At an October 30, 2015 open meeting, the Board of Governors of the Federal Reserve System (Federal Reserve) approved a proposed rule (Proposed Rule) that would impose Total Loss Absorbing Capacity (TLAC) and long-term debt (LTD) requirements for globally significant banks (G-SIBs). In so doing, it anticipated by ten days the Financial Stability Board (FSB), which finalized its template for TLAC on November 9. Although the Proposed Rule is consistent with important aspects of the FSB's TLAC requirements, its LTD requirement is more onerous. In addition, the Proposed Rule would impose new "clean holding company" requirements on institutions subject to the rule, which would limit those companies' business activities in a wholly new manner.From the Proposed Rule, tw
Client Alert | November 18, 2015
On November 2, 2015, President Obama signed the Bipartisan Budget Act of 2015 (the "Act"), which sweeps aside the rules that have governed the tax audits of partnerships since 1982. Although the new rules generally will not be effective until 2018, because the changes to partnership audits and attendant tax liability are so dramatic, and because partnerships generally may elect to apply the rules before 2018, it is important to ensure that both existing and future partnership agreements protect the interests of the partners and address the various alternatives available under the new rules. In addition, disclosure documents and regulatory filings (including filings with the Securities and Exchange Commission) will need to be modified to reflect the new law. F
Client Alert | November 12, 2015
Following the enactment of the Dodd-Frank Act, the Securities and Exchange Commission began examining a significant number of private investment fund advisers that registered with the SEC.
Webcasts | November 5, 2015
San Francisco partner Marc J. Fagel and Los Angeles associate Vania Wang are the authors of "SEC Examinations of Private Investment Funds" [PDF] published in the September-October 2015 issue of Practical Compliance & Risk Management for the Securities Industry.
Article | October 29, 2015
This client alert is supplemental to our client alert dated March 11, 2015. In the March alert, we had advised that the Indian government had increased the ceiling on foreign investment in an Indian insurance company to 49% of its total outstanding share capital.
Client Alert | October 22, 2015
The Indian MarketThe Indian economy has emerged as an attractive investment destination despite the recent economic upheavals in other emerging markets.
Client Alert | October 21, 2015
The UK has and continues to be an open market for international buyers (whether unsolicited or recommended). Between 2013 and H1 2015, an average of 65% of firm takeover offers for UK listed companies were made by international bidders. Data from the past decade shows that over half of hostile takeovers result in success for bidders. Notwithstanding these encouraging statistics, the rules governing UK takeovers, particularly for international acquirers, can appear opaque and a challenge to navigate. Reports in the press of parties being outed and subject to the "put up or shut up" regime, "being held to statements" or being required to issue "clarificatory statements" can deter the misinformed bidder. In this Alert we seek to u
Client Alert | October 20, 2015
If you are contemplating entering into investments in foreign markets, early consideration of protections available under bilateral investment treaties (BITs) and multilateral investment treaties (MITs) is crucial. I. When should you be considering BITs and MITs?BITs and MITs protection should be considered where your investment involves a heavily regulated industry or agreements directly with a foreign state (or state-owned entity)."Investment" for these purposes, potentially covers a broad range of interests and transactions from mergers and acquisitions, joint ventures, purchases of securities or assets, project financing, concession contracts, greenfield asset development, manufacturing plant construction and, in some cases, can also exte
Client Alert | September 25, 2015
Munich partner Markus Nauheim is the author of "The Heat is on: Update on Shareholder Activism in Germany" [PDF] published on September 3, 2015 by Business Law Magazine.
Article | September 3, 2015
Century City partner Candice Choh and Los Angeles associate Shawn Domzalski are the authors of "Stapled Considerations" [PDF] published on September 2, 2015 by Private Funds Management.
Article | September 2, 2015
On September 1, 2015, the Department of the Treasury, Financial Crimes Enforcement Network ("FinCEN") published a long-awaited Notice of Proposed Rulemaking ("NPRM") with new rules that would require registered investment advisers to implement Anti-Money Laundering ("AML") programs and to file Suspicious Activity Reports ("SARs") under the Bank Secrecy Act ("BSA").
Client Alert | September 1, 2015
On August 6, 2015, the European Commission issued a Delegated Regulation (the "Delegated Regulation") that requires all financial counterparties ("FCs") and non-financial counterparties ("NFCs") that exceed specified thresholds to clear certain interest rate swaps denominated in euro ("EUR"), pounds sterling ("GBP"), Japanese yen ("JPY") or US dollars ("USD") through central clearing counterparties ("CCPs"). Further, the Delegated Regulation addresses the so-called "frontloading" requirement that would require over-the-counter ("OTC") derivatives contracts subject to the mandatory clearing obligation and executed between the first authorization of a CCP under European rules (whic
Client Alert | August 19, 2015
This Client Alert provides an update on shareholder activism activity involving publicly traded domestic companies during the first half of 2015. At the midway point of 2015, shareholder activism shows no signs of slowing.
Client Alert | August 10, 2015
On July 27, 2015, the U.S. District Court for the Northern District of Texas issued its anticipated decision on remand from Halliburton, Co. v. Erica P.
Client Alert | July 29, 2015
On July 22, 2015, the United States Treasury Department (the "Treasury Department") and the United States Internal Revenue Service (the "IRS") released proposed regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code"), regarding the treatment of certain issuances of partnership interests in exchange for services rendered. The IRS also announced changes to prior Revenue Procedures effective upon finalization of the proposed regulations, as well as its view of the current non-applicability of such Revenue Procedures to certain fee waiver arrangements.
Article | July 28, 2015
The first half of 2015 has proved yet another eventful period in securities litigation. Chief among significant developments in the first half of the year is the U.S.
Client Alert | July 14, 2015
Midway through the 2015 calendar year, the SEC Enforcement program has often been finding itself garnering more public attention for the manner in which it sources, litigates, and resolves cases than for the cases themselves.
Client Alert | July 13, 2015
Gibson Dunn continues to monitor important developments in the EB-5 space as the September 30, 2015, deadline for reauthorization approaches. The EB-5 program allows for foreign investment in the United States in exchange for permanent resident status if, among other criteria, an investor invests at least $500,000 or $1,000,000 in a new commercial enterprise that produces at least 10 U.S.
Client Alert | June 17, 2015
On May 20, 2015, the SEC proposed a set of new rules under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), that will modify and, in most cases, increase an investment adviser's reporting obligations under Form ADV. The SEC has also proposed several modifications to an investment adviser's record-keeping obligations relating to performance advertising under Rule 204-2. A short summary of proposed rule changes follows. 1. Proposed Amendments to Form ADV.The SEC is proposing to modify Form ADV in three significant ways. First, the proposed rules would codify and formally incorporate into Form ADV the no-action relief pr
Client Alert | May 27, 2015
The Government of India ("Government") has published the updated foreign direct investment policy ("FDI Policy") for the year 2015.
Client Alert | May 15, 2015
On March 25, 2015, in a unanimous vote, the U.S.
Client Alert | April 22, 2015
Implementation of the derivatives market reforms contained in Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) may fairly be characterized as a herculean effort. The Commodity Futures Trading Commission (CFTC) has finalized dozens of new rules to implement Title VII's provisions governing "swaps." Although Title VII requires the Securities and Exchange Commission (SEC or Commission) to implement similar provisions for "security-based swaps" (SBSs), the SEC's rulemaking process has lagged the CFTC's.Earlier this year, the SEC finalized two of its required rules: one (Final Regulation SBSR) governs the reporting of SBS information to registered security-based swap data repositories (SDRs) and r
Client Alert | April 8, 2015
The new UAE Commercial Companies Law ("New CCL") will come into effect in the next 3 months. Here is a list of 10 things you need to know about the New CCL.
Client Alert | April 7, 2015
On March 24, 2015, the Supreme Court of the United States issued its long-awaited decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S.
Client Alert | March 25, 2015
In private company transactions, dealmakers often spend significant amounts of time talking about how to treat the cash held by an acquisition target. For example, if the buyer and the seller are negotiating price on the assumption that the target will be sold on a cash-free, debt-free basis, how does the purchase price get adjusted for cash that the target continues to hold at the time of closing? If the deal includes a working capital adjustment, how will cash and cash equivalents be taken into account? What are the procedures for measuring how much cash the target holds at closing? In cross-border deals, the issues about how to deal with target cash often become significantly more complex. Businesses that operate around the world may have cash in seve
Client Alert | March 16, 2015
The following Gibson Dunn alert, which originally was distributed on March 9, has been updated to reflect recent developments announced by the Indian Government.The Government of India had recently promulgated the Insurance Laws (Amendment) Ordinance, 2014, dated December 26, 2014 ("Ordinance"), which substantially amended the existing Insurance Act, 1938, including in relation to foreign investment in Indian insurance companies.
Client Alert | March 11, 2015
The following Gibson Dunn alert, which originally was distributed on March 9, has been updated to reflect recent developments announced by the Indian Government.The Government of India had recently promulgated the Insurance Laws (Amendment) Ordinance, 2014, dated December 26, 2014 ("Ordinance"), which substantially amended the existing Insurance Act, 1938, including in relation to foreign investment in Indian insurance companies.
Client Alert | March 11, 2015
Earlier this month, Venezuela announced a new free-floating exchange rate mechanism, which had the effect of massively devaluing Venezuela's bolivar currency.
Client Alert | February 25, 2015
Spin-off transactions require a focused, intensive planning effort. The deal team must make decisions about how best to allocate businesses, assets and liabilities between the parent and the subsidiary that will be spun-off. It must address complex tax issues, securities law questions and accounting matters, as well as issues related to capital structure, financing and personnel matters. In addition, it must resolve a long list of governance issues, including questions about the composition of the spin-off company board, the importance of mechanisms for dealing with conflicts of interest and the desirability of robust takeover defenses. Transaction planners do not always give the governance issues high priority. They may assume that the spin-off company can si
Client Alert | February 5, 2015
On January 23, 2015, the Division of Corporation Finance of the SEC issued a no-action letter permitting issuers (or their parents or wholly-owned subsidiaries) to conduct five business day tender offers for any and all non-convertible debt securities when certain conditions were met.
Client Alert | February 3, 2015
Gibson, Dunn & Crutcher LLP is pleased to present its first year-end Activism Update reviewing shareholder activism involving U.S. public companies during 2014.
Client Alert | January 30, 2015
The Paris office of Gibson Dunn is pleased to provide this legal and regulatory update covering France for the second semester of 2014.
Client Alert | January 23, 2015
On January 19, 2015, the PRC Ministry of Commerce ("MOFCOM") published the draft Foreign Investment Law (the "Draft Law") for public comments, which is intended to replace the existing foreign investment related laws and regulations (the "Existing Laws") and introduce a more market-based regulatory regime for foreign investments into China.Current RegimeChina currently has three major pieces of legislation governing foreign investments: the Sino-Foreign Joint Venture Law passed in 1979 (the "Equity JV Law"), the Foreign Enterprise Law passed in 1986 (the "WFOE Law") and the Sino-Foreign Co-operative Joint Venture Law passed in 1988 (the "Co-operative JV Law"). A particular form of entity is allowed to be set up in Chin
Client Alert | January 23, 2015
On January 12, 2015, the United States Court of Appeals for the Second Circuit issued an unprecedented decision holding that a company's failure to disclose a known trend or uncertainty in its Form 10-Q filings, as required by Item 303 of SEC Regulation S-K, can give rise to liability under Section 10(b) of the Securities Exchange Act of 1934.
Client Alert | January 22, 2015
The close of 2014 saw the SEC's Division of Enforcement take a victory lap. Following the release of the statistics for the fiscal year ended September 30, Division Director Andrew Ceresney touted a few records -- the largest number of enforcement actions brought in a single year (755); the largest total value of monetary sanctions awarded to the agency (over $4 billion); the largest number of cases taken to trial in recent history (30).
Client Alert | January 12, 2015
The past year marked the 25th anniversary of the fall of the Berlin Wall and probably the end of a European dream to continue to entertain smooth and peaceful cooperation with Russia.
Client Alert | January 9, 2015
On December 10, 2014, the United States Court of Appeals for the Second Circuit issued its much-anticipated decision in United States v. Newman, which vacated the convictions of and dismissed with prejudice the indictments against two high-profile insider trading defendants--Anthony Chiasson and Todd Newman. In overturning their convictions the Second Circuit both clarified the heavy evidentiary burden needed to convict downstream tippees who are several levels removed from the original tipper, and returned life to the "personal benefit" test for when a tipper breaches a fiduciary duty. This ruling likely will have significant repercussions for criminal and civil insider trading cases in the Second Circuit. The Trial and ConvictionsChiasson and Newman were succe
Client Alert | December 15, 2014
Twenty months after proposing regulations to minimize incidents of disruptive trading and potentially catastrophic trading malfunctions, the SEC, on November 19, 2014, adopted Regulation Systems Compliance and Integrity ("Regulation SCI") to enhance confidence in U.S.
Client Alert | November 25, 2014
The wealth of opportunities in emerging markets attracts a significant amount of foreign investment. Making investments in parts of Africa, Latin America, Asia and the former Soviet Union can pay off handsomely if successful. However, those same investments are often exposed to significant political risk.There are ways for investors in emerging markets to limit their exposure to such risk, and counsel can help to identify some of the more compelling options in this regard. Political risk insurance is one well-known option. Another option is to structure (or restructure) an investment, whether in a greenfield project or through an acquisition, to take advantage of the protections offered by a favorable investment treaty. It is the latter option that is the subj
Client Alert | October 6, 2014
On September 10, 2014, the Securities and Exchange Commission announced an unprecedented enforcement sweep against 34 companies and individuals for alleged failures to timely file with the SEC various Section 16(a) filings (Forms 3, 4 and 5) and Schedules 13D and 13G (the "September 10 actions").
Client Alert | September 11, 2014
The Luxembourg and French Ministry of Finance signed on September 5, 2014, a fourth amendment to the tax treaty between France and Luxembourg. The amendment, which has been released this morning, gives the State where real estate assets are located the right to tax capital gains on the sale of shares in real estate property companies if the real estate assets are held indirectly by individuals or enterprises of the other State. The purpose of the amendment is to expand France’s right to tax capital gains from the indirect sale of French real estate. Under the current treaty, capital gains from the sale of shares in a French or Luxembourg company holding French real estate are not taxable in France under the treaty, even if those share gains can also benefit fro
Client Alert | September 8, 2014
Les Ministres de l’Economie français et luxembourgeois ont signé un quatrième avenant à la convention fiscale entre la France et le Luxembourg le 5 Septembre 2014. En résumé, l’avenant attribue à l’Etat dans lequel les biens immobiliers sont situés le droit d’imposer les plus-values issues de la vente d’actions ou de parts sociales de sociétés à prépondérance immobilière. Actuellement et sauf cas particulier, ces plus-values ne sont généralement pas imposables en France, tout en pouvant bénéficier sous conditions d’exonérations au Luxembourg en application du droit interne luxembourgeois.A compter de l’entrée en vigueur de l’avenant, la France aura le droit d’imposer les plus-values résultant de l’aliénation (vente, échange, apport
Client Alert | September 8, 2014
It almost goes without saying that the first half of 2014 brought with it the most significant development in securities litigation in decades: the U.S.
Client Alert | July 15, 2014
Our mid-year report one year ago presented an exciting opportunity to discuss a time of great change at the SEC. A new Chair and a new Director of Enforcement had recently assumed the reins and begun making bold policy pronouncements.
Client Alert | July 14, 2014
On June 30, 2014, the staff of the Securities and Exchange Commission's (the "Commission") Division of Investment Management and Division of Corporation Finance (the "Staff") issued much-anticipated guidance regarding proxy advisory firms, in the form of 13 Questions and Answers. Published in Staff Legal Bulletin No. 20 ("SLB 20"), available at http://www.sec.gov/interps/legal/cfslb20.htm, the Staff's guidance addresses both (1) investment advisers' responsibilities in voting client proxies and retaining proxy advisory firms (Questions 1-5), and (2) the availability and requirements of two exemptions to the proxy rules often relied upon by proxy advisory firms (Questions 6-13).SLB 20 includes an acknowledgement that investment advisers and proxy adv
Client Alert | July 1, 2014
After a public consultation period of three months, the PRC State Administration of Foreign Exchange ("SAFE"), China's foreign exchange control authority, issued the Foreign Exchange Administration Rules on Cross-border Guarantees (the "New Rules") on May 19, 2014.
Client Alert | May 20, 2014
On April 16, 2014, the public comment period for the Federal Reserve's Advance Notice of Proposed Rulemaking (ANPR) relating to the physical commodities activities of U.S.
Client Alert | April 28, 2014
The Securities and Exchange Commission ("SEC") plans to review the cybersecurity defenses of registered broker-dealers and investment advisers, according to a Risk Alert issued by the SEC's Office of Compliance Inspections and Examinations ("OCIE") on April 15, 2014. The announcement of this effort comes shortly after the SEC hosted a Cybersecurity Roundtable (the "Roundtable") on March 26, 2014, during which the SEC emphasized the importance of gathering information and determining what additional steps should be taken to address threats posed by cybersecurity. What Is the Focus of the OCIE Cybersecurity Initiative?The OCIE will conduct examinations of more than 50 registered broker-dealers and registered investment adv
Client Alert | April 23, 2014
In an effort to further liberalize the approval regime for outbound investments by Chinese companies, the National Development and Reform Commission ("NDRC"), China's top economic planner, issued the Administrative Measures for Verification and Filing of Outbound Investment Projects (the "New Rules") on April 8, 2014. The Administrative Rules will take effect on May 8, 2014 and are expected to lead to more M&A activities by Chinese companies outside of China. Delegation of AuthorityOutbound investments by Chinese companies require government approval. The approvals are granted by either the central or the local governments, depending primarily on the amount of funds involved in a particular investment. Under the existing rules, for
Client Alert | April 18, 2014
On April 9, 2014, the Department of Defense ("DoD") issued an interim final rule creating a new section of the Code of Federal Regulations ("CFR") covering the National Industrial Security Program ("NISP"). These new regulations are solely focused on the Defense Security Service's ("DSS") evaluation of foreign ownership, control, or influence ("FOCI").
Client Alert | April 11, 2014