In the Matter of Kenneth Cole Productions, Inc. Shareholder Litigation
|
|
- Lorraine Fields
- 6 years ago
- Views:
Transcription
1 In the Matter of Kenneth Cole Productions, Inc. Shareholder Litigation New York Court of Appeals Adopts MFW Business Judgment Standard of Review for Squeeze-Out Mergers In, 1 the New York Court of Appeals (Stein, J.) adopted the Delaware Supreme Court s 2014 approach in Kahn v. M&F Worldwide Corp. 2 ( MFW ), holding that business judgment is the standard of review for squeeze-out mergers with controlling stockholders so long as the MFW-established conditions exist the transaction from the outset is subject to the approval of a well-functioning independent special committee empowered to select its advisors and reject the transaction and an informed, uncoerced vote of a majority of the minority shares. The Court of Appeals noted that the MFW standard serves as an attempt to achieve a balance between protecting minority shareholders and preventing frivolous litigation and unwarranted judicial interference in independent corporate decision-making. The Kenneth Cole Productions decision involved the attempted take-private of Kenneth Cole Productions, Inc. ( KCP ) by Kenneth Cole, its founder and controlling shareholder (holding approximately 89% of the vote). In February 2012, the KCP board, without Cole present, established a special committee comprised of two directors elected by Class A shares (of which Cole held 46%) and two directors elected by Class B shares (of which Cole held 100%) to consider Cole s proposal to take KCP private. Cole made an initial offer of $15.00 per share, contingent on approval from the special committee and a majority of the minority shares. He stated that he would not approve any other type of merger as a shareholder and that the failure to approve the proposal would not adversely affect his future relationship with KCP. Following months of negotiations, the KCP special committee recommended approval of Cole s offer of $15.25 per share, and 99.8% of the minority shares approved the transaction. New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney
2 Shortly after Cole made his offer, certain minority shareholders filed class action suits against Cole and the KCP directors alleging, among other claims, that the directors lacked independence and breached their fiduciary duty by failing to seek other bids for KCP. The New York Supreme Court granted the defendants motion to dismiss, and the Appellate Division affirmed. The Court of Appeals granted review of the case to determine the appropriate standard of review to apply. The Court of Appeals declined to be constrained by its decision in Alpert v. 28 Williams St., 3 which applied the entire fairness standard of review to a two-step freeze-out merger. The Court of Appeals emphasized that the Alpert decision was expressly limited to the two-step freeze-out structure, whereas the KCP transaction was a going-private merger, and that the Alpert situation had not featured the independent committee or minority shareholder vote that are key components of the MFW conditions. However, the Court of Appeals noted that any complaint that alleges a reasonably conceivable set of facts showing that any of the MFW conditions to the application of business judgment review did not exist will survive a motion to dismiss, and if the evidence demonstrates that any of those elements did not exist, the transaction will be subject to entire fairness review, which places the burden on directors to demonstrate that they engaged in a fair process and obtained a fair price. Applying the MFW standard, the Court of Appeals determined that the lower courts were correct in dismissing the allegations in Kenneth Cole Productions. The Court of Appeals noted that under the business judgment standard of review, absent fraud or bad faith, the determinations of the KCP special committee and board would be deferred to. In addition, in finding that the plaintiffs had not alleged sufficient facts showing that the MFW conditions had not been met, the Court of Appeals, among other things, rejected the allegations that the special committee directors lacked independence because Cole and his personally selected directors were responsible for nominating and electing the special committee members. Friendships, traveling in the same circles, some financial ties, and past business relationships are not enough to rebut the presumption of independence; the ties must be material in the sense that they could affect impartiality, the Court of Appeals stated. 4 The Kenneth Cole Productions opinion provides a controller of a New York corporation a path to avoid entire fairness review; the certainty of business judgment review, however, likely will be accompanied by focused challenges to the independence of the special committee and the adequacy of disclosure to shareholders concerning the transaction. * * * Copyright Sullivan & Cromwell LLP
3 ENDNOTES Matter of Kenneth Cole Prods., Inc., 2016 NY Slip Op (May 5, 2016) [hereinafter Slip Op.]. 88 A.3d 635 (Del. 2014). For a discussion of MFW, see our publication, dated March 17, 2014, entitled Kahn v. M&F Worldwide Corp. 63 N.Y.2d 557 (1984). Slip Op. at *
4 ABOUT SULLIVAN & CROMWELL LLP Sullivan & Cromwell LLP is a global law firm that advises on major domestic and cross-border M&A, finance, corporate and real estate transactions, significant litigation and corporate investigations, and complex restructuring, regulatory, tax and estate planning matters. Founded in 1879, Sullivan & Cromwell LLP has more than 800 lawyers on four continents, with four offices in the United States, including its headquarters in New York, three offices in Europe, two in Australia and three in Asia. CONTACTING SULLIVAN & CROMWELL LLP This publication is provided by Sullivan & Cromwell LLP as a service to clients and colleagues. The information contained in this publication should not be construed as legal advice. Questions regarding the matters discussed in this publication may be directed to any of our lawyers listed below, or to any other Sullivan & Cromwell LLP lawyer with whom you have consulted in the past on similar matters. If you have not received this publication directly from us, you may obtain a copy of any past or future related publications from Stefanie S. Trilling ( ; trillings@sullcrom.com) in our New York office. CONTACTS New York Francis J. Aquila aquilaf@sullcrom.com H. Rodgin Cohen cohenhr@sullcrom.com Audra D. Cohen cohena@sullcrom.com Scott B. Crofton croftons@sullcrom.com Mitchell S. Eitel eitelm@sullcrom.com Brian T. Frawley frawleyb@sullcrom.com Joseph B. Frumkin frumkinj@sullcrom.com C. Andrew Gerlach gerlacha@sullcrom.com Brian E. Hamilton hamiltonb@sullcrom.com John L. Hardiman hardimanj@sullcrom.com Matthew G. Hurd hurdm@sullcrom.com Alexandra D. Korry korrya@sullcrom.com Stephen M. Kotran kotrans@sullcrom.com Mark J. Menting mentingm@sullcrom.com Scott D. Miller millersc@sullcrom.com James C. Morphy morphyj@sullcrom.com Keith A. Pagnani pagnanik@sullcrom.com George J. Sampas sampasg@sullcrom.com Melissa Sawyer sawyerm@sullcrom.com Alan J. Sinsheimer sinsheimera@sullcrom.com -4-
5 Krishna Veeraraghavan Washington, D.C. Janet T. Geldzahler Los Angeles Eric M. Krautheimer Alison S. Ressler Robert A. Sacks Palo Alto Brendan P. Cullen Sarah P. Payne London Richard C. Morrissey David Rockwell Paris William D. Torchiana Frankfurt Krystian Czerniecki Melbourne Robert Chu Tokyo Izumi Akai Keiji Hatano Hong Kong Michael G. DeSombre Chun Wei Beijing Garth W. Bray SC1:
More Clarity for Delaware Directors When Considering Restructuring Transactions
More Clarity for Delaware Directors When Considering Transactions SUMMARY In Quadrant Structured Products Co., Ltd. v. Vertin (May 4, 2015) ( Quadrant ), the Delaware Court of Chancery confirms again that
More informationDelaware s Most Recent Thinking on the Preferred-Common Conflict: Hsu v. ODN Holding Corp. and In re Appraisal of GoodCents Holdings, Inc.
Delaware s Most Recent Thinking on the Preferred-Common Conflict: Hsu v. ODN Holding Corp. and In re Appraisal of GoodCents Holdings, Inc. Delaware Court of Chancery Addresses the Rights of Preferred Stockholders
More informationIn re: Appraisal of Dell Inc.
Delaware Court of Chancery Determines Fair Value Is 28% Higher Than Merger Price Following an Auctioned Arm s-length MBO SUMMARY In, 1 the Delaware Court of Chancery (Laster, V.C.) held in an appraisal
More informationIn re Orchard Enterprises, Inc. Stockholder Litigation
In re Orchard Enterprises, Inc. Stockholder Litigation Delaware Court of Chancery Provides Guidance on Squeeze-Out Mergers and Entire Fairness Review at Summary Judgment SUMMARY In a recent opinion analyzing
More informationIn re Micromet, Inc. Shareholders Litigation
Delaware Chancery Court Reaffirms Revlon Duties related to Pre- Signing Market Checks and Parameters of Fiduciary Duty of Disclosure SUMMARY In its recent Micromet 1 preliminary injunction decision, the
More informationNasdaq Compensation Committee Independence Requirements
Nasdaq Compensation Committee Independence Requirements SEC Publishes Nasdaq Rule Change Removing Prohibition on Receipt of Compensatory Fees by Compensation Committee Members; Change Aligns Nasdaq Rule
More informationTweets Allowed in Proxy Contests and Securities Offerings
Tweets Allowed in Proxy Contests and Securities Offerings New SEC Guidance Allows Use of Hyperlinks to Satisfy Legend Requirements in Social Media Communications with Character Limits and Limits Issuers
More informationNYSE Notice Procedures
NYSE Proposes to Require Electronic Submission of Notices to NYSE Through Web-Based Communication System SUMMARY The SEC has published for public comment proposed changes to the New York Stock Exchange
More informationFinal Stock Exchange Rules for Compensation Committees and Advisers
Final Stock Exchange Rules for Compensation Committees and Advisers SEC Approves NYSE and Nasdaq Revised Listing Standards; Board Action Required by July 1, 2013 with Regard to Compensation Committee Authority
More informationISS Proxy Voting Policy Updates
Updates for U.S. Companies in 2017 Include Negative Director Recommendations for Dual-Class IPO Companies and Implementation of Tougher Overboarding Restriction SUMMARY Yesterday, Institutional Shareholder
More informationAnother Vice Chancellor Considers Appraisal in Light of Dell and DFC and Another Appraisal Petitioner Gets Less than Deal Price
Another Vice Chancellor Considers Appraisal in Light of Dell and DFC and Another Appraisal Petitioner Gets Less than Deal Price However, This Time, the Court of Chancery Relies on DCF Analysis and Not
More informationNew SEC Staff Guidance on Shareholder Proposals
New SEC Staff Guidance on Shareholder Proposals Continues to Encourage Board of Director Involvement in the Ordinary Business and Economic Relevance Exclusions and Provides Examples of Useful Factors from
More informationSEC Finalizes Guidance to Stock Exchanges on Compensation Committee and Adviser Independence
SEC Finalizes Guidance to Stock Exchanges on Compensation Committee and Adviser Independence Exchanges Still Responsible for Key Details, Including Definition of Independence, and Have 90 Days to Propose
More informationISS Releases 2018 Voting Policy Updates
Focus on Excessive Non-Employee Director Compensation, Board Diversity and Gender Pay Gap Continues While Poison Pills Return to the Spotlight SUMMARY Yesterday, Institutional Shareholder Services published
More informationAdjusting to Shareholder Activism
Active Shareholders are the New Normal, Placing a Premium on Management Preparedness, Board Awareness and Ongoing Shareholder Engagement for Public Companies SUMMARY The results of the 2013 proxy season
More informationProxy Litigation SUMMARY. February 27, 2013
Court Enjoins Apple Shareholder Vote on a Charter Amendment Under SEC s Unbundling Rules but Refuses to Enjoin Say-on-Pay Vote Based on CD&A Disclosure SUMMARY On February 22, 2013, the United States District
More informationIn re MFW Shareholders Litigation
Controlling Stockholder s Upfront Commitment to Both Approval by Special Committee and Majority-of-the-Minority Vote Warrants Business Judgment Rule Standard of Review For Freeze-Out Mergers SUMMARY In
More informationSEC Adopts CEO Pay Ratio Rule
New Rule Will Not Be Effective Until 2018 Proxy Season SUMMARY On Wednesday, the SEC published the text of its final rule, adopted that morning by a three-to-two vote, that U.S. public companies disclose:
More informationJANA Master Fund, Ltd. v. CNET Networks, Inc.
JANA Master Fund, Ltd. v. CNET Networks, Inc. Delaware Chancery Court Rules That Company's Advance Notice Bylaw Applies Only to 14a-8 Proposals, and Not Independently Financed Proxy Solicitations SUMMARY
More informationSEC Guidance on Reporting for U.S. Tax Reform
SEC Guidance on Reporting for U.S. Tax Reform SEC Staff Releases Guidance on Form 8-K Reporting for the Re-Measurement of Deferred Tax Assets and on Initial Income Tax Effects of New Tax Legislation SUMMARY
More informationDelaware Chancery Court Considers Appraisal in First Major Decision Since Dell
Delaware Chancery Court Considers Appraisal in First Major Decision Since Dell Court of Chancery Chooses Unaffected Market Price, 30% Below Deal Price, as Fair Value. SUMMARY The evolution of Delaware
More informationSEC Staff Begins Taking Steps to Reform Shareholder Proposals
SEC Staff Begins Taking Steps to Reform Shareholder Proposals Guidance Contemplates New Board of Director Involvement in the Ordinary Business and Economic Relevance Exclusions and Suggests the Staff Would
More informationIn re Southern Peru Copper Corporation Shareholder Derivative Litigation
In re Southern Peru Copper Corporation Shareholder Derivative Litigation Delaware Chancery Court Finds Acquisition by Southern Peru Copper of a Subsidiary Owned by Its Controlling Shareholder Did Not Satisfy
More informationSEC Proposes Guidance to Stock Exchanges on Compensation Committee and Adviser Independence
SEC Proposes Guidance to Stock Exchanges on Compensation Committee and Adviser Independence Exchanges Will Be Responsible for Details, Including Whether Significant Stock Ownership Will Impact Committee
More informationSEC Approves NYSE Proposal to Facilitate Listings of Companies Without a Trading History
SEC Approves NYSE Proposal to Facilitate Listings of Companies Without a Trading History SUMMARY On February 2, 2018, the SEC issued an order approving, on an accelerated basis, a proposed rule filed by
More informationDelaware Supreme Court Reverses DFC Global Appraisal Decision
Delaware Supreme Court Reverses DFC Global Appraisal Decision Court Finds That Merger Price Following Robust, Conflict-Free Sale Process is the Best Evidence of Fair Value, and Rejects "Private Equity
More informationSEC Approves New PCAOB Auditor Reporting Standard
SEC Approves New PCAOB Auditor Reporting Standard New Standard Expands the Scope of the Auditor s Report and Requires Auditors to Identify and Discuss Critical Audit Matters SUMMARY On October 23, 2017,
More informationEmergency SEC Orders Concerning Short Sales
Emergency SEC Orders Concerning Short Sales SEC Takes Temporary Action to Prohibit Most Short Sales in Publicly Traded Shares of Certain Financial Firms and to Require Certain Institutional Investment
More informationProperty Disclosure Rules for Mining Registrants
Property Disclosure Rules for Mining Registrants SEC s Proposal Would Align Its Disclosure Requirements With Current Industry and Global Regulatory Standards SUMMARY The SEC has proposed rules to modernize
More informationDelaware Supreme Court Rejects Bad Faith Claim Against Lyondell Board
Delaware Supreme Court Rejects Bad Faith Claim Against Lyondell Board The Court Rejects a Claim that a Truncated Sale Process Run by an Independent Board Violated the Directors Duty to Act in Good Faith
More informationFINRA Corporate Financing
FINRA Solicits Comments on Proposed Amendments to the Corporate Financing Rule (Underwriting Terms and Arrangements) SUMMARY FINRA is soliciting comments on proposed amendments to FINRA Rule 5110 the Corporate
More informationSEC Approves New PCAOB Auditing Standard Relating to Communications Between Auditors and Audit Committees
January 2, 2013 SEC Approves New PCAOB Auditing Standard Relating to Communications Between Auditors and The U.S. Securities and Exchange Commission has approved Auditing Standard No. 16, Communications
More informationRegistered Offerings of Debt Securities
SEC Proposes Amendments to Simplify and Streamline Financial Disclosures About Issuers and Guarantors of Guaranteed Securities and Affiliates Whose Securities Collateralize Registered Securities SUMMARY
More informationISS to Introduce QuickScore 3.0 on Friday
New Governance Factors Previewed; Details to be Published on October 31; Data Verification Period to Follow Through November 14 SUMMARY Institutional Shareholder Services, the proxy advisory firm, has
More informationISS Publishes Guidance on Pay-for- Performance Assessments and Updates to Governance Ratings System
ISS Publishes Guidance on Pay-for- Performance Assessments and Updates to Governance Ratings System Provides Additional Detail on Measuring Relative and Absolute Alignment Between CEO Pay and Total Shareholder
More informationRecent 2013 Proxy Season Developments
ISS Publishes Proposed Updates to Its 2013 Proxy Voting Guidelines, Including Making Board Responsiveness Policy More Stringent and Revising Pay-for-Performance Test to Account for Company Peer Group and
More informationNYSE Corporate Governance Standards
SEC Publishes Proposed Changes to Update and Clarify NYSE Corporate Governance Standards SUMMARY The SEC has published for public comment proposed changes to the New York Stock Exchange corporate governance
More informationCorporate Disclosure of Government Enforcement Developments
Corporate Disclosure of Government Enforcement Developments U.S. District Court for the Southern District of New York Holds No General Duty for Issuers to Disclose SEC Investigations or Receipt of SEC
More informationBank Capital Plans and Stress Tests
January 26, 2016 Bank Capital Plans and Stress Tests Federal Reserve Finalizes Rule Revising FR Y-14 Forms to Include CFO Attestation Requirements for Certain Large Bank Holding Companies On January 21,
More informationOCC Issues Updated Policy for Determining the Impact of Discriminatory or Illegal Credit Practices on Community Reinvestment Act Ratings
OCC Issues Updated Policy for Determining the Impact of Discriminatory or Illegal Credit Practices on Community Reinvestment Act Ratings OCC Issues Policies and Procedures Manual Update Setting Forth a
More informationSEC Proposes Rule Regarding Communications Involving Security- Based Swaps Entered Into Solely by Eligible Contract Participants
SEC Proposes Rule Regarding Communications Involving Security- Based Swaps Entered Into Solely by Eligible Contract Participants SUMMARY On September 8, 2014, the Securities and Exchange Commission proposed
More informationForeign Private Issuer Exemption from SEC Registration
SEC Proposes to Amend the Rule 12g3-2(b) Exemption SUMMARY On February 25, 2008, the Securities and Exchange Commission published proposed amendments to Rule 12g3-2(b), which provides an exemption from
More informationAgencies Release New FAQ on CEO Certification Requirement, Setting March 31, 2016 Deadline for Initial Submissions
Agencies Release New FAQ on CEO Certification Requirement, Setting March 31, 2016 Deadline for Initial Submissions Earlier today, the Board of Governors of the Federal Reserve System (the Federal Reserve
More informationBrexit: U.S. Agencies Facilitate Legacy Swap Transfers
Brexit: U.S. Agencies Facilitate Legacy Swap Transfers Under Interim Final Rule, Legacy Swaps Currently Exempt from the Swap Margin Rule Would Maintain Legacy Status If Transferred from U.K. Financial
More informationSecond Circuit Rejects Listing and Foreign-Squared Claims Under Morrison v. National Australia Bank
Second Circuit Rejects Listing and Foreign-Squared Claims Under Morrison v. National Australia Bank U.S. Securities Laws Do Not Apply to Transactions Abroad Merely Because the Security at Issue Is Dually
More informationU.S. Securities Litigation Against Non-U.S. Issuers by Non-U.S. Plaintiffs
U.S. Securities Litigation Against Non-U.S. Issuers by Non-U.S. Plaintiffs Second Circuit Appellate Court Tightens Rules Governing Foreign- Cubed Claims SUMMARY Over the past several years, U.S. plaintiffs
More informationBank Capital Plans and Stress Tests
FDIC and OCC Propose Amendments to Their Stress Testing Rules SUMMARY On December 18, the FDIC and the OCC issued proposed rules that would amend their respective stress testing rules that implement the
More informationSEC Adopts New Rules Affecting Public Company Reporting
SEC Adopts New Rules Affecting Public Company Reporting SEC Requires Use of Inline XBRL for Public Companies Including Funds, Eliminates XBRL Website Posting Requirement, Expands Companies Eligible for
More informationRegulators Explain Examination Approach for Compliance With FinCEN s Customer Due Diligence Rule
Regulators Explain Examination Approach for Compliance With FinCEN s Customer Due Diligence Rule FFIEC s New Examination Procedures Align with FinCEN s Rule and Existing Guidance; Impose No Lower Beneficial
More informationLarge Trader Reporting System
SEC Proposes Creation of a Reporting and Information-Gathering System Applicable to Certain Large Market Participants and U.S. Registered Broker-Dealers SUMMARY The SEC has proposed a new Rule 13h-1 and
More informationFailed Bank Acquisitions
FDIC Releases Revised Frequently Asked Questions on the Statement of Policy on Qualifications for SUMMARY On January 6, 2010, the Federal Deposit Insurance Corporation released Frequently Asked Questions
More informationCompany Halts Initial Coin Offering After SEC Issues Cease-and-Desist Order; SEC Chairman Issues Statement on Blockchain- Based Offerings
Company Halts Initial Coin Offering After SEC Issues Cease-and-Desist Order; SEC Chairman Issues Statement on Blockchain- Based Offerings Without Alleging Fraud, SEC Order Finds That Company s Token Sale
More informationPrivate Offering Reform
SEC Publishes Details of Proposed New Exemption Permitting Limited Publicity in Unregistered Offerings SUMMARY The Securities and Exchange Commission has published the text of proposed revisions to Regulation
More informationNinth Circuit Holds That Non-U.S. Issuers Can Be Liable in U.S. for Unsponsored American Depositary Receipt Facility
Ninth Circuit Holds That Non-U.S. Issuers Can Be Liable in U.S. for Unsponsored American Depositary Transactions in Unsponsored American Depositary Receipts Can Qualify as Domestic Transactions Subject
More informationCompensation and Corporate Governance Disclosure and Proxy Solicitation
Compensation and Corporate Governance Disclosure and Proxy Solicitation SEC Publishes Proposed Rules to Expand Disclosure Regarding Compensation and Corporate Governance Matters and to Clarify Proxy Solicitation
More informationFederal Reserve Supervision
Federal Reserve Updates Consolidated Supervision Framework for Large Financial Institutions SUMMARY On December 17, 2012, the staff of the Federal Reserve issued a Supervision and Regulation ( SR ) letter
More informationFinCEN Issues Frequently Asked Questions Regarding Customer Due Diligence Requirements
FinCEN Issues Frequently Asked Questions Regarding Customer Due Diligence Requirements Frequently Asked Questions Clarify Aspects of Beneficial Ownership Threshold, Identity Collection and Verification,
More informationFederal Reserve Issues Statement of Intent to Extend the Volcker Rule Conformance Period Through July 21, 2017 for CLOs
April 8, 2014 Federal Reserve Issues Statement of Intent to Extend the Conformance Period Through July 21, 2017 for CLOs Late yesterday afternoon, the Board of Governors of the Federal Reserve System (the
More informationSEC Provides Relief to Security-Based Swap Dealers From Business Conduct Rules
SEC Provides Relief to Security-Based Swap Dealers From Business Conduct Rules Relief From Certain Documentation Requirements Under the SEC s Business Conduct Rules Would Apply for Five Years After the
More informationRegulated Investment Companies
IRS Extends Guidance on Stock Distributions to Publicly-Traded SUMMARY On January 7, 2009, the Internal Revenue Service issued Revenue Procedure 2009-15 which extends to publicly-traded regulated investment
More informationCorporate Expatriation Transactions
IRS and Treasury Issue Final Regulations on the Substantial Business Activities Exception to Section 7874 SUMMARY On June 3, 2015, the IRS and Treasury Department released final regulations (the Regulations
More informationFederal Reserve Proposes New Rating System
Federal Reserve Proposes New Rating System Federal Reserve Proposes to Establish a New Rating System for the Supervision of Large Financial Institutions Designed to Align with the Supervisory Program for
More informationShareholder Proxy Access
SEC Proposes Two Mutually Exclusive Alternatives on Shareholder Access; Proposals Would Prohibit or Permit Binding Shareholder Proposals SUMMARY At its July 25, 2007 meeting, the SEC revisited the issue
More informationBank Capital Plans and Stress Tests
Federal Reserve Board Proposes Rule Revising FR Y-14 Forms to Include CFO Attestation Requirements for Certain Large Bank Holding Companies SUMMARY On September 16, 2015, the Board of Governors of the
More informationOCC Lending Limit Rules
OCC Issues Interim Final Rules Applying the Lending Limit for National Banks and Savings Associations to the Credit Exposure to Derivatives and Securities Financing Transactions SUMMARY On June 20, the
More informationReal Estate Investment Trusts
IRS Issues Temporary Guidance on Stock Distributions by Real Estate Investment Trusts SUMMARY On, the Internal Revenue Service issued Revenue Procedure 2008-68 which provides, on a temporary basis, that
More informationHouse and Senate Pass NOL Carryback Legislation
House and Senate Pass NOL Carryback Legislation Revenue Provisions of the Worker, Homeownership, and Business Assistance Act of 2009 Include Five-Year Carryback of Net Operating Losses, an Extension and
More informationEuropean Commission Proposes Disclosure Requirements for Payments to Governments for the Development of Natural Resources
European Commission Proposes Disclosure Requirements f Payments to Governments f the Development of Natural Resources Summary Side-by-Side Comparison of and United States Proposals SUMMARY On October 25,
More informationIRS Finalizes Regulations Relating to Allocations of Partnership Items Involving Partners That Are Look-Through Entities
IRS Finalizes Regulations Relating to Allocations of Partnership Items Involving Partners That Are Look-Through Entities SUMMARY On May 19, 2008, the Internal Revenue Service issued final regulations on
More informationNoncontrolling Investments in Banking Organizations
Noncontrolling Investments in Banking Organizations Federal Reserve Liberalizes Policy on Certain Aspects of Permissible Noncontrolling Equity Investments; Does Not Address Certain Structural Issues for
More informationFinal Regulations Ease Compliance with the Loss Trafficking Rules
Final Regulations Ease Compliance with the Loss Trafficking Rules IRS Finalizes Regulations Limiting the Application of the Section 382 Segregation Rules in Certain Circumstances SUMMARY Under Section
More informationProposed Dodd-Frank Section 943 Rules
SEC Proposes Disclosure Requirements Regarding Representations and Warranties in Asset-Backed Securities Offerings SUMMARY On October 4, 2010, the Securities and Exchange Commission proposed rules pursuant
More informationNew Disclosure Requirement for Derivatives Over Basket Positions That Are Controlled by the Counterparty
July 9, 2015 New Disclosure Requirement for Derivatives Over Basket Positions That Are Controlled by the Counterparty Financial Institutions and Counterparties Must Retroactively Disclose Participation
More informationReporting Requirements for Foreign Financial Accounts Including Foreign Hedge Funds and Private Equity Funds
Reporting Requirements for Foreign Financial Accounts Including Foreign Hedge Funds and Private IRS Releases Guidance Allowing Taxpayers Recently Learning of Filing Obligations Until September 23, 2009
More informationFDIC Proposal on Compensation Programs
FDIC Authorizes Publication of Advance Notice of Proposed Rulemaking on Employee Compensation at Banking Organizations SUMMARY At the January 12, 2010 meeting, the Board of Directors of the Federal Deposit
More informationRecovery Planning Guidelines for Certain Large Banks
Recovery Planning Guidelines for Certain Large Banks Proposed OCC Guidelines Would Require Recovery Planning for Large National Banks, Insured Federal Savings Associations and Insured Federal Branches
More informationSEC Adopts Final Rules to Implement the Resource Payments Disclosure Requirements of the Dodd-Frank Act
SEC Adopts Final Rules to Implement the Resource Payments Disclosure Requirements of the Dodd-Frank Act Final Rules Require Filing a Separate Report Disclosing Payments Made to Governments for the Commercial
More informationDeputy Attorney General Rod Rosenstein Announces Revisions to Yates Memo
Deputy Attorney General Rod Rosenstein Announces Revisions to Yates Memo During a speech delivered Thursday at the International Conference on the Foreign Corrupt Practices Act ( FCPA ) in Oxon Hill, Maryland,
More informationConcentration Limits on Large Financial Companies
Federal Reserve Approves Final Rule Implementing Dodd-Frank s Financial Sector Concentration Limit SUMMARY Last week, the Board of Governors of the Federal Reserve System (the Federal Reserve ) approved
More informationBank Capital Requirements
Federal Reserve, OCC and FDIC Release Joint Proposal Regarding the Implementation of CECL and Their Regulatory Capital Rules SUMMARY On April 13 and 17, 2018, the Federal Reserve, the OCC and the FDIC
More informationBasel III and FSB Proposals
G-20 Summit Endorses Basel Committee Proposals and Financial Stability Board Recommendations Regarding Systemically Important Financial Institutions SUMMARY At the conclusion of their summit meeting in
More informationMandatory CFIUS Filings for Foreign Investment in Specified Critical Technologies Companies
Mandatory CFIUS Filings for Foreign Investment in Specified Critical Technologies Companies New Pilot Program Pursuant to Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) Will Require
More informationCorporate Reorganizations
IRS Finalizes Regulations on the Extent To Which Creditors of a Corporation Will Be Treated as Proprietors in Determining Whether Continuity of Interest Is Preserved in a Potential Reorganization SUMMARY
More informationProposed Dodd-Frank Section 945 Rules
SEC Proposes Requirements Regarding Review of Assets Underlying Asset-Backed Securities Offerings and Disclosure of Findings and Conclusions SUMMARY On October 13, 2010, the Securities and Exchange Commission
More informationBank Mergers & Acquisitions
Federal Reserve Board s Approval of Capital One's Acquisition of ING Direct Discusses Financial Stability Factor INTRODUCTION Late yesterday, the Federal Reserve Board ("FRB") issued an Order (the "Capital
More informationSULLIVAN & CROMWELL LLP
SULLIVAN & CROMWELL LLP August 3, 2005 M EMORANDUM Re: Executive Summary: SEC Adopts Landmark Reforms to the Registered Securities Offering Process The SEC has unanimously adopted new rules and amendments
More informationNew York Department of Financial Services Addresses Use of External Consumer Data. and Information Sources in Underwriting for Life Insurance
New York Department of Financial Services Addresses Use of External Consumer Data and Information Sources in Underwriting for Life Insurance NYDFS Issues Circular Letter on the Use of External Consumer
More informationDOJ Releases New Memorandum on Standards and Policies for Retention of Corporate Compliance Monitors
DOJ Releases New Memorandum on Standards and Policies for Retention of Corporate Compliance The New Memorandum Emphasizes the Need for a Careful Weighing of Costs and Benefits by Prosecutors Before Seeking
More informationERISA Fiduciary Rule. Fifth Circuit Vacates New ERISA Fiduciary Rule SUMMARY BACKGROUND. March 19, 2018
Fifth Circuit Vacates New SUMMARY On March 15, 2018, the Court of Appeals for the Fifth Circuit vacated, in its entirety, a 2016 Department of Labor (the DOL ) package of regulations providing an expansive
More informationSEC Reopens Comment Period on Proposed Rules Regarding Security-Based Swaps
SEC Reopens Comment Period on Proposed Rules Regarding Security-Based Swaps SEC Reopens Comment Period and Requests Additional Comment on Previously Proposed Rules Regarding Capital, Margin and Collateral
More informationRisk-Based Bank Capital Guidelines
Federal Banking Agencies Seek Comment on Alternatives to Credit Ratings in Risk-Based Capital Guidelines SUMMARY On August 10, 2010, the Office of the Comptroller of the Currency, the Board of Governors
More informationSEC Work Plan for Consideration of IFRS Adoption
SEC Work Plan for Consideration of IFRS Adoption SEC Publishes a Work Plan to Study Potential Adoption of IFRS for U.S. Issuers; Potential Transition to IFRS Delayed Until 2015-2016 SUMMARY The SEC has
More informationFederal Banking Agencies Release New Guidance on the Treatment of Foreign Excluded Funds Under the Volcker Rule
Federal Banking Agencies Release New Guidance on the Treatment of Foreign Excluded Funds Under the SUMMARY On Friday afternoon, the staffs of the Board of Governors of the Federal Reserve System (the Federal
More informationRoyalty Rates for Standard-Essential Patents
Royalty Rates for Standard-Essential Patents In Second Decision of Its Kind, District Court Determines RAND Royalty Rate for 19 Patents Essential to 802.11 WiFi Standard SUMMARY Many patents that are essential
More informationProxy System Modernization
SEC Issues Concept Release Seeking Comment on Perceived Deficiencies in the U.S. Proxy System and Potential Regulatory Responses SUMMARY On July 14, 2010, the SEC issued a concept release seeking public
More informationBona Fide Hedge Exemptions for Commodity Swap Dealers
Bona Fide Hedge Exemptions for Commodity Swap Dealers CFTC Issues Concept Release Seeking Comment on Whether to Eliminate the Bona Fide Hedge Exemption for Certain Swap Dealers and Create a New Exemption
More informationFederal Reserve Board Governor Tarullo Outlines Potential Regulatory Initiatives
Federal Reserve Board Governor Tarullo Outlines Potential Regulatory Initiatives SUMMARY On May 3, 2013, Federal Reserve Board Governor Daniel Tarullo delivered a speech outlining potential regulatory
More informationBank Capital Plans and Stress Tests
Approves Final Rule Amending Certain Aspects of Existing Capital Plan and Stress Test Rules SUMMARY Last Friday, the Board of Governors of the System approved a final rule (the Final Rule ) amending certain
More informationLegislation Affecting Energy Trading: Recent Developments
Legislation Affecting Energy Trading: Recent Developments The House fails to pass Rep. Peterson's Commodity Markets Transparency and Accountability Act of 2008," while the Senate considers Sen. Reid's
More informationCFTC v. Wilson: Court Rules against CFTC in Commodities Manipulation Bench Trial
CFTC v. Wilson: Court Rules against CFTC in Commodities Manipulation Bench Trial Court Holds that Open-Market Bids and Offers Made with an Honest Desire to Trade Cannot Support Liability under the Commodity
More information