You are the general counsel of a public company and your company is entering into a transaction to be acquired by another company. Your board and your stockholders want you to make sure the transaction is consummated but they also want you to make sure the company gets the best deal for its stockholders. The acquiror is also going to demand a certain level of deal security ...
At its open meeting on October 18, 2011, the Commodity Futures Trading Commission (“CFTC”) adopted final rules (the “Position Limit Rules”) to establish speculative position limits for 28 physical commodity futures and options contracts (“Core Referenced Futures Contracts”) and futures, options, swap, or swaption contracts that are economically equivalent to such Core Referenced Futures Contracts (together with the Core Referenced Futures Contracts, collectively, “Referen
On November 7, 2011, the Consumer Financial Protection Bureau (“CFPB”) announced that it will provide financial companies and individuals who are the subject of potential enforcement actions with an “Early Warning Notice Letter.” The CFPB’s letter and process is similar to the Securities and Exchange Commission’s “Wells Notice” where companies and individuals typically receive written notice that the staff intends to recommend enforcement action against them ...
The Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission (the “CFTC”) recently adopted new rules (the “Rules”) under the Investment Advisers Act of 1940 (the “Advisers Act”), and the Commodity Exchange Act (the “CEA”) that will require registered investment advisers with at least $150 million in private fund assets under management to file Form PF with the SEC ...
The French Supreme Court rendered a very important decision for the international practice of syndicated financings by recognizing in the context of French insolvency proceedings certain effects of the trust and the mechanism of parallel debt, both governed by the laws of the State of New York ...
Mining companies investing for the first time in Canada’s North may find the experience unlike any other. This holds true not only for foreign corporations, but also for companies familiar with mining in the Canadian south. This article provides an orientation around some of these unique challenges. Aboriginal groups and mining companies in the North – A multi-faceted relationship The relationship between Aboriginal groups and mining companies in Canada’s North has many facets ...
The United States Court of Appeals for the D.C. Circuit recently held that a complaint does not need to meet the heightened pleading standards for fraud claims in order to satisfy the first-to-file rule under the False Claims Act (“FCA”). The first-to-file rule provides that, once a private plaintiff brings suit under the FCA, no one other than the government may intervene or bring a related suit “based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5) ...
On October 28, 2011, the United States Bankruptcy Court for the Eastern District of Virginia issued an opinion in the Chapter 15 case of Qimonda AG (“Qimonda”).1 The bankruptcy court held that the application of § 365(n) to executory licenses to U.S. patents was required to sufficiently protect the interests of U.S ...
Rejection of a contract in bankruptcy may not always accomplish a debtor’s goal to shed ongoing contractual obligations and liabilities, especially when dealing with employee benefit plans. On October 13, 2011, the Fifth Circuit Court of Appeals highlighted this issue in its opinion in Evans v. Sterling Chemicals, Inc ...
Chilean law allows the creation of security interests over almost all kinds of assets and rights held by project companies, except for certain assets listed in the Civil Procedure Code that may not be attached under Chilean law (eg, working tools and assets employed in services that may not be stopped with serious harm to public transportation or health, household assets, salaries and child support up to a certain amount) ...
After a public consultation phase initiated at the end of 2010, the Portuguese Competition Authority (“PCA”) made available, at the end of July 2011, the final version of its “Guidelines on the Adoption of Remedies in the Control of Concentrations” (“Guidelines”). As clarified by the PCA, the Guidelines are “a set of de indications pertaining to the selection, design, execution and monitoring of remedies, within the procedure of previous control of concentrations between undertakings” ...
Canada is uniquely positioned to provide an abundance of secure and reliable energy. With conventional oil supply declining, the need for unconventional resources, like oil sands and shale gas, will increase. Alberta and British Columbia, Canada’s two western-most provinces, house the vast majority of Canada’s oil and natural gas deposits, making both provinces key players in the push to develop resources sufficient to meet growing energy demand in North America and beyond ...
You’re the general counsel of a public company and you find out that one of your company’s stockholders intends to wage a proxy contest. Your board of directors and CEO are going to want some answers right away. How prepared are you and how do you respond? The average annual number of proxy contests has nearly doubled from 60 in 2001-2005 to 112 in 2006-2010. In 2009, activist shareholders were able to successfully gain board seats approximately 43 percent of the time ...
Although the currently effective Hungarian Civil Code does not name a call option as security, it does not prohibit the use of a call option as security either. The first question this raises, therefore, is whether Hungarian law permits the use of a call option as security? Naturally, this then creates more questions ...
Back in 1999, a law was adopted renovating an autonomous regulator and putting in place a modern regime to govern securities and capital markets in Panama, placing the local regulatory environment very much in line with legislation in force in more developed markets such as the United States (including, for example, the creation of the indirect holding system) ...
Last quarter we focused on claims that can be asserted under the debt collection provisions of the West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A-1-101 et seq. (the “WVCCPA”). This article will focus on the basic defenses available to creditors under the WVCCPA ...
At its open meeting on September 8, 2011, the Commodity Futures Trading Commission (the “CFTC”): announced that it would not complete its rulemaking process for rules necessary to implement the Title VII swaps-related provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) until 2012; and outlined a proposed sequence of rules to be considered during the remainder o
When a bankruptcy occurs, the creditors play a central role in the administrative control of the bankrupt's estate. In this regard, the Bankruptcy and Insolvency Act 1 (The "BIA") provides that, at the first meeting of creditors, the creditors must, among other things, affirm the appointment of the trustee and give such directions to the trustee as they see fit with reference to the administration of the estate ...
Despite complying with conditions attached to planning permission for an onshore wind farm development, developers, landowners and operators may find themselves defending an action for nuisance if the noise from the wind turbines unreasonably interferes with the use of another's land ...
Is the Marcellus shale that underlies a significant part of western and central Pennsylvania itself a “mineral”? Is Marcellus shale gas the type of natural gas contemplated in prior Pennsylvania case law, or something different? Is the Marcellus shale similar to coal, so that whoever owns the shale owns the gas that is embedded in that shale? In reversing and remanding the decision by the Susquehanna County Court of Common Pleas, a three judge panel of the P
In a somewhat surprising turn of events in the question of potential Pennsylvania Public Utility Commission ("Pa. PUC" or "Commission") regulation over midstream Marcellus Shale development entities, on September 8, 2011, Laser Northeast Gathering Company, LLC ("Laser") petitioned the Pa. PUC to withdraw its pending application for Certificate of Public Convenience to act as Public Utility ...
Activists opposed to natural gas drilling are taking a unique approach in an attempt to ban hydraulic fracturing in Peters Township, which is located in Washington County, Pennsylvania. The Peters Township Marcellus Shale Awareness group is attempting to have township residents vote on a referendum that amends the home rule charter to ban hydraulic fracturing ...
As leases are negotiated, permits are filed and shales are fractured across America, energy companies encounter the public. Some of these interactions are direct, while others are through the actions of a contracted service provider or partner. Still, the vast majority of first impressions will be presented to the public through the lens of the media, whether traditional or social ...
As part of the implementation or reorganization of a business structure, the integration of a trust as a shareholder of an incorporated family business can prove to be an interesting tax and estate-planning tool. This holding vehicle is being used more and more in Quebec.INTEGRATING A TRUST AS A SHAREHOLDER OF YOUR FAMILY BUSINESSDIANA DARILUS ddarilus@lavery ...
This paper reviews judgments dealing with contract law issues relevant to commercial lawyers and business leaders. This paper also considers private international law conventions and treaties that are en route to domestic implementation, and are therefore relevant to commercial practice ...
