Publications - Gibson Dunn

Publications

Our lawyers provide sophisticated analysis, practical guidance and thought leadership on a wide range of topics. We encourage our readers to review this collection of client alerts, articles and white papers and benefit from the authors’ exceptional experience, market knowledge, practiced judgment and singular insights.

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New Bank Secrecy Act/Anti-Money Laundering Examination Manual for Money Services Businesses

On December 9, 2008, as anticipated, the Department  of the Treasury's Financial Crimes Enforcement Network ("FinCEN") issued the Bank Secrecy Act/Anti-Money Laundering Examination Manual for Money Services Businesses (the "Examination Manual" or "the Manual").  This 153-page document sets forth a road map for examinations by the Internal Revenue Service ("IRS"), to which FinCEN has delegated examination authority for Money Services Businesses ("MSBs") and other businesses that do not have a federal regulator but that have been designated as financial institutions under the Bank Secrecy Act and its implementing regulations (collectively, the "BSA").  The Manual is available from the FinCEN website, www.fincen.gov

Client Alert | December 23, 2008

Financial Services Regulatory Reform: Credit Default Swaps and the OTC Derivatives Market: Proposed Legislation & President’s Working Group Initiatives, including SEC Issuance of Temporary Exemptions for Central Counterparties

In connection with regulatory reform legislation anticipated to be introduced in the 111th Congress, consideration will be given to enacting proposals to further legislate the swaps market and, in particular, credit default swaps ("CDS") and the over-the-counter ("OTC") derivatives market.

Client Alert | December 23, 2008

E-Proxy Rules to Take Effect for All Public Companies on January 1, 2009

I. E-Proxy Update In 2007, the Securities and Exchange Commission (the "SEC") adopted rules providing for proxy materials (including the proxy statement, a proxy card, the "glossy" annual report and any other soliciting materials) to be made available to shareholders via a publicly accessible Internet website other than the SEC's EDGAR website (the "E-Proxy Rules").

Client Alert | December 19, 2008

CFIUS Guidance Alert

On December 8, 2008, the U.S. Department of the Treasury published in the Federal Register a notice providing guidance on the newly implemented amendment to Section 721 of the Defense Production Act of 1950.

Client Alert | December 18, 2008

Orange County Superior Court Rules Los Angeles Storm Water Standards in Violation of State Law

On November 26, the Orange County Superior Court ruled that Water Quality Standards for storm water promulgated by the Los Angeles Regional Water Quality Control Board ("Regional Board") in its Los Angeles Region Basin Plan were invalid under state law.

Client Alert | December 17, 2008

SEC Adopts New Interactive Data Format (“XBRL”) for Financial Reporting

On December 17, 2008, the Securities and Exchange Commission adopted a rule that will require issuers to file a supplemental exhibit "tagging" their financial statements with an interactive data format known as XBRL (eXtensible Business Reporting Language).

Client Alert | December 17, 2008

Financial Markets in Crisis: Oversight of Federal Rescue Efforts Ramps Up

The Gibson, Dunn & Crutcher Financial Markets Crisis Group is tracking closely government responses to the turmoil that has catalyzed dramatic and rapid reshaping of our capital and credit markets.

Client Alert | December 16, 2008

OFAC Issues Guidance to the Securities and Futures Industry

On November 5, 2008, the Department of the Treasury, Office of Foreign Assets Control ("OFAC") issued guidance, Opening Securities and Futures Accounts from an OFAC Perspective, to make it clear that guidance or actions by its sister Treasury bureau, the Financial Crimes Enforcement Network ("FinCEN"), under the Bank Secrecy Act ("BSA") do not affect the responsibilities of the securities and futures industry to comply with the economic and trade sanctions administered and enforced by OFAC.  This OFAC issuance follows the announcement by FinCEN on October 30, 2008, that FinCEN was withdrawing proposed rulemakings issued in 2002 and 2003 which would have required anti-money laundering ("AML") programs for unregistered investment companies, invest

Client Alert | December 9, 2008

EPA Opens Public Comment Period Concerning Nanotechnology Regulation

We are closely tracking regulatory and legislative activity relating to the regulation of nanotechnology, which is an emerging technology that involves an increasing number of products and businesses.

Client Alert | December 9, 2008

Financial Services Reform: The Impending Debate and Legislation

On account of the financial market turmoil and current economic crisis, Congress and the new Administration will be introducing legislation next year to restructure the financial services industry and system and to further regulate the activities, products and services provided by financial services companies.  It is anticipated that this legislation could impact all financial companies, including those in the banking, securities, insurance, investment company, private equity, lending, derivatives and commodities industries.

Client Alert | December 8, 2008

FINRA Issues New Guidance on Credit for Extraordinary Cooperation in Investigations

Position on Waiver of Attorney-Client Privilege Follows Trend of DOJ, SEC The Financial Industry Regulatory Authority ("FINRA") has recently provided guidance on the extent to which "extraordinary cooperation" by a firm or individual in an investigation can influence FINRA's enforcement decisions.  In particular, with respect to waiver of the attorney-client privilege, the guidance states that waiver or non-waiver of the privilege will not be considered in whether to grant credit for cooperation, but rather it is the assistance in "uncovering the facts in an investigation" that will yield credit for cooperation.  In this respect, FINRA follows the trend recently set by the Securities and Exchange Commission and the Department of Justice.  Despit

Client Alert | December 5, 2008

The Inapplicability of Rule 23(b)(1) to ERISA Class Actions

Washington, D.C. partner Mark A. Perry and of counsel Paul Blankenstein are the authors of "The Inapplicability of Rule 23(b)(1) to ERISA Class Actions" [PDF] published in the December 5, 2008 issue of BNA Inc.'s Workplace Law Report.

Client Alert | December 5, 2008

CARB Identifies Significance Thresholds for Greenhouse Gases under CEQA

For the past few years, concern over the potential impacts of new developments on climate change has prompted the attention of state officials to begin developing methods under the California Environmental Quality Act (CEQA) to reduce greenhouse gas (GHG) emissions.

Client Alert | December 4, 2008

EU Commission Publishes New Guidance on Abusive Conduct

The concept of abuse of a dominant position, as found in Article 82 of the EC Treaty, is one of the pillars of EU antitrust law.  Although dominance is not unlawful as such, the abuse of dominance is and cannot be exempted.Recent years have seen much sound and fury but relatively little light shed on the subject.  The EU Courts have upheld a strict approach to defining abuse and the Commission has adopted a number of high profile decisions, particularly at the IP/antitrust interface.  High fines have been imposed even in novel cases.In December 2005, the Commission published draft guidelines on abuses which could be considered to be exclusionary.  Criticised and praised in roughly equal measure, the Draft Guidelines adopted an "effects-based" approach that wou

Client Alert | December 3, 2008

Director and Officer Indemnification and Insurance in Turbulent Times

Over the past year, turmoil in the financial markets has led to increased litigation, and the high-profile failures of several major financial institutions have focused attention on the protections that are available for directors and officers of public companies.  Fortunately, it is still rare for directors and officers to contribute personally to the settlement of a lawsuit.  However, more than ever before, strong indemnification protections and comprehensive insurance for directors and officers ("D&O insurance") are vital to a company's ability to attract and retain qualified directors and officers.  This client alert discusses several recent developments in the areas of director and officer indemnification and D&O insurance and then concludes by offerin

Client Alert | December 3, 2008

2008 Employee Benefits Deadlines Require Immediate Attention

As the 2008 calendar year comes to a close, employers must take a number of actions to address Sections 409A and 457A of the Internal Revenue Code for deferred compensation plans.  Also, employers whose employer identification numbers end with "3" or "8" need to file their applications for IRS determination letters for their tax-qualified plans by January 31, 2009.  In addition to this client alert, we recently prepared an alert on various recent executive compensation developments.  Among other things, companies should be planning their responses to pending "say on pay" legislation.

Client Alert | December 3, 2008

Petition Without Prejudice: Against the Fraud Exception to Noerr-Pennington Immunity from the Toxic Tort Perspective

Orange County associate Jim M. Sabovich is the author of "Petition Without Prejudice: Against the Fraud Exception to Noerr-Pennington Immunity from the Toxic Tort Perspective" [PDF] published in the December 2008 issue of Penn State Environmental Law Review.

Client Alert | December 1, 2008

New Status of Forces Agreement Subjects Government Contractors to Iraqi Law

On November 16, 2008, the White House and the Iraqi Cabinet approved a Status of Forces Agreement (SOFA), subject to the approval of the Iraqi Parliament.  On November 27, 2008, the Iraqi Parliament approved the SOFA by a vote of 149 to 35.  This new SOFA subjects U.S.

Client Alert | December 1, 2008

RiskMetrics Group ISS Governance Services (ISS) Releases Policy Updates for 2009 Proxy Season and Related Developments

On November 25, 2008, RiskMetrics Group ISS Governance Services (ISS), a leading proxy advisory firm, released its U.S. and international corporate governance policy updates for the 2009 proxy season.  The ISS U.S.

Client Alert | December 1, 2008

Precaution In Applying The Precautionary Principle

Los Angeles partner Jeffrey D. Dintzer, of counsel Brett H. Oberst, associates Lindsay K. Larris and Lynn Hang are the authors of "Precaution In Applying The Precautionary Principle" [PDF] published online by Law360 on November 26, 2008 at law360.com. 

Client Alert | November 26, 2008