CRM Securities Litigation Against Chinese Issuers: Whither the Burgeoning Dynasty?, Contributed by Mary-Pat Cormier and Gregory Pendleton, Edwards Angell Palmer & Dodge LLP
Securities litigation is a big—and increasingly very busy—business. While federal court dockets continue to be filled with complaints stemming from traditional litigation drivers like mergers and acquisitions, an interesting new trend has emerged: suits against Chinese companies listed on U.S. stock exchanges. 2010 saw an unprecedented twenty-one filings against such companies,1 twelve of which were federal class actions.2 These twelve filings accounted for more than forty percent of all federal class actions against foreign issuers, the highest figure ever observed in a single year.3 2011 has already seen more than twenty-five securities suits filed against Chinese companies.
International Prosecution Strategy After Therasense: What You Need to Know Now, Contributed by Shawn Gorman and Christopher Swickhamer, Banner & Witcoff, Ltd.
Intellectual property is of crucial importance to most sectors in the modern economy. Last year alone, the U.S. Patent & Trademark Office (PTO) received over a half million patent applications. Even more telling is the fact that this figure has doubled in just over a decade.1 Obtaining rights, however, is only one side of the coin. As patents became increasingly important, attempts to invalidate those rights become more serious. One method that has garnered acceptance is claiming that a competitor’s patent was granted though “inequitable conduct.”
SEC Overreaching in Applying Penalty Act to Insider Trading, Contributed by Larry P. Ellsworth, Jenner & Block LLP
The U.S. Court of Appeals for the Second Circuit recently held in SEC v. Rosenthal that it would be “absurd … to adopt the SEC’s [Securities and Exchange Commission’s] interpretation” of the general civil penalties provision under Section 21(d)(3) of the Securities Exchange Act of 1934 (Exchange Act) as applying to insider trading.1 Instead, the Court held that Section 21A of the Exchange Act, a specific provision applicable only to insider trading violations, is the only basis for ordering civil penalties in insider trading cases brought in Federal court. While the Second Circuit had no cause to address the recent amendment contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) to Section 21B of the Exchange Act, which contains civil penalty provisions applicable in administrative proceedings similar to those in Section 21(d)(3) for judicial proceedings, the SEC’s overreaching in the Rosenthal case may portend a similar result in the SEC’s recently filed Gupta case where the SEC seeks general civil penalties under Section 21B in another insider trading case.2
Strategies for Evaluating Cloud Computing Agreements, Contributed by Andrew Geyer and Melinda McLellan, Hunton & Williams LLP
A recent technical malfunction that knocked out websites and affected hundreds of businesses using Amazon’s cloud computing services offered high-profile evidence of both the widespread popularity of cloud services and the potential consequences of storing company data in the cloud. The incident also drew attention to cloud service contracts, raising questions about performance levels and backups in the event of a service interruption. With more and more businesses seeking to take advantage of the efficiency and cost savings offered by cloud computing, the lessons of the Amazon outage underscore the complexities involved in negotiating cloud computing agreements.
The Computer Fraud and Abuse Act: A Weapon Against Employees Who Steal Trade Secrets, Contributed by Holly R. Rogers and Katharine V. Hartman, Dilworth Paxson LLP
The Computer Fraud and Abuse Act (the “Act”) is a criminal statute that provides a civil cause of action for anyone whose computer system or network has been damaged or accessed without authorization, provided certain requirements are met. Although traditionally thought of as a form of relief for those who fall victim to computer “hackers,” the Act has seen increased use in the employer-employee context.
SEC Proposes Rules That Seek to Enhance Transparency and Improve the Integrity of Credit Ratings and NRSROs, Contributed by Evan M. Drutman, Carol M. McGee and Tara E. Castillo, Alston & Bird LLP
On May 18, 2011, the Securities and Exchange Commission (SEC) unanimously approved for public comment proposed rules and amendments (Release) to pre-existing rules regulating credit rating agencies registered with the SEC as nationally recognized statistical rating organizations (NRSROs). According to Chairman Mary L. Shapiro, the proposals “are part of a concerted effort by the SEC to enhance the credit rating industry in light of the financial crisis” and seek to enhance transparency and to improve the integrity of credit ratings.
A Comparison by Practitioners of Delaware and Cayman Islands Limited Partnerships: Confidentiality, Contributed by Andrea R. Cohen, SharesPost, Inc.; and Caroline S. Williams, Walker
In this series of six articles, the authors provide an in-depth analysis of Delaware and Cayman Islands limited partnership laws as they apply to private equity funds. The articles give an overview of the legal frameworks, analyze core differences, examine limited partner protections, address certain concerns relating to privacy, distributions, and defaults, and cover jurisdictional issues relating to side letters and anti-money laundering (AML) compliance. This final installment concludes the series by addressing certain additional confidentiality concerns.
Post-Fukushima Risk Assessment and Financing of New Nuclear Construction in Emerging Nuclear Programs in Southeast Asia, Contributed by George Borovas, Pillsbury Winthrop Shaw Pittman LLP
While investigations into what went wrong at Fukushima Dai-ichi Nuclear Power Station after the March 11 earthquake and tsunami continue, the first priority should be to contain the radiation and safely shut down all operations. Once the situation stabilizes, the principal focus will shift to understanding and incorporating the lessons learned from this accident.
Awesome! Text Messages Amend Contract by Samuel Mason, Drinker, Biddle & Reath LLP
By Samuel Mason, Drinker, Biddle & Reath LLP The word “Awesome!” concluding an exchange of informal text messages effected the amendment of a contract and resulted in a $1.2 million judgment, according to a Florida federal court interpreting Delaware law. The case underscores that contracts and contract amendments can be made without necessarily executing, by [...]