On August 22, 2012, the SEC's Division of Trading and Markets (the "Staff") released Frequently Asked Questions ("FAQs") providing the Staff's views on provisions of the Jumpstart Our Business Startups Act ("JOBS Act") relating to research analysts and underwriters.
Client Alert | September 4, 2012
On August 29, 2012, the Securities and Exchange Commission (the "SEC" or the "Commission") proposed rules to implement Section 201(a) of the Jumpstart Our Business Startups (JOBS) Act, which requires the SEC to eliminate the prohibition against general solicitation and general advertising (together, "general solicitation") in securities offerings conducted pursuant to Rule 506 of Regulation D under the Securities Act of 1933 (the "Securities Act") and Rule 144A under the Securities Act.
Client Alert | August 31, 2012
The past six months have seen securities class action filings increase slightly, and settlements decline dramatically, as the average settlement amount is reaching historic highs. The Supreme Court will decide two cases in the coming year that will be significant for securities litigation; at the same time, the lower courts are applying last year's significant Supreme Court decisions in different contexts. The first half of 2012 has not seen the series of landmark Supreme Court decisions that were handed down in 2011, but it has been a significant period as lower courts apply these decisions in different areas and in a number of different contexts. And the Supreme Court did decide one case--Credit Suisse Securities (USA) LLC v. Simmonds, 132 S.
Client Alert | August 13, 2012
(A look at the latest developments in activism and related regulations in the UK and EU) This alert discusses some of the recent regulatory developments and debate in the UK and at EU level which may have an impact on institutional investors (asset managers and asset owners) and public companies and takes a look at some examples of investor activism in these jurisdictions.
Client Alert | August 10, 2012
This alert focuses on the recent approval by the Commodity Futures Trading Commission ("CFTC") of the final rules relating to the end-user exception to the mandatory clearing requirements, what the rule means for end-users, and the effects that the final rule has for various swaps and entities. Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") provided non-financial end-users that use derivatives to hedge or mitigate their commercial risks an exception from the Dodd-Frank Act's clearing requirements. While Title VII of the Dodd-Frank Act provides and the CFTC's final rule implements an exception for qualifying non-financial swap end-users with respect to clearing and trading requirements, regulators have not
Client Alert | August 3, 2012
I. Overview of the First Half of 2012The first half of 2012 has shown a continuation of the SEC's aggressive enforcement strategy even after a record-breaking fiscal year 2011 for the U.S.
Client Alert | July 16, 2012
New York partner Edward Nelson and associate Timothy Abbott are the authors of "LP boards: A liability shield" [PDF] published in Private Equity Manager on June 5, 2012.
Client Alert | June 5, 2012
In recent weeks, senior officials from the SEC's Office of Compliance Inspections and Examinations ("OCIE") have revealed a three-part examination strategy for newly registered private fund advisers. Most notably, this strategy will result in tailored examinations of a significant portion of new registrants being performed over the next 12 to 24 months. With an SEC examination imminent for most newly registered private fund advisers, new registrants should consider being proactive and prepare to meet forthcoming OCIE document and data requests. Advisers would also be well-advised to remain cognizant of the increasing risk of an OCIE examination developing into an investigation by the SEC's Division of Enforcement ("Enforcement"), and look for opportuni
Client Alert | May 22, 2012
This alert focuses on the impact that Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") and related regulations will likely have on both financial and nonfinancial end-users. While Title VII of the Dodd-Frank Act provides certain exceptions for swap end-users with respect to margin, clearing, execution and other requirements, regulators have not provided definitive guidance regarding these and other issues affecting end-users resulting from Title VII. Imposing costly regulatory burdens may impact end-users' abilities to efficiently hedge and manage their risks. End-user clients still have an opportunity to shape many areas through public comment; however, where final rules exist, end-user clients must (1) unders
Client Alert | May 16, 2012
The Reserve Bank of India ("RBI") recently issued a circular permitting foreign venture capital investors registered with the Securities and Exchange Board of India ("FVCI") to participate in secondary market transactions, with effect from March 19, 2012.
Client Alert | April 24, 2012
On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act ("JOBS Act" or the "Act") into law. While the Act and recent commentary have focused primarily on common equity issuances by "Emerging Growth Companies" (or "EGCs"), the JOBS Act also impacts companies that have issued only debt securities in registered transactions, typically pursuant to an "A/B" exchange for privately offered high-yield debt securities.
Client Alert | April 23, 2012
On March 5, 2012, the United States Department of the Treasury ("Treasury"), Financial Crimes Enforcement Network ("FinCEN"), published an Advance Notice of Proposed Rulemaking ("ANPR") seeking comments on the concept of prescriptive rules for customer due diligence ("CDD") for certain financial institutions (and potentially all financial institutions) under the Bank Secrecy Act ("BSA").
Client Alert | April 11, 2012
To update our alert of March 28, President Obama signed the Jumpstart Our Business Startups Act ("JOBS Act") into law today. We believe the JOBS Act is the most significant modernization of the federal securities laws since the Securities and Exchange Commission's 2005 Securities Offering Reform.
Client Alert | April 5, 2012
On March 27, 2012, the House passed the Jumpstart Our Business Startups Act ("JOBS Act"), as amended and passed by the Senate on March 22. It is widely anticipated that President Obama will quickly sign the JOBS Act into law.
Client Alert | March 28, 2012
Implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd Frank Act") requires agencies to promulgate hundreds of new rules. The Commodity Futures Trading Commission ("CFTC") is at the forefront of implementing the derivatives title of Dodd-Frank, and is approximately halfway through issuing roughly 50 new rules. When Congress was considering the Dodd-Frank Act, a principal hallmark of the legislation was increased transparency. The real-time public reporting rule, recently issued by the CFTC, will dramatically change the content and amount of derivatives transactional information that is shared with the public. It also imposes new and potentially daunting burdens on companies that use derivatives products.T
Client Alert | March 23, 2012
On March 19, 2012, the Securities and Exchange Commission ("SEC") announced that it had credited the substantial cooperation of a former senior executive of an investment adviser in an investigation by declining to take enforcement action against him. The SEC's announcement can be found here. This is the first time the SEC has publicly recognized the cooperation of an individual since the announcement two years ago of its policy statement intended to incentivize individuals to cooperate in investigations, found here. This announcement provides some much needed insight into the potential benefits of cooperating in an SEC investigation. However, the unique facts of the case mean that it will have limited application to other cases.I. SEC's
Client Alert | March 20, 2012
Fines Imposed by UK Financial Services Authority Illustrate Differences between US and UK Market Abuse Regimes The UK Financial Services Authority ("FSA") imposed fines of £3.651 million ($5.77 million) on Greenlight Capital Inc., a US hedge fund manager ("Greenlight"), £3.638 million ($5.74 million) on David Einhorn, Greenlight's owner, and £350,000 ($553,000) on Andrew Osborne, a former Bank of America Merrill Lynch banker. These fines were levied in connection with Greenlight's trading in the shares of Punch Taverns Plc ("Punch"), a UK pubs business, ahead of a planned equity offering. The FSA imposed the fines on the grounds that Greenlight traded on inside information conveyed to David Einhorn during a conference call with Punch's CEO and A
Client Alert | March 5, 2012
The Hiring Incentives to Restore Employment Act (the HIRE Act), enacted in 2010, contained provisions (now commonly referred to as FATCA) intended to reduce the evasion of U.S.
Client Alert | February 9, 2012
Washington D.C. partner John Sturc, and New York partners Barry Goldsmith and Mark Schonfeld are the authors of "Securities Enforcement 2011 — What Hath Dodd Frank Wrought?" [PDF] published in the February 6, 2012 issue of BNA's Securities Regulation & Law Report.
Client Alert | February 6, 2012
On January 10, 2012, the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, issued a press note amending the Consolidated Foreign Direct Investment ("FDI") Policy of October 2011 ("Amendment"). AmendmentThe Amendment allows up to 100% FDI in single-brand product retail trading with the prior approval of the Government of India, increased from a previous 51%, subject to the following conditions: Single-brand only: Products to be sold should be of a 'Single-Brand' only; International brand: Products should be sold under the same brand in one or more countries other than India; Branded during manufacturing: Single-brand product retail trading only covers products which are branded dur
Client Alert | January 26, 2012
The Supreme Court of India ("Supreme Court") on January 20, 2012 has overturned a 2010 decision of the Bombay High Court which ruled that Vodafone was liable to pay $2 billion to the Indian tax authorities because Indian capital gains taxes applied on share transfers between two non-resident entities, as long as the underlying assets transferred were within India.The case in question involved Vodafone International Holdings BV's acquisition of CGP Investments from Hutchison Telecommunication International Limited ("HTIL"). HTIL, a company incorporated in BVI, owned CGP Investments, a company incorporated in Cayman Islands, which through its Mauritius subsidiaries owned and/or controlled approximately 67% of one of India's leading mobile phone operators - Vodafone
Client Alert | January 20, 2012
As from January 1st, 2012, the French Finance Act has significantly increased the transfer tax applicable to the transfer of shares of non-real estate companies.BackgroundBefore the reform, transfer tax at the rate of 3% was due on the sale of shares of French companies, with the tax capped at € 5,000 per transfer with respect to the transfer of shares in sociétés par action (i.e.
Client Alert | January 20, 2012
Over the past ten years, Indonesia's commercial banking sector has been an attractive destination for foreign investors. This has been in large part due to the Indonesian government's relaxed banking policy, which until now has been geared towards fostering foreign investment in the industry. A proposed amendment to the banking policy, however, may have significant consequences for current and potential investors.Following the 1997 Asian financial crisis, the Indonesian government enacted Government Regulation No.
Client Alert | January 19, 2012
According to a reform applicable as of January 1, 2012, the right to deduct interest due with respect to the purchase of shares in French target companies will be denied, unless the French acquiring company demonstrates -- by any means -- that (i) the decisions relating to such shares and (ii) the control over the target companies are effectively made by it or by a related party established in France.For the purpose of this reform, a related party can be a controlling company or an entity controlled by or under common control with the acquiring company. This new rule targets the purchase of shareholdings that are eligible for the French long-term participation exemption regime, i.e.
Client Alert | December 22, 2011
Overview -- It's not just a numbers game ... Since overhauling its financial penalty framework in March 2010, the UK Financial Services Authority (FSA) has gone a long way to dispel views that it has a lacklustre approach towards levying market abuse fines.
Client Alert | December 6, 2011
London associate Edwin Wong is the author of "Power Play: Fundraising Conditions And PE Investment" [PDF] published by Law360 at www.law360.com on November 28, 2011.
Client Alert | November 28, 2011
On November 3, 2011, the IRS published new proposed Treasury Regulations providing guidance relating to the taxation of income of foreign governments from investments in the United States under Section 892 of the Internal Revenue Code of 1986, as amended (the "Code"). The proposals update regulations that were first issued in 1988, and are welcome additions to an area of U.S.
Client Alert | November 4, 2011
On October 9, 2011, California Governor Jerry Brown signed into law competing bills that create two new corporate forms in California -- a "flexible purpose corporation" and a "benefit corporation" -- intended to allow entrepreneurs and investors the choice of organizing companies that can pursue both economic and social objectives. The new corporate forms differ from traditional for-profit corporations that are organized to pursue profit (and not social purposes) and non-profit corporations that must be used solely to promote social benefits. These laws will take effect on January 1, 2012. The flexible purpose corporation is created by California Senate Bill 201 ("SB 201"), which adds Division 1.5 to Title 1 of the California Corporations Co
Client Alert | October 25, 2011
On Tuesday, October 11, 2011, the Federal Reserve Board ("Fed") and the Office of the Comptroller of the Currency ("OCC") released for public comment and the Federal Deposit Insurance Corporation (the "FDIC") met in open session and unanimously approved and released proposed rules implementing the Volcker Rule, Section 619 of the Dodd-Frank Consumer Protection Act of 2010 ("Dodd-Frank"). The Securities and Exchange Commission ("SEC") voted unanimously to approve the proposed rule on Wednesday, October 12.
Client Alert | October 12, 2011
Dubai partner Chézard Ameer and London associate Edwin Wong are the authors of "Sourcing Capital In The United States And Beyond: Be Prepared For What International Investors Expect" [PDF] published in October 2011 for the 2011 SuperReturn Middle East conference in Dubai.
Client Alert | October 1, 2011
On September 1, 2011, the Governor of California signed into law California Assembly Bill No. 571 ("AB 571"), which will liberalize and streamline the legal standards for California corporations and quasi-California corporations to make cash and property distributions to shareholders, including dividends and share repurchases and redemptions.
Client Alert | September 6, 2011
The Hiring Incentives to Restore Employment Act (the HIRE Act), in an effort to reduce the evasion of U.S.
Client Alert | August 9, 2011
New York partner Edward Nelson, Washington, D.C. partner C. William Thomas and New York associate Ebonie Hazle are the authors of "SEC Finalizes Investment Adviser Registration Exemptions and Grants Extension to New Registrants" [PDF] published in the August 1, 2011 issue of BNA's Securities Regulation & Law Report.
Client Alert | August 1, 2011
In the first half of 2011, the United States Supreme Court decided a trio of securities class action cases, and what may be the most significant class certification decision in several decades; new case filings continue to trend upward; and major "credit crisis" cases are beginning to be resolved
Client Alert | July 28, 2011
On June 22, 2011, the Securities and Exchange Commission (the "SEC" or the "Commission") voted to adopt final rules to implement amendments to the Investment Advisers Act of 1940 (the "Advisers Act") contained in Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"). Importantly, the Commission extended from July 21, 2011 to March 30, 2012 the deadline for registration for private fund advisers previously exempt under Section 203(b)(3) of the Advisers Act, which exempted from SEC registration investment advisers with fewer than 15 clients.As a result of this extension, the revised compliance dates generally applicable to investment advisers having to register for the first time are as follows:DateActionJ
Client Alert | July 18, 2011
I. Overview of the First Half of 2011Robert Khuzami, the Director of the Division of Enforcement (the "Division") of the SEC, recently took stock of the SEC's accomplishments in the two years since he began his term. Specifically, he focused on the Division's restructuring, calling it the "most significant" since the Division's creation almost 40 years ago. In describing the restructuring, he noted that it was composed of many initiatives that were intended to achieve a series of common goals including: achieving a better understanding of the products, markets, transactions and practices policed by the Commission; identifying and terminating fraud and misconduct more quickly; increasing efficiency in the use of resources; and maximizing the Di
Client Alert | July 18, 2011
The Indonesian House of Representatives on 31 May 2011 passed Law No.
Client Alert | July 15, 2011
Printable PDFThe Panel Holds Its Ground -- An Analysis of Some of the Key Proposals Introduction -- The Panel Stands FirmIn late November 2010, we published an article on the policy statement of the UK Panel on Takeovers and Mergers (Panel) which set out the ground work for changes to the rules governing the conduct of public takeovers in the UK as embodied in the UK Code on Takeovers and Mergers (Code).
Client Alert | March 29, 2011
On February 11, 2011, the German Parliament approved the bill for the so-called "Investor Protection and Capital Markets Improvement Act" (Anlegerschutz- und Funktionsverbesserungsgesetz) which is part of the ongoing legislative activity responding to the financial crisis.
Client Alert | February 18, 2011
On January 11, 2011, the U.S. Securities and Exchange Commission ("SEC"), in consultation with the Department of the Treasury, Financial Crimes Enforcement Network ("FinCEN"), again extended the Bank Secrecy Act ("BSA") Customer Identification Program ("CIP") no-action letter (initially issued in 2004) relating to broker-dealer reliance on SEC registered investment advisers ("RIAs"). As previously, the extension was granted at the request of the Securities Industry and Financial Markets Association ("SIFMA").
Client Alert | February 17, 2011
Printable PDFOn January 18, 2011, the Financial Stability Oversight Council (the "Council") released a notice of proposed rulemaking ("NPR") that sets forth the proposed criteria and analytical framework for the Council to designate an entity as a nonbank financial company under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "DFA"). Pursuant to the DFA, the Council has the authority to require that the Federal Reserve Board supervise a designated nonbank financial company and that the company be subject to prudential standards in accordance with Title I of the DFA.
Client Alert | January 20, 2011
Printable PDFEnacted on July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") comprehensively reforms and restructures the U.S.
Client Alert | January 13, 2011
Printable PDF I. Overview of 2010 The year 2010 has been a watershed year for securities enforcement. The Dodd-Frank Wall Street Reform and Consumer Protection Act gave the SEC additional enforcement powers, while also bringing additional market participants under SEC registration and potentially elevating the standards of conduct for other securities professionals.
Client Alert | January 10, 2011
In the past three years, international regulatory focus on remuneration has gripped the globe. The heart of the debate which arose in the context of remuneration structures in investment banking and their contribution to global financial crisis has extended past this into remuneration across a broad range of industries.
Client Alert | December 20, 2010
On 1 June 2010 the UK Panel on Takeovers and Mergers (Panel), issued a 'Green' Consultation Paper on the Review of Certain Aspects of the Regulation of Takeover Bids in the UK (Green Paper).
Client Alert | November 24, 2010
The United States Labor Department has proposed an important amendment to its regulations defining fiduciary status under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). If the amendment is finalized in its proposed form, it will substantially expand the classes of service providers subject to ERISA's fiduciary duty and prohibited transaction rules.
Client Alert | November 1, 2010
In a previous alert published in July, The UK's Blueprint for Financial Regulation, we looked at the UK Government's proposals for an overhaul of the UK financial regulatory infrastructure. These proposals were issued upon the initiation of the new Government, aimed at addressing a systemic failure in the UK domestic regime to recognise and respond in a timely and adequate manner to the global financial crisis.
Client Alert | November 1, 2010
On October 11, 2010, the French Parliament adopted the French Banking and Financial Regulation Statute (loi de regulation bancaire et financière). The 100 page long Statute contains provisions significantly amending existing laws and regulations regarding, inter alia, (i) the activities and liabilities of credit rating agencies, (ii) short selling and naked short sales, (iii) temporary holding of shares before shareholders' meetings, and (iv) mandatory takeovers.Credit Rating Agencies In furtherance of EC Regulation no.
Client Alert | October 19, 2010
The Hiring Incentives to Restore Employment Act (the HIRE Act), in an effort to reduce the evasion of U.S. tax obligations through the establishment of accounts at foreign financial institutions (FFIs) or by holding assets through other, nonfinancial foreign entities (NFFEs), included provisions commonly referred to as FATCA.
Client Alert | October 7, 2010
Investment advisers have a duty to disclose material conflicts of interest to clients. The more difficult question is: "how much disclosure is enough?" In a recent settled enforcement action, the SEC suggests that disclosure of material facts alone may not be sufficient, and that more explicit disclosure is needed when investment advice may result in additional compensation to the adviser.
Client Alert | October 1, 2010