Significant FCPA developments continued apace during the first six months of 2013. After a relative downtick in 2012, the first half of 2013 saw criminal enforcement of the statute return to the robust levels of recent years. With approximately 60 devoted prosecutors and enforcement attorneys, whose efforts are frequently supplemented by their colleagues in the U.S.
Client Alert | July 8, 2013
On June 25, 2013, the Delaware Court of Chancery upheld the facial validity of corporate bylaws, adopted by the boards of directors of Chevron Corporation and FedEx Corporation, that select Delaware as the exclusive forum for derivative suits and other litigation concerning the corporations' internal affairs. In an opinion captioned Boilermakers Local 154 Retirement Fund v.
Client Alert | June 28, 2013
On June 20, 2013, in American Express Corp. v. Italian Colors Restaurant, (No. 12-133), the United States Supreme Court held that a party cannot escape individual, non-class arbitration by asserting that class action procedures are necessary to effectively prosecute the claim.
Client Alert | June 25, 2013
On June 20, 2013, a three-member panel of the United States Court of Appeals for the Second Circuit issued an important decision that significantly curtails the authority of Irving Picard, as Trustee for the liquidation of Bernard L.
Client Alert | June 21, 2013
New York partner Brian Lutz and associate Jeffrey Salomon are the authors of “Target Boards in Single-Bidder Context Given Guidance” [PDF] published in the June 19, 2013 issue of Delaware Business Court Insider.
Client Alert | June 19, 2013
Since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, (Dodd-Frank Act), Gibson Dunn has been monitoring regulatory developments that affect our clients, including developments at the Consumer Financial Protection Bureau (CFPB or the Bureau).
Client Alert | June 5, 2013
On May 29, 2013, Chancellor Leo E. Strine, Jr. of the Delaware Court of Chancery issued an important decision that lays the foundation for controlling stockholders to pursue going-private merger transactions with the comfort that, if certain conditions are met, such transactions will be reviewed under the deferential business judgment rule standard, rather than the exacting entire fairness standard.
Client Alert | May 31, 2013
New York partner James Hallowell and associate Justin Nematzadeh are the authors of “Lead Plaintiffs’ Shareholdings Draw Chancery Review” [PDF] published in the May 22, 2013 issue of Delaware Business Court Insider.
Client Alert | May 22, 2013
Partners Jonathan Dickey and Michael Li-Ming Wong, and associate Nicola McMillan are the authors of “The Devil’s in the Disclosures: Compliance After Panther Partners” [PDF] published in the April 2013 issue of Insights.
Client Alert | April 1, 2013
Washington, D.C. partner F. Joseph Warin and associate Maura Logan are the authors of “Disclosing Pending FCPA Investigations” [PDF] published in the March 20, 2013 issue of The Review of Securities & Commoditites Regulation.
Client Alert | March 20, 2013
On February 28, 2013, Chancellor Leo E. Strine, Jr. of the Delaware Chancery Court issued a rare bench ruling rejecting a disclosure-only, negotiated settlement of an M&A stockholder lawsuit.
Client Alert | March 18, 2013
Palo Alto and New York partner Jonathan Dickey is the author of “Plaintiffs Lawyers Target Delaware Corporations on ‘Say-on-Pay’ Disclosures” [PDF] published in the March 18, 2013 issue of the Delaware Business Court Insider.
Client Alert | March 18, 2013
New York partner Thad Davis and San Francisco associate Abbye Atkinson are the authors of “Slicing And Dicing The Delaware Carve-Out” [PDF] published by Law360 on March 13, 2013 at www.law360.com.
Client Alert | March 13, 2013
Denver partner Robert Blume and associates John Partridge and Tafari Nia Lumumba are the authors of “In-House Search Warrant Checklist” [PDF] published in the March 4, 2013 issue of Law Week Colorado.
Client Alert | March 4, 2013
On February 27, 2013, the U.S. Supreme Court held that, in securities class actions challenging false or misleading statements, the plaintiff need not prove that the alleged misstatements were material in order to obtain class certification using the so-called fraud-on-the-market presumption of reliance.
Client Alert | March 1, 2013
In the past two weeks, Judges Richard J. Sullivan and Shira A. Scheindlin of the United States District Court for the Southern District of New York separately issued important rulings in civil Foreign Corrupt Practices Act ("FCPA") cases against foreign executives of non-U.S.-based companies whose stock is traded on a U.S.
Client Alert | February 28, 2013
On February 27, 2013, the U.S. Supreme Court unanimously concluded that the five-year limitations period for federal enforcement actions seeking civil penalties, such as those brought by the SEC, begins to run when the alleged fraud occurs, not when it is discovered. In an opinion authored by Chief Justice Roberts in Gabelli v. Securities and Exchange Commission, No.
Client Alert | February 27, 2013
Gibson Dunn outlines the trend of shareholder lawsuits related to executive compensation disclosures and suggests strategies for addressing this new proxy litigation.
Client Alert | February 26, 2013
Orange County partner James Moloney, Century City partner Ari Lanin, and Los Angeles associate Jamie Gowell are the authors of “Inside the SEC: Highlights from the 40th Annual Securities Regulation Institute” [PDF] published in the February 2013 issue of Aspen's Insights.
Article | February 15, 2013
2012 proved to be a mixed year for defendants in securities litigation, with several open questions and rare causes for optimism. The raw statistics show a steady stream of new filings, increasing median settlement amounts, and relatively low dismissal rates for existing cases.
Client Alert | January 24, 2013
New York partner Brian Lutz and associate Jefferson Bell are the authors of “Chancery Court Provides Guidance on ‘Don’t Ask, Don’t Waive’ Standstill Provisions” [PDF] published in the January 16, 2013 issue of Delaware Business Court Insider.
Client Alert | January 16, 2013
In many respects, 2012 was another year of aggressive SEC enforcement. The SEC's Division of Enforcement again logged a near record number of enforcement actions. More important, the cases reflected a marked increase in the number and proportion of actions against registered investment advisers and broker-dealers, and their associated persons. This increased focus derives from a culmination of factors, including Enforcement's creation of specialized units for the asset management industry and for structured products, the hiring of industry experts, and the close collaboration between staff from Enforcement and the SEC's Office of Compliance Inspections and Examinations ("OCIE"). With the expansion of the registered private fund adviser population under fin
Client Alert | January 9, 2013
For years, the Department of Justice ("DOJ") has sought recoveries under the False Claims Act, 31 U.S.C. §§ 3729-33 (the "FCA" or the "Act"), with a torrid pace.
Client Alert | January 8, 2013
"Over the last decade, DPAs [Deferred Prosecution Agreements] have become a mainstay of white collar criminal law enforcement," Lanny Breuer, the head of the U.S.
Client Alert | January 3, 2013
The whispers have begun. By comparison to the blistering pace set in recent years, FCPA prosecutions were down in 2012 (though still far higher than in any of the first 30 of the statute's 35-year existence).
Client Alert | January 2, 2013
New York partner Jennifer Rearden and associate Sharon Grysman are the authors of “Chancery Court in Brookstone Underscores Primacy of Comity and Efficiency” [PDF] published in the December 27, 2012 issue of the Delaware Business Court Insider.
Client Alert | December 27, 2012
New York partner Jennifer Rearden and associate Darcy Harris are the authors of “Growing Trend Favors Disclosure of Witnesses' Identities” [PDF] published in the Fall 2012 issue of the ABA's Section of Litigation - Securities Litigation.
Client Alert | December 6, 2012
On November 27, 2012, Vice Chancellor Travis Laster of the Court of Chancery of the State of Delaware issued a bench ruling enjoining the enforcement of a "Don't Ask, Don't Waive" provision in a standstill agreement.
Client Alert | December 3, 2012
New York partner James Hallowell and associate Stephen Henrick are the authors of “Chancery Court Continues Close Scrutiny in Section 220 Actions” [PDF] published in the November 28, 2012 issue of the Delaware Business Court Insider.
Client Alert | November 28, 2012
On November 14, 2012, the U.S. Department of Justice ("DOJ") and the U.S. Securities and Exchange Commission ("SEC") jointly issued A Resource Guide to the U.S.
Client Alert | November 19, 2012
New York partner Joel Cohen and associate Matthew Knox are the authors of "Nepotism: Friendly Relations? When Nepotism May Violate the FCPA" [PDF] published in the October 17, 2012 issue of The FCPA Report.
Client Alert | October 17, 2012
On September 28, 2012, the Financial Industry Regulatory Authority, Inc. ("FINRA") (f/k/a National Association of Securities Dealers, Inc. ("NASD")) filed proposed rule changes to NASD Rule 2711 with the Securities and Exchange Commission (the "SEC").
Client Alert | October 11, 2012
Washington, D.C. partner F. Joseph Warin and associate John W.F. Chesley are the authors of "Five Themes for General Counsel to Monitor with Respect to Dodd-Frank Whistleblowers and the FCPA" [PDF] published in the October 3, 2012 issue of The FCPA Report.
Client Alert | October 3, 2012
On September 25, 2012, Vice Chancellor Travis Laster of the Court of Chancery of the State of Delaware dismissed the derivative complaint in South v. Baker, C.A.
Client Alert | October 2, 2012
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
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
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
Washington, D.C. partner David Debold and New York associate Matthew Benjamin are the authors of "Increased Fraud Penalties Are on the Horizon" [PDF] published in the July 2012 Business Crimes Bulletin.
Client Alert | July 15, 2012
For years, on these pages, we have marveled at the precipitous increase in False Claim Act (FCA) enforcement.
Client Alert | July 12, 2012
Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") (collectively, "agreements") in recent years have become a primary tool of the U.S.
Client Alert | July 10, 2012
As the Foreign Corrupt Practices Act ("FCPA") turns 35 years old, the spike in enforcement activity that we first observed five years ago appears (at least for the moment) to be leveling off. Nevertheless, numerous developments this year bespeak a statute that is maturing rather than falling into obscurity: the first sustained pattern of trial activity; increasing "private attorney general" enforcement; and serious policy debates between industry, executive, and legislative interests leading up to much-anticipated statutory guidance from government regulators. The first half of 2012 was packed with important FCPA developments. This client update provides an overview of the FCPA and a survey of FCPA enforcement, litigation, and legislative develop
Client Alert | July 9, 2012
New York partner Joel Cohen and associate Anya Grossmann are the authors of "Foreign Corrupt Practices Act" [PDF] which appeared as Chapter 7 in The US Private Real Estate Fund Compliance Guide published by Private Equity International in June 2012.
Article | June 1, 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
The Delaware Court of Chancery recently issued an opinion granting Carl Icahn's motion to expedite proceedings to determine whether to enjoin enforcement of Amylin Pharmaceuticals Inc.'s advance notice bylaw.
Client Alert | May 17, 2012
Hostile bids continue to be a popular M&A strategy both domestically and internationally. Moreover, the gradual erosion of staggered boards and other antitakeover defenses in the U.S.
Client Alert | May 14, 2012
On May 4, 2012, Chancellor Strine of the Delaware Court of Chancery issued an opinion finding that Martin Marietta Materials, Inc. breached two confidentiality agreements with Vulcan Materials Company when it commenced a $5.5 billion hostile bid for Vulcan in December 2011.
Client Alert | May 7, 2012
On April 11, 2012, the Staff of the U.S.
Client Alert | April 30, 2012
Palo Alto partner George Brown, Los Angeles partner Debra Wong Yang, and San Francisco associate Matthew Kahn are the authors of "Strategies for Mitigating Civil Liability Consequences of FCPA Investigations & Enforcement Actions" [PDF] published in the April 2012 issue of Thomson Reuters' Securities Litigation Report.
Client Alert | April 30, 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
In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, Congress issued directives to the United States Sentencing Commission to "review and, if appropriate, amend" various sentencing guidelines and policy statements applicable to fraud offenses. Last Friday, April 13, 2012, the Commission responded, promulgating amendments to the federal sentencing guidelines for securities fraud, mortgage fraud, and financial institution fraud.In announcing these amendments, Judge Patti B.
Client Alert | April 18, 2012