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Narrower harbours: Supreme Court limits Section 546(e) securities safe harbour
Caplin & Drysdale, Chartered
  • Insolvency & Restructuring
  • USA
  • March 30 2018

The Supreme Court recently held that Section 546(e) of the Bankruptcy Code does not apply to transfers in which financial institutions are mere intermediaries. This decision plainly rejects what was, in many judicial circuits, a long-held interpretation of Section 546(e) and leaves certain transactions previously thought to be inviolate vulnerable to later being unwound if one of the parties files for bankruptcy within the relevant statutory period.

States take sides on net neutrality
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • March 28 2018

The states have taken matters into their own hands as the battle over net neutrality continues, even after the Federal Communications Commission's vote to repeal the rules. Attorney generals from 21 states and the District of Columbia recently filed a placeholder lawsuit asking that the repeal order be invalidated. In addition to the lawsuit, some states are also enacting their own versions of net neutrality.

Second Circuit rejects fair-use defence for online service allowing users to watch Fox News content
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • March 26 2018

The US Court of Appeals for the Second Circuit recently held that certain aspects of TVEyes's service – which allows users to watch video clips of programmes on Fox News and other channels – are not protected by the copyright fair-use doctrine under 17 USC Section 107. The Second Circuit addressed each of the four statutory fair-use factors and reversed the district court's determination that TVEyes's watch function constituted fair use.

Court dismisses challenge to two-for-one executive order
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 2018

The US District Court for the District of Columbia recently dismissed challenges to Executive Order 13,771, which requires federal agencies to rescind two regulations for every new regulation issued. The court held that the environmental group and union plaintiffs lacked standing and that the groups could not show how their members would be harmed by the order.

Waters of the United States challenges proceed in district courts
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 2018

The Supreme Court recently held that challenges to the Waters of the United States Clean Water Act 2015 jurisdictional rule issued by the Environmental Protection Agency and the Army Corps of Engineers could be raised only in the US district courts. A number of legal challenges to the rule are pending in the district courts.

Steel and aluminium Section 232 determinations: boardroom angst
Arent Fox LLP
  • International Trade
  • USA
  • March 23 2018

Now that President Trump has made his determination on the tariffs to be applied as a result of the Section 232 investigations of certain imports of steel and aluminium products, boardrooms around the globe are pondering the short and long-term implications for their corporate bottom lines. Section 232 investigations have been rare and thus little legal precedent is available for guidance. That said, there are 10 questions worth considering.

Department of Justice pursues private equity firm for portfolio company False Claims Act violations
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • March 21 2018

The US Department of Justice (DOJ) recently filed a complaint in intervention against a compounding pharmacy, alleging that it had violated the False Claims Act by paying illegal kickbacks to induce prescriptions for drugs reimbursed by TRICARE, the federal healthcare programme for active duty military personnel, retirees and their families. Notably, the DOJ was also pursuing claims against a private equity firm that had a substantial ownership stake in the pharmacy.

Too soon to dismiss Telephone Consumer Protection Act action, court decides
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • March 21 2018

A Connecticut judge has denied a motion to dismiss a putative Telephone Consumer Protection Act class action, ruling that whether the faxes at issue were unsolicited remains in dispute. The decision illustrates the difficulty of having a Telephone Consumer Protection Act action dismissed at the pleading stage, even if the defence has evidence of potential consent or an established business relationship.

SEC breaks silence on certain cryptocurrency exchanges
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • March 20 2018

The Securities and Exchange Commission (SEC) recently issued a public statement regarding exchanges and other secondary trading platforms that list or facilitate the trading of coins and tokens online. The statement emphasises that platforms offering the trading of digital assets that are securities must register with the SEC as a national securities exchange or operate under an exemption from such registration.

New administration, same policy? Only time will tell
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • March 19 2018

With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.

Federal Circuit identifies circumstances militating against early or summary Section 101 determinations
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • March 19 2018

A number of district court decisions have held patent claims to be ineligible under Section 101 during motions brought at the start of litigation or on motions for summary judgment. However, two recent Federal Circuit decisions indicate that factual disputes over aspects of the two-step test for assessing patent eligibility established by the Supreme Court, including the tangibility of claims, may hinder such early or summary Section 101 determinations.

What are the risks of doing business with Russian Oligarchs List and Russian Defence and Intelligence List?
Arent Fox LLP
  • International Trade
  • USA
  • March 16 2018

At the end of January 2018, the Trump administration took two actions relating to the Russia and Ukraine sanctions programme under the Countering America's Adversaries Through Sanctions Act 2017, the law that President Trump signed on August 2 2017. While these acts did not result in the imposition of any actual sanctions, they do provide additional hints to businesses of where the Trump administration is heading in the months ahead, identifying risk areas that businesses can review and assess.

Company's unaffected market price is best evidence of fair value for appraisal valuations
Ropes & Gray LLP
  • Corporate Finance/M&A
  • USA
  • March 14 2018

The Delaware Court of Chancery recently held that the best evidence of a company's fair value was its 30-day average unaffected (pre-announcement) market price. The case potentially represents a significant shift in how appraisal cases are decided. It may also be useful in understanding how the Delaware courts will apply two recent Supreme Court judgments which gave significant weight to the deal price as the best measure of fair value where it results from a third-party, arm's-length transaction.

SEC publishes new guidance on cybersecurity disclosures and compliance practice
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • March 13 2018

In an unusual step that appears to indicate renewed, if not intensified, scrutiny of public companies' cybersecurity practices by the Securities and Exchange Commission, its five commissioners have unanimously issued guidance covering a range of cybersecurity topics, including disclosure obligations, board oversight and risk management controls. Among other things, companies are advised to make cybersecurity training and compliance a priority company-wide.

Bipartisan Senate proposal seeks partial reversal of FHFA captive insurance exclusion
Mayer Brown LLP
  • Insurance
  • USA
  • March 13 2018

Certain captive insurers that lost or will lose membership in the US Federal Home Loan Bank (FHLB) system as a result of a 2016 rulemaking by the Federal Housing Finance Agency may get a reprieve under the Housing Opportunity Mortgage Expansion Act. A similar bill was also introduced in the House of Representatives. Significantly, the proposals provide only for the restoration of FHLB membership for captive insurers, not for new membership for those captive insurers that previously had no membership.

EY Centre for Board Matters identifies investors' top priorities for companies in 2018
Cooley LLP
  • Company & Commercial
  • USA
  • March 12 2018

​The EY Centre for Board Matters has identified investors' top priorities for companies in 2018, based on its annual investor outreach involving interviews with institutional investors. According to EY, the top investor priorities include board composition, with a particular focus on enhanced diversity; board-level expertise that is more aligned with business goals; and enhanced attention to talent and human capital management.

Ballot initiative seeks to eliminate Proposal 13 for commercial and industrial real estate
Pillsbury Winthrop Shaw Pittman LLP
  • Real Estate
  • USA
  • March 09 2018

A new initiative seeks to put two significant changes to California's property tax system before voters in November 2018: the elimination of Proposition 13 protection for commercial and industrial properties in favour of reassessment at least every three years and the addition of a tangible personal property tax exemption for all taxpayers and a full tangible personal property tax exemption for taxpayers with less than 50 California employees.

SEC grants principles-based Section 3(c)(5)(C) relief
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • March 06 2018

In a recent principles-based grant of relief, the Securities and Exchange Commission (SEC) focused on the business activities of the particular issuer, instead of whether a particular asset is a qualifying asset, in determining the availability of the Section 3(c)(5)(C) exemption. Mortgage real estate investment trusts should consider obtaining confirmation from the SEC regarding their own particular business activities in order to avoid any potential future uncertainty.

Commerce Department issues Section 232 national security investigation reports on steel and aluminium
Arent Fox LLP
  • International Trade
  • USA
  • March 02 2018

The Commerce Department recently released its redacted public version of the Section 232 reports on the effects of imports of steel and aluminium on national security. Both the steel and aluminium reports provide a range of options for the president to consider in restricting imports of aluminium and steel products. This news is expected to trigger swift and pronounced reactions from trading partners and affected US downstream industries.

New parental leave and salary history laws take effect
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • February 28 2018

California has enacted two new pieces of legislation in order to improve job opportunities, for women in particular. SB-63 expands the California Family Rights Act to provide up to 12 weeks' unpaid parental leave for employees of companies with as few as 20 employees, while AB-168 prohibits employers from seeking or relying on a job applicant's salary history information when deciding whether to offer employment and what salary to offer.

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