New York partner Joel Cohen and associate May Kay Dunning are the authors of "Does That Settle It? Well, Maybe Not" [PDF] published in the National Law Journal on April 9, 2012.
Client Alert | April 9, 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
New York partner Barry Goldsmith is the author of "Regulatory Rules: FINRA and SEC Compliance in the Use of Social Media" [PDF] published in the March/April 2012 issue of Insurance & Financial Meetings Management.This article is available courtesy of Coastal Communications Corporation.
Client Alert | April 1, 2012
New York partner Mark Schonfeld and associate Kenneth Burke are the authors of "Is This an Inspection or an Investigation? The Blurring Line Between Examinations of and Enforcement Actions Against Private Fund Managers" [PDF] published in the Hedge Fund Law Report on March 29, 2012.
Client Alert | March 29, 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
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
I. IntroductionThe most significant impact of SEC registration on private fund advisers is that the adviser becomes subject to inspection by the SEC's Office of Compliance Inspections and Examinations (OCIE). The greatest risk arising from an examination is that the inspection staff decides to refer finding from an inspection to the Division of Enforcement for an investigation. This article discusses the risks of an examination becoming an investigation and strategies for anticipating and mitigating those risks. II. The Risk That an Examination Results in a Referral to EnforcementAsset managers are particularly vulnerable to collateral consequences of a government investigation. Particularly in the wake of recent cases, many investors have l
Client Alert | March 6, 2012
On February 29, 2012, Chancellor Strine of the Delaware Court of Chancery issued an opinion that is highly critical of the sale process run by El Paso Corporation in connection with its $21.1 billion acquisition by Kinder Morgan, Inc. See In re El Paso Corporation Shareholder Litigation, No.
Client Alert | March 5, 2012
New York partners Eduardo Gallardo and Brian Lutz and associate Aaron Holmes are the authors of "Delaware Court of Chancery Enters Rare TRO Enjoining Annual Stockholder Meeting in Order to Protect Stockholder Voting Rights" [PDF] published in the February 2012 issue of Thomson Reuters' Securities Litigation Report.
Article | February 29, 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
Washington, D.C. partner F. Joseph Warin, Los Angeles partner Michael Farhang and associate Elizabeth Goergen are the authors of "How to Deal with Business Corruption Risks in Mexico" [PDF] published on January 30, 2012 in the International Financial Law Review.
Client Alert | January 30, 2012
I. Overview of 2011For the SEC's Division of Enforcement, 2011 was a year of extremes -- record breaking enforcement activity contrasted with a highly publicized challenge to one of the fundamental aspects of its program.For the fiscal year, the Division reported a record high number of enforcement actions -- 735 -- resulting in more than $2.8 billion in penalties and disgorgement ordered. In particular, there was a substantial increase in enforcement actions against investment advisers and broker-dealers. Notably, several Enforcement Division initiatives started resulting in cases in areas of investment adviser performance disclosure, management fees and compliance. The Division continued to file a number of significant enforcement actions arising from the fi
Client Alert | January 10, 2012
It seems that "record-breaking" years for recoveries under the False Claims Act, 31 U.S.C. §§ 3729-33 (the "FCA" or the "Act") are becoming as predictable as Gibson Dunn publishing its Year-End Update on the subject.
Client Alert | January 5, 2012
During the past decade, the U.S.
Client Alert | January 4, 2012
2011 marked yet another dynamic year for the Foreign Corrupt Practices Act ("FCPA"), including numerous significant enforcement actions, more trials than in any other year in the history of the statute, and a growing public debate about the policy ramifications of a U.S.-dominated international anti-corruption enforcement field. Those close to the statute can feel the unmatched pace at which the 34-year-old law is now developing. With more litigated decisions, more bills pending in Congress, and more interplay between the FCPA and other international laws prohibiting cross-border bribery, there is a growing sense of urgency amongst FCPA practitioners as to the direction the statute will take in the coming years. Perhaps sensing these dynamics, Assistant Attorney
Client Alert | January 3, 2012
Washington, D.C. partners John H. Sturc and Jason C. Schwartz, San Francisco associate Joshua D. Dick and Washington, D.C. associate Thomas M. Johnson, Jr.
Client Alert | December 16, 2011
San Francisco of counsel Winston Chan and Palo Alto associate Susannah Stroud Wright are the authors of "Against the Chinese Government: the US Government's Limited Investigative Reach" [PDF] published in the November 17, 2011 issue of The Daily Journal.
Client Alert | November 16, 2011
Washington, D.C. of counsel K. Susan Grafton is the author of "New Rule 13h-1: The SEC Adopts a Large Trader Reporting System" [PDF] published in the October 31, 2011 issue of BNA's Securities Regulation & Law Report.
Client Alert | October 31, 2011
On October 14, 2011, Chancellor Strine of the Court of Chancery of the State of Delaware issued a decision in In re Southern Peru Copper Corp. Shareholder Derivative Litig., C.A.
Client Alert | October 17, 2011
Enforcement of the Foreign Corrupt Practices Act has grown exponentially in recent years, and shows no signs of abating. The DOJ and SEC, the U.S.
Client Alert | September 21, 2011
New York partner Lee Dunst and associates Michael Diamant and Teresa Kung, are the authors of "Hot Off the Press: Resetting the Global Anti‑Corruption Thermostat to the UK Bribery Act" [PDF] published in September 2011 issue of Business Law International.This article was first published in Business Law International, Vol 12 No 3, September 2011, and is reproduced by kind permission of the International Bar Association, London, UK.
Client Alert | September 1, 2011
New York partner Jonathan C. Dickey and associate Brian M. Lutz are authors of "The SEC's Final Whistleblower Rules: The Floodgates Open on a New Wave of Whistleblower Claims, as the SEC Authorizes Massive Bounties to Anonymous Tipsters" [PDF] published in the July/August 2011 issue of Thomson Reuters' Securities Litigation Report.
Client Alert | August 12, 2011
Washington, D.C. partner F. Joseph Warin, and associates John Chesley and Jeremy Joseph are the authors of "FCPA: Who Is a Foreign Official?" [PDF] published in the August 8, 2011 issue of Compliance Reporter magazine.
Client Alert | August 8, 2011
>Washington, D.C. partners Amy Goodman, Jason Schwartz and John Sturc, Washington, D.C. associate Daniel Ahn, and Palo Alto associate Joshua Dick are the authors of "SEC Adopts Final Rules Implementing Whistleblower Provisions of Dodd-Frank Act" [PDF] published in the July 2011 issue of Thomson Reuters' Wall Street Lawyer.
Article | July 29, 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
Today the federal appellate court in Washington, D.C. invalidated the SEC's "proxy access" rule, which would have required that director candidates nominated by certain large shareholders be included in a company's proxy materials. Gibson, Dunn & Crutcher LLP represented the plaintiffs, or "petitioners," in the case, Business Roundtable and the U.S.
Client Alert | July 22, 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
$7,300,000,000! That's 7.3 billion dollars. If that figure grabbed your attention, imagine the reaction of federal and state prosecutors and qui tam plaintiffs' lawyers across the country when they heard that between January 2009 and June 2011, the Department of Justice ("DOJ") recovered more than $7.3 billion in civil settlements and judgments alone under the False Claims Act, 31 U.S.C.
Client Alert | July 14, 2011
Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") are an increasingly familiar tool used by the Department of Justice ("DOJ") to resolve alleged corporate wrongdoing. In May 2011, for the first time, the United States Securities and Exchange Commission ("SEC" or "Commission") entered into a DPA to resolve an enforcement action following its first-ever NPA in December 2010. Through these agreements, DOJ and, now, the SEC, agree to forgo prosecution in exchange for the company's agreement not to commit further violations of the law and to undertake specific cooperation and compliance obligations. In the DOJ context, DPAs and NPAs differ in one material respect: DOJ typically files a crimi
Client Alert | July 12, 2011
For years now, we have been documenting the unprecedented surge of anti-corruption enforcement activity by the two regulators charged with enforcing the Foreign Corrupt Practices Act ("FCPA")--the U.S.
Client Alert | July 11, 2011
Shareholders may state a derivative claim for insider trading without alleging injury to the company--so held the Delaware Supreme Court in an opinion it recently issued in Kahn v. Kohlberg Kravis Roberts & Co., L.P., No.
Client Alert | July 5, 2011
New York partners Lawrence Zweifach and Jennifer Rearden, and associate Darcy Harris are the authors of "Standing in Mortgage-Backed Securities Class Action Litigation" [PDF] published in the Summer 2011 issue of ABA's Securities Litigation.
Client Alert | July 1, 2011
Janus Capital Group Inc. v. First Derivative Traders, No. 09-525On June 13, 2011, the U.S. Supreme Court concluded that Janus Capital Management (JCM) cannot be held liable in a private suit under the Securities and Exchange Commission's Rule 10b-5 for drafting allegedly misleading prospectuses for the mutual funds it advises. Reversing a contrary decision by the Fourth Circuit, the Court held in Janus Capital Group Inc.
Client Alert | June 13, 2011
Printable PDFToday, the United States Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, No.
Client Alert | April 27, 2011
Printable PDFThere was a time when a dramatic decline in the price of a company's stock would virtually guarantee a complaint alleging securities fraud. But it no longer suffices for federal securities plaintiffs simply to allege that they purchased defendants' stock at an "inflated" price; instead, they must now plead and prove "loss causation," i.e., that their losses were caused by fraud. 15 U.S.C.
Client Alert | March 28, 2011
Printable PDF On March 22, 2011, the United States Supreme Court issued a unanimous opinion affirming the Ninth Circuit's decision in Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167 (9th Cir.
Client Alert | March 25, 2011
Printable PDFOn February 15, 2011, the Delaware Court of Chancery issued an important opinion upholding the continued vitality of the poison pill as an appropriate defensive measure for companies faced with takeover proposals deemed inadequate by the target's board of directors. Chancellor Chandler's 158 page decision in Air Products & Chemicals, Inc.
Client Alert | February 17, 2011
On January 28, 2011, the Delaware Supreme Court clarified in King v. VeriFone Holdings, Inc., Del. Supr., No. 330, 2010, that plaintiffs may in some circumstances inspect a corporation's books and records to bolster a derivative action complaint even after they have filed a lawsuit.
Client Alert | February 7, 2011
In a significant development for those who may litigate in the Delaware Court of Chancery, that court has issued guidelines regarding preservation of electronically stored information in cases before it.
Client Alert | January 28, 2011
Printable PDF We reported in Gibson Dunn's 2010 Mid-Year Securities Litigation Update that the first half of 2010 was a busy one for securities litigation.
Client Alert | January 11, 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
Printable PDF False Claims Act litigation and enforcement exploded in 2010 with unprecedented intensity. Indeed, the government secured more than $3 billion in civil settlements and judgments for its fiscal year ending September 30, 2010--a 25% increase over the previous year and the second-largest yearly recovery amount ever.
Client Alert | January 6, 2011
The United States Department of Justice ("DOJ") has long had discretion to defer or decline prosecution of a corporation, for a host of reasons. But over the past decade, the formalization of the declination process for corporations via deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs") has evolved rapidly. Indeed, these agreements are now one of two mainstays of the DOJ's efforts to combat corporate crime.
Client Alert | January 4, 2011
Printable PDFIn United States of America v. Science Applications International Corporation, No. 09-5385, 2010 U.S. App. LEXIS 24808 (D.C. Cir. Dec. 3, 2010), a panel of the United States Court of Appeals for the D.C. Circuit reversed a $6.49 million jury verdict in favor of the government for a violation of the False Claims Act ("FCA"), 31 U.S.C.
Client Alert | January 3, 2011
Printable PDF"FCPA enforcement is stronger than it's ever been -- and getting stronger." So declared Assistant Attorney General Lanny A.
Client Alert | January 3, 2011
In United States of America v. Prabhat Goyal (United States v. Goyal, 9th Cir., No. 08-10436, 12/10/10) a panel of the Ninth Circuit Court of Appeals not only reversed the criminal conviction of a former CFO of Network Associates on fifteen counts of securities fraud and making materially false statements to auditors, but also took the extraordinary step of remanding the case for entry of judgment of acquittal on all counts. Many have remarked on the passionate concurring opinion of Chief Judge Kozinski, in which he expressed concern for Mr.
Client Alert | December 16, 2010
Los Angeles partner David A. Battaglia and associate Vanessa C. Adriance are the authors of "The Fifth Amendment Can & Will Be Used Against You In a (Federal) Court of Law" [PDF] published in the December 2010 issue of Insights.Reprinted with the permission of Aspen Publishing www.aspenpublishing.com.
Client Alert | December 8, 2010
On November 23, 2010, in Airgas, Inc. v. Air Products & Chemicals, Inc., --- A.3d ----, 2010 WL 4734305 (Del. Nov. 23, 2010), the Delaware Supreme Court reversed last month's decision of the Court of Chancery, Airgas, Inc.
Client Alert | November 29, 2010
Transparency International (TI) recently released its annual Corruption Perceptions Index (CPI) (available here), spurring a flurry of fanfare in the press about various countries' shifts up and down in the rankings. But it is unclear how much of this attention is warranted. As TI repeatedly acknowledges, the CPI only measures perceptions of corruption, not corruption itself. Further, changes in TI's perceived corruption scores can be misleading--even to the extent they mirror actual corruption--as adjustments in TI's methodology from year to year may move countries up or down the ranking despite no real change in how that country is viewed. Yet TI's CPI remains the benchmark indicator of corruption worldwide. Warranted or not, the rankings attain real signifi
Client Alert | November 16, 2010
Washington, D.C. of counsel Susan K. Grafton is the author of "The Impact of the Dodd-Frank Act on the Securities Industry: What Broker-Dealers and Investment Advisers Need to Know" [PDF] published by Thomson Reuters' Informer magazine in the Autumn 2010, Issue 15 edition.
Client Alert | November 5, 2010