Author Info for Cadwalader, Wickersham & Taft LLP

Alireza Abedin

What's the Use (Clause)? July 2022 - Use Clauses and Sublet Provisions in Ground Leases

A ground lease is both a conveyance and a contractual agreement between a landlord (the ground lessor) and a tenant (the ground tenant) pursuant to which the ground lessor, as the fee owner of the real property, conveys a…more

Contract Terms, Ground Leases, Landlords, Leaseholds, Leases

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Calla Abrunzo

Stop! In the Name of Love…Err States’ Rights?

A recent decision by the United States District Court for the Northern District of New York (the “Court”) concluded that a federal court cannot prevent a state court foreclosure pursuant to the abstention doctrine set out by the…more

Abstention, Foreclosure, Jurisdiction, New York, Preliminary Injunctions

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Melis Acuner

European Restructuring and Distressed: 2022 in Review

Market overview - Few could have predicted the unexpected twists and turns 2022 would provide. A year in which the spectre of war came home to haunt Europe…more

Corporate Restructuring, Creditors, Debtors, EU, Insolvency

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Sai Ahluwalia

European Restructuring: 2024 in Review and Outlook for 2025

Market - overview Whilst Europe did not witness the flood of restructuring and insolvencies some had predicted at the start of the year, 2024 was a significant year nonetheless. Many commentators now predict an extended…more

Bankruptcy Court, Corporate Governance, Corporate Restructuring, Creditors, Debt Restructuring

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Michael Anglin

No Celebrations March 2022 - Understanding Future Advance Conditions

While some commercial real estate loans are fully funded at loan closing, others are funded in whole or in part through future advances. Some loans provide for future advances to fund tenant improvement work and leasing…more

Borrowers, Commercial Loans, Commercial Real Estate Contracts, Contract Terms, Lenders

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Joshua Apfelroth

SEC Adopts Amendments to Management’s Discussion and Analysis and Other Financial Disclosures

On November 19, 2020, the Securities and Exchange Commission adopted final amendments to the disclosure rules affecting Management’s Discussion and Analysis (MD&A) and related financial disclosures…more

Corporate Governance, Disclosure Requirements, Environmental Social & Governance (ESG), Financial Regulatory Reform, Financial Statements

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Suleida Arias

Going Green - February 2022 - Further Developments in Mezzanine Foreclosures

The New York State Supreme Court, County of New York (the “Court”) decided in Atlas Brookview Mezzanine LLC v. DB Brookview LLC, on November 18, 2021, that an accommodation pledge entered into in connection with a mortgage loan…more

Borrowers, Equity, Foreclosure, Loan Documentation, Loans

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Donny Ariel

District Court Holds That Receipt of Reorganized Stock Did Not Violate Turnover and Standstill Provisions in Intercreditor Agreement

On November 30, 2018, Judge Nelson S. Román of the United States District Court for the Southern District of New York issued a decision affirming the dismissal of certain claims brought by senior secured creditors against junior…more

Commercial Bankruptcy, Contract Terms, Debt Restructuring, Dismissals, Intercreditor Agreements

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Dorothy Auth Ph.D.

US Patent Office Launches Green Energy Award

On March 6, 2023, the U.S. Patent and Trademark Office (USPTO) announced the addition of a new category for its Patents for Humanity Awards Program: Green Energy. The Green Energy category accepts any U.S. patent or patent…more

Climate Action Plan, Climate Change, Energy Projects, Green Energy, Innovative Technology

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Jodi Avergun

FinCEN Slightly Adjusts Beneficial Ownership Reporting Deadlines After Fifth Circuit Court of Appeals Stays Texas Court’s Nationwide Injunction of the Corporate Transparency Act

The U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) granted the federal government’s motion and stayed enforcement of a lower court’s nationwide injunction against enforcement of the Corporate Transparency Act…more

Beneficial Owner, Business Entities, Business Ownership, Compliance, Corporate Transparency Act

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Ingrid Bagby

Johnson & Johnson’s “Red River” Bankruptcy Strategy Sinks on Third-Party Release Issues, Voting Irregularities—With Possible Implications for Future Mass Tort Bankruptcy Cases

Introduction - On March 31, 2025, Judge Christopher Lopez of the U.S. Bankruptcy Court for the Southern District of Texas denied confirmation of the prepackaged Chapter 11 plan of Johnson & Johnson (“J&J”) affiliate Red River…more

Bankruptcy Court, Bankruptcy Plans, Chapter 11, Dismissals, Harrington v Purdue Pharma L P

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Jonathan Bailyn

FinCEN Issues New Geographic Targeting Order for Shell Companies Purchasing High-End Residential Real Estate

In its latest effort to combat money laundering within the real estate sector, the Financial Crimes Enforcement Network (“FinCEN”) has issued a new Geographic Targeting Order (“GTO”) broadening its scrutiny of shell companies…more

Banking Sector, Beneficial Owner, BSA/AML, Financial Institutions, FinCEN

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Jayshree Balakrishnan

U.S. Lawmakers Urge DOJ to Investigate Oil and Gas Companies

On July 25, 2023, Representative Ted Lieu and 19 other Democratic lawmakers from the U.S. House of Representatives and Senate sent a letter to U.S. Attorney General Merrick Garland, requesting that the Department of Justice open…more

Air Pollution, Carbon Emissions, Climate Action Plan, Climate Change, Department of Justice (DOJ)

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James Bambury

COVID Decision of Interest

In a recent New York Court of Appeals opinion, the court found that business losses due to the COVID-19 pandemic were not covered under an “all-risk” commercial property insurance policy. In Consolidated Rest. Operations, Inc. v…more

Business Interruption, Business Losses, Commercial Insurance Policies, Coronavirus/COVID-19, Denial of Insurance Coverage

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Peter Bariso

Delaware Chancery Court Enforces Specific Performance and Forces Merger to Close

A recent decision of the Delaware Court of Chancery reinforces the importance of deal certainty, particularly when it comes to efforts-based covenants in merger agreements. In Desktop Metal Inc. v. Nano Dimension Ltd., the Court…more

Acquisitions, Breach of Contract, Business Litigation, CFIUS, Contract Disputes

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Cheryl Barnes

Third Circuit Decides Statutory Trusts Are Covered Persons: What This Means for the Securitization Market

On March 19, 2024, the Third Circuit handed down a decision that statutory trusts used as issuing entities for securitizations are considered “covered persons” for purposes of the Consumer Financial Protection Act ("CFPA"), in…more

Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Debt Collection, Financial Services Industry, Securitization

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Bryan Barreras

The FoHF Financing Playbook, May 2025 - FoHF Security

A lot of attention and press has been given to market volatility this year, including its impact on the fund finance industry. There is at least one sector of the fund finance industry that stands to benefit from this…more

Borrowers, Collateral, Financing, Hedge Funds, Investment Advisers Act of 1940

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Maurine Bartlett

SEC Adopts a Rule Prohibiting Conflicts of Interest in Certain Securitizations

On November 27, 2023, the Securities and Exchange Commission (the “Commission”) adopted Rule 192 under the Securities Act of 1933 (the “Securities Act”), a rule that is designed to prohibit “material conflicts of interest” in…more

Asset-Backed Securities, Conflicts of Interest, Dodd-Frank, Regulatory Reform, Securities and Exchange Commission (SEC)

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Sukhvir Basran

ESG in Fund Finance: The Next Phase April 2024 - ESG in Fund Finance

In the first of our series “ESG in Fund Finance” articles, we summarise and examine the recent publication “A Guide to the Application of Sustainability-linked Loan Principles in Fund Finance”…more

Environmental Social & Governance (ESG), Financial Institutions, Financial Services Industry, Investment Funds, Loans

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Angela Batterson

Friends Are All You Need, May 2025 - A Note to My Younger Self: Friends

Oh, the places you will go and the people you will meet! This work thing can be so all-consuming that your first years as an associate leave no room for much of anything (well, other than work). Then, you will make partner and…more

Career Development, Law Firm Associates, Law Firm Partners, Professional Development, Professional Networking

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Joseph Beach

Service, Sacrifice and the Rule of Law, May 2025 - A Veteran’s Voice in Law

For many Americans, Memorial Day marks the beginning of summer – neighborhood pools open, patriotic decorations ornament yards, and friends and family gather for barbeques and outdoor fun. Amidst the three-day weekend, it’s easy…more

Capital Markets, Career Development, Law School, Military Service Members, Private Equity

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Mark Beardsworth

UK Government Outlines Details of New Failure to Prevent Fraud Offence

On 11 April 2023, the UK Government announced that it has introduced a new “failure to prevent fraud” offence by way of an amendment to its draft Economic Crime and Corporate Transparency Bill (the “Economic Crime Bill”). Under…more

Anti-Corruption, Corporate Crimes, Fraud, Legislative Agendas, Proposed Legislation

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Suzanne Bell

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Ken Bergman

CFPB Funding Challenge: Supreme Court Appears Skeptical

On October 3, 2023, the U.S. Supreme Court heard oral argument in CFPB v. Community Financial Services Association of America to decide whether the CFPB’s funding structure violates the Constitution’s Appropriations Clause…more

Community Financial Services Association, Constitutional Challenges, Consumer Financial Protection Bureau (CFPB), Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd, Federal Funding

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Michael Bergmann

New SEC "Pay for Performance" Proxy Disclosure Rules Will Require Significant Advance Planning and Effort

More than twelve years ago, the Dodd-Frank legislation directed the SEC to issue a rule that requires issuers to provide, among other things, information that shows “the relationship between executive compensation actually paid…more

CD&A, Compensation & Benefits, Disclosure Requirements, Dodd-Frank, Executive Compensation

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Elena Bernal

COVID-19 Update: European Commission Proposes Changes to the Securitisation Regulation in Response to COVID-19

On 24 July 2020, the European Commission (the “Commission”) published its proposed amendments to the current securitisation framework set out in Regulation (EU) 2017/2402 (the “Securitisation Regulation”)…more

Asset-Backed Securities, Coronavirus/COVID-19, Economic Growth, EU, European Commission

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Dean Berry

FinCEN Releases New Corporate Transparency Act Rule Exempting U.S. Entities and U.S. Beneficial Owners

On March 21, 2025, the Financial Crimes Enforcement Network (“FinCEN”) released a new interim final rule that exempts U.S. entities and U.S. beneficial owners from the reporting requirements of the Corporate Transparency Act…more

Beneficial Owner, Business Entities, Business Ownership, Corporate Transparency Act, Filing Deadlines

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Cassandra Best

SMArt Due Diligence - April 2022 | Issue No. 171 - Due Diligence on Public Funds in Funds-of-One

Fund Finance Friday has previously reported on the continuous rise of public pension money in private equity. Generally, such investments are made in commingled funds with a diversified group of investors, but we also commonly…more

Due Diligence, Employee Benefits, Investment, Investment Funds, Lenders

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Victor Bieger

Blasius Is Alive and Well in Delaware: Delaware Supreme Court Chides Chancery for Turning Away Stockholder’s Claims Without Considering Whether Board’s Interference with Stockholder Vote Triggered Blasius’s Compelling Justification Test

Despite being one of the more well-known doctrines in corporate law, the rule articulated in Blasius—that directors who act with the primary purpose of interfering with a stockholder vote must have a compelling justification for…more

Board of Directors, Business Disputes, Contested Elections, Corporate Deadlock, Corporate Governance

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George Billinson

FERC Addresses Effects of Tax Cuts on Jurisdictional Rates and Disallows Income Tax Component in MLP-Owned Partnership Pipeline Cost-of-Service Rates

On March 15, 2018, the Federal Energy Regulatory Commission (“FERC”) issued an order on remand disallowing an income tax component in cost-of-service rates charged by an interstate oil pipeline owned by a master limited…more

Corporate Taxes, Energy Sector, FERC, Income Taxes, Master Limited Partnerships

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Adam Blakemore

The New UK Reserved Investor Fund: RIFs and QAHCs Create an Ambitious UK Structuring Toolkit

Introduction - After a long gestation, the much heralded new UK fund structure, the Reserved Investor Fund (“RIF”) is finally expected to be available from 19 March 2025…more

Financial Conduct Authority (FCA), Financial Services Industry, Investment Funds, Investors, Private Equity Funds

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Todd Blanche

First Circuit Case Doesn’t Move the Line on the Future of State Authorized Sports Betting

The First Circuit’s recent decision in New Hampshire Lottery Commission v. Rosen holds that the Wire Act’s prohibitions on interstate activity apply only to sports betting, and not to all types of bets and wagers, such as online…more

Department of Justice (DOJ), Gambling, Interstate Commerce, Sports Betting, Sports Gambling

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Kathryn Borgeson

The Impact of In re 301 W N. Ave., LLC on the Enforcement of Bankruptcy-Remote Protections

Executive Summary - The recent decision In re 301 W N. Ave., LLC, 666 B.R. 583 (Bankr. N.D. Ill. 2025) represents a significant development at the intersection of corporate governance, commercial real estate, and bankruptcy…more

Bankruptcy Court, Commercial Bankruptcy, Commercial Real Estate Market, Contract Terms, Corporate Governance

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Alexander Botting

Navigating Transfers January 2025 - Investor Transfers: Lender Considerations in an Everchanging Fund Finance Market

Although transfers by investors of their interests in a fund have always been a feature of subscription / capital call facilities, as of late, there has been a palpable uptick in investor transfers and this trend is set to…more

Borrowers, Financial Institutions, Financing, Investment Funds, Investment Management

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Richard Brand

SEC Adopts Final Rules to Amend Beneficial Ownership Reporting Rules

On October 10, 2023, the SEC adopted rule amendments related to Section 13 beneficial ownership reporting rules (the “Final Rules”). In brief, the Final Rules accelerate the filing deadlines for Schedules 13D and 13G, provide…more

Beneficial Owner, Business Ownership, Corporate Counsel, Derivatives, Final Rules

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Nicholas Brandfon

Something Special, April 2021 | Issue No. 23 - Don’t Be Cruel: Appellate Division Upholds Waiver of Fiduciary Duties But Denies Motion to Dismiss Claim for Breach of Good Faith and Fair Dealing

Can contracting parties waive all common law fiduciary duties? That was one of the questions presented to the New York Supreme Court, Appellate Division, First Department (the “Court”) in 111 West 57th Investment LLC, on Behalf…more

Breach of Duty, Construction Project, Covenant of Good Faith and Fair Dealing, Delaware General Corporation Law, Fiduciary Duty

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Kenneth Breen

Supreme Court Excludes “Misleading” Statements from False Statement Liability in Thompson v. U.S.

In a unanimous decision issued on March 21, 2025, the Supreme Court in Thompson v. U.S. heightened the burden of proof for “false” statements under 18 U.S.C. § 1014, excluding “misleading” but true statements from liability…more

Criminal Prosecution, False Statements, FDIC, Financial Institutions, Loans

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Aaron Buchman

Supreme Court Refuses to Extend American Pipe Tolling to Successive Class Actions

On June 11, 2018, in China Agritech, Inc. v. Resh, the United States Supreme Court held that the American Pipe tolling doctrine, which suspends the running of the statute of limitations applicable to the claims of individual…more

Appeals, China Agritech Inc v Resh, Class Action, Class Certification, Class Members

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Susan Bumgardner

Family (Office) Affairs May 2025 - Family Office NAV Facilities

As Net Asset Value (“NAV”) credit facilities continue to grow in popularity, we have seen a steady increase in non-traditional borrowers utilizing NAV loans, including family office borrowers. The term “family office” is used to…more

Asset Management, Contract Terms, Credit Facilities, Family Offices, Guarantors

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David Burkholder

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Sara Bussiere

COP28 Update: Agreement Reached on Loss and Damage Fund

On November 30, 2023, the first day of COP28, nearly 190 countries finalized the terms for the framework of a loss and damage fund to assist developing countries to respond to harms caused by climate change. The fund was first…more

Climate Action Plan, Climate Change, COP, Developing Countries, Environmental Policies

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Jonathan Byrne-Leitch

Honey, do you think KYC is still open? September 2023 - The ABCs of KYC (accounts)

Subtly pivoting from the topic of collateral accounts, introduced in the August 25, 2023 Fund Finance Friday (“FFF”) article by Chad Stackhouse and Katie Clardy titled “Control or Control Agreement”, we will explore a few of the…more

Anti-Money Laundering, Financial Services Industry, Financing, Investment Funds, Know Your Customers

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Patrick Calves

Secondaries Shift, April 2025 - Secondaries Outlook: A Market All Grown Up

We are now more than a full quarter into 2025, and it has been a very busy start to the year for the CWT fund finance practice, thanks in part to a busy quarter for secondaries fund finance deals. This is on the back of an…more

Capital Markets, Financing, Investment Funds, Liquidity, Private Equity

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Robert Cannon

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Dillon Carlin

Delaware Supreme Court Enforces Partnership Agreement’s Unambiguous Exculpation Provision Waiving Fiduciary Duties and Presuming Good Faith When Relying on Advice of Counsel in Reversing $690 Million Damages Award to Minority Investors of Boardwalk Pipeline Partners LP

On December 19, 2022, Chief Justice Seitz issued an opinion for a unanimous Delaware Supreme Court, sitting en banc, reversing and remanding the Delaware Court of Chancery’s decision in Bandera Master Fund LP v. Boardwalk…more

Breach of Contract, Damages, DE Supreme Court, Delaware Revised Uniform Limited Partnership Act, Exculpatory Clauses

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Nicholas Caros

Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System: Supreme Court Vacates Class Certification Order in Decade-Long Class Action, Clarifying That Courts May Consider the Materiality of Alleged Misstatements in Applying Fraud-on-the-Market Presumption

On June 21, 2021, the United States Supreme Court issued a decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, vacating a decision of the Second Circuit that affirmed certification of a securities fraud…more

Arkansas Teacher Retirement System v Goldman Sachs Group, Basic v Levinson, Burden of Persuasion, Burden of Proof, Certiorari

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James Carroll

Agencies Propose Amendments Relaxing Capital Requirements for ADC Loans

On September 18, 2018, the three federal banking agencies – the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation – jointly announced a…more

Basel III, Capital Requirements, Carve Out Provisions, Economic Growth Regulatory Relief and Consumer Protection Act, Loans

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Xavier Caso

Contracts Clause Rears Its Powerful Head for a Landlord

In a recent case, 513 West 26th Realty LLC v. George Billis Galleries Inc., a New York Supreme Court addressed whether the COVID-era personal guaranty relief statute (the Guaranty Law) violated the Contracts Clause of the U.S…more

Breach of Contract, Commercial Leases, Constitutional Challenges, Contract Terms, Contracts Clause

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Gina Castellano

New Whistleblower Reward Schemes Would Dramatically Increase Enforcement Risk for UK Corporates and Regulated Firms

Quick read - It is all but inevitable that UK enforcement agencies will start paying for information about organisational misconduct. In the US, whistleblower reward schemes have generated tens of billions of dollars in…more

Compliance, Corporate Governance, Corporate Misconduct, Enforcement, Financial Conduct Authority (FCA)

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Victor Celis

“Half-Truths,” Not “Pure Omissions”: Supreme Court Limits Section 10(b) Claims Based on Item 303 Nondisclosure to Omissions That Render Affirmative Statements Misleading

On April 12, 2024, a unanimous U.S. Supreme Court issued an opinion in Macquarie Infrastructure Corp. v. Moab Partners, L.P., vacating a Second Circuit judgment that had reinstated claims under Section 10(b) of the Securities…more

Disclosure Requirements, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Rule 10(b), SCOTUS

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Holly Marcille Chamberlain

COVID-19 Update: Continued HOPE of a New Commercial Real Estate Preferred Equity Facility

U.S. Representatives Van Taylor (R-TX) and Al Lawson (D-FL) introduced a bipartisan bill this week that would require the Department of the Treasury (the “Treasury”) to establish and administer a facility to guarantee certain…more

Borrowers, Coronavirus/COVID-19, Eligibility, Equity Investors, Financial Institutions

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Hugo Chan

UK Budget 2023 – Key Tax Measures Impacting Real Estate

The Chancellor of the Exchequer delivered the United Kingdom (“UK”) Budget for 2023 on 15 March 2023. The Budget was delivered against a backdrop of some familiar political headwinds, caused by the lengthy shockwaves of the…more

Budgets, Carried Interest Tax Rates, Holding Companies, Real Estate Market, REIT

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Shruti Chandhok

The UK Serious Fraud Office’s Extraterritorial Powers Are Clarified

After three years of uncertainty over the Serious Fraud Office’s (“SFO”) powers to obtain documents located overseas, the UK Supreme Court has clarified the extraterritorial effect of the legislation facilitating that power…more

Anti-Corruption, Comity, Criminal Investigations, Document Productions, Enforcement Actions

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Ailsa Chau

CFPB Suit Against Student Loan Trusts Dismissed

On March 26, 2021, Judge Maryellen Noreika of the U.S. District Court for the District of Delaware dismissed a lawsuit brought by the Consumer Financial Protection Bureau (“CFPB”) in Consumer Financial Protection Bureau v. The…more

Civil Investigation Demand, Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Covered Person, Debt Collection

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Fiona Cheng

Getting All Your ‘Lux’ in a Row – a Lender Checklist!

Every deal has its quirks but, as anyone who has done a deal with a Lux entity will know, the EU brings its own set of regulatory considerations to the table (primarily AIFMD). In many cases when compared with parallel Delaware…more

AIFM, Capital Markets, EU, Financial Services Industry, Investment Funds

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Rachel Chiger

An Overview of the ISDA IBOR Fallbacks Supplement and Protocol

On October 23, 2020, the International Swaps and Derivatives Association, Inc. (“ISDA”) published (1) the ISDA 2020 IBOR Fallbacks Protocol (the “Protocol”) and (2) a supplement to the 2006 ISDA Definitions that adds new IBOR…more

Derivatives, Financial Conduct Authority (FCA), IBOR Fallbacks Supplement (Supplement), Inter-Bank Offered Rates (IBORs), Interest Rates

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Danyeale Chung

Support and Delegation: The Art of Juggling - Parenthood and Big Law

As many already know, I recently returned to the office after taking parental leave to be home with my baby girl. In my first Fund Finance Friday article since returning from leave, I would like to take this opportunity to…more

Career Development, Law Firm Associates, Law Firm Partners, Maternity Leave, Parental Leave

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Kaitlin Clardy

Behind the Scenes August 2024 - Conditions Precedent: Borrower Deliverables

The credit agreement for a subscription credit facility will list several conditions precedent that are required prior to the credit agreement becoming effective and/or the first extension of credit occurring thereunder…more

Borrowers, Credit Agreements, Credit Facilities, Financial Services Industry, Financing

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Jeffrey Clark

New Whistleblower Reward Schemes Would Dramatically Increase Enforcement Risk for UK Corporates and Regulated Firms

Quick read - It is all but inevitable that UK enforcement agencies will start paying for information about organisational misconduct. In the US, whistleblower reward schemes have generated tens of billions of dollars in…more

Compliance, Corporate Governance, Corporate Misconduct, Enforcement, Financial Conduct Authority (FCA)

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Laurence Sappa Cohen

Springing into Q2 April 2023 - FFF Sovereign Immunity Series – Part VIII: England & Wales

For our eighth installment in the FFF Sovereign Immunity Series, we consider the doctrine of sovereign immunity in England & Wales. We begin with our usual disclaimer that sovereign immunity is a complex legal and tax…more

Borrowers, Consumer Financial Products, Credit Facilities, Enforcement Actions, Financial Services Industry

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Dash Cole

The Defend Trade Secrets Act: Significant Recent Changes to Intellectual Property Law May Provide New Avenues for Protecting Potentially Unpatentable Critical Discoveries

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (“DTSA”), marking one of largest changes to intellectual property law since the America Invents Act of 2011. This legislation will allow companies to…more

Asset Seizure, CLS Bank v Alice Corp, Defend Trade Secrets Act (DTSA), Economic Espionage Act, Ex Parte

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Alexander Collins

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Annika Conrad

Blasius Is Alive and Well in Delaware: Delaware Supreme Court Chides Chancery for Turning Away Stockholder’s Claims Without Considering Whether Board’s Interference with Stockholder Vote Triggered Blasius’s Compelling Justification Test

Despite being one of the more well-known doctrines in corporate law, the rule articulated in Blasius—that directors who act with the primary purpose of interfering with a stockholder vote must have a compelling justification for…more

Board of Directors, Business Disputes, Contested Elections, Corporate Deadlock, Corporate Governance

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Nikita Cotton

Rules in Motion, May 2025 - IOSCO Publishes Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices

On May 19, 2025, the International Organization of Securities Commissions (“IOSCO”) published its Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices (the “Reports”), as part of its…more

Consumer Protection Laws, Digital Assets, FinTech, Influencers, IOSCO

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Christopher Cox

SEC Adopts Final Rules for Disclosure of Hedging Policies

The U.S. Securities and Exchange Commission (the “SEC”) approved a final rule on December 18, 2018 implementing Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)…more

CD&A, Disclosure Requirements, Dodd-Frank, Final Rules, Financial Transactions

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Jeremy Cross

European Fund Finance Market Update

On October 11, 2017, the Fund Finance Association (the “FFA”) hosted its 3rd Annual European Fund Finance Symposium (the “Conference”) at the Landmark Hotel in London. Forty-two market participants sponsored the Conference and…more

Banking Sector, Credit Facilities, EU, Financial Markets, Financing

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Thomas Curtin

“ToMAYto, ToMAHto”: District Court Holds That Differences in State Law Determine Whether Unpaid Annual Pension Contributions Establish “Insolvency” for Chapter 9 Eligibility Purposes

On March 21, 2025, the U.S. District Court for the Northern District of California affirmed a bankruptcy court’s dismissal of the San Benito Healthcare District’s chapter 9 bankruptcy petition on the grounds that the district’s…more

Appeals, Bankruptcy Code, Bankruptcy Court, California, Chapter 9

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Audrey Curtis

Corwin Cleansing Denied Again: Delaware Court of Chancery Green Lights Claims Alleging Loyalty Breaches Tainting Company Sales Process in In re Pattern Energy Group Inc. Stockholders Litigation

On May 6, 2021, Vice Chancellor Zurn of the Delaware Court of Chancery issued a 200-page decision denying a motion to dismiss in In re Pattern Energy Group Inc. Stockholders Litigation, a class action challenging the $6.1…more

Business Litigation, Class Action, Controlling Stockholders, Corporate Sales Transactions, Duty of Loyalty

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Sophie Cuthbertson

The CFPB and NCSLT TRUSTS Saga: Movement on the Third Circuit Case and a Second CFPB Enforcement Action

As we reported in our Client and Friends memo last month, the Third Circuit published an opinion on March 19th finding that statutory trusts such as those that make up the National Collegiate Student Loan Trusts (the “NCSLT…more

Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Statutory Interpretation, Statutory Trusts

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Assia Damianova

NatWest Derivatives Judgement

A recent High Court judgment in a case where NatWest won a claim against CMIS arising under derivative transactions raises several issues of law with practical implications for the structuring of complex finance deals. Notably,…more

Banking Sector, Contract Interpretation, Derivatives, Financial Institutions, Financial Services Industry

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Spencer Davies

Moving into May - April 2023: FFF Sovereign Immunity Series – Part IX

Today we release the ninth installment of our Sovereign Immunity Series. In this installment we cover Oklahoma, Oregon, Pennsylvania, Rhode Island and South Carolina to give you a high-level overview of sovereign immunity in…more

Contract Disputes, Eleventh Amendment, Financing, Investment, Investment Funds

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Alicia Davis

See You in September August 2021 - There Was No 'Gap' in the Lease Language: COVID Is Not a Casualty

On June 29, 2021, in The Gap, Inc. v. 170 Broadway Retail Owner, LLC, the New York Appellate Division, First Department, overturned an earlier decision by the New York Supreme Court and issued a decisive victory to commercial…more

Business Interruption, Commercial Leases, Commercial Property Owners, Commercial Tenants, Contract Terms

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Stephen Day

Next Steps in the Proposed Replacement of the UK Securitisation Regulation

Background - Following closely behind the consultation paper from the Prudential Regulation Authority (“PRA”) (for more discussion see our briefing of 1 August), the UK’s Financial Conduct Authority (“FCA”) has published its…more

Financial Conduct Authority (FCA), Prudential Regulation Authority (PRA), Securitization Market, Securitization Standards, UK

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Anthony De Leo

No, You’re a Customer: Recent Second Circuit Decision Circumscribes Merit and Preempts State Law Impairment of Safe Harbor Protections in the Wake of a Failed LBO

On December 19, 2019, the United States Court of Appeals for the Second Circuit (the “Second Circuit”) affirmed a ruling of the United States District Court for the Southern District of New York (the “District Court”) dismissing…more

Acquisitions, Appeals, Bankruptcy Code, Chapter 11, Clearing Agencies

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Johan de Wet

Controlling Cash March 2024 - Cash Control Event: Lender and Borrower Considerations

Our readers have been blessed with wonderful Fund Finance Friday articles dealing with the maintenance of collateral accounts in 'When Deposits Don’t Travel with Loans', control over collateral accounts in 'Control or Control…more

Borrowers, Collateral, Credit Agreements, Financial Services Industry, Financing

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Paolo Del Val

August Changes to Fund Distribution in the EEA

This week sees the introduction of significant changes to the rules and regulations governing the marketing of alternative investment funds (“AIFs”) to investors in the Member States of the European Economic Area (the “EEA”)…more

AIFM, Alternative Investment Fund Managers Directive (AIFMD), Alternative Investment Funds, Asset Management, Cross-Border

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Morgan Dennis

What You Should Know Up Front July 2023 - Considerations for Administrative Agents ‘Fronting’ Funds

When a borrower submits a request for borrowing in a syndicated credit facility, each lender in the lending group is generally obligated to make its pro rata share of the borrowing available to the administrative agent by a…more

Borrowers, Consumer Financial Products, Credit Agreements, Financial Services Industry, Lenders

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Kyle DeYoung

A New Year’s Booster Shot: Congress Grants the SEC a Statutory Disgorgement Remedy and Extended Statute of Limitations

Congress opened 2021 by overturning one of President Trump’s vetoes for the first time. By large bipartisan majorities, the House and Senate overturned a presidential veto and enacted the 2021 National Defense Authorization Act…more

Disgorgement, Enforcement Actions, Enforcement Authority, Kokesh v SEC, Liu v Securities and Exchange Commission

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Camillo Di Donato

Bond Traders Face Ban for Market Abuse in the UK

The Financial Conduct Authority (“FCA”) has banned and fined three bond traders for placing large-sized orders for future contracts in relation to Italian government bonds that they did not intend to execute, while concurrently…more

Bond Markets, Bond Traders, Bonds, Enforcement Actions, Financial Conduct Authority (FCA)

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Christopher Dickson

A Quick Take on a Sudden Change in the Banking Landscape

A lot of ink has been spilled in the last 72 hours regarding the historic developments involving Silicon Valley Bank and Signature Bank. Our quick summary of the facts and law is below. Cadwalader will continue to monitor these…more

Deposit Accounts, Deposit Insurance, Depository Institutions, Enforcement Actions, FDIC

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Robert DiNardo

IOSCO’s Proposed Guidance on Pre-Hedging Practices

On November 21, 2024, International Organization of Securities Commissions (“IOSCO”) published a consultation report (the “Report”) to provide guidance on acceptable pre-hedging practices and soliciting feedback from market…more

CFTC, Commodity Exchange Act (CEA), Consultation Papers, Derivatives, Financial Markets

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Meghan Dobbins

Summertime Reflections July 2023 - FFF Sovereign Immunity Series – Part XII

Today we release the twelfth – and penultimate – installment of our Sovereign Immunity Series. In this part, we discuss and provide a high-level overview of how sovereign immunity is viewed specifically through the lens of fund…more

Eleventh Amendment, Rules of Civil Procedure, Sovereign Immunity, VT Supreme Court, Waivers

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Peter Dodson

The New Normal? June 2021 - The Importance of Springing Members

Springing Members are a tool that a structured finance Lender can use to reduce the risk that a Borrower will dissolve under state law. Under most state laws, an LLC that does not have at least one member will dissolve…more

Borrowers, Dissolution, Lenders, Limited Liability Company (LLC), LLC Agreements

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Irina Dolinskiy

SEC Issues Updated Guidance for Nonpublic Review of Draft Registration Statements

On March 3, 2025, the staff of the SEC’s Division of Corporation Finance announced that it is expanding the accommodations available for issuers that submit draft registration statements for nonpublic review…more

Capital Markets, Filing Requirements, Initial Public Offering (IPO), New Guidance, Regulation S-K

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Matthew Dolloff

SEC Proposes Amendments to Modernize Disclosure Requirements

The Securities and Exchange Commission has proposed amendments to the business description, legal proceedings and risk factor disclosures required by registered companies in annual and quarterly reports and registration…more

Annual Reports, Deregulation, Disclosure Requirements, Financial Regulatory Reform, Financial Statements

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Chelsea Donenfeld

Delaware Court of Chancery Strictly Interprets Merger Agreement in Finding That Rent-A-Center, Inc. Properly Terminated Its Proposed Merger with Vintage Rodeo

In Vintage Rodeo Parent, LLC v. Rent-A-Center, Inc., C.A. No. 2018-0928-SG (Del. Ch. Mar. 14, 2019), Vice Chancellor Glasscock of the Delaware Court of Chancery found that Rent-A-Center, Inc. (“Rent-A-Center”) properly…more

Buyouts, Contract Interpretation, Contract Termination, Corporate Counsel, Drop-Dead Rule

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John Donnelly

Striking a Balance January 2025 - Getting the Balance Right – Lender Controls Over Eligible Investments in NAV Facilities

Introduction - NAV facilities operate by taking a portfolio of assets owned by a borrower and selecting which assets within that portfolio a lender is willing to lend against. This pool of approved assets becomes the…more

Asset Management, Financial Institutions, Financial Services Industry, Investment, Investment Portfolios

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J. Robert Duncan

COVID-19 Update: CFPB Announces New Supervisory and Enforcement Priorities in Light of COVID-19 Pandemic

On July 16, 2020, the Consumer Financial Protection Bureau (“CFPB”) hosted a webinar outlining, for the first time, the CFPB’s supervisory and enforcement priorities in light of the coronavirus pandemic…more

CARES Act, Consumer Financial Protection Bureau (CFPB), Coronavirus/COVID-19, ECOA, Enforcement Guidance

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Matthew Duncan

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Emily Dworkin

SEC Approves Nasdaq Corporate Governance Rule Amendments to Cure Periods and Phase-In Schedules

On August 26, 2024, the U.S. Securities and Exchange Commission (SEC) issued an order approving proposed amendments by The Nasdaq Stock Market LLC (Nasdaq) to clarify and modify the phase-in schedules for certain corporate…more

Corporate Governance, Initial Public Offering (IPO), Nasdaq, Publicly-Traded Companies, Securities

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Leah Edelboim

Location, Location, Location! December 2024 - Questions and Answers on Capital Call Securitization – An Idea Whose Time Is Now

Securitization of sublines continues to be the hottest of hot topics in fund finance. Whether it could be done, how to do it, and how to overcome certain real and perceived challenges were topics of countless articles and…more

Capital Markets, Financial Markets, Financial Services Industry, Financing, Loans

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Caleb Eiland

All Along the Watchtower: Awaiting the Ruling on FAPA’s Retroactive Reach

In a recent case, E. Fork Funding LLC v. U.S. Bank, Nat’l Ass’n, the United States Court of Appeals for the Second Circuit has certified a novel question for the New York Court of Appeals ("NYCOA"): Whether Sections 4 and/or 8…more

Debt, Foreclosure, Mortgage Lenders, Mortgages, New York

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Mark Ellenberg

What’s in a Name? Court Holds That Despite Its Title, a Security Agreement Also Subordinated Junior Creditor’s Rights to Payment

On October 29, 2021, Judge Laura Taylor Swain, the presiding judge in the Puerto Rico bankruptcy case, ruled that approximately $2 billion in intragovernmental loan claims were subordinated to bonds issued by the Puerto Rico…more

Bonds, Commercial Bankruptcy, Contract Terms, Loan Agreements, Puerto Rico

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Michael Ena

IOSCO’s Proposed Guidance on Pre-Hedging Practices

On November 21, 2024, International Organization of Securities Commissions (“IOSCO”) published a consultation report (the “Report”) to provide guidance on acceptable pre-hedging practices and soliciting feedback from market…more

CFTC, Commodity Exchange Act (CEA), Consultation Papers, Derivatives, Financial Markets

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Edward Ernst

SEC Staff Issues New Guidance Regarding Schedule 13D/G

On February 11, 2025, the SEC staff published updates to two Compliance and Disclosure Interpretations (C&DIs) regarding the availability of Schedule 13G to certain investors, specifically concerning activities that could…more

Compliance, Disclosure Requirements, Filing Requirements, Investors, Reporting Requirements

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Melissa Farber

In Depth: Dissecting the Real Estate, Structured Finance and Financial Services Industries' Comment Letters on the SEC’s Climate Disclosure Proposal

By the time the comment period closed on June 17, 2022, the SEC had received thousands of comment letters from the public in response to the SEC’s proposed climate disclosure rules (the “Proposal”), which is perhaps the most…more

American Bankers Association, Climate Change, Corporate Governance, Corporate Social Responsibility, CREFC

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Emma Farrow

Recent Amendments to English Civil Procedure Help Simplify the Issuance of Contractual Claims Against Foreign Defendants—Service of Process Pursuant to CPR 6.33(2B)

On 6 April 2021, an amendment was introduced to the Civil Procedure Rules 1998 (S.I. 1998/3132) (the “CPR”) at Part 6 concerning service out of the jurisdiction. The change is of interest where at least one or more international…more

Business Litigation, Choice of Court Agreements Treaty, Contract Disputes, Foreign Corporations, Jurisdiction

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James Fee

Delaware Court Of Chancery Finds Director Breaches of Fiduciary Duty and Aiding and Abetting Liability for Activist Investor in Shareholder Class Action Suit

On October 16, 2018, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued a post-trial opinion in In re PLX Technology Inc. Stockholder Litigation, a dispute arising from the August 2014 merger between PLX…more

Activist Investors, Aiding and Abetting, Appeals, Board of Directors, Breach of Duty

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Matthew Feig

Cat Bond Update: Florida Assignment of Benefits

On April 24, 2019, the Florida Legislature passed a bill (the “Act”) to reform the requirements for the assignment of benefits of claims for residential and commercial property insurance. The Act is expected to become law…more

Assignment of Benefits (AOB), Attorney's Fees, Catastrophic Events, Contractors, Homeowners

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Linda Filardi

Forbear and Move Forward April 2023 - Oh, Those Disqualified Lender Lists...

Bloomberg recently reported that some lenders were setting up trading desks focused on private debt. This, together with the recent events in the banking market and regulatory capital-driven exposure reductions that have been…more

Financial Institutions, Financial Services Industry, Financing, Investment Funds, Lenders

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Renee Fischer

One and Done: Lending for the Full Fund Lifecycle January 12, 2024 - Building in Flexibility in Credit Facilities

As more subline lenders are beginning to cover asset based lending, banks are keen to create streamlined template documentation with the flexibility to accommodate the borrowing needs of their clients throughout a fund’s…more

Asset-Based Lending, Banking Sector, Banks, Borrowers, Financial Institutions

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Ashley Flaherty

Let’s Be Direct January 2023 | Issue No. 208 - WFF US: ‘Private Equity to Entrepreneur’ NY Event Recap

Last Thursday, there was a lot of purple (and rain!) as Women in Fund Finance co-hosted the first FFA event of 2023, along with Cadwalader, Wickersham & Taft and Wells Fargo, kicking off the year with an exciting evening of…more

Entrepreneurs, Financial Services Industry, Financing, Investment Funds, Popular

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Christopher Floyd

Johnson & Johnson’s “Red River” Bankruptcy Strategy Sinks on Third-Party Release Issues, Voting Irregularities—With Possible Implications for Future Mass Tort Bankruptcy Cases

Introduction - On March 31, 2025, Judge Christopher Lopez of the U.S. Bankruptcy Court for the Southern District of Texas denied confirmation of the prepackaged Chapter 11 plan of Johnson & Johnson (“J&J”) affiliate Red River…more

Bankruptcy Court, Bankruptcy Plans, Chapter 11, Dismissals, Harrington v Purdue Pharma L P

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Kate Foreman

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Brian Foster

Next Stop: Charlotte October 2024 - Underwriting Secondaries Deals

The market for financing pools of interests in private equity funds and private credit funds continues to sizzle, with new lenders joining the market and competition on pricing leading to a tightening of spreads for the most…more

Capital Markets, Financial Markets, Financing, Investment Funds, Investment Portfolios

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Stephen Fraidin

SEC Adopts Final Rules to Amend Beneficial Ownership Reporting Rules

On October 10, 2023, the SEC adopted rule amendments related to Section 13 beneficial ownership reporting rules (the “Final Rules”). In brief, the Final Rules accelerate the filing deadlines for Schedules 13D and 13G, provide…more

Beneficial Owner, Business Ownership, Corporate Counsel, Derivatives, Final Rules

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Marina Frattaroli

SEC Updates Guidance on Lock-Up Agreements and Cash Tender Offers

The Securities and Exchange Commission (SEC) has recently updated Compliance and Disclosure Interpretations (C&DIs) regarding lock-up agreements and tender offers, offering notable clarifications for corporations considering…more

Acquisitions, Disclosure Requirements, Filing Requirements, Lock-Up Agreement, Mergers

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James Frazier

DOL Issues Final Rule Regarding Fiduciary Investment Advice

On Tuesday, April 23, 2024, the U.S. Department of Labor (the “DOL”) released its new final rule (the “Final Rule”) regarding when a person becomes a “fiduciary” by virtue of providing investment advice for purposes of the…more

Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary, Final Rules, Internal Revenue Code (IRC)

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Turlough Galvin

Fund Finance – Positive Developments for Sponsors and Investors under Ireland’s Investment Limited Partnership 2.0 Regime

Why is this topic suddenly of interest? Irish Investment Limited Partnerships (“ILPs”) have been around since the introduction of the Investment Limited Partnership Act in 1994 (the “1994 Act”). Due to certain requirements…more

Alternative Investment Funds, Central Bank of Ireland, Financial Regulatory Reform, Investment Funds, Investment Limited Partnership

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Michael Gambro

Trusts Holding Loans Need Licensing, Says Maryland Office of Financial Regulation

On January 10, 2025, the Maryland Office of Financial Regulation issued emergency regulations revised to clarify that “passive trusts” holding residential mortgage loans must obtain a Mortgage Lender License and if the trusts…more

Consumer Financial Products, Financial Institutions, Financial Services Industry, Loans, Maryland

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Douglas Gansler

Washington State Adopts First Broad State Antitrust Premerger Notification Act and Filing Requirement

Effective July 27, 2025, any person that files a Hart-Scott-Rodino (HSR) Act Notification and Report Form (HSR Form) with the Federal Trade Commission (FTC) and the Department of Justice (DOJ) must also submit an electronic copy…more

Acquisitions, Antitrust Provisions, Enforcement Actions, Filing Requirements, Hart-Scott-Rodino Act

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Kathryn Garland

CFTC Issues Notice of Proposed Rulemaking in Connection with Risk Management Program Regulations for SDs, MSPs and FCMs

The Commodity Futures Trading Commission (the “Commission” or the ”CFTC”), on May 31, 2023 published an Advance Notice of Proposed Rulemaking (“ANPRM”), seeking public comment in connection with potential amendments to the…more

Advanced Notice of Proposed Rulemaking (ANPRM), CFTC, Comment Period, Commodity Exchange Act (CEA), Futures Commission Merchants (FCMs)

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Chris Gavin

U.S. Court of Appeals for the Third Circuit Agrees to Hear Interlocutory Appeal in CFPB Enforcement Action against Student Loan Trusts

On April 29, 2022, the U.S. Court of Appeals for the Third Circuit granted a petition for permission to appeal in Consumer Financial Protection Bureau v. The National Collegiate Master Student Loan Trusts filed by defendants The…more

Consumer Financial Products, Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Debt Collection, Enforcement Actions

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Ryan Gee

Moving into May, April 2023 - A Lender’s Perspective on Special Purpose Entities, Alternative Investment Vehicles and Qualified Borrowers

In order for fund credit parties to maintain flexibility for investments and meet the changing requirements of investor requirements (tax, ERISA, etc.), they often need to establish multiple investment vehicles to accommodate…more

Alternative Investment Funds, Borrowers, Investment Companies, Investment Fund Vehicles, Investment Funds

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Michael Genoino

A Halloween Scare: Ambiguity in Loan Terms

A recent decision in the Commercial Division of the Supreme Court, New York County, emphasizes the importance of clear and unambiguous contract drafting in all lending situations, including real estate. Acting Supreme Court…more

Borrowers, Commercial Litigation, Contract Drafting, Contract Terms, Lenders

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Keith Gerver

CFPB Funding Challenge: Supreme Court Appears Skeptical

On October 3, 2023, the U.S. Supreme Court heard oral argument in CFPB v. Community Financial Services Association of America to decide whether the CFPB’s funding structure violates the Constitution’s Appropriations Clause…more

Community Financial Services Association, Constitutional Challenges, Consumer Financial Protection Bureau (CFPB), Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd, Federal Funding

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Keyes Gilmer

FinCEN Releases New Corporate Transparency Act Rule Exempting U.S. Entities and U.S. Beneficial Owners

On March 21, 2025, the Financial Crimes Enforcement Network (“FinCEN”) released a new interim final rule that exempts U.S. entities and U.S. beneficial owners from the reporting requirements of the Corporate Transparency Act…more

Beneficial Owner, Business Entities, Business Ownership, Corporate Transparency Act, Filing Deadlines

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David Gingold

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Charlotte Glaser

Greenpeace Sues European Commission Over Inclusion of Gas and Nuclear in EU Taxonomy

On April 18, 2023, eight Greenpeace organizations (the organizations) filed a lawsuit against the European Commission at the European Court of Justice following the Commission’s inclusion of natural gas and nuclear energy in the…more

Climate Action Plan, Climate Change, Court of Justice of the European Union (CJEU), Environmental Justice, Environmental Social & Governance (ESG)

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Anna Glick

SEC Re-Proposes a Rule Prohibiting Conflicts of Interest in Certain Securitizations

On January 25, 2023, the Securities and Exchange Commission (“SEC” or “Commission”) issued a release (the “Re-Proposal”) proposing Rule 192 under the Securities Act of 1933, as amended (the “Securities Act”), a rule that is…more

Asset-Backed Securities, Conflicts of Interest, Proposed Rules, Regulatory Agenda, Regulatory Reform

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Eva Gobourne

Delaware Court of Chancery Weighs in on Earnout Provisions in Recent Cases

The Delaware Court of Chancery has weighed in on a number of recent cases interpreting earnout provisions in transactional agreements. The Court has demonstrated a reluctance to rule against seller-plaintiffs during the pleading…more

Breach of Contract, Commercial Litigation, Contract Negotiations, Contract Terms, Delaware

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Stuart Goldstein

Trusts Holding Loans Need Licensing, Says Maryland Office of Financial Regulation

On January 10, 2025, the Maryland Office of Financial Regulation issued emergency regulations revised to clarify that “passive trusts” holding residential mortgage loans must obtain a Mortgage Lender License and if the trusts…more

Consumer Financial Products, Financial Institutions, Financial Services Industry, Loans, Maryland

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Michael Gonzalez

Brief Primer on CFOs and Rated Feeder Funds

Through our extensive experience representing underwriters and sponsors in connection with CFOs and Rated Feeders, we’ve identified a number of key issues and considerations that should be addressed when contemplating a CFO or…more

Collateralized Fund Obligation (CFO), Feeder Funds, Investment, Investment Funds, Loans

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Elizabeth Gorman

Delaware Supreme Court Enforces Partnership Agreement’s Unambiguous Exculpation Provision Waiving Fiduciary Duties and Presuming Good Faith When Relying on Advice of Counsel in Reversing $690 Million Damages Award to Minority Investors of Boardwalk Pipeline Partners LP

On December 19, 2022, Chief Justice Seitz issued an opinion for a unanimous Delaware Supreme Court, sitting en banc, reversing and remanding the Delaware Court of Chancery’s decision in Bandera Master Fund LP v. Boardwalk…more

Breach of Contract, Damages, DE Supreme Court, Delaware Revised Uniform Limited Partnership Act, Exculpatory Clauses

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Andrew Greenberg

“Recapping” and Reconciling Merit Management and Nine West, the Second Circuit Holds That Boston Generating’s 2006 “Recapitalization” Was Safe-Harbored

Until recently, two of the most important cases interpreting the Bankruptcy Code’s “safe harbor” provisions appeared to be in potential tension. First, in the U.S. Supreme Court’s 2018 Merit Management decision, the Supreme…more

Bankruptcy Code, Chapter 11, Financial Institutions, Financial Services Industry, Financial Transactions

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Anthony Greene

United States Supreme Court Holds that Bankruptcy Code Section 363(m) Does Not Preclude Appellate Jurisdiction on Asset Sale Orders

In a ruling issued just yesterday, MOAC Mall Holdings LLC v. Transform Holdco LLC et al., 598 U.S. ----, 2023 WL 2992693 (2023) (“MOAC”), the United States Supreme Court (the “Supreme Court”) held that Bankruptcy Code section…more

363 Sales, Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy

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Samantha Greenfield

No, You’re a Customer: Recent Second Circuit Decision Circumscribes Merit and Preempts State Law Impairment of Safe Harbor Protections in the Wake of a Failed LBO

On December 19, 2019, the United States Court of Appeals for the Second Circuit (the “Second Circuit”) affirmed a ruling of the United States District Court for the Southern District of New York (the “District Court”) dismissing…more

Acquisitions, Appeals, Bankruptcy Code, Chapter 11, Clearing Agencies

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Krista Gresia

Nowhere to Run to Baby, Nowhere to Hide: An Overview of the New York LLC Corporate Transparency Act and Its Disclosure Requirements

If you thought you could hide behind your LLC in this new year, think again. Governor Kathy Hochul signed the New York LLC Corporate Transparency Act (the “Act”), which will go into effect in late 2024…more

Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, Limited Liability Company (LLC), New York

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Mark Grider

Senate Banking Committee Considers the Nomination of Sarah Bloom Raskin for Vice Chair of Supervision at the Federal Reserve: How Her Confirmation May Affect Climate-Related Banking Regulations

On February 3, 2022, the U.S. Senate Committee on Banking, Housing, and Urban Affairs (the “Committee”) considered President Biden’s nomination of Sarah Bloom Raskin for Vice Chair for Supervision and a Member of the Board of…more

Administrative Agencies, Administrative Appointments, Biden Administration, Federal Reserve, Financial Institutions

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Duncan Grieve

US and UK Issue New Round of Russia-Related Sanctions in Connection with G7 Summit

During the week of the G7 Summit, both the U.S. and UK issued a new round of Russia-related sanctions as Russia’s invasion of Ukraine enters its 28th month. On June 12, 2024, the U.S. Department of the Treasury’s Office of…more

Economic Sanctions, Foreign Policy, Foreign Relations, Foreign Trade Regulations, G7

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Tom Grodecki

Broker Dealer Commissions: UK Supreme Court Hears Appeal in Johnson, Wrench, Hopcraft v Close Bros. and FirstRand

Executive Summary - The UK Supreme Court last week heard arguments in the joined test cases of Johnson v FirstRand Bank Ltd, Wrench v FirstRand Bank Ltd and Hopcraft v Close Brothers Ltd. At issue were findings by the Court…more

Broker-Dealer, Consumer Lenders, Consumer Protection Laws, Disclosure Requirements, Fiduciary Duty

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Phara Guberman

Supreme Court Excludes “Misleading” Statements from False Statement Liability in Thompson v. U.S.

In a unanimous decision issued on March 21, 2025, the Supreme Court in Thompson v. U.S. heightened the burden of proof for “false” statements under 18 U.S.C. § 1014, excluding “misleading” but true statements from liability…more

Criminal Prosecution, False Statements, FDIC, Financial Institutions, Loans

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Michael Gwydir

August Changes to Fund Distribution in the EEA

This week sees the introduction of significant changes to the rules and regulations governing the marketing of alternative investment funds (“AIFs”) to investors in the Member States of the European Economic Area (the “EEA”)…more

AIFM, Alternative Investment Fund Managers Directive (AIFMD), Alternative Investment Funds, Asset Management, Cross-Border

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Jaclyn Hall

DOJ Pilot Program Incentivizes Clawbacks and Instructs Corporations to Preserve Business Communications on Employees’ Personal Devices

On March 3, 2023 the Department of Justice (“DOJ”) announced its Compensation Incentives and Clawbacks pilot program (the “Program”), which will become effective March 15, 2023. Consistent with Deputy Attorney General Lisa…more

Clawbacks, Criminal Prosecution, Department of Justice (DOJ), Incentives, Pilot Programs

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Jason Halper

Delaware Supreme Court Expands MFW Applicability in Conflicted Controller Transactions

On April 4, 2024, the Delaware Supreme Court issued a much-anticipated decision, In re Match Group Derivative Litigation (“In re Match Group”), extending the MFW doctrine more broadly to all conflicted controller transactions. …more

Breach of Duty, Business Judgment Rule, Controlling Stockholders, DE Supreme Court, Derivative Suit

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Ellen Halstead

Delaware Bankruptcy Court Rules TCEH First Lien Distributions Are Governed by the Bankruptcy Code, Not by Intercreditor Agreement Waterfall

On March 11, 2016, Judge Christopher Sontchi of the U.S. Bankruptcy Court for the District of Delaware issued an opinion in the Energy Future Holdings bankruptcy that resolved an intercreditor dispute over $90 million in…more

Chapter 11, Collateral, Commercial Bankruptcy, Creditors, Energy Futures Holdings

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Hyungjoo Han

SEC Approves Nasdaq’s Proposed Rule Changes to Increase Corporate Board Diversity

On August 6, 2021, the Securities and Exchange Commission (“SEC”) issued an order approving proposed rule changes submitted by The Nasdaq Stock Market LLC (“Nasdaq”) to adopt listing rules related to board diversity. …more

Board of Directors, Corporate Governance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), LGBTQ

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Andrew Harris

Intellectual Property Law: Looking Forward to 2023

With the continuing advancements of cutting-edge technologies — such as genome editing (CRISPR) and Non-Fungible Tokens (NFTs) — U.S. courts will have a full docket of challenging IP cases throughout 2023. Below are some of the…more

Certiorari, Copyright, Corporate Counsel, Fair Use, Fine Art

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Mark Haskell

FERC Addresses Effects of Tax Cuts on Jurisdictional Rates and Disallows Income Tax Component in MLP-Owned Partnership Pipeline Cost-of-Service Rates

On March 15, 2018, the Federal Energy Regulatory Commission (“FERC”) issued an order on remand disallowing an income tax component in cost-of-service rates charged by an interstate oil pipeline owned by a master limited…more

Corporate Taxes, Energy Sector, FERC, Income Taxes, Master Limited Partnerships

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Howard Hawkins

A Quick Take on a Sudden Change in the Banking Landscape

A lot of ink has been spilled in the last 72 hours regarding the historic developments involving Silicon Valley Bank and Signature Bank. Our quick summary of the facts and law is below. Cadwalader will continue to monitor these…more

Deposit Accounts, Deposit Insurance, Depository Institutions, Enforcement Actions, FDIC

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Evan Hays

Continuation Play June 2023 - FFF Sovereign Immunity Series – Part XI: Texas Toast

After leaving South Dakota and taking on a full tank of gas in Tennessee last week, today we have our biggest prize in our 50-state road trip of sovereign immunity: Texas. It’s our luck to be your driver for this leg of the…more

Borrowers, Credit Agreements, Financial Services Industry, Financing, Investment Funds

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Jaclyn Hellreich

The Federal Circuit’s Polaris Decision Provides Insights Into The Constitutionality Of Inter Partes Reviews

Follow-Up to Polaris Innovations Ltd. v. Kingston Technology Company, Inc. As previously reported here, Judges Reyna, Hughes, and Wallach ordered additional briefing in Polaris Innovations Ltd. v. Kingston Technology…more

Administrative Patent Judges, Appointments Clause, Constitutional Challenges, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Kya Henley

State Legislative Developments: Oklahoma and West Virginia

On March 21, 2023 the Oklahoma House of Representatives passed House Bill 2547, which claims to be “designed to continue protections of state pension funds from strategies that would be harmful to the state’s energy industry.”…more

Climate Change, Divestment, Environmental Social & Governance (ESG), Financial Institutions, Oil & Gas

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Steven Herman

Court of Appeals Upholds Contract Merger Clause

In Behler v. Kai-Shing Tao, the New York Court of Appeals found that the merger clause contained in a limited liability company agreement governed by Delaware law superseded an alleged prior oral agreement between the parties,…more

Appeals, Breach of Contract, Business Litigation, Contract Disputes, Contract Terms

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Carl Hey

Australia Regulator Initiates Greenwashing Suit Against Active Super Over ESG Investing Claims

On August 10, 2023, the Australian Securities and Investments Commission (ASIC) announced its third civil penalty proceeding this year for greenwashing against LGSS Pty Limited, which is trustee for superannuation fund Local…more

ASIC, Australia, Climate Action Plan, Climate Change, Corporate Social Responsibility

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E. Perry Hicks

NAV Unrestricted - April 2022 | Issue No. 170 - Considerations in NAV Transactions When Collateral Includes Transfer-Restricted Assets

Net Asset Value (“NAV”) transactions, where a debtor pledges its downstream assets to secure a financing, can involve a wide variety of potential collateral. In some NAV transactions, the assets to be pledged to secure the…more

Asset Management, Downstream Agreements, Financing, Investment, Investment Funds

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Tim Hicks

Give and Take February 2025 - When Relationships Go South

In entering into a fund financing, both the Lender and the Fund have expectations that the relationship will be a success. The Lender is appreciative of the association, and the Fund is confident in its ability to raise…more

Capital Markets, Credit Agreements, Debt Financing, Financial Institutions, Financing

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Mark Highman

SEC Adopts Rule Amendments Designed to Expand Access to Private Investment Opportunities

On August 26, 2020, by a 3-2 vote, the Securities and Exchange Commission (the “SEC”) adopted rule changes that generally expand the scope of the definitions of “accredited investor” in Rule 501(a) of Regulation D and of…more

Accredited Investors, Asset Management, Financial Regulatory Reform, Investment Opportunities, Private Funds

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Melissa Hinkle

COVID-19 Update: Can’t Lose What You Never Had: New York State Court Rejects Argument that a Pledge of the Equity Interests in an Entity that Owns Real Property Requires Foreclosure under RPAPL Article 13

During the COVID-19 pandemic, New York State courts have granted a number of preliminary injunctions enjoining UCC foreclosures for a period of time. For example, in D2 Mark LLC vs. Orei VI Investments LLC and Shelbourne BRF…more

Coronavirus/COVID-19, Foreclosure, Infectious Diseases, Mortgages, Preliminary Injunctions

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Kahn Hobbs

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Erica Hogan

SEC Approves Nasdaq Corporate Governance Rule Amendments to Cure Periods and Phase-In Schedules

On August 26, 2024, the U.S. Securities and Exchange Commission (SEC) issued an order approving proposed amendments by The Nasdaq Stock Market LLC (Nasdaq) to clarify and modify the phase-in schedules for certain corporate…more

Corporate Governance, Initial Public Offering (IPO), Nasdaq, Publicly-Traded Companies, Securities

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James Hoggett

Finance Frontiers February 2024 - Writing to Reach You – Investor Letters and Subscription Facilities

While Chris van Heerden’s recent article gave some cause for optimism over the fundraising environment for 2024, for now on the ground we are continuing to see significantly longer lead times before funds hit their target size,…more

Capital Raising, Financing, Investment, Investment Funds, Investors

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Alexander Hokenson

U.S. Firms Continue to Face Liability for Terrorist Attacks under the Antiterrorism Act

Last year, a group of U.S. military veterans and the relatives of troops killed in Iraq filed a lawsuit against several large international pharmaceuticals, accusing them of aiding and abetting terrorism by selling products to…more

AML/CFT, Antiterrorism Act, Banking Sector, BSA/AML, Corporate Liability

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Ellen Holloman

Securities Litigation Alert: “Half-Truths,” Not “Pure Omissions”: Supreme Court Limits Section 10(b) Claims Based on Item 303 Nondisclosure to Omissions That Render Affirmative Statements Misleading

On April 12, 2024, a unanimous U.S. Supreme Court issued an opinion in Macquarie Infrastructure Corp. v. Moab Partners, L. P., vacating a judgment of the U.S. Court of Appeals for the Second Circuit that had reinstated claims…more

False Statements, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Rule 10b-5

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Christopher Horn

May Market Moves, May 2025 - Modifications to the Capital Plan Rule and Stress Capital Buffer Requirement – Notice of Proposed Rulemaking

The Federal Reserve Board has requested comment on a proposal designed to reduce the volatility of the capital requirements stemming from its annual stress tests. The proposal would achieve this primarily by averaging the…more

Banking Sector, Banks, Capital Requirements, Federal Reserve, Financial Regulatory Reform

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Mark Howe

The Consolidated Appropriations Act of 2021

Business Tax Provisions - About-Face on Deductibility of PPP Expenses. The CAA overrules the IRS’s previous guidance denying the deductibility of expenses relating to forgiven PPP loans…more

CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Families First Coronavirus Response Act (FFCRA), Federal Loans

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Duncan Hubbard

An option to dispose of property does not necessarily give rise to a taxable disposal

In the appeal case of Krishnamohan v HMRC [2024] UKFTT 346, the UK’s First-Tier Tribunal (“FTT”) determined that an agreement titled “Option Agreement” that was entered into to dispose of certain properties, does not, for…more

Borrowers, Capital Gains, Capital Gains Tax, HMRC, Income Taxes

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Benjamin Hughes

Delaware Court of Chancery Clarifies “Commercially Reasonable Efforts” in Earn-Out Provisions

On April 30, 2024, in Himawan, et al. v. Cephalon, Inc., et al., the Delaware Court of Chancery held that the defendant acquiror complied with its contractual obligations to use commercially reasonable efforts to achieve certain…more

Biopharmaceutical, Cephalon, Commercially Reasonable Efforts, Contract Terms, Earn-Outs

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Ngoc Pham Hulbig

FTC Sues to Block Lockheed’s Proposed Acquisition of Aerojet Rocketdyne in Milestone Defense Industry Vertical Challenge

The Federal Trade Commission (“FTC”) filed suit yesterday to block Lockheed Martin Corporation’s proposed $4.4 billion acquisition of Aerojet Rocketdyne Holdings Inc., announced back in December 2020. Aerojet, the last…more

Acquisition Agreements, Anti-Competitive, Antitrust Violations, Competition, Corporate Counsel

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Samantha Hutchinson

ESG in Fund Finance: The Next Phase April 2024 - ESG in Fund Finance

In the first of our series “ESG in Fund Finance” articles, we summarise and examine the recent publication “A Guide to the Application of Sustainability-linked Loan Principles in Fund Finance”…more

Environmental Social & Governance (ESG), Financial Institutions, Financial Services Industry, Investment Funds, Loans

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Philip Ibarra

Delaware Court of Chancery Permits Reliance on News Articles and Information Post-Dating Books and Records Demand

On January 29, 2025, in State of Rhode Island Office of the General Treasurer v. Paramount Global (the “Decision”), the Delaware Court of Chancery issued a post-trial opinion, broadening the types of sources a stockholder may…more

Acquisitions, Books & Records, Corporate Governance, Corporate Misconduct, Delaware

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Parker Ihrie

The Changes Continue | February 2021 | Issue No., 21Ch-Ch-Ch-Changes: NY Commercial Landlords’ Duty to Mitigate

The fluidity of New York’s legal landscape continues to accelerate in the wake of the pandemic. Proposed legislation in New York may disrupt long-established law that commercial landlords do not have a duty to mitigate their…more

Commercial Leases, Commercial Tenants, Contract Terms, Damages, Landlords

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Eunji Jo

Should I Stay or Should I Go: Second Circuit Holds that Mortgagee Violated Automatic Stay by Foreclosing on Property where Bankrupt Tenant was a Named Defendant

On July 6, 2022, the Court of Appeals for the Second Circuit decided In Re: Eileen Fogarty, holding that a mortgagee violated the automatic stay imposed when a tenant filed bankruptcy by proceeding with a foreclosure sale that…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Consumer Bankruptcy, Foreclosure

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Michael Johnson

On the Side February 2023 | Issue No. 209 - FFF Sovereign Immunity Series – Part V

We are back today to continue along with our tasting menu of state sovereign immunity. In our fifth installment in the series, we will visit Massachusetts, Michigan, Minnesota, Mississippi and Missouri. If you are new to the FFF…more

Contract Disputes, Financing, Investment, Investment Funds, Sovereign Immunity

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Bronwen Jones

Navigating the Grey Area, March 2025 - Navigating the Grey Area: Financial Covenant Amendments and the Doctrine of Purview

The doctrine of purview under English law plays a critical role in determining whether amendments to a secured facility require reaffirmation or re-execution of guarantees and security. However, when it comes to adjustments in…more

Capital Markets, Contract Terms, Financial Institutions, Financial Services Industry, Financing

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Marshall Jones

Marketplace Lending Update #7: This and That

There have been a handful of recent marketplace lending developments that indicate that the legal uncertainties in the post-Madden world are not going away anytime soon…more

Consumer Financial Products, FDIC, Financial Services Industry, FinTech, Fintech Charter

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Gregg Jubin

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Matthew Karlan

Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System: Supreme Court Vacates Class Certification Order in Decade-Long Class Action, Clarifying That Courts May Consider the Materiality of Alleged Misstatements in Applying Fraud-on-the-Market Presumption

On June 21, 2021, the United States Supreme Court issued a decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, vacating a decision of the Second Circuit that affirmed certification of a securities fraud…more

Arkansas Teacher Retirement System v Goldman Sachs Group, Basic v Levinson, Burden of Persuasion, Burden of Proof, Certiorari

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Andrew Karp

Amid Chaos, Regulatory Change Continues Apace, March 2025 - Change Has Arrived

We have written in prior Cabinet News & Views articles that, since the November elections, the U.S. federal banking regulators have been signaling significant changes in approach. This week, the FDIC kicked off the changes by…more

Administrative Procedure Act, Banking Sector, Compliance, Corporate Governance, Dodd-Frank

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Alan Keating

Fund Finance – Positive Developments for Sponsors and Investors under Ireland’s Investment Limited Partnership 2.0 Regime

Why is this topic suddenly of interest? Irish Investment Limited Partnerships (“ILPs”) have been around since the introduction of the Investment Limited Partnership Act in 1994 (the “1994 Act”). Due to certain requirements…more

Alternative Investment Funds, Central Bank of Ireland, Financial Regulatory Reform, Investment Funds, Investment Limited Partnership

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Jack Kelly

The New UK Reserved Investor Fund: RIFs and QAHCs Create an Ambitious UK Structuring Toolkit

Introduction - After a long gestation, the much heralded new UK fund structure, the Reserved Investor Fund (“RIF”) is finally expected to be available from 19 March 2025…more

Financial Conduct Authority (FCA), Financial Services Industry, Investment Funds, Investors, Private Equity Funds

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Brian Kettmer

My Achy Breaky Default February 2024 - Common Events of Default in Subscription Credit Facilities: How Parties End Up Here, and Recommendations for Avoiding Preventable EODs

Private equity sponsors and their funds benefit from the flexibility of revolving credit facilities and the ability to borrow significant amounts of capital on short notice. But that fast access to liquidity can quickly be…more

Default, Financial Institutions, Financial Services Industry, Financing, Investment Funds

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Philip Khinda

DOJ Pilot Program Incentivizes Clawbacks and Instructs Corporations to Preserve Business Communications on Employees’ Personal Devices

On March 3, 2023 the Department of Justice (“DOJ”) announced its Compensation Incentives and Clawbacks pilot program (the “Program”), which will become effective March 15, 2023. Consistent with Deputy Attorney General Lisa…more

Clawbacks, Criminal Prosecution, Department of Justice (DOJ), Incentives, Pilot Programs

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Omar Khoury

US and UK Issue New Round of Russia-Related Sanctions in Connection with G7 Summit

During the week of the G7 Summit, both the U.S. and UK issued a new round of Russia-related sanctions as Russia’s invasion of Ukraine enters its 28th month. On June 12, 2024, the U.S. Department of the Treasury’s Office of…more

Economic Sanctions, Foreign Policy, Foreign Relations, Foreign Trade Regulations, G7

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Joo Kim

A Tale of Two Continents - European CMBS v U.S. CMBS & CRE CLOs

U.S. CMBS issuance equalled approximately $171 billion during 2018. In the same period, European CMBS issuance equalled approximately €4 billion which, whilst not close to the issuance levels of the U.S. CMBS market, represents…more

CMBS, Collateralized Loan Obligations, EU, Financial Markets, Financial Transactions

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Robert Kim

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Lindsey Kister

M&A Update: Highlights from 2015 and Implications for 2016

A record-setting year for M&A deal activity, 2015 also yielded several important legal decisions and highlighted significant trends that are likely to influence M&A market participants in 2016 and beyond. Increased Activism…more

Corporate Governance, Director Removal, Federal Trade Commission (FTC), Fee-Shifting, Hostile Takeover

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Brian Kurpis

Portfolio Purchase Pointers July 2023 - NAV Acquisition Finance for Secondaries Facilities

In the private equity secondaries market, financing is often used to facilitate the purchase of portfolios of interests in private equity funds. These transactions require lenders to underwrite the value of assets that the…more

Corporate Sales Transactions, Credit Facilities, Financial Services Industry, Financing, Investment Funds

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Henry LaBrun

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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John Lambillion

European Restructuring: 2024 in Review and Outlook for 2025

Market - overview Whilst Europe did not witness the flood of restructuring and insolvencies some had predicted at the start of the year, 2024 was a significant year nonetheless. Many commentators now predict an extended…more

Bankruptcy Court, Corporate Governance, Corporate Restructuring, Creditors, Debt Restructuring

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Aaron Lang

Delaware Chancery Court Signals Heightened Scrutiny of SPAC Boards and Sponsors

The Delaware Chancery Court has issued a decision with major implications for sponsors and directors of Delaware incorporated special purpose acquisition companies (SPACs). In re MultiPlan Corp. Stockholders Litigation is a…more

Breach of Duty, Business Plans, Entire Fairness Standard, Fiduciary Duty, Initial Public Offering (IPO)

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Alessandra LaRocca

Bouncing Back - January 2021 | Issue No. 20, You Can Run But You Can’t Hide: The Corporate Transparency Act

In December 2020, as part of the larger National Defense Authorization Act, the Corporate Transparency Act (the “Act”) was enacted. The Act requires that anonymous shell companies, most notably limited liability companies and…more

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, Financial Crimes, FinCEN

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Christian Larson

Rules in Motion, May 2025 - U.S. Issues Broad Sanctions Relief for Syria

On May 23, 2025, the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) issued Syria General License 25, which provides broad authorization for U.S. persons to engage in dealings prohibited under the Syrian Sanctions…more

Banking Sector, Economic Sanctions, FinCEN, Foreign Policy, International Trade

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Nicholas LaSpina

Department of Labor Finalizes Rule Adopting Amendments to the “Investment Duties” Regulation

On October 30, 2020, the U.S. Department of Labor (“DOL”) published its final rule (“Final Rule”) adopting amendments to its longstanding “investment duties” regulation under the Employee Retirement Income Security Act of 1974,…more

Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Environmental Social & Governance (ESG), Fiduciary Duty

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Chad Lee

U.S. Lawmakers Urge DOJ to Investigate Oil and Gas Companies

On July 25, 2023, Representative Ted Lieu and 19 other Democratic lawmakers from the U.S. House of Representatives and Senate sent a letter to U.S. Attorney General Merrick Garland, requesting that the Department of Justice open…more

Air Pollution, Carbon Emissions, Climate Action Plan, Climate Change, Department of Justice (DOJ)

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Diane Lee

Securities Litigation Alert: “Half-Truths,” Not “Pure Omissions”: Supreme Court Limits Section 10(b) Claims Based on Item 303 Nondisclosure to Omissions That Render Affirmative Statements Misleading

On April 12, 2024, a unanimous U.S. Supreme Court issued an opinion in Macquarie Infrastructure Corp. v. Moab Partners, L. P., vacating a judgment of the U.S. Court of Appeals for the Second Circuit that had reinstated claims…more

False Statements, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Rule 10b-5

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Matthew Lefkowitz

SEC Adopts Rule Amendments Designed to Expand Access to Private Investment Opportunities

On August 26, 2020, by a 3-2 vote, the Securities and Exchange Commission (the “SEC”) adopted rule changes that generally expand the scope of the definitions of “accredited investor” in Rule 501(a) of Regulation D and of…more

Accredited Investors, Asset Management, Financial Regulatory Reform, Investment Opportunities, Private Funds

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Patrick Leftley

Revisions to the Securitisation Framework: Final Rules published by the Basel Committee

The Basel Committee on Banking Supervision (the “Basel Committee”) has published the revised securitisation framework setting out the standards for regulatory capital requirements for securitisation exposures held in the banking…more

Banking Sector, Basel Committee on Banking Supervision (BCBS), Final Rules, Securitization Market

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Ryan Leverone

Game On August 2023 - Participation Trophies: Documenting and Negotiating Loan Participations

As the secondaries market continues to grow and increase in complexity, we have noticed an uptick in interest among our clients in selling (and buying) loan participations. Participation arrangements can be a powerful tool for…more

Borrowers, Financial Institutions, Investment Funds, Lenders, Loan Agreements

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Livia Li

No Celebrations - March 2022 - Navigating the Latest on Russia Sanctions – A Perspective from European Real Estate Financing

It’s been just over a month since Russia launched its invasion of Ukraine, and, along with the atrocities of the war hitting the headlines, a whole host of countries, led by the United States, United Kingdom and European Union,…more

Economic Sanctions, EU, Financial Services Industry, Financing, Military Conflict

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Jake Lindsay

EU Securitisation Regulation Disclosure Templates Published in the EU Official Journal

I. Introduction - The Securitisation Regulation applies to securitisations, the securities of which are issued (or where no securities are issued, the securitisation positions of which are created) on or after 1 January…more

EU, European Securities and Markets Authority (ESMA), RTS, Securitization, Special Purpose Entities

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Trent Lindsay

A New Age of PerFFFection June 2024 - Potential Impact of UCC Article 12 on Fund Finance Transactions

At the bottom of the stack in investment fund structures, there are generally “real” assets—things like equity interests in portfolio companies, mortgage loans, commercial receivables, maybe even bricks and mortar. Fund finance…more

Asset Management, Blockchain, Collateral, Cryptocurrency, Digital Assets

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Judith Livingstone

EU Securitisation Regulation Disclosure Templates Published in the EU Official Journal

I. Introduction - The Securitisation Regulation applies to securitisations, the securities of which are issued (or where no securities are issued, the securitisation positions of which are created) on or after 1 January…more

EU, European Securities and Markets Authority (ESMA), RTS, Securitization, Special Purpose Entities

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William Lo

An option to dispose of property does not necessarily give rise to a taxable disposal

In the appeal case of Krishnamohan v HMRC [2024] UKFTT 346, the UK’s First-Tier Tribunal (“FTT”) determined that an agreement titled “Option Agreement” that was entered into to dispose of certain properties, does not, for…more

Borrowers, Capital Gains, Capital Gains Tax, HMRC, Income Taxes

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Holly Loftis

Let the Games Begin July 2021 | Issue No. 136 - Revlon: It’s Worth a Double Take (Part II: Borrower Considerations)

In last week’s edition of FFF, we discussed the Revlon case involving an erroneous payment by an administrative agent to the syndicate lenders, which is currently up on appeal before the Second Circuit Court of Appeals…more

Borrowers, Contract Terms, Credit Agreements, Financial Services Industry, Financial Transactions

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Ivan Loncar

“ToMAYto, ToMAHto”: District Court Holds That Differences in State Law Determine Whether Unpaid Annual Pension Contributions Establish “Insolvency” for Chapter 9 Eligibility Purposes

On March 21, 2025, the U.S. District Court for the Northern District of California affirmed a bankruptcy court’s dismissal of the San Benito Healthcare District’s chapter 9 bankruptcy petition on the grounds that the district’s…more

Appeals, Bankruptcy Code, Bankruptcy Court, California, Chapter 9

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Molly Lovedale

The ESG Factor, January 2022 - One of These Things Is Not Like the Other: New York State Court Upholds Commercial Reasonableness of Mezzanine Sale

On November 10, 2021, the owner of the State Street Financial Center in Boston, Massachusetts defaulted on its debt, consisting of a mortgage loan in the amount of $535,000,000 and three mezzanine loans in the aggregate amount…more

Borrowers, Collateral, Default, Environmental Social & Governance (ESG), Foreclosure

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Ronald Lovelace

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Daniel Lumer

Antitrust Risks of ESG Initiatives: Rhetoric vs. Reality

Recently, there have been rumblings of antitrust enforcement in response to the increasing prominence of corporate policies furthering environmental, social and governance (‘ESG’) goals. The ESG moniker has been used as…more

Antitrust Provisions, Corporate Governance, Corporate Social Responsibility, Environmental Social & Governance (ESG), Risk Mitigation

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Tianyin Luo

Blurring the Lines: Dolan v. Altice Demonstrates the Potentially Unexpected and Significant Impact that “Boilerplate” Provisions Can Have on Merger Agreement Interpretation

In a recent decision arising out of the sale of Cablevision, the Delaware Court of Chancery issued important guidance regarding the interplay between what are commonly regarded as boilerplate merger agreement provisions and…more

Boilerplate Language, Business Plans, Cablevision, Contract Drafting, Contract Negotiations

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Michael Lynch

Back-Leverage to the Future January 2025 - Single-Asset Back-Leverage Facilities for Private Credit Loans

As regular Fund Finance Friday readers know, articles in this newsletter often explore emerging trends in fund finance and fund finance-adjacent areas, and in this article, we will look at single-asset back-leverage (“SABL”)…more

Asset Management, Financial Institutions, Financial Services Industry, Investment, Investment Funds

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Neil Macleod

Further Delays in the Expected Application Date of the Disclosure Templates for EU Securitisation Reporting

This memorandum provides an update regarding the further delay in the application of the transparency regulatory technical standards (“RTS”) (which include the new reporting templates) under the EU Securitisation Regulation…more

EU, European Commission, European Securities and Markets Authority (ESMA), Regulation Technical Standards (RTS), Regulatory Agenda

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Vivian Maese

Marketplace Lending Update #6: Is the Fintech Charter the Solution? Don’t Bank on It

Many have believed that the national bank “fintech charter” is an ideal solution to providing marketplace consumer loans on a 50-state basis…more

Bank Holding Company Act, Consumer Financial Products, Financial Services Industry, FinTech, National Bank Act

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Adam Magid

Watch Out for Auto-Delete: Delaware Court of Chancery Sanctions Former Meta Officer for Deleting Personal Emails

In a recent decision, In re Facebook Inc. Derivative Litigation, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery imposed litigation sanctions on a former officer and director of Meta Platforms, Inc. (“Meta”)…more

Corporate Officers, Data Preservation, Duty to Preserve, e-Discovery, Electronically Stored Information

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Peter Malyshev

Rules in Motion, May 2025 - IOSCO Publishes Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices

On May 19, 2025, the International Organization of Securities Commissions (“IOSCO”) published its Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices (the “Reports”), as part of its…more

Consumer Protection Laws, Digital Assets, FinTech, Influencers, IOSCO

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Michele Maman

Johnson & Johnson’s “Red River” Bankruptcy Strategy Sinks on Third-Party Release Issues, Voting Irregularities—With Possible Implications for Future Mass Tort Bankruptcy Cases

Introduction - On March 31, 2025, Judge Christopher Lopez of the U.S. Bankruptcy Court for the Southern District of Texas denied confirmation of the prepackaged Chapter 11 plan of Johnson & Johnson (“J&J”) affiliate Red River…more

Bankruptcy Court, Bankruptcy Plans, Chapter 11, Dismissals, Harrington v Purdue Pharma L P

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Olivia Maraj

Delaware Chancery Court Enforces Specific Performance and Forces Merger to Close

A recent decision of the Delaware Court of Chancery reinforces the importance of deal certainty, particularly when it comes to efforts-based covenants in merger agreements. In Desktop Metal Inc. v. Nano Dimension Ltd., the Court…more

Acquisitions, Breach of Contract, Business Litigation, CFIUS, Contract Disputes

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Sara Markov

The Impact of In re 301 W N. Ave., LLC on the Enforcement of Bankruptcy-Remote Protections

Executive Summary - The recent decision In re 301 W N. Ave., LLC, 666 B.R. 583 (Bankr. N.D. Ill. 2025) represents a significant development at the intersection of corporate governance, commercial real estate, and bankruptcy…more

Bankruptcy Court, Commercial Bankruptcy, Commercial Real Estate Market, Contract Terms, Corporate Governance

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Monica Martin

Delaware Court of Chancery Confirms Market-Based Factors Constitute the Best Indicators of Fair Value

Three recent Delaware Court of Chancery appraisal decisions offer a wealth of guidance not only regarding the determination of a merger partner’s fair value, but also regarding elements that potentially undermine a quality sale…more

Appraisal, Business Valuations, Corporate Sales Transactions, Fair Value Standard, Selling a Business

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Michael Mascia

New Year, New Opportunities - January 2023 | Issue No. 206 - FFA Miami Symposium Update

The Fund Finance Association is excited to welcome attendees to the 12th Annual Global Fund Finance Symposium, which is rapidly approaching on February 8-10 at the Fontainebleau Hotel in Miami, Florida. We are pleased to…more

Balance Sheets, Borrowers, Credit Agreements, Financial Services Industry, Financing

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Matthew Mazenier

Unlocking Sustainability-Linked Loans (UPDATED)

On February 23, 2023, the Loan Market Association (LMA), Loan Syndications and Trading Association (LSTA) and the Asia Pacific Loan Market Association (APLMA) published updates to the Sustainability-Linked Loan Principles (SLLP)…more

Environmental Social & Governance (ESG), Green Finance, Green Loans, Loan Market Association, Loan Syndication and Trading Association (LSTA)

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Christal McCamy

Court of Appeals Upholds Contract Merger Clause

In Behler v. Kai-Shing Tao, the New York Court of Appeals found that the merger clause contained in a limited liability company agreement governed by Delaware law superseded an alleged prior oral agreement between the parties,…more

Appeals, Breach of Contract, Business Litigation, Contract Disputes, Contract Terms

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Rob McClean

Key Person, Key Risk, May 2025 - A Key Person Will Never Walk Alone . . .

For those that are not aware, Liverpool Football Club have now officially won their record equalling 20th English league football title. For the benefit of non-fans of association football or soccer (“soccer” of course…more

Contract Terms, Due Diligence, Fund Managers, Investment Funds, Investors

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Michael McCormack

Final Credit Risk Retention Requirements for Asset-Backed Securities Transactions

On October 21-22, 2014, the federal regulatory agencies responsible for implementing regulations under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) finalized rules for risk retention…more

ABS, Asset-Backed Securities, CMBS, Dodd-Frank, Federal Reserve

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Braden McCurrach

SEC Adopts Final Rules for Disclosure of Hedging Policies

The U.S. Securities and Exchange Commission (the “SEC”) approved a final rule on December 18, 2018 implementing Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)…more

CD&A, Disclosure Requirements, Dodd-Frank, Final Rules, Financial Transactions

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Christopher McDermott

Stablecoins Have a UCC Problem

Highlights: Stablecoins are likely to be characterized as general intangibles under the UCC of non-Article 12 states…more

Blockchain, Business Entities, Choice-of-Law, Collateral, Cryptoassets

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James Thomas McDonnell

In the UCC We Trust May 2024 - It Looks Like We Have Trust Issues

One of the most important aspects in arranging any fund finance transaction is structuring the security package. As anyone that has ever looked at a complete structure chart for a fund financing transaction knows, even a…more

Collateral, Debtors, Jurisdiction, Perfected Security Interest, Private Funds

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Claire McGuinness

Delaware Chancery Court Finds a ~27% Founding Stockholder Is Not a Controller

On July 2, 2024, the Delaware Chancery Court in Sciannella v. AstraZeneca dismissed stockholder claims in connection with the $3 billion merger of Viela Bio and Horizon Therapeutics in 2021. The merger was approved by Viela’s…more

AstraZeneca, Board of Directors, Controlling Stockholders, Corporate Governance, Fiduciary Duty

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Jennifer McIntosh

Revisions to the Securitisation Framework: Final Rules published by the Basel Committee

The Basel Committee on Banking Supervision (the “Basel Committee”) has published the revised securitisation framework setting out the standards for regulatory capital requirements for securitisation exposures held in the banking…more

Banking Sector, Basel Committee on Banking Supervision (BCBS), Final Rules, Securitization Market

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Katie McShane

The Whistleblower Rules & Revisiting Confidentiality

The Securities Exchange Commission ("SEC") has, in furtherance of its whistleblower program, taken actions recently that have led to lenders updating the confidentiality sections of credit agreements to allow for the disclosure…more

Anti-Retaliation Provisions, Dodd-Frank, Securities and Exchange Commission (SEC), Whistleblower Protection Policies, Whistleblowers

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Daniel Meade

Certainty and Uncertainty, May 2025 - OCC Issues Interim Final Rule Undoing 2024 Merger Rule and Guidance

On May 8, the Office of the Comptroller of the Currency (“OCC”) issued an interim final rule rescinding the 2024 final rule to OCC merger procedures and an accompanying policy statement…more

Bank Merger Act, FDIC, Financial Institutions, Mergers, OCC

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Ruth Merisier

Proposed Federal Cybersecurity Regulations for Financial Institutions Face an Uncertain Future

Last year’s proposed comprehensive framework for cybersecurity rules for large financial institutions is suddenly facing an uncertain future. With the comment period having closed as of February 2017, the framework was facing…more

Advanced Notice of Proposed Rulemaking (ANPRM), Cyber Attacks, Cybersecurity, Cybersecurity Framework, Deregulation

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Bevis Metcalfe

Broker Dealer Commissions: UK Supreme Court Hears Appeal in Johnson, Wrench, Hopcraft v Close Bros. and FirstRand

Executive Summary - The UK Supreme Court last week heard arguments in the joined test cases of Johnson v FirstRand Bank Ltd, Wrench v FirstRand Bank Ltd and Hopcraft v Close Brothers Ltd. At issue were findings by the Court…more

Broker-Dealer, Consumer Lenders, Consumer Protection Laws, Disclosure Requirements, Fiduciary Duty

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Jed Miller

Financial Kaleidoscope October 2023 - Fed Issues FAQs Clarifying That Credit-Linked Notes Can Serve as Valid Capital Relief Tools for U.S. Banks

On September 28, the Federal Reserve Board (“FRB”) posted three new FAQs to its website regarding Regulation Q (Capital Adequacy of Bank Holding Companies, Savings and Loan Holding Companies, and State Member Banks). The FAQ…more

Banks, Consumer Financial Products, Federal Reserve, Financial Institutions, FRB

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Juliette Mills

The FCA Weighs In: Hopcraft, Wrench & Johnson Case Sends Ripples Through Motor Finance

In October, the English Court of Appeal (the “Court”) in its landmark case Hopcraft, Wrench & Johnson [2024] EWCA Civ 1282, ruled it was unlawful for car dealers to receive commission from motor finance providers, unless such…more

Consumer Financial Products, Consumer Lenders, Fiduciary Duty, Financial Conduct Authority (FCA), Financial Services Industry

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William Mills

Delaware Governor Signs Senate Bill 21 into Law, Significantly Amending Delaware Corporate Law

On March 25, 2025, Delaware Governor Matt Meyer signed into law Senate Bill 21, amending Sections 144 and 220 of Title 8 of the Delaware General Corporation Law (DGCL). The legislation responds to recent concerns over Delaware…more

Board of Directors, Controlling Stockholders, Corporate Governance, Corporate Officers, Delaware

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Douglas Mintz

Johnson & Johnson’s “Red River” Bankruptcy Strategy Sinks on Third-Party Release Issues, Voting Irregularities—With Possible Implications for Future Mass Tort Bankruptcy Cases

Introduction - On March 31, 2025, Judge Christopher Lopez of the U.S. Bankruptcy Court for the Southern District of Texas denied confirmation of the prepackaged Chapter 11 plan of Johnson & Johnson (“J&J”) affiliate Red River…more

Bankruptcy Court, Bankruptcy Plans, Chapter 11, Dismissals, Harrington v Purdue Pharma L P

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Wesley Misson

Miami in the Rearview February 2025 - Key Takeaways From Miami 2025

A record more than 2,500 industry players attended the 14th annual Global Fund Finance Symposium that wrapped up at the Fontainebleau in Miami Beach. As has been the trend in recent years, there was a lot to discuss (beyond Tom…more

Asset Management, Capital Markets, Financial Institutions, Financial Services Industry, Funding

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Joel Mitnick

Antitrust Enforcement Mid-Year 2023 Review

The year 2023 is proving to be a milestone year for antitrust enforcement. Less so for novel cases and investigations and more so for the generational changes being proposed by the enforcement authorities for merger analysis,…more

Anti-Competitive, Antitrust Provisions, Competition, Corporate Counsel, Department of Justice (DOJ)

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Douglas Mo

Watch Out for Auto-Delete: Delaware Court of Chancery Sanctions Former Meta Officer for Deleting Personal Emails

In a recent decision, In re Facebook Inc. Derivative Litigation, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery imposed litigation sanctions on a former officer and director of Meta Platforms, Inc. (“Meta”)…more

Corporate Officers, Data Preservation, Duty to Preserve, e-Discovery, Electronically Stored Information

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John Moehringer

Executive Order on Ensuring Responsible Development of Digital Assets: The Intersection of Climate Change and Cryptocurrencies

On March 9, 2022, President Biden issued an Executive Order on Ensuring Responsible Development of Digital Assets (the “Executive Order”) that sets in motion a “whole-of-government” strategy to address the impacts of the rise of…more

Biden Administration, Bitcoin, Central Bank Digital Currency (CBDCs), Cryptocurrency, Digital Assets

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Peter Moll

U.S. District Court Confirms FTC Authority To Regulate Corporate Data Security Practices

On April 7, 2014, Judge Esther Salas of the U.S. District Court for the District of New Jersey denied the first ever motion to dismiss filed in Federal court that challenged the authority of the Federal Trade Commission (“the…more

Cybersecurity, Data Protection, Federal Trade Commission (FTC), Financial Regulatory Reform, FTC Act

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Christopher Montgomery

Hot Topics (and Panels) for the Fontainebleau – Sun, Sea and Securitization

Back when NAV was something that guided you to your chosen venue for the evening, the FFA conference in Miami (and earlier still, New York) was a slightly more 'NAV'igable event…more

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

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Elizabeth Moore

ESG Enforcement Watch: SEC Files Fraud Complaint against Brazilian Miner, Vale, over False Safety Claims prior to Environmental Disaster

Summary - In an important development, on April 28, 2022, the Securities and Exchange Commission (SEC) commenced an action in the United States District Court for the Eastern District of New York in which it asserted that…more

Corporate Governance, Disclosure Requirements, Enforcement Actions, Environmental Social & Governance (ESG), False Statements

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Joseph Moreno

Final Regulations on Expanded Authority of CFIUS to Review Foreign Investor Transactions Go into Effect

Eighteen months after President Trump signed the Foreign Investment Risk Review Modernization Act (“FIRRMA”) which broadened the power of the Committee on Foreign Investment in the United States (“CFIUS”) to review foreign…more

CFIUS, Corporate Counsel, Covered Transactions, Critical Infrastructure Sectors, Cross-Border Transactions

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Dmitry Morgan

The FCA Consults on UK’s Investor Protection Rules for SPACs

Until the last month, the market in the U.S. for special purpose acquisition company (“SPAC”) IPOs has been booming. For example, in the first three months of 2021, there were 298 IPOs of U.S. SPACs, which raised in aggregate…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Investment, Special Purpose Acquisition Companies (SPACs)

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Sager Moritzky

An Update to the New York LLC Transparency Act

New York recently Amended the New York LLC Transparency Act. The original version of the law was enacted December, 2023 and mandated disclosure of beneficial ownership of limited liability companies. Please see our previous…more

Beneficial Owner, Compliance, Filing Requirements, Limited Liability Company (LLC), New York

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Peter Morreale

Marketplace Lending Update #4: Litigation Mounts to New Highs in Colorado – Securitizations under Attack

On November 30, 2018, the Administrator of the Colorado Uniform Consumer Credit Code (the “Administrator”) took Colorado’s longstanding litigation against marketplace lenders Avant and Marlette to a new level, adding as…more

Amended Complaints, Banks, Consumer Financial Products, Consumer Lenders, Interest Rates

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Douglas Murning

Is Cash King? Deferred Consideration and Specie/in-Kind Transactions in the Context of Private Equity NAV Financings

Net asset value (NAV) facility documentation, at least in the context of private equity, has evolved to a large extent on the assumption that borrower funds will usually execute transactions in cash - paying cash on completion…more

Acquisitions, Borrowers, Contract Terms, Investment Funds, Investment Management

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Jeffrey Nagle

President Trump’s Executive Order on State Climate Change Policies

On April 8, 2025, President Trump issued an executive order (the “Order”) to protect “American Energy from State Overreach.”…more

Climate Change, Constitutional Challenges, Department of Justice (DOJ), Energy Policy, Energy Sector

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Alexis Narotzky

Sovereign Immunity and the New York Statute of Limitations

Patricia Reid (Defendant) obtained a mortgage from BAC Home Loans Servicing, L.P. (BAC) for certain real property located in Queens, New York. In March, 2010, BAC accelerated the debt and initiated a foreclosure action. The New…more

Fair Housing Act (FHA), Foreclosure, HUD, Mortgages, Sovereign Immunity

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William Natbony

What’s in a Name? Court Holds That Despite Its Title, a Security Agreement Also Subordinated Junior Creditor’s Rights to Payment

On October 29, 2021, Judge Laura Taylor Swain, the presiding judge in the Puerto Rico bankruptcy case, ruled that approximately $2 billion in intragovernmental loan claims were subordinated to bonds issued by the Puerto Rico…more

Bonds, Commercial Bankruptcy, Contract Terms, Loan Agreements, Puerto Rico

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Mathan Navaratnam

Liquidity in a Challenging Climate May 2024 - Financing a Continuation Vehicle – Lender Considerations

A continuation fund is an entity fund set up by a sponsor in order to purchase an asset (or assets) from an existing fund managed by that sponsor. There are a number of reasons as to why a sponsor would want to pursue this…more

Asset Management, Due Diligence, EU, Financial Services Industry, Financial Sponsors

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Raymond Navaro

Taking Apart Section 544(b): Supreme Court Clarifies Scope of Sovereign Immunity in Avoidance Actions

On March 26, 2025, the Supreme Court held in an 8‑to‑1 decision authored by Justice Ketanji Brown Jackson that Section 106(a) of the Bankruptcy Code waives the federal government’s sovereign immunity with respect to…more

Bankruptcy Code, Chapter 7, Creditors, Fraudulent Transfers, SCOTUS

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Sabah Nawaz

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Grace Ncube

How FCA Guidance Aligns With Global Cyberattack Measures

By March 31, 2025, U.K. firms regulated by the Financial Conduct Authority will be required to have conducted mapping and testing to ensure they remain within their impact tolerances for identified operational risks of…more

Cyber Attacks, Cybersecurity, Cybersecurity Framework, Data Breach, Data Protection

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Audrey Nelson

Unclogging the Equity of Redemption Without "DRANO": Recent New York State Decision Sheds Light on Mortgage Loans Additionally Secured by Equity Pledges

On June 19, 2018, in HH Cincinnati Textile L.P. v. Acres Capital Servicing LLC, the Supreme Court of the State of New York refused to issue a preliminary injunction to prevent the foreclosure sale of the equity interests in two…more

Commercial Mortgages, Corporate Finance, Equity, Foreclosure Sales, Mezzanine Lenders

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Mark Nesdill

Blockers and Tackling

Blocker entities are a common part of private equity fund structures. In many cases, blockers are used to insulate foreign and tax-exempt investors from direct tax liability in the fund’s home jurisdiction. Blockers are…more

Blocker Corporations, Borrowers, Capital Contributions, Feeder Funds, Investment Management

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Bonnie Neuman

Turning to '22 - December 2021 - Looking Back, Looking Ahead: A U.S. Perspective

As we all know, 2021 has been a big comeback year in the real estate industry following the unprecedented COVID-driven challenges of 2020. There are still fundamental changes occurring – using a real estate metaphor, both at the…more

Hospitality Industry, Industrial Space, Office Space, Real Estate Investments, Real Estate Market

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Michael Newell

The New UK Reserved Investor Fund: RIFs and QAHCs Create an Ambitious UK Structuring Toolkit

Introduction - After a long gestation, the much heralded new UK fund structure, the Reserved Investor Fund (“RIF”) is finally expected to be available from 19 March 2025…more

Financial Conduct Authority (FCA), Financial Services Industry, Investment Funds, Investors, Private Equity Funds

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Drew Newman

IIGCC Publishes Net Zero Standard for Oil and Gas Sector

On April 18, 2023, the Institutional Investors Group on Climate Change (IIGCC) published a “Net Zero Standard for Oil & Gas.” Development of the Standard follows a two-year collaborative process led by IIGCC with support from…more

Biofuel, Carbon Emissions, Climate Action Plan, Climate Change, Energy Reform

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Andrea Nixon

Trusts Holding Loans Need Licensing, Says Maryland Office of Financial Regulation

On January 10, 2025, the Maryland Office of Financial Regulation issued emergency regulations revised to clarify that “passive trusts” holding residential mortgage loans must obtain a Mortgage Lender License and if the trusts…more

Consumer Financial Products, Financial Institutions, Financial Services Industry, Loans, Maryland

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Ijeoma Nwala

Shining a Light on “Security-Lite” March 2024 - Shining a Light on European “Security-Lite” Financings

NAV facilities come in all shapes and sizes and, unlike subscription facilities, there is no standardised collateral package for these kinds of transactions. In the European market, many lenders - particularly investment banks -…more

Banks, Borrowers, Change of Control, Due Diligence, EU

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Donal O'Donovan

Fund Finance – Positive Developments for Sponsors and Investors under Ireland’s Investment Limited Partnership 2.0 Regime

Why is this topic suddenly of interest? Irish Investment Limited Partnerships (“ILPs”) have been around since the introduction of the Investment Limited Partnership Act in 1994 (the “1994 Act”). Due to certain requirements…more

Alternative Investment Funds, Central Bank of Ireland, Financial Regulatory Reform, Investment Funds, Investment Limited Partnership

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Jeannine Olmo

Breaking Up Is Hard to Do: Partition and Possible Land Mines (or What to ‘Mind’) for Lenders and Tenants-in-Common

Can you play nice and share a piece of real estate? Sharing is hard enough, but imagine jointly owning an investment property with your brother when he decides that he would like to sell and then retire in Hawaii. While your…more

Common Ownership, Financial Services Industry, Financing, Joint Tenancy, Lenders

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Kurt Oosterhouse

From Mistake to Misconduct, April 2025 - Beyond the Boilerplate

The term “boilerplate” originates from the printing industry, where “boilerplate” referred to metal plates with standardized text used for newspapers and other publications. In legal documents and contracts, boilerplate refers…more

Borrowers, Contract Negotiations, Contract Terms, Credit Agreements, Dispute Resolution

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Jose Oropeza

ABCD ... ROFR and SLL June 2022 - The Strengths of Rights of First Refusal

On March 30, 2022, the New York State Supreme Court, New York County (the “Court”) decided in Times Square JV LLC v. Walber Broadway LLC that a ground lease-tenant that is in default under the ground lease for failure to pay the…more

Breach of Contract, Commercial Leases, Contract Terms, Failure To Pay, Ground Leases

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James Orth

SEC Commissioner Signals Need to Fulfill Mandate of Sarbanes-Oxley Act and Develop “Minimum Standards” for Lawyers Practicing Before the Commission

In remarks on March 5, 2022 on PLI’s Corporate Governance webcast, Commissioner Allison Herren Lee of the Securities and Exchange Commission stated that, 20 years after its enactment, it is time to revisit the “unfulfilled…more

Administrative Proceedings, Regulatory Reform, Rules of Professional Conduct, Sarbanes-Oxley, SEC Commissioner

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Alexander Owings

Corporate Governance Litigation & Regulation: A Periodic Review and Predictions for the Remainder of 2019

Since the start of 2018, state and, to a lesser extent, federal courts around the country, as well as state legislatures and Congress, have issued decisions or considered legislation having a substantial impact on corporate…more

AOL, Appraisal, Books & Records, Bylaws, CBS

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Nathan Parker

Big News for Funds June 2024 - A Fresh Look at Side Letters

Side letters have gone through a massive and largely unspoken transition over the last four to five years. From a position where a few investors in a closing might have quite short side letters dealing with niche issues we are…more

Financial Markets, Financial Services Industry, Financing, Investors, Lenders

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Gregory Patti

Legislation Proposed to Amend the Delaware General Corporation Law

On February 17, 2025, a bipartisan coalition of Delaware lawmakers and the Governor proposed legislation that would, if enacted, address issues raised by recent Delaware judicial opinions and reincorporations by high-profile…more

Board of Directors, Corporate Governance, Delaware, Delaware General Corporation Law, Directors

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Lisa Pauquette

Trusts Holding Loans Need Licensing, Says Maryland Office of Financial Regulation

On January 10, 2025, the Maryland Office of Financial Regulation issued emergency regulations revised to clarify that “passive trusts” holding residential mortgage loans must obtain a Mortgage Lender License and if the trusts…more

Consumer Financial Products, Financial Institutions, Financial Services Industry, Loans, Maryland

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George Pelling

Capital Call Securitisation, March 2025 - Subscription Finance Facilities – the Allure to Securitise: A European Perspective

Securitisation of subscription finance facilities is en vogue in fund finance. We have written previously on this topic, offering a primer on capital call securitisations and a Q&A regarding a first publicly rated cash capital…more

Capital Markets, Credit Ratings, EU, European Commission, European Securities and Markets Authority (ESMA)

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Taylor Pengelly

Supreme Court Excludes “Misleading” Statements from False Statement Liability in Thompson v. U.S.

In a unanimous decision issued on March 21, 2025, the Supreme Court in Thompson v. U.S. heightened the burden of proof for “false” statements under 18 U.S.C. § 1014, excluding “misleading” but true statements from liability…more

Criminal Prosecution, False Statements, FDIC, Financial Institutions, Loans

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Katheryn Pereyra-Caldwell

To Pay, or Not to Pay, the Co-op’s Attorneys’ Fees; That is the Question

On January 28, 2025, the New York Appellate Division, First Department refused to enforce a contractual provision that required a tenant-shareholder to pay a co-op’s attorneys’ fees in all lawsuits that the tenant-shareholder…more

Attorney's Fees, Breach of Contract, Contract Disputes, Contract Terms, Real Estate Transactions

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Laura Perkins

New Whistleblower Reward Schemes Would Dramatically Increase Enforcement Risk for UK Corporates and Regulated Firms

Quick read - It is all but inevitable that UK enforcement agencies will start paying for information about organisational misconduct. In the US, whistleblower reward schemes have generated tens of billions of dollars in…more

Compliance, Corporate Governance, Corporate Misconduct, Enforcement, Financial Conduct Authority (FCA)

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Gregory Petrick

European Restructuring: 2024 in Review and Outlook for 2025

Market - overview Whilst Europe did not witness the flood of restructuring and insolvencies some had predicted at the start of the year, 2024 was a significant year nonetheless. Many commentators now predict an extended…more

Bankruptcy Court, Corporate Governance, Corporate Restructuring, Creditors, Debt Restructuring

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Carla Pilcher

Navigating the Grey Area, March 2025 - Navigating the Grey Area: Financial Covenant Amendments and the Doctrine of Purview

The doctrine of purview under English law plays a critical role in determining whether amendments to a secured facility require reaffirmation or re-execution of guarantees and security. However, when it comes to adjustments in…more

Capital Markets, Contract Terms, Financial Institutions, Financial Services Industry, Financing

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Joseph (Joey) Polonsky

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Tara Polston

Give Me Some Credit July 2023 - FFF Sovereign Immunity Series – Part XIII and Wrap-Up

We have come to the final installment of our FFF Sovereign Immunity Series, having covered the 48 other states previously (see the links to the full series here). In this article, we will look at sovereign immunity in Wisconsin…more

Business Litigation, Contract Disputes, Eleventh Amendment, Financing, Government Entities

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Frank Polverino

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Michael Powell

The Federal Circuit’s Polaris Decision Provides Insights Into The Constitutionality Of Inter Partes Reviews

Follow-Up to Polaris Innovations Ltd. v. Kingston Technology Company, Inc. As previously reported here, Judges Reyna, Hughes, and Wallach ordered additional briefing in Polaris Innovations Ltd. v. Kingston Technology…more

Administrative Patent Judges, Appointments Clause, Constitutional Challenges, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Andrew Powers

Fool Me Once, Shame on You; Fool Me Twice, Shame on Me: Res Judicata and Ownership Claims Post Foreclosure

The Supreme Court of the State of New York, County of Westchester, recently held that the doctrine of res judicata bars a lender’s claim that a borrower’s subsequent transfers of property are void, if the claim is brought after…more

Acquisitions, Borrowers, Collateral Estoppel, Consumer Lenders, Foreclosure

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Alix Prentice

Certainty and Uncertainty, May 2025 - Final UK Rules on Options for Fund Managers’ Payment for Investment Research

The UK’s Financial Conduct Authority ("FCA") has published its final Policy Statement on Investment research payment optionality for fund managers (PS25/4) (see here for our note on PS25/4’s preceding Consultation Paper). The…more

Asset Management, Final Rules, Financial Conduct Authority (FCA), Fund Managers, Investment Funds

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Greg Prindle

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Claire Suzanne Puddicombe

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Kamal Qteishat

Continuation Play June 2023 - FFF Sovereign Immunity Series – Part XI: Texas Toast

After leaving South Dakota and taking on a full tank of gas in Tennessee last week, today we have our biggest prize in our 50-state road trip of sovereign immunity: Texas. It’s our luck to be your driver for this leg of the…more

Borrowers, Credit Agreements, Financial Services Industry, Financing, Investment Funds

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Chris Quigley

European Restructuring: 2024 in Review and Outlook for 2025

Market - overview Whilst Europe did not witness the flood of restructuring and insolvencies some had predicted at the start of the year, 2024 was a significant year nonetheless. Many commentators now predict an extended…more

Bankruptcy Court, Corporate Governance, Corporate Restructuring, Creditors, Debt Restructuring

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Patrick Quinn

Final Credit Risk Retention Requirements for Asset-Backed Securities Transactions

On October 21-22, 2014, the federal regulatory agencies responsible for implementing regulations under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) finalized rules for risk retention…more

ABS, Asset-Backed Securities, CMBS, Dodd-Frank, Federal Reserve

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David Quirolo

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Omar Qureshi

Jeopardy Question: Rates and Leaves -- Answer: What Are Things That Are Dropping?

FinCEN Issues Final Rule Designed to Combat Money-Laundering in Residential Real Estate Transactions: Money It’s a Gas, Grab That Cash With Both Hands and Make a Stash…more

Anti-Money Laundering, Beneficial Owner, Final Rules, Financial Crimes, Financial Institutions

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Jennifer Rabbino

US Patent Office Launches Green Energy Award

On March 6, 2023, the U.S. Patent and Trademark Office (USPTO) announced the addition of a new category for its Patents for Humanity Awards Program: Green Energy. The Green Energy category accepts any U.S. patent or patent…more

Climate Action Plan, Climate Change, Energy Projects, Green Energy, Innovative Technology

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Lamiya Rahman

Court Declines to Vacate Environmental Assessment of Dakota Access Pipeline, Permitting Oil to Flow during Remand

On October 11, 2017, the United States District Court for the District of Columbia declined to vacate the U.S. Army Corps of Engineers’ (“Corps”) Environmental Assessment (“EA”) of the Dakota Access Pipeline while the agency…more

Dakota Access Pipeline, Easements, Energy Policy, Energy Projects, Energy Sector

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Hamza Rashid

In re Oracle Corporation Derivative Litigation: Delaware Supreme Court Affirms Chancery Court Decision Not to Impose Fiduciary Duties on an Influential Minority Stockholder

On January 21, 2025, the Delaware Supreme Court affirmed the Court of Chancery’s decision in In re Oracle Corp. Derivative Lit., finding that a less than 50% stockholder does not owe fiduciary duties absent evidence of either…more

Acquisitions, Business Judgment Rule, Controlling Stockholders, Corporate Governance, Delaware

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Grace Revello

Updates to the SOFR Calculation Methodology in the DVP Segment

As of November 25, 2024, the Federal Reserve Bank of New York (“New York Fed”), as administrator of the Secured Overnight Financing Rate (“SOFR”), began publishing SOFR using a modified SOFR calculation methodology. The…more

Banking Sector, Financial Institutions, Financial Markets, Financial Services Industry, Financing

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Catherine Richardson

The New UK Reserved Investor Fund: RIFs and QAHCs Create an Ambitious UK Structuring Toolkit

Introduction - After a long gestation, the much heralded new UK fund structure, the Reserved Investor Fund (“RIF”) is finally expected to be available from 19 March 2025…more

Financial Conduct Authority (FCA), Financial Services Industry, Investment Funds, Investors, Private Equity Funds

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Adam Risell

SEC Adopts Extensive New Rules for Investment Advisers to “Private Funds,” but Excludes CLOs and Other “Securitized Asset Funds” from Those Rules

In February 2022, the Securities and Exchange Commission (the “SEC” or the “Commission”) proposed sweeping new regulatory requirements under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) for investment…more

Books & Records, Collateralized Loan Obligations, Financial Services Industry, Investment Adviser, Investment Advisers Act of 1940

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Kevin Roberts

UK Government Outlines Details of New Failure to Prevent Fraud Offence

On 11 April 2023, the UK Government announced that it has introduced a new “failure to prevent fraud” offence by way of an amendment to its draft Economic Crime and Corporate Transparency Bill (the “Economic Crime Bill”). Under…more

Anti-Corruption, Corporate Crimes, Fraud, Legislative Agendas, Proposed Legislation

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Rachel Rodman

European Banking Authority Reports on the Role of Environmental and Social Risks in the Prudential Framework

In October 2023, the European Banking Authority (EBA) published a report addressing the need for a comprehensive prudential framework that adequately considers emerging environmental and social risks. The report is a response to…more

Climate Change, Corporate Social Responsibility, Environmental Social & Governance (ESG), EU, European Banking Authority (EBA)

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Rachel Ross

Federal Securities Litigation and Regulation: A Periodic Review and Predictions for the Remainder of 2019

While the past year, or even eighteen months, was short on landmark federal securities law decisions, there was significant activity on the part of private securities litigants. In 2018, plaintiffs filed 403 new federal…more

China Agritech Inc v Resh, Class Action, Class Certification, Cyan Inc v Beaver Cty Emps Ret Fund, Cybersecurity

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Y. Jeffrey Rotblat

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Richard Rowe

U.S. Treasury Proposes Regulation of U.S. Outbound Investments

On June 21, 2024, the U.S. Department of Treasury (“Treasury”) issued a notice of proposed rulemaking (“Proposed Rule”) that would regulate certain U.S. transactions with persons of a country of concern involved in the…more

Artificial Intelligence, Comment Period, Covered Transactions, Foreign Investment, Foreign Persons

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Alissa Rowens

Let the Statute of Limitations Run and You Might Be “SOL...”

HSBC Bank, U.S. v. De Garcia considers the reach of the newly enacted Foreclosure Abuse Prevention Act (FAPA) and its effects on the six-year foreclosure statute of limitations…more

Debt, Foreclosure, Mortgages, Property Owners, Residential Property Owners

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Michael Ruder

The SEC Announces New Filer Access Procedures for EDGAR

On September 27, 2024, the Securities and Exchange Commission (the “Commission”) adopted a final rule designed to modernize access to and use of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval…more

EDGAR, Electronic Filing, Filing Requirements, Final Rules, Securities and Exchange Commission (SEC)

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Gareth Rund

Recent Amendments to English Civil Procedure Help Simplify the Issuance of Contractual Claims Against Foreign Defendants—Service of Process Pursuant to CPR 6.33(2B)

On 6 April 2021, an amendment was introduced to the Civil Procedure Rules 1998 (S.I. 1998/3132) (the “CPR”) at Part 6 concerning service out of the jurisdiction. The change is of interest where at least one or more international…more

Business Litigation, Choice of Court Agreements Treaty, Contract Disputes, Foreign Corporations, Jurisdiction

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Elizabeth Ruocco

Third Circuit Affirms Rulings That Distributions to TCEH First Lien Creditors Are Governed by the Bankruptcy Code Rather Than Intercreditor Agreement Waterfall Provision on Enforcement of Collateral Remedies

On June 19, 2019, the United States Court of Appeals for the Third Circuit (the “Third Circuit”) affirmed a ruling of the United States District Court for the District of Delaware (the “District Court”) dismissing challenges by…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Contract Terms

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Michael ("Mike") Rupe

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Lauren Russo

The Delaware General Assembly Approves Amendments to the DGCL – Effective August 1, 2024

On June 20, 2024, the Delaware General Assembly passed legislation to amend certain provisions of the Delaware General Corporation Law (“DGCL”) in order to address recent decisions of Delaware’s Court of Chancery and bring…more

Corporate Governance, Corporate Officers, Delaware, Delaware General Corporation Law, Merger Agreements

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Victoria Saunders

M&A Update: Delaware Court of Chancery Enforces Oral Agreement to Settle Proxy Contest

In a December 8th decision (Sarissa Capital Domestic Fund LP, et. al. v. Innoviva, Inc.), the Delaware Court of Chancery ruled in favor of Sarissa Capital Domestic Fund LP and certain of its affiliates in concluding that Sarissa…more

Board of Directors, Corporate Governance, Oral Contracts, Proxy Contests, Settlement Agreements

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Bilal Sayyed

Washington State Adopts First Broad State Antitrust Premerger Notification Act and Filing Requirement

Effective July 27, 2025, any person that files a Hart-Scott-Rodino (HSR) Act Notification and Report Form (HSR Form) with the Federal Trade Commission (FTC) and the Department of Justice (DOJ) must also submit an electronic copy…more

Acquisitions, Antitrust Provisions, Enforcement Actions, Filing Requirements, Hart-Scott-Rodino Act

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Ira Schacter

Final Credit Risk Retention Requirements for Asset-Backed Securities Transactions

On October 21-22, 2014, the federal regulatory agencies responsible for implementing regulations under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) finalized rules for risk retention…more

ABS, Asset-Backed Securities, CMBS, Dodd-Frank, Federal Reserve

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Richard Schetman

Final Credit Risk Retention Requirements for Asset-Backed Securities Transactions

On October 21-22, 2014, the federal regulatory agencies responsible for implementing regulations under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) finalized rules for risk retention…more

ABS, Asset-Backed Securities, CMBS, Dodd-Frank, Federal Reserve

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Zack Schrieber

SEC Modernizes the “Names Rule” for Funds

What’s in a name? According to the Securities and Exchange Commission, quite a bit. On September 20, 2023, the SEC adopted amendments to the Investment Company Act of 1940, most notably to the “Names Rule” governing the names of…more

Climate Action Plan, Environmental Social & Governance (ESG), Investment Adviser, Investment Company Act of 1940, Investment Funds

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Michael Schromm

FinCEN’s Final Rule for Beneficial Ownership Reporting Requirements – You Can Run But You Can’t Hide

The Financial Crimes Enforcement Network (“FinCEN”) issued its final rule (“Rule”) to implement reporting requirements for beneficial ownership information on September 30, 2022. The Rule will, among other things, require most…more

Anti-Corruption, Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, Final Rules

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Michael Sebba

The Federal Circuit’s Polaris Decision Provides Insights Into The Constitutionality Of Inter Partes Reviews

Follow-Up to Polaris Innovations Ltd. v. Kingston Technology Company, Inc. As previously reported here, Judges Reyna, Hughes, and Wallach ordered additional briefing in Polaris Innovations Ltd. v. Kingston Technology…more

Administrative Patent Judges, Appointments Clause, Constitutional Challenges, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Jonathan Seliger

Delaware Court of Chancery Weighs in on Earnout Provisions in Recent Cases

The Delaware Court of Chancery has weighed in on a number of recent cases interpreting earnout provisions in transactional agreements. The Court has demonstrated a reluctance to rule against seller-plaintiffs during the pleading…more

Breach of Contract, Commercial Litigation, Contract Negotiations, Contract Terms, Delaware

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Casey John Servais

“ToMAYto, ToMAHto”: District Court Holds That Differences in State Law Determine Whether Unpaid Annual Pension Contributions Establish “Insolvency” for Chapter 9 Eligibility Purposes

On March 21, 2025, the U.S. District Court for the Northern District of California affirmed a bankruptcy court’s dismissal of the San Benito Healthcare District’s chapter 9 bankruptcy petition on the grounds that the district’s…more

Appeals, Bankruptcy Code, Bankruptcy Court, California, Chapter 9

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Zoha Shafi

The UK Government’s Autumn Budget 2024

The Chancellor of the Exchequer delivered the United Kingdom (“UK”) Budget for 2024 on 30 October 2024. The Budget was the first to be delivered by the new Chancellor of the Exchequer, following the election of the Labour…more

Capital Gains, Capital Gains Tax, Carried Interest, Corporate Taxes, Income Taxes

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Kevin Shin

SEC Adopts Amendments to Management’s Discussion and Analysis and Other Financial Disclosures

On November 19, 2020, the Securities and Exchange Commission adopted final amendments to the disclosure rules affecting Management’s Discussion and Analysis (MD&A) and related financial disclosures…more

Corporate Governance, Disclosure Requirements, Environmental Social & Governance (ESG), Financial Regulatory Reform, Financial Statements

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Nick Shiren

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Michael Sholem

FCA’s Supervision Strategy for Benchmark Administrators

On September 8, the UK’s Financial Conduct Authority (“FCA”) published a “Dear CEO” letter setting out its strategy and supervisory priorities for overseeing benchmark administrators under the UK Benchmark Regulations (“UK BMR”)…more

Benchmarks, Financial Conduct Authority (FCA), Financial Institutions, Financial Services Industry, Regulatory Reform

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Kevin Sholette

Summer's Coming, May 2021 | Issue No. 24 - One Way Out: New York’s One-Action Rule

This article is a brief refresher on the basics of New York’s one-action rule. Following an event of default, typical commercial real estate loan documents give the lender the right to pursue alternative remedies simultaneously,…more

Foreclosure, Lenders, Mortgages, One-Action Rule

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Timbre Shriver

SDNY’s Whistleblower Pilot Program: Clarity for Individuals Could Cost Companies

On January 10, 2024, the United States Attorney for the Southern District of New York (SDNY) announced the creation of a Whistleblower Pilot Program (SDNY Whistleblower Program). While SDNY has long incentivized individuals to…more

Cooperation Agreement, Incentives, Non-Prosecution Agreements, State Pilot Programs, Whistleblower Protection Policies

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Gary Silverstein

The Consolidated Appropriations Act of 2021

Business Tax Provisions - About-Face on Deductibility of PPP Expenses. The CAA overrules the IRS’s previous guidance denying the deductibility of expenses relating to forgiven PPP loans…more

CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Families First Coronavirus Response Act (FFCRA), Federal Loans

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William Simpson

Fifth Circuit Bombshell on SEC ALJs Raises Questions about DEA ALJs

In a decision that likely will reverberate throughout the administrative state, a three-judge panel of the United States Court of Appeals for the Fifth Circuit recently held in Jarkesy v. Securities and Exchange Commission that…more

Administrative Hearings, Administrative Law Judge (ALJ), Administrative Procedure, Article II, Constitutional Challenges

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Rachel Skene

Delaware Supreme Court Expands MFW Applicability in Conflicted Controller Transactions

On April 4, 2024, the Delaware Supreme Court issued a much-anticipated decision, In re Match Group Derivative Litigation (“In re Match Group”), extending the MFW doctrine more broadly to all conflicted controller transactions. …more

Breach of Duty, Business Judgment Rule, Controlling Stockholders, DE Supreme Court, Derivative Suit

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Sara Skutch

Sending a Message: The CFPB's Charges Against TransUnion

For months, Director Rohit Chopra warned that the Consumer Financial Protection Bureau (the “Bureau”) would sharpen its focus on repeat offenders. On April 12, 2022, the Bureau demonstrated its resolve, announcing charges…more

Consumer Financial Products, Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Corporate Counsel, Credit Reporting Agencies

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Christopher Smith

Financial Reporting Council Stewardship Code Early Reporting Review

In November 2019, we reported that the UK’s Financial Reporting Council (the “FRC”) had issued a revised Stewardship Code (the “Stewardship Code”) which came into effect from 1 January 2020. The FRC will publish its first list…more

Corporate Governance, Financial Reporting, Financial Reporting Council (FRC), Regulatory Requirements, Reporting Requirements

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Matthew Smith

European Restructuring and Distressed: 2022 in Review

Market overview - Few could have predicted the unexpected twists and turns 2022 would provide. A year in which the spectre of war came home to haunt Europe…more

Corporate Restructuring, Creditors, Debtors, EU, Insolvency

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Brett Snyder

Department of Energy Streamlines Small-Scale LNG Export Authorizations

The Department of Energy (“DOE”) has announced a final rule that will expedite the approval process for small-scale exports of natural gas…more

Department of Energy (DOE), Energy Policy, Energy Sector, Export Controls, Exports

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Richard Solow

The Same, Only Better: Eighth Circuit Affirms Peabody Chapter 11 Plan Backstopped Rights Offering Despite Alleged Disparate Creditor Treatment Under Peabody Plan

On August 9, 2019, in a unanimous decision (written by a former bankruptcy judge), the Eighth Circuit Court of Appeals affirmed the confirmation of the Peabody Energy Chapter 11 plan (“Plan”) with a prominent backstopped rights…more

Adversary Proceedings, Appeals, Backstop Agreements, Bankruptcy Code, Bankruptcy Court

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Sebastian Souchet

The Development of a Bank Regulatory Framework for Fintech and Digital Assets: OCC’s Approval of Full Charter for a Fintech Company Continues the Movement of Fintech within the U.S. Bank Regulatory Perimeter

I. Introduction - The Office of the Comptroller of the Currency (“OCC”) continues along its cautious course of allowing fintech and digital asset firms into the so-called “regulatory perimeter,” not through any special or…more

Digital Assets, Financial Institutions, Financial Services Industry, FinTech, National Bank Charters

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Nathan Spanheimer

Miami Bound February 2025 - The UAE: A New Private Credit Oasis?

Private Credit is a hot – if not the hottest – asset class right now. This asset class has a nexus to a number of Cadwalader’s practices from fund finance to capital markets and beyond. To that end, last week we attended the…more

Banking Sector, Capital Markets, Creditors, Debt Financing, Financial Institutions

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Tom Spinks

Cascading Into Spring March 2024 - Cascading Security

With the increasing complexity of fund structures and the growing prevalence of US Pension Funds in the European market, we have seen an uptick in the number of queries particularly from European banks and funds around how to…more

Employee Retirement Income Security Act (ERISA), Feeder Funds, Fiduciary Duty, Financial Services Industry, Financing

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M. Chadwick Stackhouse

The Comfort Letter Comeback, March 2025 - Comfort Letters

In the evolving fund finance market, lenders are constantly assessing ways to mitigate risk and enhance credit support in order to provide for the smooth operation of subscription-based credit facilities. One such credit…more

Borrowers, Capital Markets, Credit Facilities, Financial Institutions, Financial Markets

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Jared Stanisci

Watch Out for Auto-Delete: Delaware Court of Chancery Sanctions Former Meta Officer for Deleting Personal Emails

In a recent decision, In re Facebook Inc. Derivative Litigation, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery imposed litigation sanctions on a former officer and director of Meta Platforms, Inc. (“Meta”)…more

Corporate Officers, Data Preservation, Duty to Preserve, e-Discovery, Electronically Stored Information

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Hayden Stark

CFTC Issues Proposed Rule to Modify Regulation 4.7 Exemptions

On October 2, 2023, the Commodity Futures Trading Commission (the “Commission” or “CFTC”) published a notice of proposed rulemaking (the “Proposed Rule”) to amend CFTC Regulation 4.7, which provides exemptions to registered…more

CFTC, Comment Period, Commodities, Commodity Pool, Commodity Trading Advisors (CTAs)

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Eric Starr

Different Yet Similar August 2024 - Borrowing Base/Coverage Ratio Approaches in Subscription Finance Facilities

The key component of any subscription credit facility is the underlying capital commitments that are pledged to secure the facility. Virtually every lender will require some level of over-collateralization – meaning, investor…more

Borrowers, Capital Markets, Collateral, Credit Facilities, Financial Institutions

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Matthew Stempler

Code Update: Get Ready March 2023 | Issue No. 214 - New UCC Article 12 Matters to More than Just Cryptocurrency

After being approved by its drafting committees last summer, a new article to the Uniform Commercial Code is now making its way through state legislatures for enactment. Because the new Article 12 and its related code amendments…more

Borrowers, Financial Regulatory Reform, Financing, Investment Funds, Lenders

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Mary-Carter Stewart

The Other Green Scene: Sublines for Evergreen Funds June 16, 2023 - It’s Not Easy Being (Ever)Green

Is evergreen the new black? It may be. Each day new limited partnership agreements come across our desks, sent to us by our bank clients who ask us to read and analyze these documents alongside them to determine the most…more

Financial Services Industry, Financing, Investment, Investment Funds, Lenders

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Olivia Stewart

Service, Sacrifice and the Rule of Law, May 2025 - A Veteran’s Voice in Law

For many Americans, Memorial Day marks the beginning of summer – neighborhood pools open, patriotic decorations ornament yards, and friends and family gather for barbeques and outdoor fun. Amidst the three-day weekend, it’s easy…more

Capital Markets, Career Development, Law School, Military Service Members, Private Equity

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Lary Stromfeld

“ToMAYto, ToMAHto”: District Court Holds That Differences in State Law Determine Whether Unpaid Annual Pension Contributions Establish “Insolvency” for Chapter 9 Eligibility Purposes

On March 21, 2025, the U.S. District Court for the Northern District of California affirmed a bankruptcy court’s dismissal of the San Benito Healthcare District’s chapter 9 bankruptcy petition on the grounds that the district’s…more

Appeals, Bankruptcy Code, Bankruptcy Court, California, Chapter 9

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Nicole Sturno

Firmly Fixated With Allonges - REF News & Views

In a recent decision by the Supreme Court of the State of New York in Kings County (the Court), HSBC Bank USA, N.A. (the Plaintiff) initiated a mortgage foreclosure action against Jack and Sabah Srugo (collectively, the…more

Borrowers, Foreclosure, HSBC, Mortgage Lenders, Mortgages

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William Sugden

The Court of Appeal Judgment in the Adler Restructuring Plan: Pari Passu is Back!

On 23 January the Court of Appeal unanimously overturned the High Court’s decision to sanction Adler’s restructuring plan, following a successful challenge from an ad hoc committee of noteholders (the AHG). The judgment is the…more

Commercial Bankruptcy, Creditors, Debtors, Pari Passu, Restructuring

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Jack Sullivan

It’s Time for a New Damages Calculation: SDNY Bankruptcy Court Applies the Time Approach to Limit Damages in Lease Terminations

Since 1993, decisions out of the U.S. Bankruptcy Court for the Southern District of New York consistently adopted the aggregate “rent approach” for calculating lease rejection damages in bankruptcy proceedings. But in Bankruptcy…more

Bankruptcy Court, Calculation of Damages, Commercial Bankruptcy, Lease Termination

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Eden Sung

FTC Sues to Block Lockheed’s Proposed Acquisition of Aerojet Rocketdyne in Milestone Defense Industry Vertical Challenge

The Federal Trade Commission (“FTC”) filed suit yesterday to block Lockheed Martin Corporation’s proposed $4.4 billion acquisition of Aerojet Rocketdyne Holdings Inc., announced back in December 2020. Aerojet, the last…more

Acquisition Agreements, Anti-Competitive, Antitrust Violations, Competition, Corporate Counsel

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Linda Swartz

The Consolidated Appropriations Act of 2021

Business Tax Provisions - About-Face on Deductibility of PPP Expenses. The CAA overrules the IRS’s previous guidance denying the deductibility of expenses relating to forgiven PPP loans…more

CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Families First Coronavirus Response Act (FFCRA), Federal Loans

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Sharon Takhar

US and UK Issue New Round of Russia-Related Sanctions in Connection with G7 Summit

During the week of the G7 Summit, both the U.S. and UK issued a new round of Russia-related sanctions as Russia’s invasion of Ukraine enters its 28th month. On June 12, 2024, the U.S. Department of the Treasury’s Office of…more

Economic Sanctions, Foreign Policy, Foreign Relations, Foreign Trade Regulations, G7

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Clay Talley

Clearing the Hurdle, September 2024 - Hurdling Into the Borrowing Base

As was briefly touched upon in a prior Fund Finance Friday article “Borrowing Base/Coverage Ratio Approaches in Subscription Finance Facilities,” a subscription facility which uses the borrowing base approach looks at each…more

Borrowers, Financial Institutions, Financial Services Industry, Financing, Investment

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Adam Tamzoke

SEC Staff Issues New Guidance Regarding Schedule 13D/G

On February 11, 2025, the SEC staff published updates to two Compliance and Disclosure Interpretations (C&DIs) regarding the availability of Schedule 13G to certain investors, specifically concerning activities that could…more

Compliance, Disclosure Requirements, Filing Requirements, Investors, Reporting Requirements

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Loren Taub

The New Normal? June 2021 - Make Me a Right of Refusal I Can't Refuse

The New York State rule against perpetuities is based on the common law rule and provides that “no estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in…more

Contract Terms, Covenants that Run With the Land, NY Supreme Court, Real Estate Market, Real Estate Transactions

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David Teigman

SEC Adopts Final Rules for Disclosure of Hedging Policies

The U.S. Securities and Exchange Commission (the “SEC”) approved a final rule on December 18, 2018 implementing Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)…more

CD&A, Disclosure Requirements, Dodd-Frank, Final Rules, Financial Transactions

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Deanna Thompson

US Patent Office Launches Green Energy Award

On March 6, 2023, the U.S. Patent and Trademark Office (USPTO) announced the addition of a new category for its Patents for Humanity Awards Program: Green Energy. The Green Energy category accepts any U.S. patent or patent…more

Climate Action Plan, Climate Change, Energy Projects, Green Energy, Innovative Technology

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Daniel Tobias

European Supervisory Authorities Make Recommendations for the EU Securitisation Market

Background Article 44 of the EU’s Securitisation Regulation (“SECR”) requires the Joint Committee of the European Supervisory Authorities (“ESAs”) to produce a report every three years on: (a) the implementation of requirements…more

Due Diligence, EU, European Supervisory Authorities (ESAs), Investors, Proposed Amendments

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Anne Tompkins

US Attorneys’ Offices Issue New Voluntary Self-Disclosure Policy As Efforts to Incentivize More Self-Reporting Continue

On February 22, 2023, the United States Attorneys’ Offices (USAO) issued a new Voluntary Self-Disclosure (VSD) Policy, which is effective immediately. The policy follows the revisions announced last month to the Department of…more

Corporate Crimes, Corporate Misconduct, Criminal Liability, Department of Justice (DOJ), FCPA Corporate Enforcement Policy (CEP)

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James Treanor

Lessons Learned from Recent OFAC Enforcement Actions

Two recent OFAC enforcement actions highlight real-world challenges that financial institutions and other companies may face in their efforts to implement an effective sanctions compliance program…more

Banks, Economic Sanctions, Enforcement Actions, Financial Institutions, Financial Transactions

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Emanuel Tsourounis II

Bring On Q4 - September 2021 - Do I Recognize You (Preferred Equity)?

Preferred equity − what is it? The question confounds many who encounter this unique and flexible financing alternative because it generally exhibits features of both debt and equity…more

Equity Investors, Investors, Joint Venture, Loans, Real Estate Investments

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Danielle Vincenti Tully

US Patent Office Launches Green Energy Award

On March 6, 2023, the U.S. Patent and Trademark Office (USPTO) announced the addition of a new category for its Patents for Humanity Awards Program: Green Energy. The Green Energy category accepts any U.S. patent or patent…more

Climate Action Plan, Climate Change, Energy Projects, Green Energy, Innovative Technology

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Mercedes Kelley Tunstall

Rules in Motion, May 2025 - Another Update on the CFPB

Since our last report on what is happening with the Consumer Financial Protection Bureau (“CFPB”) during this administration, we have seen the Trump nominee for Director of the CFPB retracted from consideration in front of the…more

Consumer Financial Protection Bureau (CFPB), Consumer Protection Laws, Enforcement Actions, Financial Institutions, Financial Regulatory Reform

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Lex Urban

DOJ Casts the FCPA Spotlight on Brazil-Related Enforcement

On May 25, 2021, the U.S. Department of Justice (“DOJ”) unsealed an indictment charging two Austrian citizens, Peter Weinzierl (“Weinzierl”) and Alexander Waldstein (“Waldstein”), for their roles in a scheme to launder hundreds…more

Brazil, Bribery, BSA/AML, Corruption, Criminal Prosecution

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Joanna Valentine

Sequana – What You Need to Know

Summary - The Supreme Court has delivered its long-awaited decision in BTI 2014 LLC v. Sequana S.A. [2022] UKSC 25. It is a significant decision for the law of directors’ duties. For the first time the UK’s highest…more

Board of Directors, Corporate Governance, Creditors, Directors, Insolvency

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Chris van Heerden

May Market Moves, May 2025 - Modifications to the Capital Plan Rule and Stress Capital Buffer Requirement – Notice of Proposed Rulemaking

The Federal Reserve Board has requested comment on a proposal designed to reduce the volatility of the capital requirements stemming from its annual stress tests. The proposal would achieve this primarily by averaging the…more

Banking Sector, Banks, Capital Requirements, Federal Reserve, Financial Regulatory Reform

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Marc Veilleux

KYC – “Know Your Customer,” or Agent, or Financial Institution, to Qualify for the Bankruptcy Code Safe Harbors

Parties structuring certain financial transactions to comply with the Bankruptcy Code safe harbor provisions, including protections from the avoidance powers in Section 548 of the Bankruptcy Code, must be cognizant of recent…more

Bankruptcy Code, Bankruptcy Court, Commercial Bankruptcy, Financial Institutions, Financial Transactions

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Karina Velez

The Comfort Letter Comeback, March 2025 - Comfort Letters

In the evolving fund finance market, lenders are constantly assessing ways to mitigate risk and enhance credit support in order to provide for the smooth operation of subscription-based credit facilities. One such credit…more

Borrowers, Capital Markets, Credit Facilities, Financial Institutions, Financial Markets

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Ludovica Veltri

Transition Plan Taskforce Publishes the Final Disclosure Framework

On October 9, 2023, the Transition Plan Taskforce (TPT) published the Disclosure Framework providing good practice recommendations for companies to enable them to make “high quality, consistent and comparable transition plan…more

Climate Action Plan, Climate Change, Corporate Governance, Disclosure Requirements, Financial Conduct Authority (FCA)

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Satvi Vepa

UK Spring Budget 2024

Key Tax Measures The Chancellor of the Exchequer delivered the United Kingdom (“UK”) Spring Budget for 2024 on 8 March, 2024. The Budget was delivered against the backdrop of an anticipated general election in the summer or…more

Domicile, Film Industry, Financial Institutions, Income Taxes, Independent Films

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Martin Vojtko

Capital Call Securitisation, March 2025 - Subscription Finance Facilities – the Allure to Securitise: A European Perspective

Securitisation of subscription finance facilities is en vogue in fund finance. We have written previously on this topic, offering a primer on capital call securitisations and a Q&A regarding a first publicly rated cash capital…more

Capital Markets, Credit Ratings, EU, European Commission, European Securities and Markets Authority (ESMA)

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Philipp von Pelser Berensber

SEC Re-Proposes Dodd-Frank Act Section 621 Conflicts of Interest Rule

The Securities and Exchange Commission (“SEC”) unanimously voted yesterday to re-propose a rule to prohibit conflicts of interest in certain securitization transactions. The SEC previously proposed, but never finalized, this…more

Asset-Backed Securities, Conflicts of Interest, Dodd-Frank, Proposed Rules, Regulatory Agenda

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Jeremiah Wagner

The Commission Fails to Endorse ESMA’s Draft Disclosure Technical Standards Under the Securitisation Regulation

The European Securities and Markets Authority (“ESMA”) published on its website late on 18 December 2018, a letter from the European Commission to ESMA dated 30 November 2018 (the “Commission’s Letter”), in which the Commission…more

Disclosure Requirements, European Commission, European Securities and Markets Authority (ESMA), Loan Market Association, Securitization

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M. Skyler Walker

Miami Bound February 2025 - The UAE: A New Private Credit Oasis?

Private Credit is a hot – if not the hottest – asset class right now. This asset class has a nexus to a number of Cadwalader’s practices from fund finance to capital markets and beyond. To that end, last week we attended the…more

Banking Sector, Capital Markets, Creditors, Debt Financing, Financial Institutions

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Liam Wall

From Mistake to Misconduct, April 2025 - Beyond the Boilerplate

The term “boilerplate” originates from the printing industry, where “boilerplate” referred to metal plates with standardized text used for newspapers and other publications. In legal documents and contracts, boilerplate refers…more

Borrowers, Contract Negotiations, Contract Terms, Credit Agreements, Dispute Resolution

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Simon Walsh

The Court of Appeal Judgment in the Adler Restructuring Plan: Pari Passu is Back!

On 23 January the Court of Appeal unanimously overturned the High Court’s decision to sanction Adler’s restructuring plan, following a successful challenge from an ad hoc committee of noteholders (the AHG). The judgment is the…more

Commercial Bankruptcy, Creditors, Debtors, Pari Passu, Restructuring

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Erin Ward

Delaware Governor Signs Senate Bill 21 into Law, Significantly Amending Delaware Corporate Law

On March 25, 2025, Delaware Governor Matt Meyer signed into law Senate Bill 21, amending Sections 144 and 220 of Title 8 of the Delaware General Corporation Law (DGCL). The legislation responds to recent concerns over Delaware…more

Board of Directors, Controlling Stockholders, Corporate Governance, Corporate Officers, Delaware

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Jonathan Watkins

Securities Litigation Alert: “Half-Truths,” Not “Pure Omissions”: Supreme Court Limits Section 10(b) Claims Based on Item 303 Nondisclosure to Omissions That Render Affirmative Statements Misleading

On April 12, 2024, a unanimous U.S. Supreme Court issued an opinion in Macquarie Infrastructure Corp. v. Moab Partners, L. P., vacating a judgment of the U.S. Court of Appeals for the Second Circuit that had reinstated claims…more

False Statements, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Rule 10b-5

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Eric Waxman

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Edward Wei

Tax Update: IRS Trims Back FATCA

On December 13, 2018, the Internal Revenue Service issued proposed regulations that eliminate certain types of withholding under Sections 1471-1474 of the tax code, which are commonly referred to as FATCA…more

FATCA, Foreign Investment, IRS, Proposed Regulation, Tax Planning

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Neil Weidner

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Martin Weinstein

New Whistleblower Reward Schemes Would Dramatically Increase Enforcement Risk for UK Corporates and Regulated Firms

Quick read - It is all but inevitable that UK enforcement agencies will start paying for information about organisational misconduct. In the US, whistleblower reward schemes have generated tens of billions of dollars in…more

Compliance, Corporate Governance, Corporate Misconduct, Enforcement, Financial Conduct Authority (FCA)

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Stephen Weiss

DOJ Casts the FCPA Spotlight on Brazil-Related Enforcement

On May 25, 2021, the U.S. Department of Justice (“DOJ”) unsealed an indictment charging two Austrian citizens, Peter Weinzierl (“Weinzierl”) and Alexander Waldstein (“Waldstein”), for their roles in a scheme to launder hundreds…more

Brazil, Bribery, BSA/AML, Corruption, Criminal Prosecution

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Evan Weller

FRB Requests Comments on Proposed Single-Counterparty Credit Limits

The Board of Governors of the Federal Reserve System ("FRB") has requested comments on reissued proposed rules that would establish a single-counterparty credit limits ("SCCL") for domestic and foreign bank holding companies…more

Bank Holding Company, Banking Sector, Credit, Dodd-Frank, Federal Reserve

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Kendra Wharton

SEC’s Division of Corporation Finance Heightens Expectations for Crypto Disclosures

In the wake of mounting crypto bankruptcies and federal investigations into the alleged misappropriation of crypto assets, among other possible wrongdoing by market participants, the U.S. Securities and Exchange Commission’s…more

Cryptoassets, Cryptocurrency, Disclosure Requirements, Financial Distress, New Guidance

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Peter Williams

Court of Appeals Decision: Managers of Open-Market CLOs Not Subject to Dodd-Frank Risk Retention

On February 9, 2018, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled in favor of the Loan Syndications and Trading Association (“LSTA”) in its lawsuit against the…more

Appeals, Asset-Backed Securities, Collateralized Loan Obligations, Dodd-Frank, FRB

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Thomas Wilson

Marching into March February 2023 | Issue No. 212 - FFF Sovereign Immunity Series – Part VI

Today’s article marks the halfway point in our alphabetical 50-state survey of sovereign immunity, as this installment covers Montana, Nebraska, Nevada, New Hampshire and New Jersey…more

Contract Disputes, Financing, Investment, Investment Funds, Sovereign Immunity

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Wesley Wintermyer

A Call to Arms: CFPB Encourages States to Use Federal Authorities to Bring Enforcement Actions

The Consumer Financial Protection Bureau ("CFPB") issued an interpretive rule on May 19, reiterating the authority that states have to pursue companies and individuals that violate federal consumer financial protection laws,…more

Consumer Financial Products, Consumer Financial Protection Act (CFPA), Consumer Financial Protection Bureau (CFPB), Enforcement Actions, Financial Services Industry

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Howard Wizenfeld

Intellectual Property Law: Looking Forward to 2023

With the continuing advancements of cutting-edge technologies — such as genome editing (CRISPR) and Non-Fungible Tokens (NFTs) — U.S. courts will have a full docket of challenging IP cases throughout 2023. Below are some of the…more

Certiorari, Copyright, Corporate Counsel, Fair Use, Fine Art

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Marianna Wonder

M&A Update: Akorn Falls Far from the Tree: Delaware Chancery Court Finds a “Material Adverse Effect” for the First Time in Akorn, Inc. v. Fresenius Kabi AG, et al.

On October 1, 2018, the Delaware Court of Chancery found in Akorn, Inc. v. Fresenius Kabi AG, et al. that Fresenius was entitled to terminate its merger agreement with Akorn…more

Contract Termination, EBITDA, Food and Drug Administration (FDA), Fresenius, Material Adverse Effects

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Jessica Wong

Summer Reading July, 2021 - Note Prevails over Mortgage in the Event of a Conflict

A recent decision from The Supreme Court of Florida (the “Florida Supreme Court”) in WVMF Funding v. Luisa Palmero, et al. (Fl. S. Ct.; SC19-1920, June 24, 2021) held that, while a note and mortgage must be read together, in the…more

Foreclosure, Mortgage Lenders, Mortgages, Promissory Notes, Reverse Mortgages

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Blake Woodward

When “Six Eyes” Just Aren’t Enough

On February 16, 2021, the United States District Court in the Southern District of New York (the “Court”) issued a decision In Re Citibank August 11, 2020 Wire Transfers1 that upheld the “discharge for value” doctrine and ruled…more

Borrowers, Citibank, Dischargeable Debts, Financial Transactions, Lenders

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Patrick Yingling

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Pearl Yuan-Garg

SEC Adopts Final Rules for Disclosure of Hedging Policies

The U.S. Securities and Exchange Commission (the “SEC”) approved a final rule on December 18, 2018 implementing Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)…more

CD&A, Disclosure Requirements, Dodd-Frank, Final Rules, Financial Transactions

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Jared Zajac

The Twilight, or Rebirth, of Liability Management? Serta and Mitel Decisions Reach Opposite Conclusions on the Permissibility of Uptier Exchange Transactions

Introduction & Key Takeaways - The year 2024 ended with some major legal fireworks, as two important courts issued contrasting New Year’s Eve decisions on the validity of “uptier” liability management transactions that have…more

Bankruptcy Court, Chapter 11, Contract Terms, Corporate Restructuring, Creditors

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Joseph Zeidner

Springtime for Alternative Currencies, March 2025 - Updated State of Play of Alternative Currency Benchmark Rates

With four major interest rate benchmarks ceasing to be published by the end of last year, we thought now would be a good time to provide a refresher on alternative currency rates. In this article we first discuss the key shifts…more

Banking Sector, Borrowers, Contract Terms, Credit Facilities, Financial Markets

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Robert Zwirb

Swap Execution Facilities, the Sequel

The Commodity Futures Trading Commission (the “CFTC”) issued a release (the “SEF Proposing Release”) that would make significant revisions to the regulatory requirements that apply under Part 37 of the CFTC Rules (the “Existing…more

Block Trades, CFTC, Financial Markets, Foreign Entities, Swap Execution Facilities

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