Posts Tagged ‘Mayer Brown’

Key Privacy Issues in M&A Transactions

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday October 21, 2014 at 9:29 am
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Editor’s Note: The following post comes to us from Paul A. Chandler, Counsel at Mayer Brown LLP, and is based on a Mayer Brown Legal Update by Mr. Chandler and Lei Shen.

Many merger and acquisition (“M&A”) agreements lack specific representations and warranties regarding privacy issues. Often, this is because deal lawyers do not recognize potential privacy risks where the target company (the “Target”) lacks e-commerce websites or retail stores that collect consumer data. Nonetheless, significant privacy issues may exist even if the Target is a traditional “brick and mortar” business. Early attention to privacy issues in M&A transaction planning and due diligence can mitigate risks for both buyers and sellers.

…continue reading: Key Privacy Issues in M&A Transactions

Preparing for the 2015 Proxy Season

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Friday September 26, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Lawrence R. Hamilton, partner in the Corporate & Securities practice at Mayer Brown LLP, and is based on a Mayer Brown Legal Update. The complete publication, including footnotes, is available here.

It is time for calendar year-end public companies to focus on the upcoming 2015 proxy and annual reporting season. This post discusses the following key issues for companies to consider in their preparations:

  • Pending Dodd-Frank Regulation
  • Say-on-Pay and Compensation Disclosure Considerations
  • Shareholder Proposals
  • Proxy Access
  • Compensation Committee Independence Determinations
  • Compensation Adviser Independence Assessment
  • Compensation Consultant Conflict of Interest Disclosure
  • NYSE Quorum Requirement Change
  • Director and Officer Questionnaires
  • Proxy Advisory Firm and Investment Adviser Matters
  • Conflict Minerals
  • Cybersecurity
  • Management’s Discussion and Analysis
  • XBRL
  • Proxy Bundling
  • Foreign Issuer Preliminary Proxy Statement Relief
  • Technology and the Proxy Season

…continue reading: Preparing for the 2015 Proxy Season

The Extraterritorial Effect of the EU Regulation of OTC Derivatives

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Saturday June 14, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Alexandria Carr, Of Counsel with the Financial Services Regulatory & Enforcement group at Mayer Brown LLP, and is based on a Mayer Brown Legal Update; the complete publication, including footnotes, is available here.

1. On 10 April 2014 some of the legislation that provides for the extraterritorial effect of the European Markets Infrastructure Regulation (“EMIR”) came into force. The remaining legislation will come into force on 10 October 2014. This post considers this legislation and the counterparties to which it applies. It also considers whether some counterparties might be able to avoid the extraterritorial effect as a result of the European Commission making an equivalence decision in respect of third country jurisdictions. It considers the European Securities and Market Authority (“ESMA”) advice to date on the equivalence of the regulatory regimes in the US, Japan, Australia, Canada, Hong Kong, India, Singapore, South Korea and Switzerland and notes that even in the US ESMA did not find full equivalence. Finally this post also considers the requirements that third country central counterparties (“CCPs”) and trade repositories must meet in order respectively to provide clearing services to their EU clearing members and to provide reporting services to EU counterparties which enable those counterparties to satisfy their clearing reporting requirements under EMIR.

…continue reading: The Extraterritorial Effect of the EU Regulation of OTC Derivatives

Increased Scrutiny of High-Frequency Trading

Editor’s Note: The following post comes to us from Matthew Rossi, partner in the Securities Litigation & Enforcement practice at Mayer Brown LLP, and is based on a Mayer Brown Legal Update by Mr. Rossi, Joseph De Simone, and Jerome J. Roche. The complete publication, including footnotes, is available here.

Following the publication of Michael Lewis’ new book, Flash Boys: A Wall Street Revolt (“Flash Boys”), plaintiffs’ lawyers and US government regulators have increasingly focused their attention on financial institutions participating in high-frequency trading (“HFT”). Less than three weeks after the release of Flash Boys, private plaintiffs’ lawyers filed a class action lawsuit against 27 financial services firms and 14 national securities exchanges (with additional defendants likely to be named later) alleging that the defendants’ HFT practices in the US equities markets violated the anti-fraud provisions of the federal securities laws. Plaintiffs’ lawyers filed a separate action against The CME Group, Inc. (“CME”) and The Board of Trade of the City of Chicago (“CBOT”) containing similar allegations in US derivatives markets.

…continue reading: Increased Scrutiny of High-Frequency Trading

Court May Expand Officer/Shareholder Liability Resulting from US Customs Violations

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday March 25, 2014 at 9:19 am
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Editor’s Note: The following post comes to us from Sydney H. Mintzer, partner in the international trade practice at Mayer Brown LLP, and is based on a Mayer Brown Legal Update by Mr. Mintzer and Jing Zhang.

On March 5, 2014, the US Court of Appeals for the Federal Circuit agreed to constitute an en banc panel to reconsider a decision issued by the court in Trek Leather Inc. et al. v. United States. [1] The entire court will reconsider a July 30, 2013 decision issued by a three-judge panel holding that the government had to prove officers and/or shareholders had aided or abetted fraud, or otherwise took actions that justified piercing the corporate veil, in order to hold them personally liable for US customs law violations committed by a corporate entity. [2] If the full court overrules the three-judge panel, the benefits of incorporation would be mitigated with respect to an officer or shareholder’s actions that result in US customs law violations.

…continue reading: Court May Expand Officer/Shareholder Liability Resulting from US Customs Violations

Does Volcker + Vickers = Liikanen?

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Saturday March 8, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from David R. Sahr, partner at Mayer Brown, and is based on a Mayer Brown update. The complete publication, including footnotes, is available here.

EU proposal for a regulation on structural measures improving the resilience of EU credit institutions

1. On 29 January 2014 the European Commission published a proposal for a regulation of the European Parliament and of the Council “on structural measures improving the resilience of EU credit institutions”. This proposed legislation is the EU’s equivalent of Volcker and Vickers. It was initiated by the Liikanen report published on 2 October 2012 but the legislative proposal departs in a number of ways from the report’s conclusions. There are two significant departures: the legislative proposal contains a Volcker-style prohibition, which also departs from the individual EU Member States’ approach, and, although the proposal contains provisions which mirror the Vickers “ring-fencing” approach they are not, in direct contradiction to Liikanen’s recommendation, mandatory.

…continue reading: Does Volcker + Vickers = Liikanen?

Supreme Court Reaffirms that Forum-Selection Clauses Are Presumptively Enforceable

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Thursday December 19, 2013 at 9:23 am
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Editor’s Note: The following post comes to us from J. Paul Forrester, partner focusing in corporate finance and securities at Mayer Brown LLP, and is based on a Mayer Brown Legal Update by Mr. Forrester, David K. Duffee, John F. Lawlor, Richard B. Katskee, and James F. Tierney. The complete publication, including footnotes, is available here.

Forum-selection clauses are common, and highly useful, features of commercial contracts because they help make any future litigation on a contract more predictable for the parties and, in some cases, less expensive. But what procedure should a defendant use to enforce a forum-selection clause when the defendant is sued in a court that is not the contractually selected forum?

On December 3, 2013, the US Supreme Court issued a decision in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas that answers this question. The Court held that, if the parties’ contract specifies one federal district court as the forum for litigating any disputes between the parties, but the plaintiff files suit in a different federal district court that lawfully has venue (and therefore could be a proper place for the parties to litigate), the defendant should seek to transfer the case to the court specified in the forum-selection clause by invoking the federal statute that permits transfers of venue “[f]or the convenience of the parties and witnesses, in the interest of justice.” If the contract’s forum-selection clause instead specifies a state court as the forum for litigating disputes, the defendant may invoke a different federal statute that requires dismissal or transfer of the case.

…continue reading: Supreme Court Reaffirms that Forum-Selection Clauses Are Presumptively Enforceable

CFTC Issues FAQ Regarding Commodity Options

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Saturday October 19, 2013 at 9:03 am
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Editor’s Note: The following post comes to us from J. Paul Forrester, partner focusing in corporate finance and securities at Mayer Brown LLP, and is based on a Mayer Brown Legal Update.

On September 30, 2013, the Division of Market Oversight of the US Commodity Futures Trading Commission (CFTC) released responses to Frequently Asked Questions regarding Commodity Options (FAQ). While intended to be provide non-binding guidance to affected market participants, the FAQ also serves to highlight the significant complexity of the current analysis required for commodity options.

Andrew K. Soto, Senior Managing Counsel for Regulatory Affairs of the American Gas Association (AGA), in written testimony before the US House of Representatives Committee on Agriculture Subcommittee on General Farm Commodities and Risk Management at a recent hearing regarding the Future of the CFTC: End-User Perspectives effectively summarized this complexity as follows:

…continue reading: CFTC Issues FAQ Regarding Commodity Options

Preparing for the 2014 Proxy and Annual Reporting Season

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Monday October 14, 2013 at 9:14 am
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Editor’s Note: The following post comes to us from Laura Richman, counsel at Mayer Brown LLP, and is based on a Mayer Brown Legal Update.

While the proxy and annual reporting season for calendar year public companies typically heats up in the winter, by autumn preparations for the 2014 season should be underway. The following key issues for the upcoming season are discussed below:

  • Current Say-on-Pay Considerations
  • Say-When-on-Pay
  • Compensation Committee Independence and Compensation Consultants
  • NYSE Quorum Requirement Change
  • Pending Dodd-Frank Regulation
  • Proxy Access
  • Specialized Disclosures
  • SEC Interpretations Impacting Reporting
  • Iran Sanctions Disclosure
  • XBRL
  • PCAOB Audit Committee Communications Requirements
  • Director and Officer Questionnaires
  • E-proxy

…continue reading: Preparing for the 2014 Proxy and Annual Reporting Season

Will Recent Delaware Court Decisions Curb Excessive M&A Litigation?

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday September 18, 2013 at 9:13 am
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Editor’s Note: The following post comes to us from Andrew J. Noreuil, partner focusing on mergers and acquisitions and corporate governance practice at Mayer Brown LLP, and is based on a Mayer Brown legal update by Mr. Noreuil. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

The Delaware Chancery Court has issued three decisions in 2013 that demonstrate the court’s willingness to rein in the excessive and often frivolous litigation challenging public M&A transactions.

Recent trends in shareholder litigation illustrate the magnitude of the litigation issues facing corporations in public M&A transactions. Of the public company acquisition transactions with a value over $500 million that were announced in 2007, 53% were challenged in shareholder litigation. By 2012, 96% of such transactions were subject to shareholder suits, with an average of 5.4 suits filed for each deal. In addition, for Delaware target corporations valued at over $100 million, 65% of the M&A deals announced in 2012 were subject to litigation in Delaware and in at least one other jurisdiction (usually the jurisdiction where the corporation’s principal place of business is located). Finally, for shareholder suits in deals over $100 million that were announced in 2012 and ultimately settled, shareholders received only supplemental disclosures in 81% of such settlements (so-called “disclosure-only settlements”), with plaintiffs’ attorneys fees and expenses being the only cash paid out by defendants in such suits.

…continue reading: Will Recent Delaware Court Decisions Curb Excessive M&A Litigation?

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