An almost universal feature of commercial loan agreements is the inclusion of representations and warranties regarding the financial statements and condition of the borrower. A recent case examined whether under New York law, sophisticated lenders can reasonably rely upon such representations in asserting claims of fraud instead of being required to make an independent investigation into the books and records of the Borrower. In DDJ Management LLC, et al v. Rhone Group L.L.C ...
The financial crisis of 2008 and the subsequent recession have taken their toll on the funding of all infrastructure projects and the renewable energy sector has not been immune to its effects. Banks and public finance institutions were increasingly reluctant to advance loans for projects, as preserving capital resources became critically important to help ensure their survival in the financial and economic maelstrom ...
On June 30, 2010, the Securities and Exchange Commission (the “SEC”) formally adopted Rule 206(4)-5 (the “Pay-to-Play Rule”) under the Investment Advisers Act of 1940, as amended (the “Act”). The Pay-to-Play Rule is primarily designed to prohibit investment advisers from making political contributions to influence their selection as investment advisers for government investment accounts such as public pension plans ...
Insolvency Law can hardly reconcile business preservation and creditors satisfaction, so it usually sacrifices one or the other principle being therefore qualified as more or less debtor friendly. The question is whether preservation of business should take place in a prior stage, that of the pre- insolvency, leaving liquidation for the terminal insolvency situations ...
The U.S. Supreme Court today (June 28, 2010) handed down its highly-anticipated opinion in the case of Bilski v. Kappos, Case No. 08-964. The Supreme Court affirmed the decision of the Court of Appeals for the Federal Circuit and held that the subject matter of Mr. Bilski’s patent application was not patentable subject matter. However, in ruling against Mr ...
In an opinion issued last week, Morrison v. National Australia Bank Ltd., 559 U.S. __ (2010), the Supreme Court held that foreign plaintiffs cannot use the U.S. Securities laws to sue foreign issuers based on foreign stock purchases: a ruling that sounds the death knell for these so-called “foreign cubed” cases. Rejecting decades of lower-court case law on the extraterritorial reach of the U.S ...
* SMEs are not Immune from Class-Actions Suits in Competition Law * SMEs and Trade-Marks * Dividing up Corporate Shares in the Event of Divorce, Separation from bed and Board, or Dissolution of a Civil Union. SMEs ARE NOT IMMUNE FROM CLASS -ACTION SUITS IN COMPETITION LAW ...
A new campaign finance bill, introduced on April 29 in the House, April 30 in the Senate, and sponsored by Senator Chuck Schumer and Representative Chris Van Hollen, would impose new spending restrictions and disclosure requirements. The bill is the Democrats’ first response to the U.S. Supreme Court’s recent opinion in Citizens United v. Federal Election Commission, which struck down certain restrictions on corporate and union political expenditures encompassed in the McCain-Feingold Act ...
The recent volcanic cloud and flight bans in Europe remind us of the damaging impact that mother nature can have on businesses. Even after the ash has cleared and flights are fully operational again, the extent of the disruption caused by the ash clouds may linger for many years in the form of contractual disputes ...
In a decision of first impression, a federal district court has held that the “clawback” provision of Sarbanes-Oxley permits the SEC to seek reimbursement of incentive-based compensation from CEOs and CFOs of companies that restate their financial statements as a result of misconduct, even if the CEO and CFO had no personal involvement in such misconduct ...
Which group of creditors is entitled to the money held by a monitor for purposes of carrying out a plan of arrangement under the Companies’ Creditors Arrangement Act (“CCAA”) when the debtor goes bankrupt prior to the distribution: only the creditors covered by the plan of arrangement, or all of the creditors, even those not covered by the plan, for example, subsequent creditors? This controversial issue was considered by Judge Jean-Yves Lalonde in
I once heard that Chinese architects have a curious, but effective, way of designing public squares. First, they will sow seeds over the surface of the square and wait till the grass grows. Then, they will let people walk around the square for a period of time. Finally, the stepped areas will help the architects decide which paths across the square to pave ...
a recent Superior Court decision rendered in the Province of Quebec is of interest. This decision rendered by Judge Jean-François Emond, sitt ing in Bankruptcy division for the Superior Court in the District of Quebec City, deals with a Progress Payment Agreement and a Mast er Lease Agreement between a financing company, Maxium Financial Services Inc. (hereinafter: “Maxium”) and a golf cart rental company, Desrosiers Golf Inc. (hereinafter: “Desrosiers”) ...
When reviewing the portfolio of services, authorities are often faced with the question of how it can obtain more value for money for particular services. This usually involves considering whether to outsource a particular service to private sector. Sometimes authorities look to combine their respective operations of a particular service to achieve economies of scale (and/or scope) or to swap capacities or services with each other ...
The Quebec Court of Appeal recently rendered a long-awaited decision in a consumer protection class action. On February 26th, the Court dismissed the main appeal and cross-appeal in Brault & Martineau Inc. vs. Riendeau(1) for the reasons for which were written by Justice Duval Hesler, which were endorsed by both Justice Gendreau and Justice Dal phond ...
In an opinion issued last week, Merck & Co. v. Reynolds, 559 U.S. __ (2010), the Supreme Court significantly curtailed the ability of defendants to assert the statute of limitations as a defense to a securities fraud claim under § 10(b) of the Securities Exchange Act of 1934. The decision makes it less likely that courts will dismiss, on statute of limitations grounds, cases filed within five years of the alleged fraud ...
The recent healthcare reform legislation requires group health plans to provide coverage for children up to age 26, without regard to marital or student status ...
[a version of this article first appeared in the May 2010 Issue of Competition Law Insight] A Competition Law Injection into the Health Service? Introduction The injection of competition and market-based principles into the UK's National Health Service (NHS) during recent years has, to state the obvious, been (and remains) highly controversial ...
European Court ready to reject privilege protection for in-house lawyers The Court of Justice of the European Union (CJEU) is on course to continue to deny legal professional privilege (LPP) to legal advice given by in-house lawyers in EU competition law investigations ...
New legislation means it is more important than ever that organisations have effective anti-bribery measures in place. The dissolution of Parliament took place on 12 April. As part of the 'wash-up' process before this date the Bribery Bill received Royal Assent and will become law throughout the UK later this year ...
With increased scrutiny and regulation by Congress and the Internal Revenue Service, it is becoming more important for non-profits to focus on compliance with both federal and state rules. Under Texas law, non-profit corporations are prohibited from making loans to officers, directors, or members. Directors who approve a prohibited loan and officers who participate in making a prohibited loan are jointly and severally liable to the corporation for the total amount of the loan until it is repaid ...
On April 16, 2010, the Quebec Court of Appeal issued a judgment concerning the right of a general partnership (“S.E.N.C.”) to file for assignment under the Bankruptcy and Insolvency Act (the “BIA”) without its partners having also filed for the assignment of their assets, themselves ...
Maintaining cash flow is a significant challenge in the current economic climate. What started as a 'credit crunch' is now a real squeeze for business - with customers trying to defer payment terms while suppliers apply pressure for earlier payment. Pre-contract Truly effective credit management begins at the pre-contractual stage, as this is usually the point of greatest leverage with the customer ...
The Quebec Court of Appeal issued a judgment concerning the right of a general partnership (“S.E.N.C.”) to file for assignment under the Bankruptcy and Insolvency Act (the “BIA”) without its partners having also filed for the assignment of their assets, themselves ...
Haynes and Boone, LLP Partner Larry Pascal hosted a seminar addressing important business and legal developments in Costa Rica, including opportunities in the electricity, telecommunications, transporation infrastructure, insurance, outsourcing and the real estate sector ...
