When Worlds Collide: Litigation Insights for M&A Attorneys and Tax Advisers
It is a common scenario–a company wants to buy or sell another company and turns for help to mergers and acquisitions attorneys and tax advisers from the top legal and accounting firms in the country; together, these advisers work to create a deal structure that best suits their client’s business and tax objectives and, hopefully, minimizes unnecessary risk.
Hedge Fund Governance and SEC Enforcement Proceedings
Steve Cohen, Raj Rajaratnam, and numerous lesser known hedge fund managers have been charged or otherwise implicated in civil enforcement proceedings commenced by the Securities and Exchange Commission (the “SEC”) over the past few years, alleging misuse of material, non-public, information, sometimes in addition to other wrongdoing. Some of these funds are almost immediately forced to commence liquidation while others like Steve Cohen’s SAC Capital, struggle to survive while attempting to defend against the allegations and deal with the unfavorable attendant publicity.
Medical Reference Materials Publisher Liability
In the realm of pharmaceutical product liability litigation, it is expected that plaintiffs will sue the pharmaceutical manufacturer. Sometimes plaintiffs may sue their prescribing physicians. They may even attempt to sue the pharmacy or the pharmacist that dispensed the medication. These defendants do not seem too far-fetched or unexpected. Far less common, and indeed far-fetched, is suing the publisher of medical reference materials (i.e., patient education fact sheets, patient education monographs, the Physician’s Desk Reference) in such litigation.
Cyber Risk and the Board of Directors—Closing the Gap
The responsibility of corporate directors to address cyber security is commanding more attention and is obviously a significant issue. Yet here is how one writer entitled her Forbes article about the 2012 Carnegie Mellon Cylab Report: “Boards Are Still Clueless About Cybersecurity.”
ITC Remedial Orders: Obey the Law?
The inconsistent enforcement by U.S. Customs and Border Protection (CBP) of U.S. International Trade Commission (ITC) Section 337 exclusion orders has drawn considerable attention in the past year. Criticism has focused on problems with the interagency enforcement process and whether it is the responsibility of CBP or the ITC, after an exclusion order has gone into effect, to determine whether specific imported articles infringe ITC remedial orders. While the interagency process is sorted out, there are two steps that the ITC could take on its own to improve the effectiveness of its Section 337 remedies.
An Appeal to Reason Post-Myriad and Mayo—to Follow the Statute and the Constitutional Plan for the U.S. Patent System When Deciding Questions of Patent Eligibility
Section 101 of the Patent Act defines utility patent eligibility: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter … may obtain a patent therefor … .” But the Supreme Court has perceived a need to add three “judicial exceptions.”
Ten Surprises for Expatriates
The Heroes Earnings Assistance and Relief Tax (HEART) Act of 2008 adopted new tax rules for expatriates–i.e., persons ceasing to be U.S. citizens or long-term green card holders.
A key feature of these rules is an exit tax, meaning that the expatriate is taxed on a mark-to-market basis and also deemed to receive certain deferred income. Another is an inheritance tax applicable to their future gifts or bequests to U.S. persons.
Avoiding Insider Status in Bankruptcy: Lessons from Capmark Financial Group Inc. v. Goldman Sachs Credit Partners, L.P.
Through various affiliated entities, large financial institutions may have multiple touch points to a company client or multiple roles in a complex financial transaction. For example, one affiliate could have an equity interest in a company, another affiliate could have a lending relationship with the company and yet a third affiliate could provide financial advisory services to the same company.
Two-Year J.D.s? Wrong Question, But A Good Start
The debate over a 2-year J.D., spurred by President Obama and touched upon in a preliminary report from an American Bar Association (ABA) task force, is just a small window into the larger challenges facing the business of law in the United States.
President Obama’s comment sparked a debate within the legal community that has spilled over into mainstream media. While these exchanges are important, the discussion must be broader.
Casting 3D Printing’s Coming IP Litigation: Usual Suspects and Dark Horses
Three-dimensional or 3D printing has begun to cross the chasm to mainstream use. As with previous disruptive innovations–think personal computing and mobile phones–legal challenges based in intellectual property law are sure to follow.
Anticipating where those conflicts are most likely to occur requires an understanding of the emerging technology and how its use potentially impacts various rights holders. While intellectual property law’s traditional battle fronts like patent and copyright infringement will surely see heavy action, other, less obvious legal theories may also end up in the mix.
SEC’s CEO Pay-Ratio Proposal Gives Companies Flexibility to Satisfy Dodd-Frank
On Sept. 18, 2013, the Securities and Exchange Commission (“SEC”), following a narrow three-to-two vote of the commissioners, proposed new rules to require the disclosure by public companies of the ratio of CEO pay to median employee pay. The pay ratio disclosure, mandated by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), has been the topic of extensive commentary and debate, both in favor and against such disclosure, since the time that Dodd-Frank was signed into law by President Barack Obama over three years ago.
Anti-Corruption Compliance: Mitigating Risks of Third Party Misconduct
Nearly every multi-national company does business using a combination of its own employees and third parties it hires to help perform essential tasks. Companies routinely engage third party agents to assist in winning government contracts or to obtain permits to do business and perform services. Third party agents also help companies comply with local law and regulations, and with the tasks of moving personnel and goods across borders. But while third parties often can serve key roles in a company’s business, in today’s environment of heightened enforcement of anti-corruption laws they may expose a company to major liabilities if those third parties act corruptly in violation of applicable law.
BNA INSIGHTS: FCC’s Tough New Telemarketing Rules: What Corporations Need to Know
In October, the Telephone Consumer Protection Act–one of the most dangerous statutes for American businesses in effect today–will become even more unforgiving.
Apparently not yet satiated by the many millions of dollars in settlements that America’s corporations have been forced to hand over in TCPA class action settlements, the Federal Communications Commission last year adopted several significant changes to its regulations that will take effect Oct. 16.
How City Finances Can Be Restructured in the Shadow of a Chapter 9 Case
The Detroit Chapter 9 case can show other U.S. cities how to restore balance between their suppliers of labor and capital, and their taxpayers. Other cities will not necessarily have to follow Detroit into a Chapter 9 case. Instead, Detroit’s Chapter 9 plan of debt adjustment can demonstrate a financial restructuring to which labor, capital, and taxpayers all contribute that other cities can replicate through negotiations.
U.S. Can Learn Valuable Lessons From Dutch Expertise on Sea-Level Rise
Water connects the human experience, but a special connection exists between Florida and the Dutch. With common duties to manage floodwaters along exposed coastlines, and dense agricultural and urban environments threatened by the risks of sea level rise, water managers from the U.S. and the Netherlands can learn from one another. So, while the Florida government shrinks in a difficult budgetary climate, a West Palm Beach-based nonprofit organization has developed relationships with the Dutch Consulate in Miami, along with the Dutch Embassy in Washington, and seized an opportunity.
Proceed at Your Peril: Questions Abound With New State Laws Restricting Employer Access to Employees’ Personal Social Media Accounts
In April 2012, Maryland became the first state in the nation to enact legislation restricting employers from asking prospective and current employees for access to password-protected material on their personal social media accounts. Since then, nine additional states have enacted such laws: Arkansas, California, Colorado, Illinois, Michigan, New Mexico, Oregon, Utah, and Washington. More than two dozen other states are considering similar legislation.
The ‘Pick Off’ Move: An Effective Strategy to Terminate Class Litigation?
Can defendants in putative class actions offer complete relief to plaintiffs to moot their individual claims prior to plaintiffs moving for class certification, and then obtain dismissal for lack of subject-matter jurisdiction? On April 16, 2013, the United States Supreme Court decided Genesis Healthcare Corp. v. Symczyk, No. 11-1059, a Fair Labor Standards Act collective action in which the defendant made a Rule 68 offer of judgment to the individual plaintiff, which she rejected. The District Court found that the individual plaintiff’s claims were moot and dismissed the case for lack of subject-matter jurisdiction.
Structured Approach Can Help Solar Developers Fulfill Promise of Brownfields
The significant potential of brownfields for commercial and utility-scale solar development in the U. S. has been recognized for some time now, and developers have spent many hours scouting former landfills and historic industrial sites for suitable project locations.
But developing such sites involves a number of challenges that must be addressed before a proposed project becomes a reality, not the least of which is obtaining financing.
EFFECTIVE USE OF E-MAIL MESSAGES IN WITNESS EXAMINATION
Most trial lawyers think of e-mail communications in terms of the burdens that their existence creates, or exacerbates, during the discovery process. There is the initial difficulty of explaining to a company executive that, no, it will not suffice for the officer to go through his or her e-mail inbox and personally select the e-mail messages that he or she deems relevant for production; instead, a vendor will make an image of the executive’s hard drive, and reviewing attorneys will determine which messages and other electronically stored information (“ESI”) are to be made available to the other side.
Investing for Retirement Over the Life and Business Cycles
Data are collected and analyzed in this article on the range of glide paths of the current market of target-date funds, beginning with distant maturity dates, for young workers, through the income phase, for retirees. For the most part, the glide path is characterized here by the equity share, but for the years just around retirement, more detail is examined on other aspects of asset allocation, to better understand the risk hedging properties of the funds for retirement income. The glide paths have little changed for younger investors but become more conservative for older investors since the end of the great recession, that is, over the most recent business cycle. The dispersion of TDF paths has decreased. The typical path transition is more towards bonds at retirement. The article also includes some data and analysis of balanced funds, and it offers some policy commentary.