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Diversity in the Boardroom: Fifth Circuit Rejects Challenge to the SEC Nasdaq Board Diversity Rules; En Banc Petition Quickly...

The U.S. Court of Appeals for the Fifth Circuit (Court) recently rejected challenges to Nasdaq’s “Board Diversity” framework. Those rules require Nasdaq-listed companies to report that they have, or explain why they do not...more

SEC Adopts Amendments to Rules Governing Beneficial Ownership Reporting

On Oct. 10, the U.S. Securities and Exchange Commission (SEC) adopted amendments to the rules governing beneficial ownership reporting under Sections 13(d) and 13(g) of the Securities Exchange Act of 1934 (Exchange Act)....more

New York District Court Holds Late 13D Filing Can Lead to Private Damages Under Section 10(b)

On Sept. 29, 2023, Southern District of New York Judge Andrew L. Carter issued a decision denying Elon Musk’s motion to dismiss a securities fraud class action brought against him. The gravamen of the claim was that Musk...more

DOJ Announces New Mergers and Acquisitions Safe Harbor Policy for Voluntary Self-Disclosures

On Oct. 4, 2023, in remarks delivered to the Society of Corporate Compliance and Ethics’ 22nd Annual Compliance & Ethics Institute, Deputy Attorney General (AG) Lisa Monaco announced the Department of Justice’s (DOJ) new...more

Supreme Court Grants Certiorari to Resolve Circuit Split on Whether SEC Disclosure Rule Triggers Section 10(b) Liability

On Sept. 29, 2023, the U.S. Supreme Court granted certiorari in Macquarie Infrastructure Corp. v. Moab Partners, L.P. to review a decision by the Second Circuit reviving an investor lawsuit alleging Section 10(b) and Rule...more

Investment Adviser Settles SEC Enforcement Action Concerning Alleged Misstatements Regarding ESG Investment Process

On Sept. 25, 2023, the Securities and Exchange Commission announced settled charges against registered investment adviser DWS Investment Management Americas Inc. (DIMA), a Deutsche Bank investment arm, in an enforcement...more

US Senate Holds Hearing on Bipartisan AI Framework and Conducts First AI Insight Forum

As various foreign jurisdictions pursue legislation to address recent developments in artificial intelligence (AI), the U.S. Senate has followed suit in at least two developments this month. On Sept. 12, the Subcommittee...more

California Governor Sets Path Toward State Use and Regulation of AI

California Gov. Gavin Newsom signed an Executive Order (Order) on Sept. 6 aimed at preparing the state for the use and regulation of generative artificial intelligence (AI). Calling California the world leader in AI...more

China Enacts Groundbreaking Regulations To Vet Generative AI — Will Other Nations Follow Suit?

Some of the world’s earliest and most detailed governmental regulations for generative artificial intelligence (AI) just went into effect in China on Aug. 15. These “Generative AI Measures” are intended to balance state...more

SEC Finalizes New Cybersecurity Disclosure Rules

By a 3-2 vote on July 26, the U.S. Securities and Exchange Commission (SEC) adopted final rules enhancing disclosure requirements regarding public companies’ cybersecurity risk management, strategy, governance and incident...more

US and EU Finalize New Data Privacy Framework

On July 10, the European Union and the United States finalized the EU-U.S. Data Privacy Framework (DPF), an agreement that allows for the transfer of personal data from residents of the EU to certified companies in the U.S....more

Corporate Governance: 2023 Midyear Review

The public and private focus on corporate governance continued apace in the first half of 2023. In recent months, there were notable developments in jurisprudence potentially impacting corporate diversity initiatives and in...more

Supreme Court Grants Certiorari to Determine Constitutionality of SEC Administrative Law Process

On June 30, 2023, the Supreme Court granted certiorari in Securities and Exchange Commission v. Jarkesy to review a decision by the Fifth Circuit rejecting key aspects of the Securities and Exchange Commission’s (SEC or the...more

En Banc Panel of the Ninth Circuit Affirms Dismissal of Derivative Suit Based on Forum-Selection Clause

In a recent 6-5 ruling, an en banc panel of the Ninth Circuit affirmed the dismissal of a derivative suit asserting Exchange Act violations against The Gap, Inc. and its directors. The district court had dismissed the suit —...more

Supreme Court Unanimously Narrows Scope of Liability Under Section 11(a) of Securities Act of 1933

In Slack Technologies, LLC v. Pirani,1 the Supreme Court­­ on June 1, 2023, unanimously held that even in a case involving direct listing of both registered and unregistered securities, to state a claim under Section 11(a) of...more

Case Alert: AluminumSource, LLC v. LLFlex, LLC

A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on...more

SEC Amends Share Repurchase Disclosure Rules

On May 3, 2023, the Securities and Exchange Commission (SEC) adopted amendments to increase disclosures for issuer repurchases of shares or other equity securities that are registered under Section 12 of the Securities...more

Commerce Department to Penalize Failure to Voluntarily Self-Disclose Significant Export Violations

In concert with the Department of Justice’s (DOJ) focus on voluntary self-disclosure of corporate misconduct, as well as DOJ’s commitment to addressing sanctions evasion, export control violations and similar economic crimes,...more

Compliance With Forthcoming Biometric Laws in New York City

Two bills are scheduled to be introduced at the New York City (NYC) council meeting on April 27th that would amend NYC’s administrative code to more heavily regulate the collection and storage of biometric data by businesses...more

SCOTUS Unanimously Holds That Respondents in FTC and SEC Administrative Law Proceedings May Challenge the Constitutionality of...

On April 14, 2023, the Supreme Court issued a unanimous decision in two related cases, Axon Enterprise, Inc. v. FTC (No. 21-86) and SEC v. Cochran (No. 21-1239), holding that respondents may challenge the constitutionality of...more

Comparing the Six Comprehensive State Privacy Laws

Recently, Iowa became the sixth state to enact a comprehensive privacy law to protect personal data, joining California, Virginia, Colorado, Utah and Connecticut. Although privacy laws have existed in the U.S. for decades,...more

Wells Fargo Fined $97.8 Million for Failing to Identify Sanctions Violations From a Legacy Wachovia Business

On March 30, federal regulators announced that Wells Fargo Bank had entered into settlements in which it agreed to pay $97.8 million in fines for enabling sanctions violations between 2010 and 2015. In two separate...more

Delaware Chancery Court Finds CEO Violated Revlon Duties by Tilting Sale Process to Preferred Bidder and That the Bidder Aided and...

In a recent post-trial decision, Delaware Chancellor Kathaleen St. J. McCormick found a CEO personally liable for breaching his fiduciary duties for tilting the company’s sale to his preferred acquiror. The court further held...more

SEC Announces Enforcement Action for Misleading Non-GAAP Disclosures

The Securities and Exchange Commission (SEC) recently entered into a consent order with IT services company DXC Technology (DXC) with respect to DXC’s alleged violations of the Securities Act and the Exchange Act. The SEC...more

SEC Proposes Data Breach Notification and Incident Response Requirements

On March 15, 2023, the Securities and Exchange Commission (SEC) proposed three rule changes that demonstrate its continued focus on cybersecurity. One of these proposals, and the only one to be unanimously approved (the...more

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