold…more

Appeals, California, Causation, Defense Strategies, Evidence Codes

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Court Finds Access to Botox Trade Secrets and Similarity of Competitor Product Supported Inference of Trade Secrets Misappropriation

Proving access to and use of trade secrets are core elements in a trade secrets misappropriation case. Recent rulings in a trade secrets action filed by Allergan against its competitor Revance Therapeutics (“Revance”) provide…more

Anticompetitive Behavior, Botox, Commercial Litigation, Confidential Information, Documentation

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Under The Hood Of The SEC Securitization Conflict Rule

Following the financial crisis of 2007-2009 and congressional investigations into the securitization market, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 prohibited securitization participants from…more

Conflicts of Interest, Dodd-Frank, Investors, Liquidity, Proposed Rules

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SEC Re-Proposes Regulations Governing the Use of Derivatives and Other Transactions by Registered Funds and BDCs

The Securities and Exchange Commission (the "SEC") recently proposed a revised version of new Rule 18f-4 (the "Proposed Rule") under the Investment Company Act of 1940, as amended (the "1940 Act"), which it originally proposed…more

Business Development Companies, Derivatives, ETFs, Form N-CEN, Form N-LIQUID

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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2021 SEC Enforcement Results – Takeaways for Fund Managers

On November 18, 2021, the SEC’s Division of Enforcement announced its Enforcement Results for Fiscal Year 2021, and there are a few key takeaways for fund managers…more

Enforcement Actions, Insider Trading, Investment Adviser, Investment Funds, Securities and Exchange Commission (SEC)

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New York’s New Notice Requirement for Practice Management Deals Demonstrates a Trend That Should be Carefully Watched

Following New York State Governor Kathy Hochul’s proposal in February of this year (see our previous alert), the New York legislature passed and Governor Hochul signed a law on May 3, 2023, which significantly increases the…more

Confidentiality Policies, Disclosure Requirements, Health Care Providers, New York, Proposed Regulation

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New OTS report recommends changes to UK’s capital gains tax regime

The Office of Tax Simplification (OTS) has published its first report following its review of certain aspects of the UK’s capital gains tax regime requested by the Chancellor in July this year with the specific purpose of…more

Capital Gains, Capital Gains Tax, Corporate Taxes, Income Taxes, Inheritance Tax

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AI Got It Wrong, Doesn’t Mean We Are Right: Practical Considerations for the Use of Generative AI for Commercial Litigators

Picture this: You’ve just been retained by a new client who has been named as a defendant in a complex commercial litigation. While the client has solid grounds to be dismissed from the case at an early stage via a dispositive…more

Artificial Intelligence, Attorney-Client Privilege, Commercial Litigation, Complex Litigation, Confidential Information

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Trade Secret Wars Continue With Tech Companies Battling For Talent

In an era where trade secret misappropriation battles can shape corporate landscapes, the Apple v. Rivos case stands as a stark reminder of the importance of diligent onboarding practices when it comes to trade secrets. In this…more

Commercial Litigation, Defend Trade Secrets Act (DTSA), Employer Liability Issues, Employment Litigation, Misappropriation

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BlueCrest – the Upper Tribunal considers the salaried member rules

The Upper Tribunal (UT) has upheld the decision of the First‑tier Tribunal (FTT) regarding the application of the UK’s salaried member rules (the Rules) to certain members of BlueCrest Capital Management (UK) LLP (BlueCrest), an…more

Appeals, Asset Management, Hedge Funds, HMRC, LLPs

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U.S. Supreme Court: No ERISA Preemption for State Law Regulating PBMs

In a unanimous (8-0) opinion authored by Justice Sotomayor, the U.S. Supreme Court held that an Arkansas state law regulating rates at which pharmacy benefits managers (PBMs) reimburse pharmacies is not preempted by ERISA. …more

Benefit Plan Reimbursements, Employee Retirement Income Security Act (ERISA), Pharmacy Benefit Manager (PBM), Preemption, Rutledge v Pharmaceutical Care Management Association

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CFTC Ooki DAO Enforcement Action Update: The Commission Responds

On September 22, 2022, the CFTC announced an order simultaneously filing and settling charges against bZeroX, LLC (“bZeroX”) and its creators for illegally offering leveraged and margined retail commodity transactions in digital…more

CFTC, Decentralized Autonomous Organization (DAO), Digital Assets, Enforcement Actions, Proposed Rules

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That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d Cir…more

Arbitration, Auto-Renewal, Corporate Counsel, FinTech, Mandatory Arbitration Clauses

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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Tax Provisions of the American Families Plan

On Wednesday, April 28th, the White House announced the American Families Plan, the “human capital” infrastructure proposal. The American Families Plan would spend $1.8 trillion, including $800 billion in tax cuts over ten…more

Capital Gains Tax, Income Taxes, IRS, Medicare, SALT

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Court Rules that New York’s New Anti-SLAPP Law Applies Retroactively

On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims…more

Amended Legislation, Anti-SLAPP, Free Speech, Public Interest, Retroactive Application

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Key Issues When Navigating A Tenant's Bankruptcy

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid Corp. and WeWork Inc., each filed Chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

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False Claims Act Spotlight (2 of 3): Recent Proposed Amendments to the FCA Fall Short of Cohesive and Substantive Change

In July 2021, Senator Chuck Grassley led a bipartisan group of senators in introducing S.B. 2428, the “False Claims Amendments Act of 2021,” which aims to address legal developments in FCA doctrine that, according to the bill’s…more

Burden-Shifting, Discovery, False Claims Act (FCA), Fraud and Abuse, Health Care Providers

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IRS Proposes 401(k) Plan Regulations Implementing Long-Term Part-Time Employee Eligibility Requirements

The day after Thanksgiving, while many of us were fortunate enough to be reaching for leftover pie, the IRS released proposed regulations implementing the requirement that 401(k) plan sponsors permit “long-term part-time…more

401k, Benefit Plan Sponsors, Employee Benefits, IRS, Part-Time Employees

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Private Credit Restructuring Trends: New Delaware Law Aids Secured Creditors in Getting Deals Done Out of Court

In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del. 2022) (“Stream TV”), which held an insolvent corporation could not…more

Chapter 11, Creditors, DE Supreme Court, Debt Forgiveness, Insolvency

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Cybersecurity Continues to be a Focal Point for Regulators in 2024

The SEC’s new and proposed rules on cybersecurity and cyber-incident reporting will have a dual impact on private investment advisers and funds. First, the proposal by the SEC will impose cybersecurity related obligations…more

Cyber Incident Reporting, Cybersecurity, Data Collection, Enforcement, Governance Standards

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SEC Adopts New Short Sale Disclosure Rule

On October 13, 2023, the Securities and Exchange Commission adopted new Rule 13f-2 to require monthly reporting of short sale positions and activity data on new Form SHO by institutional investment managers. The new rules…more

Compliance, Disclosure Requirements, Equity Securities, FOIA, Institutional Investment

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NYC Office Tower Ch. 11 Shines Light On Blocking Provisions

This article analyzes PWM Property Management LLC's bankruptcy filing in the U.S. Bankruptcy Court for the District of Delaware to explain the impact of the use of corporate governance blocking provisions. The filing also…more

Bankruptcy Code, Bankruptcy Court, Blocking Power, Chapter 11, Commercial Bankruptcy

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Retail Marketers’ Antitrust Settlement Raises the Question: When Are Exclusive “Staggered” Contracts Anticompetitive?

If you ever noticed a coupon dispenser or colorful cardboard display while walking down the aisle of your local supermarket, there is a good chance it was put there by News Corp.’s News America Marketing (NAM) – in-store…more

Anti-Competitive, Antitrust Provisions, Competition, Contract Terms, Exclusivity

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Seventh Circuit Holds Withdrawal Liability Cannot Be Based on Extra-Contractual Contributions

In Bulk Transp. v. Teamsters Union No. 142 Pension Fund, No. 23-1563, 2024 WL 1230236 (7th Cir. Mar. 22, 2024), the Seventh Circuit held that the contributions used to calculate an employer’s withdrawal liability may include…more

Collective Bargaining Agreements (CBA), Employee Retirement Income Security Act (ERISA), Employer Contributions, Terms and Conditions, Wages

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

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Cybersecurity a Top Priority – HHS Publishes New Cybersecurity Performance Goals

The U.S. Department of Health and Human Services (“HHS”) has expanded upon its recent Healthcare Sector Cybersecurity Concept Paper (which we covered in a prior blog post), issuing cybersecurity performance goals (“CPGs”) for…more

Cyber Attacks, Cybersecurity, Department of Health and Human Services (HHS), Department of Homeland Security (DHS), Healthcare

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New Legislation Modernizes New York Not-For-Profit Corporation Law

On November 21, 2022, Governor Kathy Hochul signed into law new legislation, which amends certain provisions of the New York Not-For-Profit Corporation Law (the “N-PCL”). The legislation, described in detail below, “modernizes…more

New Legislation, Nonprofits, Quorum

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H1B Updates: Cap H1B Electronic Registration Opens, Trump Era Wage Level Selection Process Delayed

The H1B cap registration period for this fiscal year FY 2022 will open at noon EST on March 9, 2021 and will close at noon EST on March 25, 2021. Similar to last year, all H1B cap registrations will cost $10 per registration…more

Department of Homeland Security (DHS), Foreign Nationals, H-1B, Highly-Skilled Workers Visa, Immigration Procedures

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FTC v. Qualcomm: Hypercompetitive or Anticompetitive?

On August 11, 2020, in FTC v. Qualcomm, the U.S. Court of Appeals for the Ninth Circuit reversed a May 21, 2019 judgment by the U.S. District Court for the Northern District of California and vacated the district court’s…more

Anticompetitive Behavior, Antitrust Violations, Competition, Federal Trade Commission (FTC), FRAND

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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HHS and SAMHSA Issue a Proposed Rule to Ease Coordination of Care for Patients with Substance Use Disorders

On August 26, 2019, the U.S. Department of Health and Human Services ("HHS") and the Substance Abuse and Mental Health Services Administration ("SAMHSA") issued a proposed rule amending the regulations governing the…more

Comment Period, Confidential Information, Consent, Department of Health and Human Services (HHS), Disclosure Requirements

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

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Three Point Shot - January 2024

Stepping on Toes: The Fortnite Legal Dance Battle Victory Royale? - Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s…more

Appeals, Copyright, Copyright Office, Dismissals, Hazing

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Regulation Round Up - March 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Alternative Investment Fund Managers Directive (AIFMD), Anti-Money Laundering, Cryptoassets, Economic Sanctions, ELTIF

See all updates »

Learning and Re-Learning Our U.S. History with Isabel Wilkerson’s "Caste"

Have you read Caste? Partnership With Children featured the book’s author Isabel Wilkerson at the organization’s inaugural Women’s Leadership Breakfast on March 9. Proskauer was proud to be among the event underwriters, a…more

Corporate Social Responsibility, Diversity, Diversity and Inclusion Standards (D&I), Pro Bono, Race Discrimination

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Wealth Management Update - August 2023

The August 2023 Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 5%, an increase from the July 2023 rate of 4.6%. The August applicable federal rate (“AFR”) for use with a sale to…more

Affirmative Defenses, AFR, Charitable Deductions, Donor-Advised Funds (DAFs), Easements

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To Register a “Generic.com” Term, Show that Consumers Perceive It As Not Generic

The U.S. Patent and Trademark Office has issued guidance on how it will treat applications to register “generic.com” terms in the wake of the Supreme Court’s June 30, 2020 decision in United States Patent and Trademark Office v…more

Amicus Briefs, Booking.com, Domain Name Registration, Domain Names, Generic Marks

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SEC Proposes Extensive New Rules Applicable to SPACs and de-SPAC Transactions

On March 30, 2022, the Securities and Exchange Commission (the “SEC”) proposed a set of rules and amendments governing special purpose acquisition companies (“SPACs”) that will, if adopted, impose significant new regulatory…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Investment, Securities and Exchange Commission (SEC)

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FCA Urges Firms to Fight Financial Crime with Technology

According to Megan Butler, Executive Director of Supervision at the UK Financial Conduct Authority (FCA), financial crime is big business; the estimated annual cost of fraud is £190 billion. In Butler’s view, although developing…more

Capital Markets, Financial Conduct Authority (FCA), Financial Crimes, Financial Institutions, Global Financial Innovation Network (GFIN)

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Pro Bono Spotlight: Ameelio.org - Bridging Financial Barriers for Incarcerated Individuals Trying to Stay in Touch with Loved Ones

Staying in touch with loved ones has become more important today than ever before. While technology offers many ways to stay in contact, incarcerated individuals face barriers to communication. Several prisons have paused…more

Coronavirus/COVID-19, Criminal Justice Reform, Department of Corrections, Low-Income Issues, Mobile Apps

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IRS Issues Final Regulations on Nonprofit Donor Disclosure Requirements

On May 26, the Internal Revenue Service (“IRS”) and the U.S. Department of the Treasury issued final regulations (the “Final Regulations”) relaxing nonprofit donor disclosure requirements under section 6033 of the Internal…more

501(c)(3), 501(c)(4), 501(c)(6), Disclosure Requirements, Donors

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

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Cyber Insurance Needs in the Pandemic Landscape

While most of society struggles to flatten the curve, treat the sick and restart the economy, regrettably, some bad actors have used the COVID-19 emergency as an opportunity to exploit vulnerabilities for personal gain. One of…more

Business Interruption, Commercial Insurance Policies, Coronavirus/COVID-19, Cyber Insurance, Cybersecurity

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Eleventh Circuit Narrows Nationwide Injunction On President Biden’s Contractor Vaccine Mandate

On August 26, the Eleventh Circuit issued its long-awaited decision in State of Georgia, et al v. President of the United States, et al, Case No. 21-14269. The Eleventh Circuit upheld, but narrowed, an existing nationwide…more

Biden Administration, Coronavirus/COVID-19, Employer Mandates, Enforcement, Federal Contractors

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

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That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d Cir…more

Arbitration, Auto-Renewal, Corporate Counsel, FinTech, Mandatory Arbitration Clauses

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Reminder: Illinois Equal Pay Registration Certificate Deadline Approaching

The Illinois Equal Pay Act (“IEPA”) was previously amended to require private businesses with more than 100 employees in Illinois to obtain an Equal Pay Registration Certificate (“EPRC”) by March 23, 2024, and every two years…more

Compliance, Deadlines, Department of Labor (DOL), EEO-1, Equal Pay

See all updates »

Key Issues When Navigating A Tenant's Bankruptcy

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid Corp. and WeWork Inc., each filed Chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

See all updates »

 “Passthrough Deduction” Regulations for RICs Finalized with No Major Changes

On June 24, 2020, the Internal Revenue Service (the “IRS”) and the U.S. Department of Treasury (“Treasury”) issued final regulations (the “Final Regulations”) on the application of the “passthrough deduction” under Section 199A…more

Capital Gains, Corporate Taxes, Foreign Tax Credits, IRS, Partnerships

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[Podcast]: Key Contractual Provisions for Employers to Incorporate in Documents with Confidentiality Covenants

In this episode of The Proskauer Brief, Kate Napalkova, special employee benefits and executive compensation counsel, and associate Oleg Zakatov discuss potential pitfalls that lurk in employment agreements and other employee…more

Best Practices, Confidentiality Agreements, Defend Trade Secrets Act (DTSA), Dodd-Frank, Employee Benefits

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New York State Budget Bill Amends Various Medicaid Requirements, Including Compliance Program Requirements Applicable to Health Care Providers and Managed Care Plans

New York State has enacted amendments to provisions of the Social Services Law governing the compliance program requirements applicable to Medicaid providers. These changes generally took immediate effect on April 1, 2020, but…more

Chief Compliance Officers, Compliance, Coronavirus/COVID-19, Health Care Providers, Inspector General

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Proskauer Hedge Fund Trading Guide 2024 – Chapter 2: Insider Trading: Focus on Subtle and Complex Issues

Proskauer’s Hedge Fund Trading Guide offers a concise, easy-to-read overview of the trading issues and questions we commonly encounter when advising hedge funds and their managers. It is written not only for lawyers, but also…more

Big-Boy Letters, Breach of Duty, Debt, Enforcement Actions, Hedge Funds

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

See all updates »

IRS Provides Guidance on Unrelated Business Income Tax Refunds

On Friday, December 20, 2019, President Trump signed into law government funding legislation for the 2020 fiscal year that includes a provision repealing Section 512(a)(7), commonly referred to as the “parking tax,” with…more

Amended Tax Returns, Federal Funding, Fringe Benefits, Income Taxes, IRS

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NFA Provides Relief to Permit CTAs to Present Gross Past Performance to ECPs; CFTC Proposes Updates to Form CPO-PQR

In April, the National Futures Association (NFA) provided relief to permit commodity trading advisors (CTAs) who are also registered as investment advisers with the Securities and Exchange Commission (SEC) to provide…more

CFTC, Commodity Pool, Commodity Trading Advisors (CTAs), Form CPO-PQR, Legal Entity Identifiers

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ARPA COBRA Subsidy – Special Second Election Period (Two Bites at the Apple and Some Additional Food for Thought)

The American Rescue Plan Act of 2021 (“ARPA”) provides a 100% COBRA premium subsidy for “assistance eligible individuals” for periods of coverage occurring between April 1, 2021 and September 30, 2021. An “assistance eligible…more

American Rescue Plan Act of 2021, Benefit Plan Sponsors, COBRA, Coronavirus/COVID-19, Employee Benefits

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Fiduciary Access to Digital Assets and Accounts

Traditionally, a person’s most valuable assets to be distributed upon death consisted of tangible items such as real property, cash, jewelry and personal effects of sentimental value like photographs and letters. However, the…more

Digital Assets, Facebook, Fiduciary Duty, Google, PayPal

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Three Point Shot - November 2022

NBA Properties Lands Slam Dunk in Intellectual Property Win Heard Around the Globe - NBA Properties, Inc. (“NBAP”), the exclusive licensee of the National Basketball Association (“NBA”) and NBA teams’ distinctive trademarks,…more

Adidas, Appeals, Counterfeiting, Defamation, E-Commerce

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Inclusion of Government Grants in EBITDA

In response to the COVID-19 epidemic, the U.S. government has provided relief to companies through various grant programs. The receipt of these grant proceeds represents a meaningful lifeline to many companies and the revenue…more

Accounting Standards, CARES Act, Coronavirus/COVID-19, Credit Agreements, EBITDA

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and companies and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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