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 ...
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 ...
Under final rules issued by the Centers for Medicare and Medicaid Services (CMS), Accountable Care Organizations (ACOs) will continue to face large start-up costs and uncertain savings, despite a decreased regulatory scheme and increased financial incentives ...
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” ...
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 ...
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 ...
The Centers for Medicare & Medicaid Services (CMS) and the Office of Inspector General (OIG) for the U.S. Department of Health & Human Services (HHS) have responded to the U.S. Senate’s request for information on physician-owned distributorships (PODs). Earlier this summer, a bi-partisan U.S. Senate committee asked CMS and the OIG to study the proliferation of PODs, citing a lack of regulatory guidance on how these arrangements square with existing federal law ...
On September 13, 2011, the Board of Directors of the Federal Deposit Insurance Corporation (“FDIC”) unanimously approved a final rule implementing Section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Rule”) ...
The Ministry of Health recently issued Minister of Health Regulation No. 1148/Menkes/Per/VI/2011 on Pharmaceutical Wholesalers, which replaces and repeals two earlier decrees. The new regulation is aimed at protecting the public from dangerous drugs and drugs materials as well as improving previous regulations on pharmaceutical drugs ...
A new Regulation of the Minister of Law and Human Rights No. M.HH-01. AH.01.01 of 2011 on the Application Procedures for Validating a Legal Entity and Approving Amendments to the Articles of Association and the Notification Procedures for Amendments to the Articles of Association and Changes to Company Data (the “MOLHR Regulation”) was issued on 1st April 2011 ...
The Minister of Forestry has issued Regulation No. P.18/Menhut-II/2011 on Guidelines for Borrow-to-Use Permits for Forest Areas (“MOF Regulation”), which replaces and repeals Minister of Forestry Regulation Number P.43/Menhut-II/2008. This new MOF Regulation is the implementing regulation of Government Regulation No. 24 of 2010 on Forest Area Utilization ...
Adopting a related party transactions policy, with supporting protocols and procedures, will help to identify and deal with related party transactions within the corporation. Ultimately, this will reduce the risk of breaching the Corporations Act 2001 (Cth) or ASX Listing Rules (if relevant) and will protect shareholders' interests ...
Shareholder participation at the AGMs of large companies is notoriously low – just 0.3 per cent in 2009, according to Chartered Secretaries Australia. So it is not surprising to see repeated calls in the media for listed companies to introduce online participation at AGMs. This would allow shareholders to take part in meetings in their offices or homes via the internet, enabling them to follow the proceedings, submit questions and, of course, vote ...
The delivery of electronic board papers on iPads is becoming increasingly popular, particularly for non-executive directors. At board meetings, some directors may bring only an iPad, on which all their board papers are stored ...
On September 7, 2011, the Securities and Exchange (SEC) announced that it will not appeal the D.C. Circuit’s July ruling in Business Roundtable and Chamber of Commerce of the United States v. SEC, No. 10-1305, (D.C. Cir. July 22, 2011), where a unanimous panel of the D.C. Circuit vacated Exchange Act Rule 14a-11 requiring companies to give shareholders access to company proxy materials for the nomination of candidates to serve on the company’s board of directors ...
Independent expert reports are commissioned by company directors to assist shareholders in assessing a broad range of M&A transactions, including takeover bids, schemes of arrangement, related party transactions and shareholder approved acquisitions over 20%. The purpose of the reports is to provide shareholders with an objective assessment of whether the proposed transaction is 'fair and reasonable' from their perspective ...
Hedge funds failed in their attempt to get EDT Retail Trust (EDT) wound-up after EPN EDT Holdings II, LLC (EPN) bid for EDT. EPN succeeded in voting down the threat. The hedge funds' attempt is a reminder that A-REIT bids present unitholders with avenues to challenge a bid which are not available to shareholders in a company. It is also a reminder that it is an approach that is not without risk ...
The organization that controls most of the Internet's gTLD's (generic top level domain names, such as .com and .net) has approved the use of .xxx as a new gTLD. That has a number of trade-mark owners worried about the potential for reputational risk or damage to goodwill with the registration in the .xxx domain of their brands. The .xxx gTLD is for use by those involved in the adult entertainment industry ...
Last year’s takeover of Cadbury by US firm Kraft left a bitter taste in many mouths, not least the Cadbury workers in the Somerdale Plant near Bristol who were promised their jobs were safe but were then ultimately ‘rationalised’ by the American food giant ...
Once their compound patents have expired many blockbuster drugs remain protected by secondary 'method of treatment' patents. The validity and enforceability of these secondary patents can be less certain in many jurisdictions. In Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No ...
The Florida Agency for Health Care Administration (“AHCA”) earlier this month fined Humana $3.4 million for failing to promptly report suspected cases of Medicaid fraud and abuse by others, as required by statute and Humana’s Medicaid HMO contract. Though many states have similar laws or regulations, this appears to be the first enforcement action of its kind in the nation ...
