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What is AI Washing? The SEC’s Latest Target

Is AI the new green? Recent comments by Securities and Exchange Commission Chair Gary Gensler suggest the regulator is primed to begin turning its enforcement efforts against so-called “AI washing,” presenting a new area of...more

Generic ESG Statements and Securities Class Actions: Goldman Sachs Secures Second Circuit Victory in Long-Running Class...

A three-judge panel for the US Court of Appeals for the Second Circuit reversed a district court’s class certification in the decade-long Arkansas Teacher Retirement System v. Goldman Sachs Group litigation regarding...more

Supreme Court Reaffirms Registering To Do Business May Subject You to Lawsuits

Last week the US Supreme Court reaffirmed the constitutionality of state laws requiring businesses to consent to lawsuits in the state after registering with state authorities to conduct business there. In Mallory v. Norfolk...more

Supreme Court Resolves Circuit Split Over 28 U.S.C. § 1782

On Monday, the Supreme Court resolved a circuit split and issued a long-awaited decision holding that broad U.S.-style discovery under 28 U.S.C. § 1782 is not available in private foreign arbitrations. In the past decade,...more

Update on Securities and Exchange Commission’s Landmark Proposed Climate- Change Disclosure Rulemaking

Things to Consider - Rulemaking - Coordinate closely with trades to ensure their comments reflect concrete information about impracticability and cost; these make a difference in the admin record upon judicial review...more

SEC Brings First Major ESG Enforcement Action

More than a year after creating its Climate and ESG Task Force in March 2021, the Securities and Exchange Commission’s ESG-related enforcement goals are finally being realized. The SEC recently brought a fraud action against...more

Litigation and Enforcement Impact of the SEC's Proposed Rules on Climate-Related Disclosure

The Securities and Exchange Commission’s Proposed Rules on Climate-Related Disclosure, released March 21, 2022, represent a significant change in public company disclosure requirements and, if adopted, will have far-reaching...more

Generic ESG Statements Remain Under Fire: Class Certification Granted for the Third Time as the Saga of the Goldman Sachs...

Back in June, we analyzed the Supreme Court’s decision in Goldman Sachs Group v. Arkansas Teacher Retirement System, which examined the extent to which a corporation’s arguably generic public statements could form the basis...more

Supreme Court's Ruling in Goldman Sachs Leaves Open a Path for Securities Fraud Claims Based on Generic ESG Statements

In April, we analyzed whether a corporation’s purely generic public statements on environmental, social and governance (“ESG”) issues could form the basis of a subsequent securities fraud action. At the time, we identified a...more

Reverse Veil-Piercing Endorsed by Delaware Chancery Court

A recent decision in the Delaware Chancery Court broadens the risk of inter-corporate liability by endorsing the theory of “reverse” veil-piercing, where a plaintiff can reach down to the assets of a parent company’s...more

Will Generic ESG Statements Lead to a Wave of Securities Litigation?

These days, it is commonplace for companies to commit to general concepts like “sustainability” or a “diverse workforce” in public statements and SEC disclosures. But when stock prices drop as a result of specific...more

Delaware Supreme Court Applies Delaware Law Even When Insured Is Headquartered Elsewhere

In a unanimous decision, the Delaware Supreme Court recently held that Delaware law applies to a D&O policy issued to a Delaware corporation, ruling that the place of incorporation outweighed other factors such as where the...more

SEC Underscores ESG Disclosure and Compliance Priorities

Since announcing the creation of its Climate and ESG Task Force on March 4, 2021, the Securities and Exchange Commission has continued to emphasize that environmental, social and governance (ESG) issues will take center stage...more

DOL Signals Plan to Embrace ESG Investing

On Wednesday, March 10, 2021, the Department of Labor announced that, pending further guidance, it will not enforce two recent regulations that many viewed as deterring retirement fund managers from socially conscious...more

New SEC Task Force Confirms Commitment to ESG Focus

A series of recent announcements by the SEC underscores the agency’s commitment—and allocation of resources—to its heightened focus on environmental, social and governance (“ESG”) issues. Significantly, on March 4, 2021, the...more

COVID, Climate Change and ESG – The Future of Disclosures, SEC Enforcement, and Securities Litigation

There can be no doubt 2021 is already shaping up to be a watershed year, including on the SEC enforcement and securities litigation fronts. Pressure from all directions has been coalescing to drive change in the way...more

PPP 2.0: Expanded Lending For New and Existing Borrowers

After months of stalled negotiations, Congress has passed sweeping new COVID-19 relief legislation that, among other things, revitalizes and revises the Paycheck Protection Program. The new legislation reopens the program to...more

New PPP Rules Governing M&A Transactions

The Small Business Administration issued long-awaited rules governing lender and borrower obligations when there is a change in ownership of an entity that has received a Paycheck Protection Program (“PPP”) loan. The new...more

PPP Reboot Likely to Include Second Round of Funding for Distressed Businesses

As Congress scrambles to craft the next phase of COVID-19 stimulus and relief legislation, both sides of the aisle appear to be in agreement on expanding the Paycheck Protection Program (PPP) to include more funds for small...more

Second Circuit Confirms U.S. Discovery Not Available in Private International Arbitrations

A ripening circuit split over the availability of U.S. discovery in foreign arbitration proceedings took another step toward a possible Supreme Court showdown with the July 8 decision by the United States Court of Appeals for...more

SBA Issues Fresh Guidance and Streamlined Forgiveness Application

On June 16, the Small Business Administration released an updated PPP Loan Forgiveness Application (SBA Form 3508) and a simplified version for certain eligible borrowers (SBA Form 3508EZ), both reflecting program changes...more

Major Changes Coming To PPP With Paycheck Protection Flexibility Act

The Paycheck Protection Program Flexibility Act (PPFA), passed by both houses as of June 3, makes significant changes to the Paycheck Protection Program affecting both new and existing loans, including reducing the amount of...more

New Rules Issued Clarifying PPP Loan Forgiveness, Lender Responsibilities and SBA Review

On May 22, the SBA and Treasury released two additional interim final rules (IFRs) on PPP loan forgiveness, providing specific guidance to borrowers and lenders regarding their responsibilities, as well as information on the...more

SBA Releases Long-Awaited PPP Forgiveness Application and Instructions

On May 15, the SBA and Treasury released the long-awaited PPP loan forgiveness application and related guidance, providing much-needed clarity and ending weeks of speculation about how borrowers will obtain loan forgiveness....more

SBA Revises Certification Rules: Safe Harbor for Loans Under $2 Million, Larger Loans Still Subject to Audit

The Small Business Administration has issued new guidance regarding the certification of necessity under the Paycheck Protection Program. Now, borrowers who received loans for less than $2 million -- roughly 98% of PPP loans...more

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