Practitioner Contributions

The Undertakings for Collective Investment in Transferable (UCITS) regime has seen various evolutions since its inception. The UCITS V Directive, the latest incarnation, is currently at proposal stage with the European Commission.1 It promises to be a long drawn out affair, in keeping with its predecessor directives. The proposed changes over depositaries and remuneration policies, [...]

Last month this column suggested that, in light of its likely budget shortfall, the Securities and Exchange Commission (SEC) should rethink where its Enforcement resources are focused. While Democrats in Congress have proposed a budget increase for the agency, that effort is likely to fail and become entangled in wrangling over implementation of the recent [...]

The Prospectus Directive1 was implemented in the UK in 20052 and, in summary, outlines the circumstances in which a prospectus is required in relation to public offers of securities and admissions of securities on a regulated market. Where such a prospectus is required, the Prospectus Directive also outlines the format and content of that prospectus. [...]

In searching for electronically stored information (“ESI”) that is relevant to litigation, lawyers have traditionally employed keyword searches to assist them in finding relevant electronic data. A leading study conducted by David Blair and M.E. Maron demonstrated that attorneys were only 20 percent effective at thinking of all the ways that the creators of a [...]

It is more than six months since Lord Davies of Abersoch produced his report, Women on Boards,1 and in October he will be reviewing progress to date on the 10 recommendations he made to increase the number of women in senior roles at the UK’s largest listed companies. What Davies Said Davies painted a stark [...]

Large deductible insurance policies provide many advantages, particularly for large, financially secure employers.1 They have the essential components of self-insurance, given per occurrence deductibles that typically range between $100,000 and $1,000,000, 2 while at the same time provide the financial assurance of the insurer. Large deductible policies require claims payments to be advanced by the [...]

By now, companies and legal practitioners alike are growing comfortable with the risks and rewards presented by the free and open source software (“OSS”) movement. M&A lawyers have revised their due diligence checklists, representations and warranties language, and indemnity parameters. Software development companies have carefully drafted and adopted policies relating to procurement and incorporation of [...]

Sixteen states, plus the District of Columbia, have enacted legislation that affords protections to qualifying individuals with debilitating medical conditions by allowing them to lawfully engage in the medical use of marijuana. 1 The following six states have pending legislation that would decriminalize the use of medical marijuana: Illinois, Massachusetts, New Hampshire, New York, Ohio, and [...]

Borrowers and lenders, having survived the Great Recession and now facing the possibility of another recession with both the federal government and real estate owners and lenders having significantly fewer tools with which to deal with it, are attempting to avoid the costly mistakes of the past. Among the victims of the Great Recession were [...]

This paper will examine best practices for carrying out an IP due diligence investigation of an anticipated IP transaction involving a pharmaceutical invention. It is not possible to anticipate and discuss all possible issues that may need to be investigated. This paper merely sets forth a path to follow that may lead to other paths [...]

Facebook, Twitter, and YouTube have forever changed how people communicate. Every little detail of people’s lives is now broadcast, tweeted, or blogged about on the Internet. The social media activities of employees have increasingly pushed the boundaries of lawful workplace behavior and created new legal challenges for employers seeking to control this new communication forum [...]

While executive compensation and allegations of excessive executive compensation have long been a “hot topic” in the U.S., a shareholder vote on executive pay, commonly known as “say-on-pay,” was not broadly required for U.S. public companies until the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (Dodd-Frank Act) in July 2010. [...]

If all goes as planned, the U.S. Court of Appeals for the Fifth Circuit will soon have a new Circuit Rule 41.3—the rule describing the effect of granting rehearing en banc. But because the rule change is narrowly tailored to remedy the result in a highly unusual case—one where the court has a quorum to take [...]

Have you recently hired or plan to hire a non New York licensed attorney to serve as in-house counsel1 in your New York office to advise your business about New York legal issues? If so, your in-house counsel must comply with new registration requirements of Part 522 of the Rules of the Court of Appeals [...]

The earnout has come back into fashion as a means of bridging the all too frequent gap between a business owner’s sometimes inflated expectation as to the value of its business to a prospective buyer, and the buyer’s financial modeling of a particular acquisition and its access to the capital resources necessary to consummate a transaction. The reality of the mergers and acquisitions marketplace is that although statistics indicate that both financial and strategic buyers have vast amounts of cash available to fund acquisition transactions, the protracted global economic downturn has fostered a selling community that is reluctant to sell at depressed valuations, and a buying community that is reluctant to buy based on historical financial results that may not be duplicated (a turnaround situation) or projected financial results that may be overly optimistic within a stagnant economy (a company focused on new products or services). Assuming an improvement in macroeconomic conditions, the inverse will likely apply: higher valuations may be justifiably demanded by sellers, but buyers will be reluctant to deploy equity and leverage may remain relatively expensive.

Generating cash flow has not traditionally been the domain of traditional corporate legal departments or the in-house lawyers who handle a company’s litigation. Rather, the goals usually set by corporate leadership for in-house litigators are: manage risk, defend against attack, and do both effectively and efficiently. Implicit in those goals is a corporate expectation that preventing and defending against litigation is a necessary resource drain.

With employment discrimination charges at a 45-year high1, employers are seeing a particular increase in claims brought by workers who are pregnant or caring for young children, ill spouses or aging parents. Plaintiffs in these family responsibility discrimination cases are more likely to prevail than in any other type of employment discrimination case, drawing judgments of up to $250 million, with average awards topping $550,0002.

By Matthew Murphy, MMLC Group In May 2011, many Internet legal commentators were excited to hear about the establishment of the new State Internet Information Office (“SIIO”) in China. Up until this time, it was well known that a number of Chinese Ministries and departments (such as the Ministry of Industry and Information Technology (“MIIT”), [...]

By Anthony Corleto and Scott Smedresman, Wilson Elser Moskowitz Edelman & Dicker LLP The Second Circuit’s decision in Barclays v. Theflyonthewall.com,1 has spawned comment, much of it conflicting, from those who find themselves aligned with either side of that battle. On the one hand, the research and investment community views the outcome as abetting thieves; on [...]

By Robert W. Zelnick and Joanne Ludovici-Lint, McDermott Will & Emery LLP The Internet is about to get a lot more crowded, with a new set of opportunities and burdens for brand owners. Everyone is familiar with existing “top-level” domain extensions such as .com, .net, .org, .edu, and so on, but companies will soon be [...]