Skadden, Arps, Slate, Meagher & Flom LLP

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New York, New York 10036, United States

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"Hong Kong Public M&A: Time for a New Approach?"

For any potential bidder considering the acquisition of a listed company, issues such as ease of transaction execution, the ability to respond to a competing offer, timetable and cost will be of great importance. The chosen form…more

Hong Kong, Mergers, Privatization, SEHK, SFC

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"FCA Listing Rule Changes Applicable to Premium Listed Companies"

On 2 October 2012, the Financial Conduct Authority (FCA) published a wide-ranging consultation paper (CP12/25) on the effectiveness of the listing regime which proposed a number of changes to the Listing Rules, including in…more

Board of Directors, Controlling Stockholders, Corporate Governance, FCA, Financial Regulatory Reform

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"US Tax Court Issues Key Section 199 Decision for Contract Manufacturing Arrangements"

In a case of first impression, the United States Tax Court has applied the Section 199 domestic production rules in a contract manufacturing context. In Advo, Inc. & Subsidiaries v. Commissioner, the court rejected the view…more

Domestic Production Activities Deductions, Manufacturers, Section 199

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Revised HSR Thresholds to Become Effective February 24, 2014"

On January 23, 2014, the Federal Trade Commission (FTC) published in the Federal Register its previously announced revised thresholds for determining whether companies are required to notify federal antitrust authorities about a…more

FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements

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"Shareholder Activism in the US Banking Industry"

Although the 2012 and 2013 proxy seasons saw increased (and highly publicized) shareholder activism across a range of industries, that trend has not yet made its way to the U.S. banking industry. Over the last two proxy seasons,…more

Executive Compensation, ISS, Say-on-Pay, Shareholder Activism, Shareholder Litigation

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"First Circuit Holds That a Private Equity Fund May be Liable for Portfolio Company Pension Obligations"

On July 24, 2013, the U.S. Court of Appeals for the First Circuit held that a private equity fund sponsored by Sun Capital Advisors constituted a “trade or business” for purposes of ERISA multiemployer pension withdrawal…more

Controlled Groups, ERISA, Multi-Employer Pensions, Pensions, Private Equity

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Delaware Supreme Court Establishes New Standard Of Review For Controlling Stockholder Going-Private Mergers

In a landmark decision issued this morning, the Delaware Supreme Court held for the first time in Kahn v. M&F Worldwide Corp. that the deferential business judgment standard of review should apply to a merger between a…more

Controlling Stockholders, Going-Private Transactions, Shareholders, Standard of Review

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"Executive Compensation and Benefits Alert: ISS Releases FAQs Regarding Peer Group Selection — Deadline Fast Approaching for Companies to Update Peer Group Information"

New ISS Peer Group Methodology - One of the most controversial issues during the 2012 proxy season was the degree to which the peer groups chosen by Institutional Shareholder Services (ISS) varied from the peer groups…more

Executive Compensation, ISS, Proxy Season

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"EU Debate on Enforcement of the 'Banker Bonus Cap' Approaches End Game"

Michel Barnier, vice president of the European Commission, recently wrote to the chairman of the European Banking Authority (the EBA), asking the EBA to report by the end of this month on whether allowances paid by EU banks to…more

Banks, Bonuses, EU, European Commission

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"SEC Announces Municipal Advisor Examination Initiative"

On August 19, 2014, the Securities and Exchange Commission (SEC) announced that its Office of Compliance Inspections and Examinations (OCIE) will begin a two-year examination initiative (the initiative) through the National Exam…more

Compliance, FINRA, Municipal Advisers, OCIE, SEC

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"Navigating Today’s Shareholder Activism Landscape: What Companies Should Consider"

Shareholder activism is the corporate topic du jour, be it in boardrooms, the media or Washington, D.C. While corporate boards and management need to understand the current environment and how we got here, their top priority is…more

SEC, Shareholder Activism, Shareholder Litigation, Shareholder Rights, Shareholders

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"The Potential Impact of ProMedica: Health Care and Beyond"

On April 22, 2014, the United States Court of Appeals for the Sixth Circuit handed the Federal Trade Commission (FTC or Commission) another significant victory in a hospital merger, ruling that the FTC’s decision and order…more

FTC, Healthcare, Hospitals, ProMedica

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"Getting Back to Basics with Rule 10b5-1 Trading Plans"

In late 2012, The Wall Street Journal published a number of articles that analyzed the trading practices of certain public company executives, in many cases under trading plans that were entered into in accordance with the…more

Rule 10b-5, SEC, Securities Exchange Act, Trading Plans

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"Fee-Shifting Bylaws: The Current State of Play"

As previously reported, on May 8, 2014, the Delaware Supreme Court issued an opinion in ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534,2013 (Del. May 8, 2014), holding that fee-shifting provisions…more

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Consumer Financial Protection Bureau Focuses on Fair Lending"

Having enacted a number of mortgage-related rules on the eve of statutory deadlines, the Consumer Financial Protection Bureau (CFPB), which now has a confirmed director, has shifted its focus to fair lending enforcement,…more

Automotive Loans, CFPB, Compliance, Disparate Impact, Enforcement

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"Supreme Court Clarifies Standard to Challenge IRS Summons"

On June 19, 2014, the U.S. Supreme Court in United States v. Clarke1 held that a taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing an administrative summons when the taxpayer…more

Bad Faith, Document Requests, IRS, Request For Information, SCOTUS

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"SEC Releases Additional Frequently Asked Questions Regarding Form PF"

The Securities and Exchange Commission (the “SEC”) has released several rounds of additional Frequently Asked Questions (“FAQs”) regarding Form PF, the private fund systemic risk reporting form promulgated by the SEC and the…more

CFTC, Form PF, Reporting Requirements, SEC

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"European Commission Issues Merger Reform White Paper Regarding Minority Shareholdings and Member State Referrals"

On July 9, 2014, the European Commission published its proposal (White Paper) outlining the approach it intends to adopt with respect to the application of the EU Merger Regulation (EUMR) to the acquisition of minority…more

EU, EUMR, Minority Shareholders, New Amendments, Proposed Regulation

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"Court Finds CFIUS Violated Ralls Corporation’s Due Process Rights"

On July 15, 2014, the United States Court of Appeals for the District of Columbia remanded Ralls Corporation’s (Ralls) precedent-setting case against the Committee on Foreign Investment in the United States (CFIUS or the…more

Appeals, Barack Obama, CFIUS, Defense Production Act, Due Process

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"Litigants Continue to Use 'Anti-Suit Injunctions' to Protect Their Arbitration Rights"

Courts occasionally are asked to intervene in a pending arbitration and exercise their injunctive powers. In some cases, litigants seek to have the courts aid the arbitral process by stopping foreign proceedings that interfere…more

Anti-Suit Injunctions, Arbitration, Arbitration Agreements, UK, UNCITRAL

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"Chairman Camp’s Proposals Place REITs in the Crosshairs"

On February 25, House Ways and Means Committee Chairman David Camp (R. Mich.) proposed a dramatic overhaul of the U.S. tax code (the Code). While the “Tax Reform Act of 2014,” (the Proposals) contains a number of previously…more

C-Corporation, IRS, REIT, Tax Reform

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

See All Updates »

"Revised HSR Thresholds to Become Effective February 24, 2014"

On January 23, 2014, the Federal Trade Commission (FTC) published in the Federal Register its previously announced revised thresholds for determining whether companies are required to notify federal antitrust authorities about a…more

FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements

See All Updates »

"FDA Guidance Limits Flexibility in Social Media Promotional Communications"

Three recently issued draft guidance documents (Draft Guidances) from the U.S. Food and Drug Administration (FDA or Agency) are designed to assist manufacturers in product communications via social media and other interactive…more

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"Executive Compensation and Benefits Alert: IRS Section 409A Audit Initiative May Signal Increased Enforcement Activity"

Since the adoption of Section 409A of the Internal Revenue Code, employers and practitioners have wondered when and how the IRS would enforce it. With the recent IRS announcement of an audit initiative with respect to Section…more

Audits, Employer Liability Issues, Employer Mandates, Employment Tax, Enforcement

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"Will 2014 Be the ‘Year of the Foreign Private Issuer’?"

Experience in 2013 has shown that U.S. securities exchanges are once again becoming increasingly popular venues for listings by non-U.S. companies. The number of non-U.S. companies that conducted initial listings in the U.S. in…more

Compliance, Disclosure Requirements, Dodd-Frank, Emerging Growth Companies, Foreign Exchanges

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"US Supreme Court Cases to Watch in 2014"

The U.S. Supreme Court will rule on numerous significant cases in 2014, involving such issues as presidential power, affirmative action, campaign contributions, environmental regulations, intellectual property, commercial…more

Affirmative Action, Affordable Care Act, Alice Corporation, Atlantic Marine Construction Company, BG Group v Republic of Argentina

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Privacy & Cybersecurity - May 2014

In This Issue: - EU Court of Justice Creates Broad Interpretation of the ‘Right to be Forgotten’ - White House Publishes Report on Risks and Opportunities Posed by ‘Big Data’ Practices - California AG…more

Attorney Generals, Big Data, Cybersecurity, Do Not Track, ECPA

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"Hong Kong Regulatory Update"

This Hong Kong regulatory update is intended to provide a brief overview of the principal Hong Kong regulatory developments in the preceding three months relevant to companies listed or proposed to be listed on The Stock…more

Enforcement Actions, Hong Kong, Hong Kong Stock Exchange, Securities

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"Chairman Camp’s Proposals Place REITs in the Crosshairs"

On February 25, House Ways and Means Committee Chairman David Camp (R. Mich.) proposed a dramatic overhaul of the U.S. tax code (the Code). While the “Tax Reform Act of 2014,” (the Proposals) contains a number of previously…more

C-Corporation, IRS, REIT, Tax Reform

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"Executive Compensation and Benefits Report: Proposed Regulations Highlight the Complexity of the $500,000 Deduction Limit for Compensation Paid by Health Insurance Providers"

On April 1, 2013, the Internal Revenue Service issued proposed regulations providing guidance on the $500,000 deduction limit for compensation paid by certain health insurance companies to their employees. Because of the…more

CHIP, Deduction Limitations, Executive Compensation, Health Insurance, IRS

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"French Government Extends Its Veto Rights on Foreign Investments in Country’s Strategic Sectors"

On May 15, 2014, the French government published a decree extending its veto rights over foreign investments in French strategic sectors (the New Decree). The New Decree has been dubbed the “Alstom Decree” by the media, as it…more

Critical Infrastructure Sectors, EU, Foreign Investment, Veto Rights

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"IRS Guidance Clarifies Renewable Energy Tax Credit"

The Internal Revenue Service (IRS) has released welcome new guidance on renewable electricity production and energy investment tax credits. A notice issued on August 8, 2014, addresses when a facility or equipment maintains its…more

Energy, IRS, Renewable Energy, Tax Credits, Tax Incentives

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"SEC Announces Municipal Advisor Examination Initiative"

On August 19, 2014, the Securities and Exchange Commission (SEC) announced that its Office of Compliance Inspections and Examinations (OCIE) will begin a two-year examination initiative (the initiative) through the National Exam…more

Compliance, FINRA, Municipal Advisers, OCIE, SEC

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"US Imposes New Licensing Requirements on Exports to Russia of Oil and Gas Equipment and ‘Dual-Use’ Items"

On August 6, 2014, in response to continuing developments in Ukraine, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published a new final rule that significantly expands restrictions on U.S. exports to…more

EAR, Energy, Exports, Oil & Gas, Russia

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"SEC Judge Issues Initial Decision Regarding Chinese Affiliates of the Big Four Accounting Firms"

On January 22, 2014, U.S. Securities and Exchange Commission Administrative Law Judge Cameron Elliot (the ALJ) issued an initial decision censuring the Chinese accounting firms affiliated with Ernst & Young LLP, KPMG LLP…more

Auditors, Audits, China, CSRC, Deloitte

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"An Update on Economic Sanctions Related to Events in Ukraine"

On April 25, 2014, following a meeting of the G7 in which member countries broadly agreed to take further action against Russia in response to political violence and unrest in Ukraine, U.S. officials imposed sanctions against…more

EU, OFAC, Russia, Sanctions, Ukraine

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Privacy & Cybersecurity - May 2014

In This Issue: - EU Court of Justice Creates Broad Interpretation of the ‘Right to be Forgotten’ - White House Publishes Report on Risks and Opportunities Posed by ‘Big Data’ Practices - California AG…more

Attorney Generals, Big Data, Cybersecurity, Do Not Track, ECPA

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"SEC Staff Issues Statement on Conflict Minerals Ruling"

The U.S. Securities and Exchange Commission’s Division of Corporation Finance issued a statement on the effect of a recent circuit court decision on the SEC’s conflict minerals rules. In an April 14 ruling, the U.S. Court of…more

Conflict Mineral Rules, First Amendment, SEC

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"FDA Guidance Limits Flexibility in Social Media Promotional Communications"

Three recently issued draft guidance documents (Draft Guidances) from the U.S. Food and Drug Administration (FDA or Agency) are designed to assist manufacturers in product communications via social media and other interactive…more

See All Updates »

"EU Debate on Enforcement of the 'Banker Bonus Cap' Approaches End Game"

Michel Barnier, vice president of the European Commission, recently wrote to the chairman of the European Banking Authority (the EBA), asking the EBA to report by the end of this month on whether allowances paid by EU banks to…more

Banks, Bonuses, EU, European Commission

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"New York State Issues RFP to Deploy $200 Million for Clean Energy Projects"

On February 5, the newly created New York State Green Bank issued its first request for proposals for clean energy projects in the state looking to access the Green Bank’s range of credit facilities…more

Clean Energy, Funding, Green Banks, Renewable Energy

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"SEC Staff Issues Guidance on Proxy Voting Matters Relevant to Investment Advisers and Proxy Advisory Firms"

The U.S. Securities and Exchange Commission’s (SEC) Divisions of Investment Management and Corporation Finance issued a Staff Legal Bulletin on June 30, 2014 that provides guidance on the responsibilities of investment advisers…more

Investment Adviser, Proxy Advisors, Proxy Voting Guidelines, SEC

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"US Supreme Court Reiterates Two-Part Test for Patentability of Computer-Based Methods"

In a unanimous decision issued on June 19, 2014, the U.S. Supreme Court found that patent claims for managing risk in a financial transaction were drawn to an abstract idea that was patent-ineligible under 35 U.S.C. § 101. Alice…more

Alice Corporation, America Invents Act, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

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"Senate Finance Chair’s Accounting-Related Reform Proposals Would Repeal Favorable Provisions Senate"

On November 21, 2013, Senator Max Baucus (D-Mont.), Chairman of the Senate Finance Committee, released a Staff Discussion Draft containing tax reform proposals relating to several accounting-related provisions of the Internal…more

Financial Regulatory Reform, Legislative Agendas

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SEC Releases Long-Awaited Money Market Fund Reform Proposal

On June 5, 2013, the U.S. Securities and Exchange Commission (the SEC) released for public comment its proposal to further reform the regulatory structure governing money market funds and address the perceived systemic risks…more

Asset Diversification, Disclosure Requirements, Liquidity Fees, Money Market Funds, NAV

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"Executive Compensation and Benefits Alert: Annual Meeting Litigation: How to Prepare"

As the 2013 proxy season is now underway, companies should be aware of the recent wave of lawsuits alleging breaches of fiduciary duties by management and directors in connection with compensation-related decisions. These suits…more

Annual Meeting, Certificates of Incorporation, Compensation Committee, Directors, Disclosure Requirements

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"Hong Kong Regulatory Update"

This Hong Kong regulatory update is intended to provide a brief overview of the principal Hong Kong regulatory developments in the preceding three months relevant to companies listed or proposed to be listed on The Stock…more

Enforcement Actions, Hong Kong, Hong Kong Stock Exchange, Securities

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"International Taxation – OECD Reboot for the 21st Century"

Introduction - Following on its February 2013 report on Addressing Base Erosion and Profit Shifting (BEPS), the Organisation for Economic Co-operation and Development (OECD) has now released an ambitious action plan…more

Corporate Taxes, Income Taxes, OECD, Proposed Regulation, Tax Evasion

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"The SEC’s Renewed Scrutiny on Accounting Cases: Expected Focus Areas and How Companies Can Prepare"

The U.S. Securities and Exchange Commission (SEC or Commission) has announced plans to reinvigorate its enforcement efforts with respect to accounting issues. These plans include adding dedicated personnel and using data mining…more

Accounting, Audits, Data Mining, Enforcement Actions, Financial Reporting

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"FTC Wins Action to Block Hospital-Physician Group Merger"

On the heels of a string of successfully litigated hospital merger challenges, the Federal Trade Commission (FTC) recently expanded its winning streak in the health care industry to include hospital acquisitions of physician…more

FTC, Hospitals, Mergers, The Clayton Act

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"Using Chapter 11 to Restructure Non-US and Multinational Companies"

Chapter 11 of the U.S. Bankruptcy Code is the most well-developed law of any insolvency regime in the world for helping troubled companies restructure their affairs. Some nations, like Canada and the United Kingdom, also have…more

Chapter 11, Commercial Bankruptcy, Insolvency, Multinationals, Restructuring

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"An Update on Economic Sanctions Related to Events in Ukraine"

On April 25, 2014, following a meeting of the G7 in which member countries broadly agreed to take further action against Russia in response to political violence and unrest in Ukraine, U.S. officials imposed sanctions against…more

EU, OFAC, Russia, Sanctions, Ukraine

See All Updates »

The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Penn National Gaming, Inc. Announces First-Ever Tax-Free PropCo REIT Spin"

Penn National Gaming, Inc. (PNG) announced last evening the first-ever tax-free spin-off of a “PropCo” real estate investment trust (REIT) from a taxable C corporation. PNG intends to separate its real property gaming facilities…more

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Privacy & Cybersecurity Update - August 2014

In This Issue: - NIST Announces October Workshop and Releases Framewok Update - Insurance Company Succeeds in Cybersecurity Litigation - Safe Harbor Under Attack — This Time From a US Group -…more

Cybersecurity, Cybersecurity Framework, Data Protection, NIST

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"US Supreme Court Reiterates Two-Part Test for Patentability of Computer-Based Methods"

In a unanimous decision issued on June 19, 2014, the U.S. Supreme Court found that patent claims for managing risk in a financial transaction were drawn to an abstract idea that was patent-ineligible under 35 U.S.C. § 101. Alice…more

Alice Corporation, America Invents Act, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

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"FCA Listing Rule Changes Applicable to Premium Listed Companies"

On 2 October 2012, the Financial Conduct Authority (FCA) published a wide-ranging consultation paper (CP12/25) on the effectiveness of the listing regime which proposed a number of changes to the Listing Rules, including in…more

Board of Directors, Controlling Stockholders, Corporate Governance, FCA, Financial Regulatory Reform

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Employment Flash (June 2014)

In This Issue: - NLRB Recess Appointments Unconstitutional - SEC Brings First-Ever Employment Retaliation Claim - EEOC Challenges Employer Severance Agreements - New York State Transportation Industry…more

Affirmative Action, Barack Obama, CAFA, Canning v NLRB, Class Action Arbitration Waivers

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"The New Barbarians — Shareholder Activists Have Europe in Their Sights"

Shareholder activism has risen significantly since the start of the financial crisis, with global shareholder campaigns increasing by 62 percent since 2010. This growth is partially driven by activist hedge funds, reaping…more

EU, Shareholder Activism, Shareholder Litigation, Shareholders

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"UK Issues Guidelines for Deferred Prosecution Agreements"

Introduction - Deferred prosecution agreements (DPAs) are now available in the United Kingdom as a means of resolving criminal investigations of certain serious economic crimes other than by guilty plea, trial or…more

Deferred Prosecution Agreements, Investigations, UK

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"Antitrust and Competition: Surveying Global M&A Enforcement Trends"

US: Agencies Continue Aggressive Enforcement - Despite changes in leadership at the U.S. Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) (collectively, the Agencies) in 2013, the…more

Anheuser-Busch, Antitrust Investigations, Antitrust Litigation, Bazaarvoice Inc, China

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"Parallel Fund Structures Under the Volcker Rule"

Skadden was one of 15 law firms that participated in the development of a recently released consensus interpretation letter regarding the ability of non-U.S. banking entities to invest in certain parallel funds organized by…more

Banks, Commodity Pool, CPO, Investment Company Act of 1940, Investment Funds

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"Entering a New Regulatory Era Under the Final Volcker Rule"

In December 2013, five U.S. financial regulatory agencies adopted final regulations to implement the Volcker Rule. As expressed in the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule generally…more

Banks, Collateralized Debt Obligations, Dodd-Frank, FDIC, Proprietary Trading

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"Treasury and IRS Release FATCA Regulations"

New Regulations Address Some Concerns and Coordinate FATCA Rules with Other Reporting and Withholding Rules - On February 20, 2014, the Department of the Treasury and the IRS issued a comprehensive set of final and…more

FATCA, IGAs, IRS, U.S. Treasury

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"New York State Issues RFP to Deploy $200 Million for Clean Energy Projects"

On February 5, the newly created New York State Green Bank issued its first request for proposals for clean energy projects in the state looking to access the Green Bank’s range of credit facilities…more

Clean Energy, Funding, Green Banks, Renewable Energy

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Employment Flash - July 2013

In This Issue: - U.S. Supreme Court Issues Two Important Decisions Under Title VII - Supreme Court Holds Lone Plaintiff’s FLSA Collective Action Is Moot When Claims Are Resolved Before Certification -…more

Class Action, Class Arbitration, Class Certification, Collective Actions, Discrimination

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"Executive Compensation and Benefits Alert: IRS Section 409A Audit Initiative May Signal Increased Enforcement Activity"

Since the adoption of Section 409A of the Internal Revenue Code, employers and practitioners have wondered when and how the IRS would enforce it. With the recent IRS announcement of an audit initiative with respect to Section…more

Audits, Employer Liability Issues, Employer Mandates, Employment Tax, Enforcement

See All Updates »

"SEC Provides No-Action Relief to M&A Brokers in Connection With Broker-Dealer Registration Requirements"

On January 31, 2014, the Division of Trading and Markets (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued a no-action letter (as revised on February 4, 2014, the “No-Action Letter”) that permits an…more

Broker-Dealer, Compliance, No-Action Letters, Registration, SEC

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SEC Releases Long-Awaited Money Market Fund Reform Proposal

On June 5, 2013, the U.S. Securities and Exchange Commission (the SEC) released for public comment its proposal to further reform the regulatory structure governing money market funds and address the perceived systemic risks…more

Asset Diversification, Disclosure Requirements, Liquidity Fees, Money Market Funds, NAV

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"Recent Developments in Tax Law: Impact on Corporate Tax Strategies in 2014"

Recent changes in IRS private letter ruling policy likely will result in greater taxpayer reliance on tax opinions, which may impact certain corporate strategies in the coming year. Tax-Free Spin-Offs - During…more

Corporate Taxes, Income Taxes, IRS, Private Letter Rulings, Privilege Waivers

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"European Commission Issues Merger Reform White Paper Regarding Minority Shareholdings and Member State Referrals"

On July 9, 2014, the European Commission published its proposal (White Paper) outlining the approach it intends to adopt with respect to the application of the EU Merger Regulation (EUMR) to the acquisition of minority…more

EU, EUMR, Minority Shareholders, New Amendments, Proposed Regulation

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"EU Debate on Enforcement of the 'Banker Bonus Cap' Approaches End Game"

Michel Barnier, vice president of the European Commission, recently wrote to the chairman of the European Banking Authority (the EBA), asking the EBA to report by the end of this month on whether allowances paid by EU banks to…more

Banks, Bonuses, EU, European Commission

See All Updates »

"US Supreme Court Reiterates Two-Part Test for Patentability of Computer-Based Methods"

In a unanimous decision issued on June 19, 2014, the U.S. Supreme Court found that patent claims for managing risk in a financial transaction were drawn to an abstract idea that was patent-ineligible under 35 U.S.C. § 101. Alice…more

Alice Corporation, America Invents Act, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

See All Updates »

"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"The SEC’s Renewed Scrutiny on Accounting Cases: Expected Focus Areas and How Companies Can Prepare"

The U.S. Securities and Exchange Commission (SEC or Commission) has announced plans to reinvigorate its enforcement efforts with respect to accounting issues. These plans include adding dedicated personnel and using data mining…more

Accounting, Audits, Data Mining, Enforcement Actions, Financial Reporting

See All Updates »

"Proposed Amendments to the Delaware General Corporation Law"

On April 17, 2014, the Corporation Law Section of the Delaware State Bar Association proposed legislation that, if adopted, would amend the Delaware General Corporation Law (the DGCL) in a number of important ways. Proposed…more

Controlling Stockholders, Corporate Governance, Proposed Amendments, Shareholders, Stocks

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"CFTC Further Extends Comment Periods on Position Limits Proposals"

The Commodity Futures Trading Commission (Commission or CFTC) has further extended the comment periods for its November 2013 proposal concerning position limits aggregation and its December 2013 proposal concerning position…more

CFTC, Commodities, Derivatives, Rulemaking Process

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"SEC Provides No-Action Relief to M&A Brokers in Connection With Broker-Dealer Registration Requirements"

On January 31, 2014, the Division of Trading and Markets (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued a no-action letter (as revised on February 4, 2014, the “No-Action Letter”) that permits an…more

Broker-Dealer, Compliance, No-Action Letters, Registration, SEC

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SEC Proposes Securities-Based Swap Recordkeeping, Reporting and Notification Requirements

On May 2, 2014, the Securities and Exchange Commission (SEC)published in the Federal Register proposed regulations1 that would implement the recordkeeping, reporting and notification requirements of the Dodd-Frank Wall Street…more

Broker-Dealer, Dodd-Frank, Major Swap Participants, Notice Requirements, Proposed Regulation

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"Supreme Court Rules Aereo’s Streaming Service Violates Copyright Law"

In a case closely watched by the television, cable and online content industries, the Supreme Court ruled today that online start-up Aereo Inc. violates copyright law by redistributing over-the-air broadcast content without…more

Aereo, Broadcasting, Copyright, Copyright Infringement, Popular

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"RMBS Repurchases: When Does the Statute of Limitations Clock Start Running?"

Two recent decisions out of the New York State Commercial Division have introduced uncertainty regarding application of the statute of limitations in residential mortgage-backed securities (RMBS) repurchase actions. The…more

Repurchases, RMBS, Statute of Limitations

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"Chapter 11 Strategies Increasingly Appeal to Banks in Need of Recapitalization"

Historically, the Chapter 11 bankruptcy process was not used as a technique to recapitalize struggling banks. An aversion to using Chapter 11 was attributable in part to concerns that regulators and depositors might perceive a…more

Banks, Chapter 11, Commercial Bankruptcy, Recapitalization

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"At-the-Market Offerings Under the MJDS"

Given the recent volatility and uncertainty in the capital markets, many Canadian issuers, particularly those in the resources sector, are hesitant to commit to traditional, fully marketed follow-on public offerings due to…more

Canada, Issuers, MJDS, Public Offerings, SEC

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"FTC Doubles Down in Challenge to Pharmaceutical Settlement"

On September 8, 2014, the Federal Trade Commission (FTC) filed a federal antitrust complaint in the United States District Court for the Eastern District of Pennsylvania against defendants AbbVie, Abbott Laboratories, Unimed…more

Abbott Laboratories, FTC, FTCA, Generic Drugs, Monopolization

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"UK Supreme Court: Legal Advice Privilege Relates to Lawyers’ Advice Only"

Summary - In an eagerly awaited decision of the U.K. Supreme Court in the case of R (on the Application of Prudential plc and Another) v. Special Commissioner of Income Tax and Another, [2013] UKSC 1, legal advice privilege…more

Accountants, Appeals, EU, Legal Advice Privilege

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"European Court Rejects UK’s Financial Transaction Tax Challenge"

U.K.’s challenge to the proposed financial transaction tax (FTT), while recognizing that the U.K.’s challenge was precautionary — and possibly premature. The U.K. was challenging the European Council’s Decision 2013/52/EU…more

European Commission, Financial Transaction Tax, UK

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"D.C. Circuit Decision May Significantly Impact the Process for Obtaining Clean Air Act Permits"

In Sierra Club v. Environmental Protection Agency, 2013 U.S. App. LEXIS 1408 (D.C. Cir. Jan. 22, 2013), the District of Columbia Circuit Court of Appeals issued a decision that is likely to have a significant impact on parties…more

Air Pollution, Appeals, Clean Air Act, EPA, Permits

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"US Supreme Court Reiterates Two-Part Test for Patentability of Computer-Based Methods"

In a unanimous decision issued on June 19, 2014, the U.S. Supreme Court found that patent claims for managing risk in a financial transaction were drawn to an abstract idea that was patent-ineligible under 35 U.S.C. § 101. Alice…more

Alice Corporation, America Invents Act, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"CFTC No-Action Letter Relieves End-Users of Part 45 Reporting for Trade Options"

On April 5, 2013, the Commodity Futures Trading Commission’s (CFTC) Division of Market Oversight (DMO) provided end-users no-action relief (the No-Action Letter) from certain “trade option” reporting and recordkeeping…more

CFTC, End-Users, Exemptions, No-Action Letters, Recordkeeping Requirements

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"CFTC Expands Large Trader Reporting and Increases Customer Account Protection Requirements"

The Commodity Futures Trading Commission (CFTC or Commission) recently adopted several rules to improve large trader reporting, facilitate segregation of customer swap margin and enhance customer protections for futures and swap…more

CFTC, Commodities Exchange Act, Customer Funds Protection, Derivatives Clearing Organizations, Dodd-Frank

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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"Federal Circuit Overturns Oracle v. Google and Potentially Widens Debate Over Copyright Protections"

In a landmark decision concerning the copyrightability of computer software, on May 9, 2014, the U.S. Federal Circuit Court of Appeals held that Oracle, Inc. is entitled to copyright protection for 37 Java application…more

Copyright, Copyright Infringement, Google, Internet, Oracle

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"Structured Finance Alert: SEC Adopts Final Regulation AB II Rules"

On August 27, 2014, the Securities and Exchange Commission ("SEC") adopted final rules ("ABS Final Rules") that significantly revise the existing regulations that govern disclosure requirements, offering processes and periodic…more

Amended Regulation, Asset-Backed Securities, Disclosure Requirements, Dodd-Frank, Final Rules

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"The Future of Marketing Non-EU Alternative Investment Funds in Europe"

Adopted by the European Parliament in 2010 and implemented by EU member states in July 2013, the Alternative Investment Fund Managers Directive (the Directive) seeks to protect investors and mitigate market instability by…more

AIFM, AIFMD, CFTC, Compliance, EU

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"US Supreme Court Reiterates Two-Part Test for Patentability of Computer-Based Methods"

In a unanimous decision issued on June 19, 2014, the U.S. Supreme Court found that patent claims for managing risk in a financial transaction were drawn to an abstract idea that was patent-ineligible under 35 U.S.C. § 101. Alice…more

Alice Corporation, America Invents Act, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

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"Recent Developments in Tax Law: Impact on Corporate Tax Strategies in 2014"

Recent changes in IRS private letter ruling policy likely will result in greater taxpayer reliance on tax opinions, which may impact certain corporate strategies in the coming year. Tax-Free Spin-Offs - During…more

Corporate Taxes, Income Taxes, IRS, Private Letter Rulings, Privilege Waivers

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"FDA Guidance Limits Flexibility in Social Media Promotional Communications"

Three recently issued draft guidance documents (Draft Guidances) from the U.S. Food and Drug Administration (FDA or Agency) are designed to assist manufacturers in product communications via social media and other interactive…more

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"Navigating Chinese Merger Control: MOFCOM Prohibits P3 Shipping Alliance"

On June 17, 2014, the Anti-Monopoly Bureau of China’s Ministry of Commerce (MOFCOM) issued just the second prohibition decision in its enforcement history, striking down the proposed P3 Network shipping alliance that would have…more

China, Enforcement, Mergers, MOFCOM, P3s

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"Supreme Court Clarifies Standard to Challenge IRS Summons"

On June 19, 2014, the U.S. Supreme Court in United States v. Clarke1 held that a taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing an administrative summons when the taxpayer…more

Bad Faith, Document Requests, IRS, Request For Information, SCOTUS

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Delaware Supreme Court Establishes New Standard Of Review For Controlling Stockholder Going-Private Mergers

In a landmark decision issued this morning, the Delaware Supreme Court held for the first time in Kahn v. M&F Worldwide Corp. that the deferential business judgment standard of review should apply to a merger between a…more

Controlling Stockholders, Going-Private Transactions, Shareholders, Standard of Review

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Supreme Court Holds That Bankruptcy Courts May Report and Recommend on Stern Claims"

On June 9, 2014, the United States Supreme Court issued its highly anticipated ruling in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency, Inc.). The Bellingham decision clarifies one of the…more

Article III, Chapter 7, Commercial Bankruptcy, EBIA v Arkison, Executive Benefits Insurance Agency

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"New CFTC Swap Clearing Rules to Require Board Review and Approval of the Election to Rely on the 'Commercial End-User Exception'"

New Commodity Futures Trading Commission (CFTC) swaps clearing rules will force non-financial entities to stop uncleared trading of certain interest-rate swaps (IRS) and index credit default swaps (index CDS) starting on…more

CFTC, Commercial End-User Exception, Credit Default Swaps, Derivatives Clearing Organizations, Dodd-Frank

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"Federal Reserve Proposes Bank Liquidity Requirements That Exceed the Basel III Standard"

The Federal Reserve Board (Board) yesterday approved a proposed rule requiring larger U.S. banking organizations maintain liquid assets in an amount sufficient to meet the liquidity requirements determined under the rule,…more

Banks, Basel III, Federal Reserve, Liquidity Coverage Ratio

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"Executive Compensation and Benefits Alert: IRS Section 409A Audit Initiative May Signal Increased Enforcement Activity"

Since the adoption of Section 409A of the Internal Revenue Code, employers and practitioners have wondered when and how the IRS would enforce it. With the recent IRS announcement of an audit initiative with respect to Section…more

Audits, Employer Liability Issues, Employer Mandates, Employment Tax, Enforcement

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"G20 Leaders Endorse Greater International Tax Transparency"

At last month’s summit in St. Petersburg, Russia, G20 leaders backed two ambitious proposals issued by the Organization for Economic Co-operation and Development (OECD), including the establishment of a global model for the…more

BEPS, EU, FATCA, G20, Intergovernmental Agreements

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"Delaware Court of Chancery Recognizes Potential Benefits of Shareholder Rights Plans in Addressing Shareholder Activism"

William F. Ruprecht, et al., and Sotheby’s, which, in essence, recognized that a board of directors could adopt a shareholder rights plan as a reasonable response to a threat posed by an activist shareholder…more

Board of Directors, Corporate Governance, Shareholder Activism, Shareholder Litigation, Shareholders

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"CFTC Staff Provides Funds-of-Funds With Temporary No-Action Relief From Commodity Pool Operator Registration"

On November 29, 2012, the Commodity Futures Trading Commission (CFTC) Division of Swap Dealer and Intermediary Oversight (Division) issued temporary no-action relief from commodity pool operator (CPO) registration to operators…more

CFTC, Commodity Pool, No-Action Relief, Swap Dealers

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"D.C. Circuit Decision May Significantly Impact the Process for Obtaining Clean Air Act Permits"

In Sierra Club v. Environmental Protection Agency, 2013 U.S. App. LEXIS 1408 (D.C. Cir. Jan. 22, 2013), the District of Columbia Circuit Court of Appeals issued a decision that is likely to have a significant impact on parties…more

Air Pollution, Appeals, Clean Air Act, EPA, Permits

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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Employment Flash (June 2014)

In This Issue: - NLRB Recess Appointments Unconstitutional - SEC Brings First-Ever Employment Retaliation Claim - EEOC Challenges Employer Severance Agreements - New York State Transportation Industry…more

Affirmative Action, Barack Obama, CAFA, Canning v NLRB, Class Action Arbitration Waivers

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CFTC Re-Proposes Speculative Position Limit Rules For Futures, Options And Swaps On Physical Commodities

On November 5, 2013, the Commodity Futures Trading Commission (CFTC) voted 3-1 to re-propose rules to establish speculative position limits for futures, options and economically equivalent swaps on certain agricultural, metal…more

Bona Fide Hedging, CFTC, Commodities, Futures, Hedging

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"Entering a New Regulatory Era Under the Final Volcker Rule"

In December 2013, five U.S. financial regulatory agencies adopted final regulations to implement the Volcker Rule. As expressed in the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule generally…more

Banks, Collateralized Debt Obligations, Dodd-Frank, FDIC, Proprietary Trading

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"SEC Staff Issues Statement on Conflict Minerals Ruling"

The U.S. Securities and Exchange Commission’s Division of Corporation Finance issued a statement on the effect of a recent circuit court decision on the SEC’s conflict minerals rules. In an April 14 ruling, the U.S. Court of…more

Conflict Mineral Rules, First Amendment, SEC

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"SEC Judge Issues Initial Decision Regarding Chinese Affiliates of the Big Four Accounting Firms"

On January 22, 2014, U.S. Securities and Exchange Commission Administrative Law Judge Cameron Elliot (the ALJ) issued an initial decision censuring the Chinese accounting firms affiliated with Ernst & Young LLP, KPMG LLP…more

Auditors, Audits, China, CSRC, Deloitte

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"Delaware Continues to Influence US M&A"

A number of recent Delaware judicial and legislative developments will have important implications for parties engaging in or advising on M&A transactions in 2014 and beyond. Controlling Stockholder Transactions…more

Acquisitions, Controlling Stockholders, Corporate Governance, Mergers, Privatization

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"The US High-Yield Market: A More Cautious 2014 "

Investor enthusiasm for U.S. high-yield bonds continued in 2013. The market delivered the second-strongest year by volume, despite the summer’s increased interest rates and volatility resulting from speculation about the Federal…more

Ben Bernanke, Bonds, Federal Reserve, Investors, Payment-In-Kind

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"SEC Staff Issues Guidance on Proxy Voting Matters Relevant to Investment Advisers and Proxy Advisory Firms"

The U.S. Securities and Exchange Commission’s (SEC) Divisions of Investment Management and Corporation Finance issued a Staff Legal Bulletin on June 30, 2014 that provides guidance on the responsibilities of investment advisers…more

Investment Adviser, Proxy Advisors, Proxy Voting Guidelines, SEC

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"US Imposes New Licensing Requirements on Exports to Russia of Oil and Gas Equipment and ‘Dual-Use’ Items"

On August 6, 2014, in response to continuing developments in Ukraine, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published a new final rule that significantly expands restrictions on U.S. exports to…more

EAR, Energy, Exports, Oil & Gas, Russia

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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"OECD Draft Report: The Digital Economy and Its Tax Challenges"

On March 24, 2014, the Organisation for Economic Co-operation and Development (OECD) published a discussion draft report on the tax challenges facing the digital economy (the DE Report). This draft report is issued in connection…more

EU, International Tax Issues, OECD, Tax Liability

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"Supreme Court Relaxes Standard for Patent Indefiniteness"

In a decision issued on June 2, 2014, the U.S. Supreme Court lowered the bar for parties arguing patent indefiniteness under 35 U.S.C. § 112. Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369 (U.S. June 2, 2014). The…more

Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Infringement, Patent Litigation, Patents

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"Delaware Court of Chancery Applies Business Judgment Rule to a Going-Private Merger"

In a decision with important implications for structuring going-private transactions, Chancellor Leo E. Strine, Jr. of the Delaware Court of Chancery this week applied the business judgment rule — not the more rigorous entire…more

Board of Directors, Business Judgment Rule, Duty of Care, Going-Private Transactions, Shareholders

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"Antitrust and Competition: Nonmerger Enforcement Activity Heats Up on Both Sides of the Atlantic"

U.S. and European antitrust agencies had similar enforcement priorities last year, a trend we expect to continue in 2014. Nonmerger enforcement will continue to focus on intellectual property, financial services and…more

Anticompetitive Agreements, Antitrust Conspiracies, Antitrust Investigations, Antitrust Litigation, Class Action

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"Using Chapter 11 to Restructure Non-US and Multinational Companies"

Chapter 11 of the U.S. Bankruptcy Code is the most well-developed law of any insolvency regime in the world for helping troubled companies restructure their affairs. Some nations, like Canada and the United Kingdom, also have…more

Chapter 11, Commercial Bankruptcy, Insolvency, Multinationals, Restructuring

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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"Potential New Tax Planning Opportunities for Financially Distressed Pass-Through Entities"

In a decision issued last week, the U.S. Court of Appeals for the Third Circuit held that a debtor’s qualified subchapter S subsidiary (QSub) status is not property of the bankruptcy estate. The Third Circuit’s opinion appears…more

Automatic Stay, Chapter 11, Debtors, LLC, Pass-Through Entities

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"First-Half Activity Energizes US Capital Markets in 2014"

The U.S. equity and debt markets experienced a strong first half of the year. In the first quarter, the U.S. IPO market was the busiest since 2000, more than doubling the number of IPOs from the same period last year…more

Acquisitions, Bonds, Capital Markets, Debt Securities, Federal Reserve

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"IRS Guidance Clarifies Renewable Energy Tax Credit"

The Internal Revenue Service (IRS) has released welcome new guidance on renewable electricity production and energy investment tax credits. A notice issued on August 8, 2014, addresses when a facility or equipment maintains its…more

Energy, IRS, Renewable Energy, Tax Credits, Tax Incentives

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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"Is the DOJ FCPA Enforcement Hegemony Dead?"

For nearly 15 years, the United States has had the worldwide corruption enforcement stage to itself, reaping billions of dollars in fines and settlement payments from companies that have acknowledged engaging in bribery in…more

DOJ, Enforcement, FCPA, International Banks, UK

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"The New Barbarians — Shareholder Activists Have Europe in Their Sights"

Shareholder activism has risen significantly since the start of the financial crisis, with global shareholder campaigns increasing by 62 percent since 2010. This growth is partially driven by activist hedge funds, reaping…more

EU, Shareholder Activism, Shareholder Litigation, Shareholders

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Notice 2013-78: IRS Proposes Revisions to Competent Authority Process"

On November 22, 2013, the IRS issued Notice 2013-78, which contains draft Revenue Procedures applicable to requests for competent authority (CA) assistance. The IRS requested comments by March 10, 2014. The Revenue Procedure and…more

Double Taxation, Income Taxes, IRS, Revenue Procedure 2013-12, Tax Reform

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"US Imposes New Licensing Requirements on Exports to Russia of Oil and Gas Equipment and ‘Dual-Use’ Items"

On August 6, 2014, in response to continuing developments in Ukraine, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published a new final rule that significantly expands restrictions on U.S. exports to…more

EAR, Energy, Exports, Oil & Gas, Russia

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"SEC Announces Municipal Advisor Examination Initiative"

On August 19, 2014, the Securities and Exchange Commission (SEC) announced that its Office of Compliance Inspections and Examinations (OCIE) will begin a two-year examination initiative (the initiative) through the National Exam…more

Compliance, FINRA, Municipal Advisers, OCIE, SEC

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"SEC Staff Issues Guidance on Proxy Voting Matters Relevant to Investment Advisers and Proxy Advisory Firms"

The U.S. Securities and Exchange Commission’s (SEC) Divisions of Investment Management and Corporation Finance issued a Staff Legal Bulletin on June 30, 2014 that provides guidance on the responsibilities of investment advisers…more

Investment Adviser, Proxy Advisors, Proxy Voting Guidelines, SEC

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"Court Finds CFIUS Violated Ralls Corporation’s Due Process Rights"

On July 15, 2014, the United States Court of Appeals for the District of Columbia remanded Ralls Corporation’s (Ralls) precedent-setting case against the Committee on Foreign Investment in the United States (CFIUS or the…more

Appeals, Barack Obama, CFIUS, Defense Production Act, Due Process

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"French Government Extends Its Veto Rights on Foreign Investments in Country’s Strategic Sectors"

On May 15, 2014, the French government published a decree extending its veto rights over foreign investments in French strategic sectors (the New Decree). The New Decree has been dubbed the “Alstom Decree” by the media, as it…more

Critical Infrastructure Sectors, EU, Foreign Investment, Veto Rights

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The Class Action Chronicle - Summer 2014

In This Issue: - Avoiding Class Certification Through an Offer of Judgment - CLASS CERTIFICATION DECISIONS: ..Decisions Granting Motions to Strike ..Decisions Denying Motions to Strike ..Decisions…more

CAFA, Class Action, Class Certification, Federal Rules of Civil Procedure, Litigation Strategies

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"Supreme Court Rules Aereo’s Streaming Service Violates Copyright Law"

In a case closely watched by the television, cable and online content industries, the Supreme Court ruled today that online start-up Aereo Inc. violates copyright law by redistributing over-the-air broadcast content without…more

Aereo, Broadcasting, Copyright, Copyright Infringement, Popular

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"Gatz Highlights Standards for Affiliated-Party Transactions"

In Gatz Properties, LLC v. Auriga Capital Corp., the Delaware Supreme Court required a manager and controlling member of a Delaware limited liability company to satisfy the entire fairness standard of conduct and judicial review…more

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"Extension of UK Takeover Code Jurisdiction"

On 15 May, the U.K. Takeover Panel (the Panel) published its response to a consultation paper proposing to extend the jurisdiction of the U.K. Takeover Code (the Code). The Panel has concluded that the Code’s jurisdiction should…more

EU, Jurisdiction, Takeover Code

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"CFTC Delays April 10 Compliance Date for Many Swap Data Reporting Requirements"

On April 9, 2013, the Commodity Futures Trading Commission’s (CFTC) Division of Market Oversight, responding to requests from multiple interested parties, issued a no-action letter (the No-Action Letter) extending the April 10,…more

CFTC, Dodd-Frank, End-Users, Legal Entity Identifiers, Major Swap Participants

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"FCA Listing Rule Changes Applicable to Premium Listed Companies"

On 2 October 2012, the Financial Conduct Authority (FCA) published a wide-ranging consultation paper (CP12/25) on the effectiveness of the listing regime which proposed a number of changes to the Listing Rules, including in…more

Board of Directors, Controlling Stockholders, Corporate Governance, FCA, Financial Regulatory Reform

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Negotiations for New International Services Trade Agreement Offer Business Opportunities

The Obama Administration has recently announced its intention to begin negotiating a new agreement aimed at promoting international trade in services. These negotiations, which have received strong backing from both the…more

Barack Obama, Business Opportunities, GATS, International Services Trade Agreements, Negotiations

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"SEC Provides Custody Rule Relief for Privately Offered Securities"

On August 1, 2013, the Division of Investment Management of the Securities and Exchange Commission published an IM Guidance Update (the “Update”) regarding Rule 206(4)-2 (the “Custody Rule”) under the Investment Advisers Act of…more

Audits, Custody Rule, GAAP, Investment Advisers Act of 1940, Pooled Investment Vehicles

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"FTC Wins Action to Block Hospital-Physician Group Merger"

On the heels of a string of successfully litigated hospital merger challenges, the Federal Trade Commission (FTC) recently expanded its winning streak in the health care industry to include hospital acquisitions of physician…more

FTC, Hospitals, Mergers, The Clayton Act

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"European Commission Issues Proposals on Private Antitrust Damage Actions and Collective Actions"

On June 11, 2013, the European Commission (Commission) issued a widely anticipated series of proposals designed to advance private antitrust damage and collective actions in Europe. To accomplish this, the Commission issued both…more

Collective Actions, Competition, Compliance, Contingency Fees, Damages

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"Litigants Continue to Use 'Anti-Suit Injunctions' to Protect Their Arbitration Rights"

Courts occasionally are asked to intervene in a pending arbitration and exercise their injunctive powers. In some cases, litigants seek to have the courts aid the arbitral process by stopping foreign proceedings that interfere…more

Anti-Suit Injunctions, Arbitration, Arbitration Agreements, UK, UNCITRAL

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"OECD Draft Report: The Digital Economy and Its Tax Challenges"

On March 24, 2014, the Organisation for Economic Co-operation and Development (OECD) published a discussion draft report on the tax challenges facing the digital economy (the DE Report). This draft report is issued in connection…more

EU, International Tax Issues, OECD, Tax Liability

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"IRS Large Business and International Division Increasingly Looks to Chief Counsel's Office to Advance Initiatives"

The Internal Revenue Service Large Business and International Division (LB&I) administers United States tax law for corporations, partnerships and individuals with assets greater than $10 million. These taxpayers typically have…more

Compliance, Corporate Taxes, FATCA, IRS, Whistleblowers

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"Getting Back to Basics with Rule 10b5-1 Trading Plans"

In late 2012, The Wall Street Journal published a number of articles that analyzed the trading practices of certain public company executives, in many cases under trading plans that were entered into in accordance with the…more

Rule 10b-5, SEC, Securities Exchange Act, Trading Plans

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"FCA Listing Rule Changes Applicable to Premium Listed Companies"

On 2 October 2012, the Financial Conduct Authority (FCA) published a wide-ranging consultation paper (CP12/25) on the effectiveness of the listing regime which proposed a number of changes to the Listing Rules, including in…more

Board of Directors, Controlling Stockholders, Corporate Governance, FCA, Financial Regulatory Reform

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"NFA Requests Comments on Capital Requirements and Additional Customer Protection Measures for CPOs and CTAs"

The National Futures Association (NFA) recently issued a notice requesting comments on the advisability of subjecting registered commodity pool operators (CPOs) and registered commodity trading advisors (CTAs) to minimum capital…more

Capital Requirements, Commodity Pool, CPO, CTA, NFA

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"Treasury and IRS Move to Implement FATCA as 2014 Start Date Approaches"

On October 29, 2013, the IRS issued Notice 2013-69 as the next step in implementing far-reaching legislation commonly known as the Foreign Account Tax Compliance Act (FATCA). Congress enacted FATCA in 2010 as part of the…more

Deadlines, FATCA, HIRE Act, IRS, Tax Evasion

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"Treasury Issues Proposed Regulations Defining ‘Real Property’ for REIT Purposes"

On May 9, 2014, the U.S. Department of the Treasury (Treasury) released proposed regulations defining the term “real property” for purposes of the REIT rules. The proposed regulations, which provide a framework for taxpayers,…more

Business Assets, Proposed Regulation, Real Estate Investments, REIT, Safe Harbors

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"SEC Announces Municipal Advisor Examination Initiative"

On August 19, 2014, the Securities and Exchange Commission (SEC) announced that its Office of Compliance Inspections and Examinations (OCIE) will begin a two-year examination initiative (the initiative) through the National Exam…more

Compliance, FINRA, Municipal Advisers, OCIE, SEC

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"The New Barbarians — Shareholder Activists Have Europe in Their Sights"

Shareholder activism has risen significantly since the start of the financial crisis, with global shareholder campaigns increasing by 62 percent since 2010. This growth is partially driven by activist hedge funds, reaping…more

EU, Shareholder Activism, Shareholder Litigation, Shareholders

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"German Bundestag Approves Law Regulating High Frequency Trading"

The lower chamber of German parliament (Bundestag) approved last week a draft act regulating high frequency trading in Germany. The chamber of the federal states (Bundesrat) is scheduled to vote on the act on March 22. If…more

Grandfathering Rules, High Frequency Trading, Licenses

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"Recent Developments in Tax Law: Impact on Corporate Tax Strategies in 2014"

Recent changes in IRS private letter ruling policy likely will result in greater taxpayer reliance on tax opinions, which may impact certain corporate strategies in the coming year. Tax-Free Spin-Offs - During…more

Corporate Taxes, Income Taxes, IRS, Private Letter Rulings, Privilege Waivers

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"FCA Listing Rule Changes Applicable to Premium Listed Companies"

On 2 October 2012, the Financial Conduct Authority (FCA) published a wide-ranging consultation paper (CP12/25) on the effectiveness of the listing regime which proposed a number of changes to the Listing Rules, including in…more

Board of Directors, Controlling Stockholders, Corporate Governance, FCA, Financial Regulatory Reform

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"SEC Judge Issues Initial Decision Regarding Chinese Affiliates of the Big Four Accounting Firms"

On January 22, 2014, U.S. Securities and Exchange Commission Administrative Law Judge Cameron Elliot (the ALJ) issued an initial decision censuring the Chinese accounting firms affiliated with Ernst & Young LLP, KPMG LLP…more

Auditors, Audits, China, CSRC, Deloitte

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"European Court Rejects UK’s Financial Transaction Tax Challenge"

U.K.’s challenge to the proposed financial transaction tax (FTT), while recognizing that the U.K.’s challenge was precautionary — and possibly premature. The U.K. was challenging the European Council’s Decision 2013/52/EU…more

European Commission, Financial Transaction Tax, UK

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"OFAC and German Foreign Trade Regulations: Underwriters Attempt to Square the Circle"

When negotiating underwriting and purchase agreements for securities offerings by German issuers, legal advisers face conflicting requirements under U.S. economic sanctions laws administered by the Office of Foreign Assets…more

EU, OFAC, Trade Policy, Underwriting

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"Supreme Court Holds That Bankruptcy Courts May Report and Recommend on Stern Claims"

On June 9, 2014, the United States Supreme Court issued its highly anticipated ruling in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency, Inc.). The Bellingham decision clarifies one of the…more

Article III, Chapter 7, Commercial Bankruptcy, EBIA v Arkison, Executive Benefits Insurance Agency

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"Shareholder Activism in the US Banking Industry"

Although the 2012 and 2013 proxy seasons saw increased (and highly publicized) shareholder activism across a range of industries, that trend has not yet made its way to the U.S. banking industry. Over the last two proxy seasons,…more

Executive Compensation, ISS, Say-on-Pay, Shareholder Activism, Shareholder Litigation

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"Federal Reserve Proposes Bank Liquidity Requirements That Exceed the Basel III Standard"

The Federal Reserve Board (Board) yesterday approved a proposed rule requiring larger U.S. banking organizations maintain liquid assets in an amount sufficient to meet the liquidity requirements determined under the rule,…more

Banks, Basel III, Federal Reserve, Liquidity Coverage Ratio

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"FTC Continues Vigorous Section 5 Enforcement"

On July 21, 2014, the Federal Trade Commission (FTC or Commission) accepted a consent agreement, subject to final approval, to settle charges with two Internet resellers of Universal Product Code (UPC) barcodes accused of…more

Consent Agreements, Enforcement, Enforcement Actions, FTC, Internet

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"Latest Swiss Cross-Border Tax Investigation Reflects Wider US Enforcement Agenda"

Authorities in the U.S. continue to crack down on foreign financial institutions that have allegedly aided U.S. taxpayers in evading their tax obligations. On May 19, 2014, Credit Suisse AG pled guilty to conspiracy to aid and…more

Banks, Corporate Criminal Fines, Credit Suisse, Cross-Border, DOJ

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"Court Finds CFIUS Violated Ralls Corporation’s Due Process Rights"

On July 15, 2014, the United States Court of Appeals for the District of Columbia remanded Ralls Corporation’s (Ralls) precedent-setting case against the Committee on Foreign Investment in the United States (CFIUS or the…more

Appeals, Barack Obama, CFIUS, Defense Production Act, Due Process

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"Structured Finance Alert: SEC Adopts Final Regulation AB II Rules"

On August 27, 2014, the Securities and Exchange Commission ("SEC") adopted final rules ("ABS Final Rules") that significantly revise the existing regulations that govern disclosure requirements, offering processes and periodic…more

Amended Regulation, Asset-Backed Securities, Disclosure Requirements, Dodd-Frank, Final Rules

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"First-Half Activity Energizes US Capital Markets in 2014"

The U.S. equity and debt markets experienced a strong first half of the year. In the first quarter, the U.S. IPO market was the busiest since 2000, more than doubling the number of IPOs from the same period last year…more

Acquisitions, Bonds, Capital Markets, Debt Securities, Federal Reserve

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"Supreme Court Holds No Presumption of Prudence for ESOP Fiduciaries"

Today, in a unanimous decision, the Supreme Court of the United States held in Fifth Third Bancorp v. Dudenhoeffer that fiduciaries of employee stock ownership plans (ESOPs) that invest in the employer’s securities are not…more

Duty of Prudence, Employee Benefits, ERISA, ESOP, Fiduciary Duty

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"Entering a New Regulatory Era Under the Final Volcker Rule"

In December 2013, five U.S. financial regulatory agencies adopted final regulations to implement the Volcker Rule. As expressed in the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule generally…more

Banks, Collateralized Debt Obligations, Dodd-Frank, FDIC, Proprietary Trading

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"Alternative Transaction Structures: The 'New Normal' in Volatile German Capital Markets"

During the past two years the European equity capital markets have shown clear signs of recovery. However, these markets continue to experience more volatility than before the global financial crisis. Virtually every market…more

Block Trades, EU, Foreign Investment, Investors, IPO

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"The Increasing Appeal and Novel Use of Bilateral Investment Treaties"

Over the last 20 years, bilateral investment treaties (BITs) have provided foreign investors with basic safeguards against expropriation and related risks and guarantee the right to bring claims before a neutral arbitral…more

Arbitration, Bilateral Investment Treaties, Expropriation, Foreign Investment, ICSID

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"Supreme Court Clarifies Standard to Challenge IRS Summons"

On June 19, 2014, the U.S. Supreme Court in United States v. Clarke1 held that a taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing an administrative summons when the taxpayer…more

Bad Faith, Document Requests, IRS, Request For Information, SCOTUS

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"US Supreme Court Cases to Watch in 2014"

The U.S. Supreme Court will rule on numerous significant cases in 2014, involving such issues as presidential power, affirmative action, campaign contributions, environmental regulations, intellectual property, commercial…more

Affirmative Action, Affordable Care Act, Alice Corporation, Atlantic Marine Construction Company, BG Group v Republic of Argentina

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"Delaware Court of Chancery Recognizes Potential Benefits of Shareholder Rights Plans in Addressing Shareholder Activism"

William F. Ruprecht, et al., and Sotheby’s, which, in essence, recognized that a board of directors could adopt a shareholder rights plan as a reasonable response to a threat posed by an activist shareholder…more

Board of Directors, Corporate Governance, Shareholder Activism, Shareholder Litigation, Shareholders

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"Supreme Court Rules Aereo’s Streaming Service Violates Copyright Law"

In a case closely watched by the television, cable and online content industries, the Supreme Court ruled today that online start-up Aereo Inc. violates copyright law by redistributing over-the-air broadcast content without…more

Aereo, Broadcasting, Copyright, Copyright Infringement, Popular

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"Antitrust and Competition: Nonmerger Enforcement Activity Heats Up on Both Sides of the Atlantic"

U.S. and European antitrust agencies had similar enforcement priorities last year, a trend we expect to continue in 2014. Nonmerger enforcement will continue to focus on intellectual property, financial services and…more

Anticompetitive Agreements, Antitrust Conspiracies, Antitrust Investigations, Antitrust Litigation, Class Action

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Employment Flash (June 2014)

In This Issue: - NLRB Recess Appointments Unconstitutional - SEC Brings First-Ever Employment Retaliation Claim - EEOC Challenges Employer Severance Agreements - New York State Transportation Industry…more

Affirmative Action, Barack Obama, CAFA, Canning v NLRB, Class Action Arbitration Waivers

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"FTC Seeks Comment on Collection of Information Relating to Patent Assertion Entities"

On September 27, 2013, the Federal Trade Commission announced that the four sitting Commissioners voted unanimously to seek public comments on a proposal to gather information to examine how patent assertion entities (PAEs) do…more

Corporate Governance, FTC, Patent Assertion Entities, Patent Portfolios, Patent Trolls

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"Department of Energy to Support Advanced Fossil Energy Projects"

On July 2, 2013, the U.S. Department of Energy (DOE) announced the release of a draft loan guarantee solicitation intended to support advanced fossil energy projects in the United States that avoid, reduce or sequester air…more

DOE, Energy, Energy Policy, Loans, Natural Resources

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"Will 2014 Be the ‘Year of the Foreign Private Issuer’?"

Experience in 2013 has shown that U.S. securities exchanges are once again becoming increasingly popular venues for listings by non-U.S. companies. The number of non-U.S. companies that conducted initial listings in the U.S. in…more

Compliance, Disclosure Requirements, Dodd-Frank, Emerging Growth Companies, Foreign Exchanges

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"ISDA and FIA Europe Publish Cleared Derivatives Execution Agreement"

On May 15, 2014, the International Swaps and Derivatives Association (ISDA) and the Futures Industry Association (FIA) Europe published the ISDA/FIA Europe Cleared Derivatives Execution Agreement (ISDA/FIA Europe CDEA)…more

Derivatives, EU, ISDA, Swaps

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Employment Flash (June 2014)

In This Issue: - NLRB Recess Appointments Unconstitutional - SEC Brings First-Ever Employment Retaliation Claim - EEOC Challenges Employer Severance Agreements - New York State Transportation Industry…more

Affirmative Action, Barack Obama, CAFA, Canning v NLRB, Class Action Arbitration Waivers

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"CFTC Further Extends Comment Periods on Position Limits Proposals"

The Commodity Futures Trading Commission (Commission or CFTC) has further extended the comment periods for its November 2013 proposal concerning position limits aggregation and its December 2013 proposal concerning position…more

CFTC, Commodities, Derivatives, Rulemaking Process

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"SEC Issues New Guidance for Investment Advisers Regarding Use of Social Media Testimonials"

On March 31, 2014, the Division of Investment Management (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued long-awaited guidance regarding investment advisers’ use of public commentaries on social…more

Internet, Internet Service Providers, Investment Adviser, SEC, Social Media

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"First-Half Activity Energizes US Capital Markets in 2014"

The U.S. equity and debt markets experienced a strong first half of the year. In the first quarter, the U.S. IPO market was the busiest since 2000, more than doubling the number of IPOs from the same period last year…more

Acquisitions, Bonds, Capital Markets, Debt Securities, Federal Reserve

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"New York State Implements Major Changes to Its Estate and Gift Taxes"

On April 1, 2014, New York Gov. Andrew M. Cuomo signed into law the Executive Budget for 2014-2015, which includes significant changes to the state’s estate and gift tax regimes, as well as changes to the income taxation of…more

Estate Planning, Estate Tax, Gift Tax

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"Supreme Court Relaxes Standards for Attorneys’ Fees in Highly Anticipated Decisions"

In companion decisions issued on April 29, 2014, the U.S. Supreme Court significantly relaxed the standard for an award of attorneys’ fees under 35 U.S.C. § 285. Octane Fitness, LLC v. ICON Health & Fitness, LLC, ___ U.S. ___…more

Attorney's Fees, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"Notice 2013-78: IRS Proposes Revisions to Competent Authority Process"

On November 22, 2013, the IRS issued Notice 2013-78, which contains draft Revenue Procedures applicable to requests for competent authority (CA) assistance. The IRS requested comments by March 10, 2014. The Revenue Procedure and…more

Double Taxation, Income Taxes, IRS, Revenue Procedure 2013-12, Tax Reform

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"New York State Issues RFP to Deploy $200 Million for Clean Energy Projects"

On February 5, the newly created New York State Green Bank issued its first request for proposals for clean energy projects in the state looking to access the Green Bank’s range of credit facilities…more

Clean Energy, Funding, Green Banks, Renewable Energy

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Proposals May Signal Direction of Future Tax Reform

After several years of hearings and forums intended to develop broad-based support for comprehensive tax reform, on February 26, 2014, House Ways and Means Committee Chairman David Camp (R-Mich.) released a draft tax reform…more

Accounting, Alternative Minimum Tax, Corporate Taxes, Debt Restructuring, Derivatives

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"BP's Settlement With DOJ: Lessons Learned Within the Congressional Investigations Arena"

On November 15, 2012, the U.S. Department of Justice announced that BP Exploration and Production Inc. (BP) has agreed to plead guilty to a 14-count criminal information and pay a record $4 billion in criminal fines and…more

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"Executive Compensation and Benefits Alert: Decision Clarifies That PE Funds Are Not Subject to 'Controlled Group' Liability"

Private equity funds (PE funds) and their advisors long have been concerned that a fund (or its other portfolio companies) may be liable for unfunded pension plan liabilities of one of its portfolio companies. However, in a…more

ERISA, Executive Compensation, PBGC, Private Equity Funds

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"US Supreme Court Further Limits Jurisdictional Reach of the US Courts Over Foreign Torts"

The U.S. Supreme Court began 2014 by issuing a decision limiting the ability of plaintiffs to assert tort claims against foreign corporations in the U.S. courts based on events occurring outside the United States. In Daimler AG…more

Alien Tort Statute, DaimlerChrysler v Bauman, Foreign Corporations, International Litigation, Jurisdiction

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"Intellectual Property and Global Business Strategies: Observations From the High-Tech Sector"

Encouraged by a combination of factors, particularly pressure on public companies to create value and increased convergence within a number of industries, strategic uses of intellectual property increasingly are top of mind…more

Asia, Business Assets, Business Development, Emerging Technology Companies, EU

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Delaware Supreme Court Establishes New Standard Of Review For Controlling Stockholder Going-Private Mergers

In a landmark decision issued this morning, the Delaware Supreme Court held for the first time in Kahn v. M&F Worldwide Corp. that the deferential business judgment standard of review should apply to a merger between a…more

Controlling Stockholders, Going-Private Transactions, Shareholders, Standard of Review

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"Exempt and Nonprofit Organizations Alert: New York Non-Profit Revitalization Act"

The Non-Profit Revitalization Act of 2013 (the Act) (S5845/A8072), which effects the first major overhaul of the New York Not-for-Profit Corporation Law (the NPCL) in four decades, will be signed into law by New York Governor…more

Audits, Board of Directors, Conflicts of Interest, Corporate Governance, Non-Profits

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"Exempt and Nonprofit Organizations Alert: IRS Addresses UBTI and Executive Compensation Issues"

IRS Addresses Issues of Unrelated Business Taxable Income and Executive Compensation in Colleges and Universities Compliance Project Report - On April 25, 2013, the Internal Revenue Service (IRS) released its Final Report…more

Business Taxes, Executive Compensation, Exempt Organizations, IRS

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"SEC Staff Issues Statement on Conflict Minerals Ruling"

The U.S. Securities and Exchange Commission’s Division of Corporation Finance issued a statement on the effect of a recent circuit court decision on the SEC’s conflict minerals rules. In an April 14 ruling, the U.S. Court of…more

Conflict Mineral Rules, First Amendment, SEC

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"Recent Developments in Tax Law: Impact on Corporate Tax Strategies in 2014"

Recent changes in IRS private letter ruling policy likely will result in greater taxpayer reliance on tax opinions, which may impact certain corporate strategies in the coming year. Tax-Free Spin-Offs - During…more

Corporate Taxes, Income Taxes, IRS, Private Letter Rulings, Privilege Waivers

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"Hong Kong Regulatory Update"

This Hong Kong regulatory update is intended to provide a brief overview of the principal Hong Kong regulatory developments in the preceding three months relevant to companies listed or proposed to be listed on The Stock…more

Enforcement Actions, Hong Kong, Hong Kong Stock Exchange, Securities

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"Exempt and Nonprofit Organizations Alert: New York Non-Profit Revitalization Act"

The Non-Profit Revitalization Act of 2013 (the Act) (S5845/A8072), which effects the first major overhaul of the New York Not-for-Profit Corporation Law (the NPCL) in four decades, will be signed into law by New York Governor…more

Audits, Board of Directors, Conflicts of Interest, Corporate Governance, Non-Profits

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"Fee-Shifting Bylaws: The Current State of Play"

As previously reported, on May 8, 2014, the Delaware Supreme Court issued an opinion in ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534,2013 (Del. May 8, 2014), holding that fee-shifting provisions…more

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"The Collateral Effects of Deferred Prosecution Agreements to Corporations in Subsequent Civil and Regulatory Actions"

Over the past decade, the deferred prosecution agreement (DPA) has become a standard tool of the U.S. Department of Justice. A DPA essentially is a contract between the DOJ and the target of an investigation — often a…more

Compliance, Corporate Counsel, Deferred Prosecution Agreements, DOJ, Enforcement Actions

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Delaware Supreme Court Establishes New Standard Of Review For Controlling Stockholder Going-Private Mergers

In a landmark decision issued this morning, the Delaware Supreme Court held for the first time in Kahn v. M&F Worldwide Corp. that the deferential business judgment standard of review should apply to a merger between a…more

Controlling Stockholders, Going-Private Transactions, Shareholders, Standard of Review

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"UK Regulators to be Given Power to Break Up UK Banks"

The U.K. Government recently published the Financial Services (Banking) Reform Bill (the “Bill”) which implements the key recommendations of the U.K.’s Independent Commission on Banking (the “ICB”). The ICB was established in…more

EU, Financial Conduct Authority, Investment Funds, Prudential Regulation Authority, Ring-Fencing

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"Eleventh Circuit Addresses Scope of FCPA Coverage of Activity Involving State-Controlled Business Enterprises"

On May 16, 2014, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit provided the first appellate court interpretation of the reach of the U.S. Foreign Corrupt Practices Act (FCPA) to conduct involving…more

Appeals, Controlled Foreign Corporations, DOJ, FCPA, Foreign Official

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"French Government Extends Its Veto Rights on Foreign Investments in Country’s Strategic Sectors"

On May 15, 2014, the French government published a decree extending its veto rights over foreign investments in French strategic sectors (the New Decree). The New Decree has been dubbed the “Alstom Decree” by the media, as it…more

Critical Infrastructure Sectors, EU, Foreign Investment, Veto Rights

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"Potential New Tax Planning Opportunities for Financially Distressed Pass-Through Entities"

In a decision issued last week, the U.S. Court of Appeals for the Third Circuit held that a debtor’s qualified subchapter S subsidiary (QSub) status is not property of the bankruptcy estate. The Third Circuit’s opinion appears…more

Automatic Stay, Chapter 11, Debtors, LLC, Pass-Through Entities

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"Executive Compensation and Benefits Alert: IRS Section 409A Audit Initiative May Signal Increased Enforcement Activity"

Since the adoption of Section 409A of the Internal Revenue Code, employers and practitioners have wondered when and how the IRS would enforce it. With the recent IRS announcement of an audit initiative with respect to Section…more

Audits, Employer Liability Issues, Employer Mandates, Employment Tax, Enforcement

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"Exempt and Nonprofit Organizations Alert: New York Non-Profit Revitalization Act"

The Non-Profit Revitalization Act of 2013 (the Act) (S5845/A8072), which effects the first major overhaul of the New York Not-for-Profit Corporation Law (the NPCL) in four decades, will be signed into law by New York Governor…more

Audits, Board of Directors, Conflicts of Interest, Corporate Governance, Non-Profits

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"Second Circuit Vacates Conviction Based on Off-Label Promotion, Deals Blow to Government Theory in Drug Marketing Cases"

In a much-anticipated opinion, the U.S. Court of Appeals for the Second Circuit vacated and remanded the conviction of Alfred Caronia, a former pharmaceutical sales representative convicted of conspiring to introduce a…more

Commercial Speech, Criminal Prosecution, FDCA, Free Speech, Healthcare

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"FTC Doubles Down in Challenge to Pharmaceutical Settlement"

On September 8, 2014, the Federal Trade Commission (FTC) filed a federal antitrust complaint in the United States District Court for the Eastern District of Pennsylvania against defendants AbbVie, Abbott Laboratories, Unimed…more

Abbott Laboratories, FTC, FTCA, Generic Drugs, Monopolization

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"At-the-Market Offerings Under the MJDS"

Given the recent volatility and uncertainty in the capital markets, many Canadian issuers, particularly those in the resources sector, are hesitant to commit to traditional, fully marketed follow-on public offerings due to…more

Canada, Issuers, MJDS, Public Offerings, SEC

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Privacy & Cybersecurity Update - August 2014

In This Issue: - NIST Announces October Workshop and Releases Framewok Update - Insurance Company Succeeds in