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.
Ensuring Provider Payment While Transitioning to ICD-10
With little more than a year before the mandated shift from the International Classification of Diseases, 9thRevision, (ICD-9) to the International Classification of Diseases, 10th Revision, Clinical Modification and Procedure Coding System, (ICD-10-CM and ICD-10-PCS, respectively), on October 1, 2014, all entities covered by the Health Insurance Portability and Accountability Act (HIPAA) subject to this change find themselves at a challenging convergence of technology, heightened regulatory scrutiny, and increased specificity of professional documentation. The necessity of preparation cannot be understated, for potential negative economic repercussions to underprepared health care providers pose a very real threat.
FCC’s Tough New Telemarketing Rules: What Corporations Need to Know
Next month, 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 on Oct. 16. Among those are two modifications that will skew the playing field ever more in favor of plaintiffs seeking to extract big dollars for the annoyance of receiving telemarketing calls: (1) the requirement that prior to placing calls businesses obtain written — not oral — consent, and (2) the elimination of the “established business relationship” defense for certain calls to residential phone lines.
Investing for Retirement over the Life and Business Cycles
Mark Warshawsky (Mark.Warshawsky@aei.org) is an adjunct scholar at the American Enterprise Institute in Washington, and was formerly the director of retirement research at Towers Watson, in Washington. He previously served as assistant secretary for economic policy at the U.S. Department of the Treasury. He thanks Andrew Bourg for excellent research assistance collecting data on funds, and Gaobo Pang for providing a run based on the 2010 Survey of Consumer Finances. The views expressed here are the author’s own and should not be regarded as investment advice.
How Legal Project Management Is Changing the Way Services Are Marketed
Ten years ago, legal marketing was all about relationships and who you went to law school with. These days legal marketing is increasingly about value: what have you done for me lately, and exactly how are you going to work more efficiently on my next matter?
According to a recent survey by Altman Weil, “more efficient project management” is now one of the top demands of in-house chief legal officers. Another survey by Acritas of over 800 general counsel at large companies reported that 60% of clients said that high quality project management is “essential” when they select law firms.
SEC’s Proposed CEO Pay Ratio Rules Provide Companies With Flexibility to Satisfy Dodd-Frank Mandate
On September 18, 2013, the Securities and Exchange Commission (“SEC”), following a narrow three-to-two vote of the SEC 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 Obama over three years ago. Prior to the issuance of the proposed rules, the SEC had received more than 20,000 public comment letters relating to Section 953(b). This article summarizes the background leading up to the SEC’s proposal and analyzes the key features of the CEO pay ratio disclosure rules as proposed.
The Contract Is King: The U.S. Supreme Court’s Two Recent FAA Decisions
The U.S. Supreme Court addressed contract terms bearing on the availability of class arbitration in two opinions this term. The first, Oxford Health Plans LLC v. Sutter, confirms a district court’s limited power under the Federal Arbitration Act (the “FAA”) to review an arbitrator’s determination that contract language authorizes class arbitration where the parties agreed the arbitrator would decide that question.
The second, American Express Co. v. Italian Colors Restaurant, requires district courts to enforce class arbitration waivers, even where the cost of individual arbitration is arguably prohibitive, and will likely result in non-enforcement of a federal statutory right.
Discovery Rulings Increasingly Unfriendly to Facebook Users’ Privacy Rights
The Associated Press reported May 1 that there are currently 1.1 billion people using Facebook worldwide. This figure represents a 23 percent increase from the prior year, and it is reported that Facebook has 665 million active users per day. The 372,563 cases filed in the U.S. federal district courts in 2012 seem paltry by comparison. Even if one were to account for all the cases filed in every state in the country, this number would not be in the same stratosphere as the number of daily Facebook users. Against this backdrop, there can be little doubt that the intersection of Facebook and the law will continue to be shaped by the judiciary as it is faced with a population of Facebook-using litigants.