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- 207 - A Discussion of Non-Compete Agreements and Their Enforceability
In this episode of S&C’s Critical Insights, Annie Ostrager, Co-Head of S&C’s Labor & Employment Group, and Jeannette Bander, a partner in S&C’s Executive Compensation Group, discussed non-compete agreements and the evolving nature of their enforceability, including developments at the federal and state level.
Fri, 19 Apr 2024 - 15min - 206 - Major Developments in National Security Enforcement, Part Three
In this episode of S&C’s Critical Insights, Sharon Cohen Levin, Craig Jones and Eric Kadel, Co-Heads of S&C’s National Security Practice, Adam Szubin, Of Counsel in S&C’s National Security Practice, and Andrew DeFilippis, Special Counsel in S&C’s National Security Practice, continue their discussion of significant developments in national security enforcement.
Thu, 11 Apr 2024 - 28min - 205 - Major Developments in National Security Enforcement, Part Two
In this episode of S&C’s Critical Insights, Sharon Cohen Levin, Tony Lewis and Eric Kadel, Co-Heads of S&C’s National Security Practice, Adam Szubin, Of Counsel in S&C’s National Security Practice, and Andrew DeFilippis, Special Counsel in S&C’s National Security Practice, continue their discussion of significant developments in national security enforcement.
Thu, 28 Mar 2024 - 36min - 204 - Enforcement Actions Related to Alleged Impairment of Whistleblower Activity and New Whistleblower Programs
In this episode of S&C’s Critical Insights, Annie Ostrager, Co-Head of S&C’s Labor & Employment Group, and Kamil Shields, a partner in S&C’s Litigation Group, discussed recent developments in whistleblower enforcement investigations and new whistleblower programs. Annie and Kamil cover the increase in enforcement actions and investigations into employment and other agreements that the SEC and other regulators view as potentially impeding, preventing or discouraging whistleblower activity. They also discuss new programs aimed at further incentivizing whistleblower reporting to the government, such as the Whistleblower Pilot Program created by the United States Attorney’s Office for the Southern District of New York.
Thu, 21 Mar 2024 - 17min - 203 - Major Developments in National Security Enforcement
Ten years ago, international companies typically needed to monitor national security developments only if they were doing business with a U.S. government agency or operating in higher risk jurisdictions or sectors such as military or dual-use goods. Over the past decade, however, Western governments—led by the United States—have expanded the use of sanctions, export controls, import restrictions and investment laws to more jurisdictions and more sectors, requiring nearly every multinational company to be attuned to and anticipate developments in these laws and regulations, including those seeking to prevent espionage, theft of trade secrets, cyber attacks and other similar threats. In addition, the governments of nations such as Russia and China have enacted an array of sanctions, export and other control measures, which can subject multinational companies to highly challenging situations with conflicting sanctions regimes. In this environment, companies and financial institutions must address a range of national security risks and considerations when establishing or executing their business operations, legal decision-making and compliance programs. In this podcast, former federal prosecutors Sharon Cohen Levin, Nicky Friedlander, Tony Lewis and Amanda Houle discuss major developments in national security enforcement, including the Department of Justice’s increased focus on this area. Sharon led the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York for two decades; Nicky is a former Chief of the Complex Frauds and Cybercrime Unit in the U.S. Attorney’s Office for the Southern District of New York; Tony was the Deputy Chief of the Terrorism and Export Crimes Section in the U.S. Attorney’s Office for the Central District of California; and Amanda was Co-Chief of the National Security & International Narcotics Unit in the U.S. Attorney’s Office for the Southern District of New York.
Wed, 20 Mar 2024 - 22min - 202 - ESG Considerations for Financial Institutions in 2024
In this episode of S&C’s Critical Insights, Michelle Chen, a partner in S&C’s Financial Services Group, and June Hu, special counsel in the Firm’s General Practice Group, provide key takeaways for financial institutions as they navigate environmental, social and governance considerations in 2024. Michelle and June review key ESG developments in 2023, noting a trend of growing divergence in ESG requirements and expectations at the international, federal and state level. This trend creates uncertainty and challenges for financial institutions. In light of the uncertainty and rapid developments in the ESG space, Michelle and June offer practical guidance for financial institutions, including the need to continue to closely monitor the changing ESG landscape and to adopt a coordinated approach to compliance in order to mitigate the risks of fragmented and reactive responses.
Mon, 05 Feb 2024 - 26min - 201 - 2023 Headwinds in M&A and Outlook for 2024
In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer discuss major takeaways from M&A in 2023 and potential developments for 2024. While we avoided a recession in 2023, ongoing economic uncertainty, rising interest rates, regulatory headwinds and geopolitical tensions contributed to a second year of falling activity levels in global M&A following 2021’s record-breaking year. M&A deals continued to face scrutiny from antitrust and foreign investment regulators in the United States and globally. In 2023, the EU adopted its new Foreign Subsidies Regulation, and in the United States, the FTC and DOJ proposed changes to the HSR rules and issued Draft Merger Guidelines. Cross-border M&A activity remained significant at $707 billion during the first nine months of 2023, but was down 21 percent compared to a year ago. Geopolitics, sanctions and foreign investment and competition regulation explain some of the trends in cross-border M&A, as investment pivots to align with countries’ political affiliations. Frank and Melissa expect to see more blends of traditional acquisition financing mixed with private credit solutions in 2024. They anticipate a significant uptick in activity this year with an increase in strategic buyers executing on deals, private equity buyers and a rebound in the cross-border deals.
Tue, 02 Jan 2024 - 15min - 200 - Corporate Governance: What to Expect in 2024
In this episode of S&C’s Critical Insights, Marc Treviño and Melissa Sawyer, Co-Heads of S&C’s Corporate Governance Practice, discuss corporate governance developments and what to expect in 2024. Marc and Melissa explore the ongoing trend of increased shareholder proposals focused on environmental, social and political topics and touch on ESG as it relates to the broader legislative and political climate. ESP-focused shareholder proposals and ESG issues are at the center of a growing web of legislation and government actions at multiple levels. They also note that companies may be looking to implement an officer exculpation provision in 2024.
Wed, 06 Dec 2023 - 07min - 199 - Employment and Contracting Litigation After the Supreme Court’s Affirmative Action Decision
In this episode of S&C’s Critical Insights, Julie Jordan, Tracy Richelle High and Annie Ostrager, Co-Heads of S&C’s Labor and Employment Group, discuss the Supreme Court’s decision in two consolidated cases against Harvard and the University of North Carolina. The Court held that the schools’ admissions programs—both of which used race as an explicit factor in admissions decisions—violated the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964, which prohibits discrimination in education. Julie, Tracy and Annie examine pending employment and contracting cases that may be affected by the Court’s decision, cover related shareholder proposals and offer guidance for employers, including reviewing hiring and promotion processes and procedures to examine whether any decisions are expressly based on race, gender or other protected classes.
Wed, 06 Sep 2023 - 22min - 198 - The Australian-American Partnership to Address Climate Change
In this episode of S&C’s Critical Insights, Connor Schillerstrom from our Sydney office, John Anselmi from our Melbourne office and Sam Saunders from our New York office discuss how Australia and the United States are working together to address climate change. Connor, John and Sam provide insight on how Australia might benefit from the Australia-United States Climate, Critical Minerals and Clean Energy Transformation Compact, which was formed this year to provide a framework for the countries to work together to reduce the cost of clean energy technologies and lay the foundation for the global clean energy economy. They also discuss the possible designation of Australia as a “domestic source” for purposes of the U.S. Defense Production Act, which would provide benefits to Australian companies operating under certain contracts with the U.S. government. Finally, they provide an overview of loans and tax credits under the U.S. Inflation Reduction Act that are available for Australian companies with critical minerals and clean energy projects in the United States.
Wed, 30 Aug 2023 - 18min - 197 - How the DOJ’s and FTC’s Draft Merger Guidelines May Affect M&A
In this episode of S&C’s Critical Insights, Melissa Sawyer, Global Head of S&C’s M&A Group, and Joe Matelis, a partner in S&C’s Antitrust Group, discuss how the draft merger guidelines issued by the Department of Justice and Federal Trade Commission may affect M&A deals. Joe, who helped develop the 2010 horizontal merger guidelines that would be replaced by the new guidelines, notes that the new guidelines would create more uncertainty about what kinds of mergers the government is going to choose to challenge. Joe expects that the government is most likely to focus on merger activity by so-called dominant firms that have more than a 30 percent market share, even though a much broader set of concerns is raised in the new guidelines. He also expects that going forward courts may not give as much credence to the new guidelines given their break from prevailing tradition, and thus paradoxically the new guidelines may make it harder for the government to prevail in court. Melissa points out some of the practical ways the draft guidelines might impact M&A deals. Parties would need more advance planning around potential antitrust issues, with hostile and topping bidders in particular needing to create clear plans to obtain timely clearances. She also would expect to see a shift in antitrust risk allocation provisions, including changes in reverse break fees, operating restrictions that apply between signing and closing, and “hell or highwater” clauses.
Fri, 04 Aug 2023 - 09min - 196 - Supreme Court’s Recent Polansky Decision on the False Claims Act
In this episode of S&C’s Critical Insights, Annie Ostrager and Tracy Richelle High, Co-Heads of S&C’s Labor & Employment Group, discuss the Supreme Court’s June 16 decision in United States ex. rel. Polansky v. Executive Health Resources and implications for qui tam whistleblowers. The False Claims Act (FCA) authorizes qui tam actions by private parties, called “relators,” who sue on behalf of the United States. The government may intervene and take over litigating the case during the “seal period”—the window at the outset of the action during which the case is sealed. If the government chooses not to intervene, the relator litigates the action. But the government has a right to intervene later for “good cause.” In Polansky, the government chose not to intervene during the seal period, but years later, moved to dismiss the case. The relator argued that the government could not do so because it had not intervened during the seal period. The government responded that it could move to dismiss without intervening at all. The Supreme Court adopted neither position. Instead, it held that the government may move to dismiss over a relator’s objection an FCA action so long as it moved to intervene at some point. Annie and Tracy note that the qui tam provision of the FCA remains a powerful tool for prosecutors to encourage whistleblowers to come forward. But a relator’s path to success may seem more uncertain after the Court’s decision.
Wed, 19 Jul 2023 - 17min - 195 - Recent Developments with SEC’s Whistleblowing Program
In this episode of S&C’s Critical Insights, Annie Ostrager and Tracy Richelle High, Co-Heads of S&C’s Labor & Employment Group, discuss recent developments in the Securities and Exchange Commission’s whistleblowing program. The Sarbanes-Oxley Act, as modified by the Dodd-Frank Act, provides protections and incentives for whistleblowers who report potential violations of the securities laws. Dodd-Frank also incentivizes potential informants to come forward by authorizing the SEC to grant awards to whistleblowers. Annie and Tracy discuss two recent amendments by the SEC to its whistleblower program that appear to reflect the agency’s readiness to grant more and larger awards. One authorizes the SEC to make awards for related, non-SEC actions, even if they may be more directly connected to other agencies. The second gives the SEC discretion to grant a larger award in appropriate circumstances. They also discuss two cases recently brought by whistleblowers against the SEC in the Third and Fifth Circuits involving the agency’s denials of whistleblower awards.
Fri, 14 Jul 2023 - 17min - 194 - Carve-Out Transactions in Europe: Key Considerations and Recent Experiences
In this episode of S&C’s Critical Insights, associates from our London, Paris and Frankfurt offices—Costanza Posarelli, Matt Triggs, Alexis Madec and Stephan Rauch— discuss key considerations for carve-out transactions for EU and U.K. businesses, and their recent experience assisting S&C clients with these complex transactions. In the current economic climate, many companies are evaluating whether they are deploying their assets in a way that maximizes value, and financial sponsors are open to more complex opportunities. Carve-out transactions, in either an M&A or a spin-off context, can be a particularly attractive option. In either context, there are several considerations to keep in mind, including tax aspects and impacts on financing arrangements for the parent company; the need for third-party consents; the relationship between the carved-out business and parent company going forward; and, if the company opts for a spin-off, the choice of listing venue and potential flowback risks.
Mon, 03 Jul 2023 - 21min - 193 - Supreme Court’s Recent Slack Technologies Decision
In this episode of S&C’s Critical Insights, Jeff Scott and Julia Malkina, Co-Leads of S&C’s Securities Litigation Practice, discuss the Supreme Court’s June 1 decision in Slack Technologies v. Pirani and the potential implications for securities litigation. Slack Technologies went public through a direct listing, which allows existing shareholders to sell their unregistered securities on the first day of public trading at the same time as the company’s registered shares are sold. Slack claimed that the plaintiff in this case lacked standing to sue because he could not trace the purchase of his Slack shares to the registration statement. The issue before the Court was whether Section 11 of the Securities Act of 1933 requires plaintiffs to plead and prove that they purchased securities registered under the registration statement they allege is materially false or misleading. In a win for defendants, the Supreme Court unanimously held that the plaintiffs must plead and prove these facts, reversing the U.S. Court of Appeals for the Ninth Circuit. Jeff and Julia discuss how the ruling reaffirms the longstanding interpretation of Section 11 and note that the Court’s decision could encourage more companies to go public through a direct listing. The ruling might also encourage legislative efforts to improve tracking of the ownership and registration of securities, including through the use of blockchain technology.
Wed, 07 Jun 2023 - 23min - 192 - U.S. Clean Energy Tax Credits: Where We Are and Where We Are Going
In this episode of S&C’s Critical Insights, Inosi Nyatta, Isaac Wheeler and Sam Saunders discuss the unanswered questions about requirements and qualifications for receiving tax credits for clean energy projects under the Inflation Reduction Act (IRA). The IRA, which was passed in August 2022, is the largest investment in clean energy in U.S. history and is expected to unleash a new wave of energy transition projects across the United States. It introduced new or enhanced credits for renewable energy, clean electricity investment and production, energy storage, clean hydrogen, electric vehicles, clean technology manufacturing, sustainable fuels and carbon capture. While the IRA has opened up numerous opportunities for energy transition projects, there are still a number of uncertainties, including final rules on direct pay and transferability, the potential impact of the OECD’s Pillar Two rules and how debt ceiling discussions may impact availability of IRA tax credits.
Thu, 25 May 2023 - 20min - 191 - Pharmaceutical Deal Outlook: U.S. and European Perspectives
In the webinar “Pharmaceutical Deal Outlook: U.S. and European Perspectives,” Frank Aquila, Matt Hurd, Carsten Berrar, Olivier de Vilmorin and Jeremy Kutner discuss the outlook for M&A deals in the sector. The group of partners, who came together from S&C’s New York, Frankfurt, Paris and London offices, focus in particular on outlining how patent law impacts the tenor of mergers and acquisitions, how the regulatory landscape in both the United States and Europe is affecting dealmaking, and the different considerations for acquirers as opposed to sellers.
Thu, 25 May 2023 - 28min - 190 - Implications of EU Court of Justice Judgment in the Fiat Case for Future State Aid Investigations
In this episode of S&C’s Critical Insights, Juan Rodriguez, Co-Head of S&C’s European Competition Group and the Firm’s Antitrust Group, and associate Marielena Doeding discuss the European Court of Justice’s ruling in the Fiat case and its implication for future state aid investigations. This landmark judgment—in which the Court of Justice annulled a General Court judgment and European Commission decision –clarified the parameters under which the Commission may investigate individual tax rulings under state aid rules. Although the judgment reaffirms that the Commission may investigate tax measures for compliance with state aid rules, in doing so, it cannot apply its own version of the arm’s length principle to tax measures; in particular, it cannot apply the arm’s length principle to tax measures in jurisdictions unless – and then only to the extent that – the law of the jurisdiction incorporates that principle. Instead, the Commission must carefully consider national tax rules to assess whether or not a measure confers a selective advantage for state aid purposes. Sullivan & Cromwell represented Fiat in this litigation.
Wed, 03 May 2023 - 14min - 189 - The Impact of COVID-19 on Consumer and Retail M&A
In this episode of S&C’s Critical Insights, partners Audra Cohen, Frank Aquila and Melissa Sawyer share important updates for dealmakers in the consumer and retail sector following the COVID-19 pandemic. Frank and Melissa discuss the impact of support legislation on various business models and explore how a continued shift in consumer priorities and product availability might change fundamental aspects of future M&A in these industries.
Tue, 25 Apr 2023 - 06min - 188 - M&A and Deal-Making Implications of the FCPA Resource Guide, Second Edition
In this episode of S&C’s Critical Insights series, Sergio Galvis, head of the Firm’s Latin America practice, outlines best practices for companies making cross-border acquisitions in view of updates to the FCPA Resource Guide issued by the U.S. Department of Justice and the Securities and Exchange Commission. With increased cooperation by regulators and law enforcement authorities across jurisdictions leading to more enforcement actions, acquirers should reevaluate their due diligence and compliance programs under these guidelines. Sergio addresses topics including: • designing and implementing an effective risk-based due diligence program for M&A, • the benefits of voluntary disclosure to the authorities of potential corruption issues, • the implementation of an effective compliance program, and • the importance of integration and remediation under the guidelines.
Mon, 24 Apr 2023 - 10min - 187 - French Financial Authority Proposes New Measures for Shareholder Activism
In this episode of S&C’s Critical Insights podcast series, Olivier de Vilmorin, head of the Firm’s European M&A practice, discusses the measures proposed by France’s securities regulator, the Autorité des marchés financiers (the “AMF”), concerning shareholder activism. Following a growing number of activist campaigns in France over the past several months, the AMF has clarified its position with pragmatic and constructive proposals to better control excessive behavior in shareholder activism campaigns, without preventing them. Olivier explores how these proposals will improve transparency and dialogue between shareholders and issuers and also strengthen AMF’s response capabilities during activist campaigns.
Mon, 24 Apr 2023 - 09min - 186 - Fiduciary Duty Conversations During COVID-19: Ways to Save a Business
S&C partners Jim Bromley and Andy Dietderich, the co-heads of our Global Restructuring practice, discuss strategies for boards confronting the “zone of insolvency” during the COVID-19 crisis.
Mon, 24 Apr 2023 - 05min - 185 - European Capital Markets Activity During COVID-19
S&C partners Carsten Berrar, Krystian Czerniecki and John Horsfield-Bradbury discuss the impact of the COVID-19 crisis on capital raising in Europe, and how issuers can adjust structures to address the current situation.
Mon, 24 Apr 2023 - 06min - 184 - Implications of Recent U.S. and EU Critical Mineral Legislation
In this episode of S&C’s Critical Insights, Inosi Nyatta, Craig Jones and Sam Saunders discuss new and proposed regulations involving critical minerals in the United States and European Union. Critical minerals, referred to as critical raw materials in the EU, are generally defined to include, among others, cobalt, graphite, lithium, manganese, nickel and rare earth minerals and are key components to clean energy technologies (in particular batteries) and other high-tech products. In the United States, the Inflation Reduction Act (IRA), which was passed in August 2022, provides an estimated $369 billion in investments in energy security and climate change programs and also creates significant tax incentives for critical minerals to be extracted, processed and/or recycled in the United States or countries that are trade partners with the U.S. Proposed by the European Commission in March 2023, the Critical Raw Materials Act (CRMA), aims to secure the EU’s supply of critical raw materials and bolster Europe’s own extraction, processing, refining and recycling of strategic raw materials. The CRMA would create a European Critical Raw Materials Board, set EU-wide targets for annual consumption of strategic raw materials, and establish a streamlined permitting process for strategic projects. However, unlike the IRA, it does not provide any additional funding.
Fri, 21 Apr 2023 - 18min - 183 - DOJ Updates Corporate Compliance Guidance
In this episode of S&C’s Critical Insights podcast series, Alex Willscher, Deputy Managing Partner of S&C’s Criminal Defense and Investigations Group, and Aisling O’Shea, co-head of the Firm’s FCPA and Anti-Corruption Group, discuss recent changes to the U.S. Department of Justice Criminal Division’s guidance on its evaluation of corporate compliance programs. Alex and Aisling identify key changes from the DOJ’s guidance this past April, unpack what the DOJ may be attempting to achieve with these changes, and explore considerations for corporate legal, compliance and other professionals in light of these updates.
Fri, 21 Apr 2023 - 13min - 182 - A Discussion of Recent Federal Arbitration Act Decisions
In this episode of S&C’s Critical Insights, Annie Ostrager and Diane McGimsey, Co-Heads of S&C’s Labor & Employment Group, discuss two recent decisions from the U.S. Court of Appeals for the Second and Ninth Circuits involving preemption and Section 1 of the Federal Arbitration Act. They analyze how those courts interpreted two recent U.S. Supreme Court decisions addressing the FAA’s scope in the employment context: Viking River Cruises v. Moriana and Southwest Airlines v. Saxon. In Bissonnette v. LePage Bakeries Park St., the plaintiffs, who delivered baked goods to stores and restaurants, claimed they were transportation workers, which would exempt them from Section 1 of the FAA. The Second Circuit held that because the plaintiffs charged for the baked goods, the transportation was incidental and the plaintiffs were in the baked goods industry and therefore not excluded from the FAA. After the Supreme Court issued its Saxon ruling a month later, the Second Circuit panel reconsidered Bissonnette, but adhered to its original ruling, which affirmed the district court order compelling arbitration. In Chamber of Commerce v. Bonta, a divided Ninth Circuit panel examined a California law, A.B. 51, that broadly prohibits employers from requiring mandatory arbitration agreements. Reversing a district court, the majority held that the A.B. 51’s restrictions are valid but could not be enforced if an unlawful agreement was entered into. After the Supreme Court issued its ruling in Viking River Cruises, the Ninth Circuit panel reheard the case and came to the opposite conclusion, upholding the district court’s injunction against A.B. 51. Annie and Diane said that in light of the Chamber of Commerce ruling, they expect California employers who had temporarily gotten rid of their arbitration agreements to be revising those policies. The Saxon and Bissonnette decisions left things less clear, but clients may wish to reexamine arbitration agreements to ensure employees’ work is characterized properly.
Wed, 08 Mar 2023 - 14min - 181 - A Discussion of Recent Internal Revenue Service Guidance
In this episode of S&C’s Critical Insights, Isaac Wheeler and Davis Wang, Co-Heads of S&C’s Tax Group, discuss the IRS’s year-end guidance in areas including the scope of the stock buyback tax and the Foreign Investment in Real Property Tax Act (FIRPTA). Isaac and Davis start off by discussing Internal Revenue Code Section 4501, commonly referred to as the one percent buyback tax, which is intended to encourage corporations to reinvest excess cash in their operations rather than buy back stock. The IRS clarified that some transactions will not be considered buybacks, such as corporate liquidations for many SPACs, while redemptions of preferred stock do appear to be subject to the tax. On FIRPTA, they discussed guidance to determine in if an entity qualifies for an exemption from U.S. real property holding company status, including whether the IRS will look through partnerships and certain corporations.
Tue, 31 Jan 2023 - 19min - 180 - ESG Considerations for Financial Institutions
In this episode of S&C’s Critical Insights, Michelle Chen, a partner in S&C’s Financial Services Group, and June Hu, an associate in the Firm’s General Practice Group, discuss key ESG considerations for U.S. financial institutions in 2023. Michelle and June recap recent ESG-related legal and regulatory developments in the banking, asset management and insurance sectors. The OCC, FDIC and the Federal Reserve proposed principles for climate-related financial risk management for large financial institutions, and the federal banking regulators plan to work together to issue consistent interagency guidance. State-level regulators, including the New York Department of Financial Services, are beginning to propose climate-related guidance which is intended to align with the work of federal and international banking regulators. A key development in 2022 was the SEC’s proposal of climate disclosure rules. Michelle and June discuss the impact that the proposed rules may have on financial institutions, as well as the impact of overlapping ESG-related requirements from lawmakers abroad, including in the United Kingdom and the European Union. Michelle and June also examine other ESG challenges that financial institutions may face, including “anti-ESG” scrutiny around climate targets and memberships in net-zero alliances, increased regulatory enforcement and litigation risk related to ESG and the potential impact of the Supreme Court’s decision last year in West Virginia v. EPA on U.S. federal agencies’ ability to regulate ESG activities.
Thu, 26 Jan 2023 - 15min - 179 - Update on Recent Whistleblower Enforcement in the U.S.
In this episode of S&C’s Critical Insights, Annie Ostrager, a Co-Head of S&C’s Labor & Employment Group, and Kamil Shields, a member of the Firm’s Criminal Defense & Investigations Group, provide an update on recent developments in whistleblower enforcement in the United States under the False Claims Act (“FCA”). Annie and Kamil discuss recent Department of Justice enforcement activity involving whistleblowers under the FCA’s qui tam provision, which permits private citizens with knowledge of fraud to sue on behalf of the government. In particular, several of the matters involved the healthcare industry, underscoring that this an active area for qui tam litigation and enforcement actions. In addition, Annie and Kamil discuss several qui tam cases currently pending before the U.S. Supreme Court. One of those cases, United States, ex rel. Jesse Polansky v. Executive Health Resources, Inc., addresses the issue of whether the government has the authority to dismiss a FCA suit after declining to proceed with the action. The Supreme Court will also hear argument on two consolidated cases from the Seventh Circuit regarding the applicable standard for scienter under the FCA. The Supreme Court’s decisions in these cases will be of critical importance for FCA whistleblowers and entities contracting with the government more broadly.
Fri, 20 Jan 2023 - 10min - 178 - Recent Developments in Private Securities Litigation
In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, review recent private securities litigation trends. Steve, Jeff and Julia discuss numerical trends in private securities litigation. Although such litigation has slowed overall, certain types of lawsuits, including those with ESG and SPAC-related claims, have increased. The episode also explores recent court rulings from the Second Circuit, the Ninth Circuit and the California Court of Appeal with significant implications for securities litigation, as well as noteworthy developments in cryptocurrency-related filings. For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.
Mon, 09 Jan 2023 - 21min - 177 - Review of 2022 U.S. Shareholder Activism and a Look Ahead
In this episode of S&C’s Critical Insights, Melissa Sawyer, Lauren Boehmke and Susan Lindsay analyze trends and developments in shareholder activism and activist settlement agreements over the past year. They also highlight a few factors that are likely to shape activism throughout 2023. Among the topics discussed, the group examined the record-breaking activist campaign activity in the first quarter of 2022, which persisted despite the continued market volatility and macroeconomic uncertainty that dampened activity levels in 2020 and 2021. Additionally, they explored how the nature of campaigns shifted in 2022, with a greater focus on corporate strategies and operations and a reduced focus on capital allocation and M&A. Companies have shown greater resistance to activist demands, they noted, by adopting shareholder rights plans and settling with activists more slowly. This led to decreased success in activists obtaining board seats compared to recent years. They explained that shareholder activism activity in 2023 is expected to be impacted by a variety of factors, including new and proposed policies for institutional investors, new universal proxy rules, the DOJ’s enhanced scrutiny of interlocking directorates under Section 8 of the Clayton Act, upcoming implementation of the Inflation Reduction Act and the potential adoption of the SEC’s proposed rules on share buybacks and amendments to Schedule 13D. For more information about this topic, read S&C’s review of 2022 U.S. Shareholder Activism and Activist Settlement Agreements.
Thu, 05 Jan 2023 - 14min - 176 - Recent Developments in SEC Enforcement
In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss the priorities of the Securities and Exchange Commission’s Enforcement Division and enforcement trends. Steve, Jeff and Julia discuss the SEC’s enforcement and regulatory activity relating to ESG disclosures, digital assets and SPACs. They also highlight the SEC’s focus on insider trading, market manipulation and recordkeeping. The episode concludes with a review of court challenges to the SEC’s enforcement powers. For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.
Thu, 05 Jan 2023 - 21min - 175 - 2022 Headwinds in M&A and Outlook for 2023
In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer discuss major takeaways from M&A in 2022 and potential developments for 2023. Following a record-setting year in 2021, a numbers of factors at the beginning of 2022, including soaring inflation, rising interest rates and geopolitical events, such as Russia’s invasion of Ukraine and the deterioration of U.S.-China relations, led to some of the slowest quarters in M&A globally since the onset of the pandemic. The regulatory landscape for mergers has also shifted, both in the United States and globally, with the Federal Trade Commission and U.S. Department of Justice under the Biden administration taking a more aggressive approach to antitrust enforcement, especially in the labor, agriculture, healthcare and tech sectors. Despite the agencies’ willingness to bring enforcement actions and litigation against proposed mergers, judges have frequently relied upon existing precedent to rule in favor of merging companies. De-SPAC transactions have seen increased focus as well, both from regulators and litigants, resulting in the demise of SPACs throughout last year, which is expected to continue into 2023 and beyond. Despite a general slowdown, several factors may lead to an uptick in activity in the first quarter of 2023, such as the strength of the U.S. dollar, a continued push for M&A activity by activists in the United States and abroad, the death of potential antitrust bills in Congress and the shift to more realistic projections from potential target companies, which make it more likely for buyers to make attractive offers.
Tue, 03 Jan 2023 - 11min - 174 - U.S. Tax Outlook Post-Midterms
In this episode of S&C’s Critical Insights, Tax Group co-heads Isaac Wheeler and Davis Wang welcome the Firm’s Government Affairs Specialist, Tom Mullins, to discuss anticipated developments in U.S. tax policy following the midterm elections. With Democrats and Republicans narrowly controlling the Senate and House, respectively, it is unlikely that the United States will see significant standalone tax policy passed in the next two years. However, progress is possible on a few fronts, including the Extenders Bill, which would extend expiring deadlines for a range of tax legislation, and the Secure 2.0 Act, which will give part-time workers better access to retirement benefits and increase the age when required minimum distributions must start. Some tax legislation could also become law by being included in a must-pass bill, such as the National Defense Authorization Act. Most likely, changes to tax policy will occur at the Treasury- or IRS-level rather than through Congressional action, although political dynamics and other factors could slow policymaking in those arenas as well. They also discuss how the new balance of power in Congress could make it more difficult for the United States to align with global tax initiatives, such as the Organisation for Economic Co-operation and Development’s Pillar II proposals for a global minimum corporate tax.
Fri, 02 Dec 2022 - 16min - 173 - Impact of Macro-Economic Environment on Cross-Border M&A
In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by Carsten Berrar, the Managing Partner of the Firm’s Frankfurt office, and Olivier de Vilmorin, the Head of the Firm’s European M&A practice, to discuss cross-border M&A transactions in the current economic environment. Carsten and Olivier discuss some of the macro-economic trends impacting the European market, including the energy supply crisis, inflation, recession as well as transformational issues, such as the mobility car industry. Additionally, heightened Antitrust scrutiny and an increased relevance of Foreign Direct Investment (FDI) Screening add to deal complexity and have reduced the pace of M&A transactions significantly. Despite these factors, a significant number of deals have been struck in the energy, infrastructure and cybersecurity sectors in Europe. Cautiously optimistic, Carsten and Olivier expect a significant number of P2P, carve-out and distressed M&A transactions in the coming months. Moreover, China’s softening of pandemic restrictions and the slowdown of inflation in the United States have had a positive impact on the European markets and could provide a boost for M&A deals. Melissa provides a U.S. perspective of the market for cross-border transactions into Europe. She points out that this is a great time for U.S. acquirers to be thinking about making investments in Europe as the market is less competitive than in recent years.
Wed, 16 Nov 2022 - 11min - 172 - Developing a Robust Multi-National Compliance Program
In this episode of S&C’s Critical Insights, Litigation partners Brendan Cullen and Tony Lewis provide an update and some key takeaways for building and sustaining an effective compliance program in light of recent remarks from Department of Justice officials, including September comments by Deputy Attorney General Lisa Monaco. Brendan and Tony build on their previous podcasts from 2020 and 2021 and discuss the agency’s enforcement priorities and its newest compliance expectations. These developments come at a time when U.S. enforcement agencies appear to be increasingly focused on corporate compliance. Topics include the DOJ’s focus on data analytics in testing the effectiveness of a company’s compliance function and culture, using compensation systems to provide incentives or disciplinary measures to improve compliance, and on companies’ use of electronic messages on personal devices. For more information about compliance programs, read Brendan and Tony’s chapter in the Latin Lawyer Guide to Corporate Compliance, “Developing a Robust Compliance Programme in Latin America.”
Fri, 11 Nov 2022 - 13min - 171 - An Overview of Section 8 of the Clayton Act
In this episode of S&C’s Critical Insights, S&C Partners Rita-Anne O’Neill and Joe Matelis provide an overview of Section 8 of the Clayton Act and discuss how the Department of Justice’s recent enforcement actions may affect private equity firms.
Tue, 08 Nov 2022 - 11min - 170 - SEC v. Cochran Supreme Court Argument Preview
In this episode of S&C’s Critical Insights, Julia Malkina, the co-lead of S&C’s Securities Litigation practice, is joined by Judd Littleton, the co-head of the Firm’s Supreme Court and Appellate practice, to discuss the upcoming Supreme Court oral argument in SEC v. Cochran and the case’s potential implications for SEC enforcement actions. In SEC v. Cochran, the Court will decide whether federal district courts have jurisdiction to consider structural constitutional claims that challenge ongoing SEC administrative proceedings. Julia and Judd discuss the background of SEC v. Cochran, the key issues and arguments before the Supreme Court, and how the Court’s decision may affect SEC enforcement actions going forward.
Tue, 01 Nov 2022 - 23min - 169 - A Discussion of In Re Grand Jury
In this episode of S&C’s Critical Insights, Isaac Wheeler and Davis Wang, Co-Heads of S&C’s Tax Group, are joined by Morgan Ratner from the Firm’s Supreme Court and Appellate practice, to discuss In Re Grand Jury, a case in which the U.S. Supreme Court recently granted certiorari to address when “dual purpose” communications are afforded attorney-client privilege. In In re Grand Jury, an unnamed law firm that specializes in international tax issues was asked to turn over documents that the firm argued are protected by the attorney-client privilege. The dual purpose communications at issue were made with the purpose of obtaining legal advice, which is generally privileged, and discussing the preparation of the client’s tax returns, which is not generally protected. A federal district court held the firm in contempt for its failure to produce the documents, and the U.S. Court of Appeals for the Ninth Circuit upheld that ruling. Morgan, Davis and Isaac also explore hypothetical scenarios to showcase the challenges of distinguishing legal advice from what has been determined to be non-legal advice, especially in the tax field.
Tue, 25 Oct 2022 - 24min - 168 - Lessons from the 2022 Proxy Season—Episode 4: Special Meeting Thresholds and Other Governance Proposals
S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer conclude their discussion of shareholder proposal trends from the 2022 proxy season by discussing governance proposals. They note that nearly all of the increase in shareholder proposals over the past decade is due to environmental, social and political proposals, as opposed to governance proposals. Still, governance proposals raise important issues and their proponents have become sophisticated about how they submit these proposals. Proposals seeking to lower the threshold of ownership needed for shareholders to call a special meeting was the largest category of structural governance proposals this year. Marc and Melissa note that the companies that defeated these proposals mostly demonstrated that the requested threshold would essentially give too much power to a single shareholder or to a couple of large holders. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.
Tue, 11 Oct 2022 - 07min - 167 - Lessons from the 2022 Proxy Season—Episode 3: Social and Political Proposals
S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer continue their discussion of shareholder proposal trends from the 2022 proxy season. In this episode of S&C’s Critical Insights, they explore social and political proposals, including in increase in those from so-called “anti-ESG” proponents. This year saw big growth in social and political proposals, with an 81 percent increase in civil rights, human rights and racial equity impact-related proposals. Marc and Melissa explore the different categories of social and political proposals, including those calling for racial equity audits and civil rights audits and challenges to corporate political spending. In prior years, this category was largely taken up by DEI-related proposals. This year, proposals increasingly focused on workplace characteristics, harassment, inadequate paid sick leave, employee health and safety issues. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.
Thu, 06 Oct 2022 - 09min - 166 - Preparing Companies for Universal Proxies
In this episode of S&C’s Critical Insights, Sarah Payne, John Savva and Melissa Sawyer are joined by Kelly Sullivan, partner at communications firm Joele Frank, and Scott Winter, managing director at proxy solicitation firm Innisfree, to discuss the new universal proxies required by the Securities and Exchange Commission. They discuss how companies can prepare for these proxies, which must include all director nominees properly presented for election, and what to expect for the upcoming season. The group discussed how the new ballots will likely lead to more activism, especially from smaller investors, and how companies can respond. On a positive note, the new proxy process has spurred many companies to refresh their bylaws to better address this new process.
Wed, 05 Oct 2022 - 11min - 165 - Lessons from the 2022 Proxy Season—Episode 2: Environmental Proposals
Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu continue their discussion of shareholder proposal trends from the 2022 proxy season, discussing trends in environmental proposals, as well as how to prepare for 2023. Environmental proposals have steadily increased over the past decade, with an explosion in 2021 and 2022. In 2021, these proposals rose 40 percent year-over-year and this year they jumped a further 38 percent. With proponents more reluctant to settle and the Securities and Exchange Commission less likely to grant no-action relief, 78 percent more environmental proposals reached a shareholder vote compared to 2021. One of the most notable trends was the increased granularity of these proposals. Correlated with this increasing granularity, however, the 2022 environmental proposals received lower levels of shareholder support. Looking forward, they expect that companies will have an even harder time negotiating a compromise or excluding environmental shareholder proposals, which may become even more granular in their demands. Learn more from S&C’s 2022 Proxy Season Review and watch our recent webinar.
Tue, 04 Oct 2022 - 15min - 164 - Lessons from the 2022 Proxy Season—Episode 1: The Impact of the SEC
Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu open a four-part series discussing prevalent shareholder proposal trends from the 2022 proxy season. They outline the significant impact of recent actions by the Securities and Exchange Commission on this proxy season and discuss how SEC rulemaking could affect the 2023 season. SEC Staff Legal Bulletin No. 14L—which reversed prior SEC guidance and altered the staff’s approach to the ordinary business and economic relevance exclusions—had a significant impact on the submission and voting trends this year. The SEC’s new approach correlated with a significant decrease in the likelihood of companies obtaining no-action relief, as the staff now assesses whether a proposal raises issues with a broad societal impact in determining whether a proposal is excludable. As a result, shareholder proposals made it to a vote much more frequently this proxy season. Yet the number of passing proposals decreased, as shareholder support for social, environmental and political proposals decreased after steadily rising throughout the last decade. Looking ahead, they expect ESG proponents to continue to submit more proscriptive and granular proposals to attract shareholder support. They also expect increased focus by the SEC on director qualifications, cyber security and human capital management disclosure. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.
Mon, 03 Oct 2022 - 09min - 163 - Three Corporate Tax Changes Under the Inflation Reduction Act
: In this episode of S&C’s Critical Insights, Davis Wang and Isaac Wheeler, co-heads of S&C’s Tax Group, are joined by Lauren Boehmke, partner in the Firm’s M&A practice, to discuss the recently enacted Inflation Reduction Act and a few of its key impacts on companies and corporate transactions. They analyze three key changes introduced by the Act: the corporate minimum tax, the one percent buyback tax and clean energy initiatives.
Thu, 29 Sep 2022 - 14min - 162 - Supreme Court Business Review: Viking River Cruises v. Moriana and Southwest Airlines Co. v. Saxon
In the fourth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partners Diane McGimsey and Annie Ostrager to discuss two employment arbitration cases from the past term and their implications for employers. In Viking River Cruises v. Moriana, the Supreme Court held that the Federal Arbitration Act preempts a California Supreme Court ruling insofar as it prohibits bringing certain state law claims to arbitration and reaffirmed that no party can be made to arbitrate a claim without expressly agreeing to do so. In Southwest Airlines Co. v. Saxon, the Court held that certain airline workers, baggage handlers and some of their supervisors, qualify for an exemption under Section 1 of the FAA for workers involved in interstate commerce or the transportation of goods or people.
Mon, 19 Sep 2022 - 15min - 161 - S&C Critical Insights – Impact of Illumina/GRAIL on M&A Deals Going Forward
In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by the Co-Heads of the Firm’s Antitrust group, Renata Hesse and Juan Rodriguez, to discuss recent developments surrounding the vertical merger of Illumina and GRAIL, which make DNA sequencing devices and blood-based tests for cancer screening, respectively. In the United States, an administrative law judge recently denied the Federal Trade Commission’s request to prohibit the transaction on competition grounds. In Europe, the European Commission opened a highly publicized suspensory investigation into the transaction, which is seen as a test case for the EC’s recently revised policy on reviewing mergers that do not require mandatory reporting to the EC. The partners discuss these developments and how they might impact M&A deals going forward, especially in the pharmaceutical and tech sectors.
Fri, 16 Sep 2022 - 15min - 160 - Impact of Proposed European Union ESG Laws and Regulations on non-EU Issuers
In this episode of S&C’s Critical Insights, Paris partner Olivier de Vilmorin, London partner John Horsfield-Bradbury and London associate Sarah Mishkin discuss the unexpected ways that the European Union’s new ESG laws and regulations may affect U.S. and other non-EU companies. They discuss how the laws will apply to certain companies with EU-listed securities or whose operations in the EU meet certain thresholds. They also touch on how the new climate-related disclosure requirements proposed by the U.S. Securities and Exchange Commission compare to the new EU laws.
Thu, 15 Sep 2022 - 10min - 159 - Recent Developments Concerning ESG-Labelled Bonds and ESG Ratings
In this episode of S&C’s Critical Insights, Vanessa Blackmore, Kirsten Rodger and Sam Saunders take a look at recent developments in the regulation of ESG-labelled bonds and ESG data and rating services, focusing in particular on recent UK regulatory statements signaling that use of proceeds frameworks are likely to be subject to enhanced regulatory scrutiny. They also touch on ESG developments globally, noting that international businesses are likely to find themselves facing multiple, complex ESG reporting requirements, with the potential for increased regulatory scrutiny and liability for misstatements.
Fri, 26 Aug 2022 - 18min - 158 - Supreme Court Business Review: ZF Automotive v. Luxshare, Badgerow v. Walters and Morgan v. Sundance
In the third episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partner Andrew Finn, the coordinator of S&C’s International Arbitration and Global Dispute Resolution Group, to discuss three arbitration cases that the Supreme Court decided last Term and the key takeaways from those decisions for businesses.
Mon, 22 Aug 2022 - 17min - 157 - S&C Critical Insights – Supreme Court Business Review: Cassirer v. Thyssen-Bornemisza Collection Foundation
In the second episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by Sharon Cohen Levin, former head of the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York, to discuss the Supreme Court’s recent decision in Cassirer v. Thyssen-Bornemisza Collection Foundation. The decision addresses the correct choice-of-law rule in a dispute between the family of a German Jewish woman who surrendered a painting to the Nazi regime in 1939 to obtain an exit visa and the Spanish museum that currently displays it. Sharon brings unique insight to this area of law and explains the legal landscape for heirs seeking restitution of property looted as part of severe violations of international law. She also discusses the implications of the Court’s decision for the Foreign Sovereign Immunities Act more generally. S&C's Appellate Practice Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.
Mon, 15 Aug 2022 - 18min - 156 - Supreme Court Business Review: Introduction, NFIB v. OSHA and West Virginia v. EPA
In this episode of S&C Critical Insights, Judd Littleton, Julia Malkina and Morgan Ratner introduce the third annual podcast series accompanying S&C’s Supreme Court Business Review. The Review summarizes the decisions from each Term that are most relevant to business leaders, and offers practical guidance on the implications of those decisions. Judd, Julia and Morgan preview upcoming episodes and discuss two closely watched administrative law decisions from this Term. The first is National Federation of Independent Business v. OSHA, in which the Court considered whether the Occupational Safety and Health Administration had the authority to implement a national COVID-19 vaccine mandate. The second is West Virginia v. EPA, in which the Court considered whether the Environmental Protection Agency had the authority to issue the Clean Power Plan, which established carbon dioxide emissions limits for coal power plants. They also briefly touch on the Court’s decision in American Hospital Association v. Becerra, in which the Court declined to address the continued viability of the Chevron doctrine in a case addressing how the Department of Health and Human Services sets drug reimbursement rates for hospitals treating Medicare patients. S&C's Supreme Court and Appellate Practice Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.
Wed, 03 Aug 2022 - 23min - 155 - Recent De-SPAC Transactions in Europe
In this episode of S&C’s Critical Insights, Olivier de Vilmorin, Carsten Berrar, Ben Perry and Richard Pollack discuss recent de-SPAC transactions in Europe, highlighting the latest de-SPAC trends in Germany, France and the U.K. They also discussed some of the regulatory uncertainty affecting the SPAC market in the United States.
Thu, 09 Jun 2022 - 18min - 154 - Recent Developments in U.S. Privacy Law at the State Level
In this episode of S&C’s Critical Insights, Ryan Logan and Matt Rosenberg discuss recent developments in U.S. privacy law at the state level, including Connecticut’s Act Concerning Personal Data Privacy and Online Monitoring and the Utah Consumer Privacy Act. Ryan and Matt highlight some key distinctions in these laws, including their scope and applicability, the rights granted to individuals with respect to their personal information, and compliance obligations imposed on companies that collect personal information from individuals in these states. Finally, they discuss current trends in state privacy laws and possible future developments. Visit us at www.Sullcrom.com
Mon, 06 Jun 2022 - 13min - 153 - Episode 2: Implications of SEC’s Proposed Climate-Related Disclosure Rules
In this episode of S&C’s Critical Insights, Sarah Payne and Cathy Clarkin discuss greenhouse gas emissions disclosures, an important component of the SEC’s highly anticipated climate-related rule proposals. Sarah and Cathy provide an overview of changes that would occur under the new rules, including the mandated disclosure of Scope 1 and 2 greenhouse gas emissions, even if the emissions are not material to the company, required disclosures on a gas by gas basis, and perhaps most significantly, the requirement that accelerated filers and large accelerated filers have their Scope 1 and 2 emissions data covered by an attestation report.
Wed, 11 May 2022 - 14min - 152 - Episode 1: Implications of SEC’s Proposed Climate-Related Disclosure Rules
In this episode of S&C’s Critical Insights, Jay Clayton and Cathy Clarkin provide an overview of the SEC’s highly anticipated climate-related rule proposals. The newly announced rules would require an expansion to both the breadth and the specificity of climate-related disclosures for both U.S. public companies and foreign private issuers. Jay additionally provides his assessment of the proposed rules, which are a significant departure from the SEC’s traditional materiality-based framework of disclosure and represent a move toward a more prescriptive climate-related disclosure regime.
Mon, 09 May 2022 - 08min - 151 - Implications of the SEC’s New Climate Disclosure Proposal for Financial Institutions
In this episode of S&C’s Critical Insights, Michelle Chen and June Hu discuss the SEC’s new climate disclosure proposal and its implications for financial institutions. On March 21, the SEC released a comprehensive proposal to mandate climate-related disclosures in SEC reporting companies’ annual reports and registration statements. Michelle and June discuss aspects of the proposed rules that will likely have particular implications for financial institutions, especially in light of the increasing focus from financial regulators on climate-related financial risks, as well as financial institutions’ other obligations that may affect their overall climate strategy. Click here to read S&C’s memo on the proposed rules and key implications for financial institutions. To watch S&C’s webinar on the SEC’s proposed rules and read additional S&C publications on this topic, click here. Visit us at www.sullcrom.com
Wed, 04 May 2022 - 25min - 150 - Risks of Expropriation or Asset Seizure Impacting Global Investors
On this episode of S&C’s Critical Insights, Stewart Robertson and Andrew Finn discuss the rapidly emerging expropriation and asset seizure risks to foreign companies operating in Russia and around the world. In response to Russia’s invasion of Ukraine, many multinational companies have announced plans to suspend or otherwise scale back their operations in Russia. Russia’s Parliament is currently considering laws that would allow its government to seize assets of those companies or put them under temporary government management. Stewart and Andrew explore the practical steps companies can take and consider in preparing for this type of possible action. Visit us at www.Sullcrom.com
Wed, 13 Apr 2022 - 11min - 149 - U.S. Sanctions Considerations for Virtual Currency Industry
In this episode of S&C’s Critical Insights, Katy McArthur and Tony Lewis discuss guidance from the U.S. Office of Foreign Assets Control (OFAC) on complying with U.S. sanctions in connection with virtual assets. The podcast explores the application of OFAC guidance for U.S. and non-U.S. companies and individuals who participate in the virtual currency industry, as well as recent commentary by other U.S. authorities regarding potential “red flags” for the use of virtual currency by those who may be affiliated with sanctioned Russian or Belarusian entities, especially when those entities or agents of those entities may be attempting to evade sanctions.
Wed, 06 Apr 2022 - 18min - 148 - An Introduction to Publicity Rights
Mehdi Ansari, co-head of S&C’s Intellectual Property & Technology Transactions Group, introduces the core components of publicity rights, which have become a prominent element in the sports, media, entertainment and consumer products industries. To learn more about this topic, listen to Mehdi’s full webinar, “Emerging Trends in Publicity Rights.” Mehdi builds on his introduction with an in-depth discussion on topics including post-mortem publicity rights, morals clauses, bankruptcy considerations, international enforcement, and other issues that will affect the future of publicity rights.
Fri, 11 Mar 2022 - 08min - 147 - Private Securities Litigation: Trends and Emerging Issues
In this episode of S&C’s Critical Insights, Steve Peikin, Jeff Scott and Julia Malkina discuss recent trends in private securities litigation. Steve is the head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Enforcement Division. Jeff and Julia are co-leads of the Firm’s Securities Litigation Practice. The podcast explores numerical trends in securities litigation filings during 2021, the Supreme Court’s decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, state court proceedings post-Cyan, and other developments.
Fri, 04 Mar 2022 - 18min - 146 - SEC Enforcement: Trends and Practice Guidance
In this episode of S&C’s Critical Insights, Steve Peikin, Jeff Scott and Julia Malkina discuss developments in the SEC’s enforcement priorities. Steve is the head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Division of Enforcement. Jeff and Julia are co-leads of the Firm’s Securities Litigation Practice. They offer practical guidance for handling of enforcement investigations in light of the new presidential administration and recent enforcement trends. Visit us at www.Sullcrom.com
Thu, 03 Mar 2022 - 20min - 145 - Privacy Considerations When Engaging Vendors in Breach Response
In this episode of S&C’s Critical Insights, Ryan Logan and Daniel Stern discuss privacy considerations that arise when engaging vendors involved in preventing and responding to data breaches. Ryan and Daniel describe the life cycle of an incident, including pre-incident planning, following privacy principles during a breach response and addressing the return or destruction of data at the end of the engagement. Visit us at www.SullCrom.com
Fri, 04 Feb 2022 - 09min - 144 - 2021 U.S. Shareholder Activism in Review and a Look Ahead
In this episode of S&C’s Critical Insights, Melissa Sawyer and Lauren Boehmke analyze trends in shareholder activism from the past year. They explore several key themes, including the increase in public activism during the 2021 proxy season, ESG as a primary activism campaign objective, a rise in settlement agreements, and recent regulatory developments. They also highlight a few trends that are likely to shape this area in 2022 and beyond. For more information about this topic, read S&C’s memo on the Review and Analysis of 2021 U.S. Shareholder Activism and Activist Settlement Agreements.
Wed, 12 Jan 2022 - 09min - 143 - M&A Trends and Highlights: 2021 in Review and a Look Ahead
In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer look back on global M&A activity during 2021 and discuss deal making expectations in 2022. Frank and Melissa explore the factors that made 2021 a historic year for M&A deal making—including the SPAC phenomenon, the splitting of major conglomerates, the rise of ESG as a catalyst for deals and the recovery from the pandemic-induced downturn. They further examine how these trends will continue to develop in the new year. Visit us at www.Sullcrom.com
Tue, 11 Jan 2022 - 15min - 142 - Non-GAAP Financial Measures
In this episode of S&C’s Critical Insights, John Savva and Sarah Payne discuss non-GAAP financial measures, numerical measures of a company’s financial performance, and financial position or cash flows that are not determined under GAAP. Sarah and John also explore the SEC’s requirements applicable to non-GAAP financial measures, some key areas to focus on in the presentation of these financial measures and the importance of complying with the various requirements that apply to non-GAAP financial measures.
Mon, 10 Jan 2022 - 24min - 141 - Safely Navigating a Liquidity Crisis as a Public Company Director
In this episode of S&C’s Critical Insights, Andy Dietderich and Melissa Sawyer discuss how their disciplines of M&A, corporate governance and restructuring combine to protect public company directors during a liquidity crisis. They explore director duties in what used to be called the “Zone of Insolvency,” with a focus on current Delaware law. They also discuss hypothetical situations in which directors might find themselves while steering a distressed company through a storm.
Tue, 14 Dec 2021 - 17min - 140 - The Impact of Brexit on Choice of Law
In this episode of S&C’s Critical Insights, Vanessa Blackmore, Ben Perry and Kirsten Rodger discuss whether Brexit has changed thinking about which law should govern a contract, and which courts should have jurisdiction over disputes. They explore why English governing law remains just as valid a choice as it did before Brexit and why the English courts continue to be well placed to handle disputes that arise. Visit us at Sullcrom.com
Wed, 08 Dec 2021 - 11min - 139 - Developments Affecting 10b5-1 Trading Plans
In this episode of S&C’s Critical Insights, Sarah Payne and Cathy Clarkin discuss the latest developments relating to 10b5-1 trading plans. They explore several proposed reforms by the SEC, which include a cooling off period between entering a newly adopted or modified plan and making an initial trade, a prohibition on overlapping plans and mandatory disclosure requirements. They also discuss considerations relating to current plans given the prospect of these pending rules. Please visit us @ Sullcrom.com
Mon, 06 Dec 2021 - 08min - 138 - Proposed Tax Changes under the Build Back Better Act and the Potential Impact on Tech and Silicon Valley
In this episode of S&C’s Critical Insights, Sarah Payne, managing partner of S&C’s Palo Alto office, and M&A partner Matt Goodman are joined by Davis Wang, co-head of the Firm’s Tax Group, and Bachir Karam, a partner in the Firm’s Estates & Personal Group, to discuss proposed tax changes under the Build Back Better Act. The Build Back Better Act passed in the House on November 19 and is now before the Senate. The partners discuss how proposed tax changes in the bill might have significant impacts on founders, companies and venture capital firms in Silicon Valley. Visit us at SullCrom.com
Thu, 02 Dec 2021 - 13min - 137 - S&C Critical Insights – Refreshing the Director Onboarding Process
In this episode of S&C’s Critical Insights, Sarah Payne and John Savva explore director onboarding, a process that may need to be refreshed in light of increased board turnover and expansion as companies seek to increase board diversity, as well as the increase in newly public companies. John and Sarah discuss four areas in particular that should be reviewed and updated: roles of directors, fiduciary duties, communications and risk oversight. Visit us at SullCrom.com
Fri, 05 Nov 2021 - 08min - 136 - New DOJ Initiatives Address Nation’s Cybersecurity Infrastructure
In this episode of S&C’s Critical Insights, Tony Lewis and Kamil Shields discuss two Department of Justice announcements—the launch of a Civil Cyber-Fraud Initiative and the creation of a National Cryptocurrency Enforcement Team. They also explore how these measures, alongside a series of recent high-profile cybercrime incidents and enforcement actions, fit into the DOJ’s comprehensive cyber strategy following the issuance of recent DOJ policy related to cryptocurrency enforcement and President Biden’s executive order to strengthen the nation’s cybersecurity infrastructure.
Thu, 04 Nov 2021 - 13min - 135 - Managing Cheap Stock in an Initial Public Offering
In this episode of S&C’s Critical Insights, John Savva and Sarah Payne discuss cheap stock, a significant factor in many initial public offerings. They explore how the issue arises in the context of an IPO, the types of cheap stock comments typically issued by the SEC, and how a company might navigate these comments. They also discuss steps to take to reduce the likelihood of a cheap stock issue. Visit us at Sullcrom.com
Mon, 01 Nov 2021 - 13min - 134 - Lessons From the 2021 Proxy Season: Governance Proposals
Marc Treviño and Melissa Sawyer, co-heads of S&C’s Corporate Governance and Activism practice, continue their discussion of shareholder proposal trends from the 2021 proxy season. In this episode of S&C’s Critical Insights, they explore developments in governance proposals, which went to a vote more often than any other category of proposal this year despite a decline in prevalence.
Mon, 25 Oct 2021 - 10min - 133 - Lessons From the 2021 Proxy Season: Social and Political Proposals
Marc Treviño and Melissa Sawyer, co-heads of S&C’s Corporate Governance and Activism practice, discuss prevalent shareholder proposal trends from the 2021 proxy season. In this episode of S&C’s Critical Insights, they explore developments in social and political proposals, including proposals related to human rights, racial justice, and employee-related diversity, equity and inclusion.Click here to learn more about S&C’s 2021 Proxy Season Review and watch our recent webinar.
Mon, 25 Oct 2021 - 10min - 132 - Recent SEC Cybersecurity Enforcement Actions
In this episode of S&C’s Critical Insights, Bob Downes, Tony Lewis and Chas Kerin discuss five recent SEC cybersecurity enforcement actions, with a focus on deficient corporate procedures and disclosure controls. They cover the background of the actions, including noteworthy aspects and common issues between them. They also explore how the SEC is addressing cybersecurity issues outside of enforcement, including from the examination and rulemaking perspectives. They conclude with a few takeaways and best practices.
Fri, 15 Oct 2021 - 19min - 131 - Culture Audits: Taking Stock of Your Workplace Culture
In this episode of S&C’s Critical Insights, Annie Ostrager, co-head of our Labor & Employment Group, and Katharine Rodgers discuss strategies employers should consider when taking stock of workplace culture. Annie and Katharine provide an overview of workplace culture, and why its importance is rising in terms of both employee satisfaction and company risk management. They also explore the components of a proactive culture audit, which can serve as a jumping off point to facilitate employee feedback and the implementation of any workplace improvements. For more information on this topic, watch our recent webinar, “The Impact of Maintaining a Diverse, Equitable and Inclusive Workforce,” and subscribe to our blog, “Legal Developments Affecting the Workplace.”
Wed, 06 Oct 2021 - 11min - 130 - Developing a Robust Multi-National Compliance Program
In this episode of S&C’s Critical Insights, Brendan Cullen and Tony Lewis provide key takeaways for building and sustaining an effective compliance program. Brendan and Tony build on their last podcast and discuss the updated guidance from certain U.S. enforcement agencies, talk about certain changes to foreign enforcement regimes and conclude with a few best practices. They also explain the importance of compliance programs, especially in the enforcement context. For more information about this topic, please see Brendan and Tony’s chapter in the Guide to Corporate Compliance, titled “Developing a Robust Compliance Programme in Latin America.”
Wed, 29 Sep 2021 - 13min - 129 - Supreme Court Business Review: United States v. Arthrex, Minerva Surgical v. Hologic and Google v. Oracle
In the sixth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Dustin Guzior, co-head of S&C’s Intellectual Property & Technology Litigation practice, to discuss three intellectual property cases that the Supreme Court decided last Term and key takeaways for businesses. In United States v. Arthrex, the Supreme Court sidestepped an issue that had the potential to affect significantly patent litigation: whether the Patent Trial and Appeal Board’s administrative patent judges must be appointed by the President with approval of the Senate. The Court instead held that PTAB’s structure violated the Appointment Clause of the Constitution because the director of the U.S. Patent and Trademark Office did not have sufficient power to review the PTAB’s decisions. In Minerva Surgical v. Hologic, the Court narrowed the scope of “assignor estoppel,” which precludes the assignor of a patent from later challenging the patent’s validity, by holding that assignor estoppel does not extend to circumstances that did not exist at the time of the assignment. Lastly, in Google v. Oracle, the Court held that Google’s copying of some of Oracle’s application program interface code for Java was fair use. Because the Court assumed without deciding that such code can be copyrighted in the first place, it left that important question for another day.
Tue, 21 Sep 2021 - 14min - 128 - Supreme Court Business Review: NCAA v. Alston
In the fifth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Renata Hesse, co-head of the Firm’s Antitrust Group and the former Acting Assistant Attorney General of the DOJ Antitrust Division, to discuss the Supreme Court’s antitrust decision from last Term, NCAA v. Alston. The Supreme Court held that certain NCAA restrictions on the types of benefits that student-athletes may receive violated federal antitrust law. Renata explains the Court’s reasoning, and how certain language in the decision could make it more difficult to establish antitrust liability from joint venture activity.
Thu, 19 Aug 2021 - 10min - 127 - Supreme Court Business Review: Van Buren v. United States and Facebook v. Duguid
In the fourth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Tony Lewis and Kamil Shields to discuss two technology-related decisions from the past Term. In Van Buren, the Court limited the application of the Computer Fraud and Abuse Act to exclude defendants who access information for an improper purpose that they are otherwise authorized to access. The Facebook decision narrowed the meaning of “automatic telephone dialing system” in the Telephone Consumer Protection Act, significantly reducing the scope of conduct prohibited by that Act. Tony and Kamil discuss the impact of these decisions for companies, government officials and law enforcement.
Tue, 10 Aug 2021 - 16min - 126 - U.K. Financial Conduct Authority: Updates and Implications for Non-U.S. Banks and Commercial Organizations
In this episode of S&C’s Critical Insights, Annie Ostrager and Kamil Shields discuss recent activity by the U.K. Financial Conduct Authority and how its approach toward whistleblowers differs from its U.S. counterpart. Annie and Kamil discuss the FCA’s increased focus on non-financial misconduct, such as sexual harassment. They also provide an overview of a new whistleblowing campaign launched by the FCA, “In confidence, with confidence,” and touch on related legislative activity. Finally, they discuss the implications of this government activity for non-U.S. banks and commercial organizations. Annie and Kamil earlier discussed the increased focus by U.S. agencies on the use of whistleblowers in investigations involving alleged money laundering and corruption. Listen to that episode here.
Thu, 05 Aug 2021 - 13min - 125 - Supreme Court Business Review: Federal Republic of Germany v. Philipp
In the third episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Sharon Cohen Levin, former head of the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York, to discuss the Supreme Court’s recent decision in Federal Republic of Germany v. Philipp. The case considered whether an exception to the Foreign Sovereign Immunities Act allowed the heirs of a group of Jewish art dealers to bring a lawsuit against Germany in U.S. federal court based on the Nazi regime’s expropriation of German medieval relics. The Court held that the heirs’ claim did not fall within the FSIA’s expropriation exception and therefore was barred by sovereign immunity. Sharon shares the implications of this decision for future FSIA litigants, including heirs of Holocaust victims and victims of other genocides seeking to recover property taken by foreign governments. Visit us at Sullcrom.com
Mon, 02 Aug 2021 - 24min - 124 - Supreme Court Business Review: Ford Motor Co. v. Montana and TransUnion v. Ramirez
In the second episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Bill Monahan, head of the Firm’s Products Liability & Mass Torts Group, to discuss the implications of two important business decisions from the October 2020 Term. In Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court gave further guidance on when state courts can exercise specific personal jurisdiction over nonresident defendants. In TransUnion v. Ramirez, the Court addressed the concrete harm requirement for Article III standing in the context of unnamed class members.
Wed, 28 Jul 2021 - 18min - 123 - Implications of the Anti-Money Laundering Act of 2020’s Whistleblower Provision
In this episode of S&C’s Critical Insights, Annie Ostrager and Kamil Shields discuss the recent increased focus by the Department of the Treasury, the Securities and Exchange Commission, and the Department of Justice on the use of whistleblowers in investigations involving alleged money laundering and corruption. Annie and Kamil address the role of whistleblowers in these matters from multiple angles, including regulatory, criminal and employment perspectives.
Tue, 20 Jul 2021 - 16min - 122 - Grant of Certiorari in Pivotal Software v. Zhung Tran
In this episode of S&C’s Critical Insights, David Rein and Julia Malkina discuss the Supreme Court’s recent grant of certiorari in Pivotal Software v. Zhung Tran. The issue before the Court is whether the automatic stay of discovery pending a motion to dismiss for securities actions in federal court also applies in state court. David and Julia discuss how this issue has been decided in state courts, the key issues and arguments likely to be presented to the Supreme Court, and the implications that might result from the Court’s eventual decision. Visit us at www.sullcrom.com
Tue, 13 Jul 2021 - 18min - 121 - Supreme Court Business Review: Series Overview, Collins v. Yellen and California v. Texas
In this episode of S&C’s Critical Insights, litigation partners Judd Littleton and Julia Malkina introduce the second annual podcast series accompanying S&C’s Supreme Court Business Review. The Review summarizes the decisions from each Term that are most relevant to business leaders, and offers practical guidance on the implications of those decisions. Judd and Julia preview upcoming episodes and discuss two of the most interesting and closely watched business-related decisions from this Term: the Court’s June 23 decision in Collins v. Yellen, in which the Court considered a constitutional challenge to the statutory limits on the President’s ability to remove the director of the Federal Housing Finance Authority; and the Court’s June 17 decision in California v. Texas, in which the Court considered another legal challenge to the constitutionality of the Affordable Care Act. Visit us at www.sullcrom.com
Mon, 12 Jul 2021 - 16min - 120 - Updates From the Antitrust Agencies and Implications for Enforcement
In this episode of S&C’s Critical Insights, Renata Hesse, former Acting Assistant Attorney General of the Antitrust Division at the Department of Justice, and Sophie Vandergrift, former attorney in the Mergers IV Division of the FTC’s Bureau of Competition, discuss a flurry of recent developments at the U.S. antitrust agencies—including the confirmation of Big Tech critic Lina Kahn to the Federal Trade Commission—and the potential implications for companies engaged in M&A activity or who may otherwise be subject to antitrust scrutiny. Visit us at www.sullcrom.com
Fri, 09 Jul 2021 - 20min - 119 - Rodge Cohen, Karen Seymour and Jay Clayton Discuss Board Priorities in Podcast
Rodge Cohen, Karen Seymour and Jay Clayton discuss what board directors need to be focused on in 2021 in a S&C Critical Insights podcast. All three agreed that the “first, indeed, existential issue for every board” is cybersecurity. “The number of cyber attacks and their sophistication is increasing exponentially,” Rodge observed. Jay agreed, adding that “every company should have a regularized approach for the board to be informed about and consider its company’s cyber profile, the threats, the potential attacks, and the defenses.” Karen said that companies should always be preparing for and considering how they would respond to a potential cyber attack. “All of this should have been rehearsed,” she said, so that if an attack occurs, “this isn’t the first time you are thinking what would happen in a crisis.” The partners also discuss topics ranging from ESG issues to executive compensation to the independence of board leadership.
Tue, 22 Jun 2021 - 26min - 118 - Anti-Corruption Policy Updates from the Biden Administration
In this episode of S&C’s Critical Insights, Aisling O’Shea, co-head of the Firm’s FCPA and Anti-Corruption Group, and Kamil Shields, both members of the Firm’s Criminal Defense and Investigation Group, discuss recent policy statements from the Biden administration on its fight against corruption as a core national security priority. Aisling and Kamil provide an overview of the administration’s recent National Security Study Memorandum, the formation of task forces to operate in the Northern Triangle region, and recent G7 and US/EU statements on collective action from member nations against corruption. In addition to discussing the potential implications of these developments, they also explore how companies, including financial institutions, can start preparing for these anti-corruption initiatives by enhancing their financial crime compliance frameworks in advance of likely increased enforcement by U.S. authorities.
Wed, 16 Jun 2021 - 11min - 117 - S&C Critical Insights – Antitrust Issues in No-Poach Agreements and Employee Compensation
In this episode of S&C’s Critical Insights, Joe Matelis and Samantha Hynes discuss what employers need to know about the changing antitrust ramifications of no-poach agreements and other agreements affecting employee compensation. They provide a brief background on U.S. antitrust law related to employee compensation, explore the indictments returned by the DOJ in late 2020 and early 2021 involving wage-fixing and no-poach agreements, and discuss steps employers can take to ensure that HR decisions affecting employee compensation comply with updated laws. Visit us at www.Sullcrom.com
Mon, 07 Jun 2021 - 13min - 116 - Will the Supreme Court Open the Floodgates to Discovery in International Arbitration?
In this episode of S&C’s Critical Insights, Joe Neuhuas and Andrew Finn discuss the U.S. Supreme Court’s decision granting certiorari in Servotronics Inc. v. Rolls Royce PLC. The case concerns the ability of U.S. courts to compel discovery in support of international arbitrations seated abroad and has important practical implications to counsel and users of international arbitration, who frequently favor arbitration because of its limited discovery rules and faster timeframes. The decision has the potential to finally resolve a circuit split over the availability of such discovery in international commercial arbitrations. Joe and Andrew provide context on the case and predict how it might play out in the Supreme Court.
Wed, 02 Jun 2021 - 12min - 115 - Lessons from the Colonial Pipeline Ransomware Attack
In this episode of S&C’s Critical Insights, Nicky Friedlander, co-head of our Cybersecurity practice, and John Sarlitto discuss the recent ransomware attack on the Colonial Pipeline Company that led to disruption of fuel supplies on the East Coast. Nicky and John discuss the significance of the attack, the challenges of deterring the perpetrators of ransomware, and what companies can do to avoid and mitigate the harm from a ransomware attack.
Fri, 28 May 2021 - 10min - 114 - Energy M&A: Deal Activity in the Renewable Energy Sector
In the third and final episode of S&C’s Critical Insights series on energy M&A trends, Global Head of M&A Frank Aquila and partners George Sampas and Werner Ahlers discuss increased deal interest in renewable energy, including opportunities and potential targets. They also compare renewables M&A activity in the United States to other global development initiatives, including in the EU, Asia Pacific and Latin America.
Thu, 20 May 2021 - 10min - 113 - Energy M&A: Oil & Gas and Other Traditional Energy Sources
In the second episode of S&C’s Critical Insights series on energy M&A trends, S&C’s Global Head of M&A Frank Aquila and partners George Sampas and Werner Ahlers discuss potential M&A trends in the oil & gas sectors throughout the remainder of the year. They explore how the uptick in corporate governance-focused ESG policies and the shifting priorities of capital availability will affect the sector and other traditional and transitional energy sources.
Fri, 14 May 2021 - 12min - 112 - Energy M&A: The Impacts Under the Biden Administration
In the first episode of S&C’s Critical Insights series on energy M&A trends, S&C’s Global Head of M&A Frank Aquila and partners George Sampas and Werner Ahlers discuss energy dealmaking in 2020 and its prospects looking ahead into 2021. They also explore the early policy moves of the Biden Administration that are likely to impact energy M&A, including President Biden’s pledge to cut U.S. greenhouse gas emissions in half by 2030 and the unveiling of a $2 trillion infrastructure proposal with ample measures to curb climate change.
Wed, 05 May 2021 - 14min - 111 - Hydrogen: Investment Structuring Considerations
In the second episode of S&C’s Critical Insights podcast series on hydrogen, Craig Jones, Inosi Nyatta and Sam Saunders consider areas where additional government support for hydrogen energy may be needed. They also provide an overview of key investment structuring issues for developers, financiers and counsel aiming to scale up hydrogen sustainably, including multi-project, market and technology risks.
Mon, 03 May 2021 - 13min - 110 - Hydrogen: An Overview of Current and Proposed Government Policies
In this episode of S&C’s Critical Insights podcast, Inosi Nyatta, co-head of the Firm’s global Project Development & Finance practice, Jon Hannah and Zyad Wright discuss why hydrogen has been pushed to the forefront of the energy agenda. They explore the government policies that are giving it momentum globally, including in the United States, EU, Asia-Pacific and Latin America.
Thu, 29 Apr 2021 - 15min - 109 - Supreme Court Limits FTC’s Remedial Authority in AMG Capital Management v. FTC
In this episode of S&C’s Critical Insights podcast, Alex Willscher, deputy managing partner of the Firm’s Criminal Defense & Investigations Group and Judd Littleton, co-head of the Supreme Court and Appellate Practice, discuss the Supreme Court’s recent decision in AMG Capital Management v. FTC, a ruling the FTC says could “significantly impair” its ability to execute its law enforcement mission. The Justices unanimously ruled that Section 13(b) of the FTC Act does not give the FTC the authority to seek equitable monetary relief, such as restitution or disgorgement. This ruling is a setback to the FTC, which has pursued monetary remedies under Section 13(b) as its main enforcement weapon for decades. The FTC is expected to pursue a legislative fix with Congress as a result of the decision, and may also rely more heavily on other administrative remedies. Following up on their prior podcast previewing the case, Alex and Judd discuss the issues at stake, the Supreme Court’s reasoning and the implications for the FTC and other federal agencies authorized to pursue monetary relief for consumers.
Mon, 26 Apr 2021 - 15min - 108 - Private Securities Litigation: Trends and Emerging Issues
In this episode of S&C’s Critical Insights podcast, Steve Peikin, head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Enforcement Division, and Jeffrey Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss recent trends in private securities litigation. They explore how the COVID-19 pandemic, an influx of SPAC-driven IPOs, state court proceedings post-Cyan and ESG disclosures are driving emerging issues in this field.
Fri, 16 Apr 2021 - 19min
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