Bankruptcy Judge Michael Lynn of the Northern District of Texas recently issued a noteworthy opinion in In re Village at Camp Bowie I, L.P. that addresses two important Chapter 11 confirmation issues. Judge Lynn determined that a plan that artificially impaired a class of claims in order to meet the requirements of section 1129(a)(10) had not been proposed in bad faith and did not violate the requirements of section 1129(a) ...
Acting as an escrow agent is a common task of lawyers in British Columbia, especially, the solicitor, as a component of transactions. The duties of an escrow agent are primarily contractual and the escrow agent must carry out the duties accordingly, in a non-negligent fashion and without misconduct. Lawyers must take care not to agree as escrow agent to duties that are in conflict with their duties as counsel, but there are additional considerations ...
As many creditors have unfortunately discovered, the Bankruptcy Code allows a debtor to sue the creditor for certain payments – called preferences – that the creditor received from the debtor prior to the bankruptcy ...
The U.S. Patent and Trademark Office (“PTO”) has proposed changes to two rules that are designed to streamline the obligations of innovators and their patent practitioners to disclose information to the PTO in patent applications and reexamination proceedings. The proposed rules would modify the standard used to determine what information is material to patentability and therefore must be provided to the PTO to satisfy the duty of disclosure ...
On June 28, 2011, in In re Enron Creditors Recovery Corp. v. Alfa,1 the Second Circuit Court of Appeals held that Enron’s redemption of its commercial paper prior to maturity fell within the definition of a “settlement payment” and was protected from avoidance under § 546(e)’s safe harbor provision in Title 11 of the United States Code ...
Armor Holdings, Inc., recently resolved allegations that it violated both the anti-bribery and accounting provisions of the Foreign Corrupt Practices Act. Because of Armor’s extensive cooperation with the government, it was able to obtain a non-prosecution agreement from the Department of Justice and a settlement from the Securities and Exchange Commission ...
On June 22, 2011, the Securities and Exchange Commission (the “SEC”) adopted final rules implementing new exemptions from registration as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) ...
As the general counsel of a company, you are busy working one day and the CEO walks into your office and says, "In the board meeting this morning, one of our directors asked me if a special committee was needed for a new issue that has come up. How do we know when a special committee is needed?" The following summary can be used as a starting point in determining your answer ...
WellPoint, Inc. recently reached a settlement with the Indiana Attorney General following its failure to disclose a security breach involving consumers’ personal information. WellPoint is the latest in a string of companies that have run afoul of the evolving disclosure rules which may be triggered when a company’s data is hacked or otherwise accessed without authorization ...
On July 7, 2011, the Federal Trade Commission (“FTC”) announced that it had finalized changes proposed in August 2010 to the Hart-Scott Rodino Antitrust Improvements Act (“HSR”) and to the Premerger Notification and Report Form (“Form”) required to be filed by companies with the FTC and Antitrust Division of the U.S. Department of Justice (collectively, the “Agencies”) in connection with certain acquisitions that meet the requisite thresholds and are not exempt ...
On June 22, 2011, the Securities and Exchange Commission (“SEC”) adopted a final rule defining “family offices” that will be excluded from the definition of “investment adviser” under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and thus exempt from registration. Background Family offices are entities established by wealthy families to manage the wealth of, direct the investments of and provide various other services to family members ...
In conjunction with the Bribery Act 2010 coming into force on 1 July 2011 the Scottish Crown Office has now issued Guidance confirming that it will trial (up to 30 June 2012) a self-reporting mechanism for business in relation to incidents of corruption. In broad terms, the initiative allows companies to self-report incidents of bribery to the authorities with the possibility of obtaining leniency in terms of penalties ...
After more than three years of delays, studies and public consultations, the Canada Consumer Product Safety Act (the “Act”) came into force on June 20, 2011. The Act imposes new obligations on manufacturers, importers and sellers of consumer products and grants significant powers to Health Canada. It will impact this critical sector of our economy ...
On April 28, 2011, the Mexican Senate approved a draft of “Federal Law on the Prevention and Identification of Operations from Illicit Sources” (the “Law”), which has since then been referred to the Mexican Chamber of Representatives for consideration. This initiative is intended to implement a system to combat organized crime by preventing the financing of its activities through money laundering ...
OVERVIEW OF GOVERNANCE REGIME In Ukraine the primary law making body is the Ukrainian Parliament (‘the Parliament’). The power to make laws may be delegated to lower governments or specific bodies of Ukraine but only for prescribed purposes. The State Stock Market Securities Commission of Ukraine (‘the SSMSC’) is the regulator for the securities market ...
FIRE SAFETY ACTThe Fire Safety Act (the “Act”) came into force on September 1, 2000. Its purpose is to implement organizational arrangements pertaining to fire safety within the regional county municipalities (“RCMs”) and major urban centres in Quebec. Section 8 of the Act requires them to establish a fire safety cover plan (a “Plan”) which must then be approved by the Minister of Public Security ...
On June 22, 2011, the Securities and Exchange Commission (the “SEC”) adopted final rules and amendments under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), that are designed to implement various provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) ...
Did you shop for your last car insurance policy on the Web?If you did, you are part of the growing number of people who now shop for their insurance online.Online insurance sales are a rapidly growing phenomenon: publicity is omnipresent ...
Since the mid-1620s when the Dutch settled in Manhattan, New York City has been a diverse, multicultural, international center for trade, commerce and finance. As a result of the role New York has played in the global community for more than three centuries, parties often select, and specify, the law of New York as the governing law in their agreements. Its rationality, consistency and stability provide an invaluable foundation for legal and business relationships the world over ...
The position of Corporate Secretary has evolved over the years. For some organizations, gone are the days when the Corporate Secretary was a mere corporate record custodian, certifier of corporate organizational facts and note-taker. Bylaws, board mandates, shareholder agreements and other governance documents, not to mention job descriptions, may or may not fully describe the expectations that now often go with the role. This article examines the role of the Corporate Secretary ...
As the general counsel of a public company, you are busy working one day and the CEO walks into your office and says, “I’ve been thinking that I would like to make a proposal to take this company private. I need your advice on how to get started.” The following points should be considered to help make the process easier ...
By Daniel Gold and Tracy G. Smith1 In an opinion issued June 13, 2011, Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. __ (2011), the Supreme Court declined to adopt a broad interpretation of who can be considered to have “made” a statement under the federal securities laws ...
In a unanimous opinion issued yesterday in Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. __ (2011), a securities class fraud action, the Supreme Court held that class certification had been improperly denied by the Fifth Circuit based on the absence of “loss causation.” The Court’s holding rejected Fifth Circuit case law dating back to 2007, which had required securities fraud plaintiffs to prove loss causation in order to obtain certification of a class ...
The Securities and Exchange Commission adopted on May 25, 2011, final rules to implement the Section 21F of the Securities Exchange Act of 1934 entitled “Securities Whistleblower Incentives and Protection.” The new rules have significant implications for public companies and securities industry businesses ...
