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What the Changes to CFIUS Mean for Foreign Investment
Lowenstein Sandler LLP, July 2019

CFIUS is a U.S. federal interagency committee (“Committee”). The Committee reviews and approves foreign direct investment in U.S.-based businesses. Investment is restricted if it impairs national security. Under the new Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), what the Committee considers to be “national security” has recently changed to include emerging and critical technologies and sensitive personal data...

SEC Clarifies Federal Fiduciary Duties of Investment Advisers
Lowenstein Sandler LLP, July 2019

The Securities and Exchange Commission (the SEC) recently sought to clarify its position on federal fiduciary duties of investment advisers with an interpretation.1The interpretation emphasized how client sophistication and the scope of an advisory relationship affect the fiduciary duties owed to particular clients.Determine Scope of RelationshipAll advisers owe fiduciary duties under the Investment Advisers Act of 1940, as amended (the Advisers Act)...

New York on Verge of Passing Landmark Data Security Legislation
Lowenstein Sandler LLP, June 2019

What You Need To Know: If signed into law, New York’s SHIELD Act will broaden the definition of protected information to include biometric data, email addresses, and corresponding passwords or security questions and answers. Unauthorized access, and not just unauthorized acquisition, to protected information would trigger breach notification requirements...

Securing Indemnification and Additional Insurance Coverage Requires Careful Drafting
Lowenstein Sandler LLP, January 2019

Insurance plays a prominent role in all real estate transactions. Stakeholders generally understand that insurance policies must be secured for the leasehold to address property damage and liability claims. However, stakeholders often do not pay attention to the precise contract language used to establish the insurance requirements and address how the waterfall of available insurance coverage will flow...

Fear of Brave? An Analysis of GDPR Challenges to Behavioral Advertising
Lowenstein Sandler LLP, November 2018

On September 12, 2018, a complaint was submitted to the Irish Data Protection Commission1on behalf of Johnny Ryan, Chief Policy and Industry Relations Officer at Brave Software, Inc., seeking to trigger, for the first time, an EU-wide investigation into certain data practices within the digital advertising industry...

Obstacles to IPOs Faced by Life Sciences Companies
Lowenstein Sandler LLP, October 2018

Initial public offerings (IPOs) are often seen as attractive by business owners in the life sciences or biotech field, writes Alan Wovsaniker, a partner with Lowenstein Sandler, in an Expert View column on the topic. The need for capital in a life sciences business tend to be great, as the cost to develop new drugs, therapies or medical devices is extremely expensive and it takes many years to receive regulatory approval to market and sell such drugs, therapies or medical devices...

SCOTUS Changes To Sales Tax Will Ripple Through to PE, VC & M&A Deals Involving Retailers
Lowenstein Sandler LLP, October 2018

Retailers have taken note of the dramatic shift in state sales tax law emerging from one of Justice Anthony Kennedy’s last Supreme Court decisions. As different states announce legislative and regulatory changes throughout the summer, retailers are scrambling and we’re now seeing the impact in venture capital, private equity, and merger and acquisition transactions involving commerce companies. On June 21, 2018 the U.S. Supreme Court decided South Dakota v...

State Initiatives to Control Drug Prices
Lowenstein Sandler LLP, October 2018

While the Trump administration and Congress have talked a lot about controlling drug prices, and the administration did recently float a much-criticized proposal to require drug companies to include list prices in TV ads, state governments have grown tired of waiting and seized the initiative in this area in imaginative ways. Over the past several years, numerous states have taken a broad variety of measures to control and influence prescription drug spending and prices...

Maximizing Insurance Coverage for Cyber Losses: Two New Decisions Highlight Potential Recovery Sources
Lowenstein Sandler LLP, July 2018

Businesses prudently and increasingly purchase stand-alone cyber insurance policies to manage the risk of cyber breaches and attacks. Two decisions from separate U.S. Courts of Appeals in the past two weeks highlight the fact that in-house counsel and risk managers should look to their organizations’ traditional insurance policies as a source of potential coverage for cyber-related losses. Spec’s Fam. Partners, Ltd. v. Hanover Ins. Co...

U.S. Supreme Court Rules for Privacy Protections in Requiring a Warrant to Access Cell Tower Location Data
Lowenstein Sandler LLP, July 2018

On June 22, 2018, the United States Supreme Court ruled inCarpenter v. United Statesthat the federal government needs a warrant to collect location data about cellphone users. Authored by Chief Justice John G...

Remain on Guard: Lessons for Trade Creditors in a post-Toys "R" Us World
Lowenstein Sandler LLP, June 2018

In today’s retail bankruptcy environment, obtaining “critical vendor status” is not enough. Many predict that 2018 will continue being an active year in retail bankruptcies, especially for highly leveraged retailers. Since our last article, numerous well-known retailers have filed for protection under the Bankruptcy Code, including: Bon-Ton, Claire’s, Nine West, and Toys “R” Us...

How to Survive a Late Notice Challenge in an Environmental Insurance Coverage Action
Lowenstein Sandler LLP, January 2018

Since the mid-1980’s, environmental insurance coverage claims have been the most complex of insurance coverage claims. Insurance companies usually will not voluntarily provide coverage for gradually-occurring environmental claims without a fight, which typically takes the form of insurance coverage litigation that can be costly and time-consuming. A policyholder must overcome many hurdles to obtain coverage for an environmental claim...

What a Sears Lawsuit Against a Supplier Means for Retailers
Lowenstein Sandler LLP, December 2017

  A lawsuit filed earlier this year by a Sears Holdings subsidiary could have far-reaching implications for suppliers selling to a customer suspected of financial distress. The lawsuit is particularly significant to those in the retail sector, as brick-and-mortar operations across the country struggle amid growing online competition...

Inflection Point for VR?
Lowenstein Sandler LLP, November 2017

 Despite predictions over the last several years that virtual reality (VR) and augmented reality (AR) were going to dominate consumer technology, adoption and sales have been slower than many had forecasted...

EPA's Recommendations to Jump-Start Superfund
Lowenstein Sandler LLP, August 2017

The United States Environmental Protection Agency (“USEPA”) Administrator Scott Pruitt has created a Superfund Task Force...

SEC Expands Use of Confidential IPO Filings
Lowenstein Sandler LLP, August 2017

On June 29,2017, the Securities and Exchange Commission (SEC) announced that it will permit all companies to confidentially submit draftregistration statements for review under the Securities Act...

Receipt of Goods Means Physical Possession in Determining Whether a Trade Vendor Has a Section 503(b)(9) Claim
Lowenstein Sandler LLP, July 2017

A recent decision by the United States Court of Appeals for the Third Circuit in In re World Imports, Ltd. ruled on a hotly contested issue of bankruptcy law that has significant ramifications for trade creditors selling goods to a debtor just prior to the debtor filing for bankruptcy...

Impact of Cross-Border Court-to-Court Communications on U.S. Creditors' Rights
Lowenstein Sandler LLP, July 2017

As U.S. businesses have gone global, so have their customers. U.S. companies selling abroad have been confronted with customers that have filed for relief under their country’s insolvency law. If the customer has a business or assets here in the U.S., he or she might then file either a Chapter 11 or Chapter 15 case in a U.S. bankruptcy court. Unlike a Chapter 11 case, a Chapter 15 case is not necessarily the “main event.” Yet, even in Chapter 15 cases, U.S...

Drug/Device Development Changes Imminent: 21st Century Cures Act Becomes Law
Lowenstein Sandler LLP, July 2017

Life sciences companies are navigating sweeping changes brought about by the 21st Century Cures Act (the “Cures Act” or the “Act”) signed in recent years. Of most interest to those companies is how the Act is changing the pathways and processes for developing and getting approval for new drugs and devices and new uses for existing products...

Pursuing Avoidance Power Claims Against Foreign Entities
Lowenstein Sandler LLP, July 2017

A recent decision by the Delaware Bankruptcy Court, in In re FAH Liquidating Corp., addressed the issue of whether a transfer of a debtor’s assets that occurred outside of the United States can be avoided and recovered under the Bankruptcy Code. The Bankruptcy Court held that a trustee or debtor-in-possession can avoid and recover fraudulent conveyances (and, by extension, preferential transfers) that occurred outside of the U.S...

What Can I Find Out About a Company From Its Website?
Lowenstein Sandler LLP, June 2017

Company websites are becoming an increasingly important source of information for investors as Congress and the Securities and Exchange Commission have passed regulations and national exchanges, including NYSE and NASDAQ, have issued rules that govern what, when and how content should be posted on them. The SEC has also published guidance on specific areas in which they do not have regulations, but want to prevent investor confusion...

Nasdaq Solicits Comments On Shareholder Approval Rules For Private Placements
Lowenstein Sandler LLP, June 2017

Earlier this year, Nasdaq posted a notice that it was seeking comments (the “Comment Solicitation”) to a potential revision to Nasdaq Listing Rule 5635(d) (the “Private Placement Rules” and such proposed revision, the “Proposed Rule”)...

Asset Management M&A Is Here To Stay
Lowenstein Sandler LLP, June 2017

There’s a lot of sound reasoning behind the idea that asset management mergers and acquisitions are likely to slow in 2017 after several very busy years, including $17.1 billion in transactions last year alone. Global equity market and political uncertainties abound — and as more investors flock to passive investments, there will be continued pressure on managers to lower fees and yet find ways to increase operational efficiencies to maintain profitability...

Salman v. United States And Its Impact On Insider-Trading Enforcement
Lowenstein Sandler LLP, May 2017

On December 6, 2016, the U.S. Supreme Court ended two years of uncertainty surrounding what actually constituted illegal “insider-trading” for the “tippers” who pass on confidential information to others, and for the “tippees” who receive the information and trade on it. In Salman v. United States, 1 the Court restored the status quo ante (or most of it, anyway) that had been disrupted by the Second Circuit’s landmark holding in United States v...

Top Cyber-Risk Issues -- Takeaways from the National Center of Cybersecurity Excellence Speaker Series
Lowenstein Sandler LLP, May 2017

I recently had the good fortune of participating in an excellent Speaker Series sponsored by the National Center of Cybersecurity Excellence (NCCoE)*. Our program, which included representatives from industry, the technology sector and trade associations, focused on Cyber-Risk in the Hospitality Industry...

NJ 'Pay To Play' Compliance Is More Important Than Ever
Lowenstein Sandler LLP, May 2017

With the 2016 federal elections in the rearview mirror, political eyes around the country are now turning to state and local campaigns for the rest of the year. This is especially true in New Jersey, where the offices of governor and lieutenant governor, as well as all 120 state legislative seats, are up for election in November 2017...

Market Trends: FINRA
Lowenstein Sandler LLP, May 2017

The Financial Industry Regulatory Authority, Inc. (FINRA) had a very active year in 2016 from a regulatory and enforcement perspective. It also experienced substantial internal changes to senior management, including the resignation of its chairman and chief executive officer, Richard Ketchum, effective in August, and the appointment of a new president and chief executive officer, Robert Cook, as well as new chairman, John Brennan...

Advice to Cyber Insurance Buyers: You Are Not Alone
Lowenstein Sandler LLP, May 2017

One of the first steps in the underwriting process requires the company to submit an application to the insurer. The application will seek baseline information about the company’s size, number of records maintained, type of information maintained, security policies and procedures, and disaster planning. The company’s ability to answer those questions with complete and detailed information is critical...

New Guidance Establishes June 9 Effective Date for Fiduciary Rule, but also Raises Uncertainty as the DOL Continues to Review the Rule
Lowenstein Sandler LLP, May 2017

In the continuing saga of the Fiduciary Rule, the U.S. Department of Labor (“DOL”) issued a final regulation setting June 9 as the new effective date of the Fiduciary Rule. However, the DOL granted relief from certain requirements until January 1, 2018, and also added uncertainty as it continues to review the Fiduciary Rule in the interim...

Is Insurance Part of Your Plan for Responding to a Data Breach? Hint: It Should Be
Lowenstein Sandler LLP, May 2017

By now, no company needs to be told about the risk of a cyber-attack or breach. As former FBI director Robert Mueller stated, we are getting to the point where there are only two types of companies: "companies that have been hacked and will be hacked again." To address this risk, sophisticated businesses spend millions in trying to avoid cyber attacks but also in putting a plan in place to respond to a cyber breach...

Fisker Decision Further Demonstrates that Section 510(b) Subordination of Investor Claims Is Not Absolute
Lowenstein Sandler LLP, May 2017

When a company files for bankruptcy protection, it is often the case that insufficient value is realized to satisfy all claims against the company. Because the creditors of a bankrupt company generally must be paid in full before its equity holders recover at all, shareholders typically receive no distribution on account of their equity interests in the bankrupt company...

A Question of the Past: How Much Did You Make at Your Last Job?...
Lowenstein Sandler LLP, May 2017

Joining the trend that began in Massachusetts and has spread to Philadelphia, New Orleans, and Puerto Rico, New York City is the next city to restrict employers from inquiring, at any stage of the hiring process, about a job applicant’s salary history. Proponents of these laws claim they will foster gender pay equity and narrow the pay gap between the sexes; critics assert that such laws violate free speech...

FINRA's Foray into Insider Trading
Lowenstein Sandler LLP, April 2017

On August 1, 2013, the Department of Market Regulation of the Financial Industry Regulatory Authority, Inc. (“FINRA”), charged a distressed debt trader (the “Trader”) at a wellestablished multibillion-dollar hedge fund manager (the “Investment Adviser”) with insider trading.1. Almost four years later, on March 13, 2017, FINRA’s complaint was dismissed by its highest appellate body, the National Adjudicatory Council (the “NAC”).2...

SEC Shortens Settlement Cycle from T+3 to T+2
Lowenstein Sandler LLP, March 2017

On March 22, 2017, the SEC shortened by one business day the standard settlement cycle for most broker-dealer securities transactions. Under the new T+2 rule, most securities transactions will be required to settle within two business days. Broker-dealers will be required to comply with the new T+2 settlement cycle beginning on September 5, 2017.The following link is to the SEC’s March 22 Press Release, which includes a Fact Sheet to assist broker-dealers and others. https://www.sec...

Jevic: Supreme Court Invalidates Non-Consensual “Structured Dismissals”, But Critical Vendor Orders, First-Day Wage Orders, DIP Financing Roll-Ups, Interim Settlement Distributions Remain Undisturbed
Lowenstein Sandler LLP, March 2017

In a 6-2 decision in Czyzewski v. Jevic Holding Corp. (“Jevic”), the Supreme Court put an end to the increasingly popular practice in the bankruptcy world known as “structured dismissals”, at least on a non-consensual basis. A “structured dismissal” typically occurs following a sale of all or substantially all of a Chapter 11 debtor’s assets during a bankruptcy case...

Fiduciary Rule Update: Department of Labor Issues Temporary Enforcement Relief
Lowenstein Sandler LLP, March 2017

On March 10, the U.S. Department of Labor (“DOL”) took a procedural step in its fresh review of the Fiduciary Rule by issuing a temporary enforcement policy. The temporary enforcement policy is intended to spare advisors uncertainty and confusion regarding enforcement of the Fiduciary Rule which, despite the review, has an April 10 effective date...

SEC to Require Hyperlinks to Exhibits
Lowenstein Sandler LLP, March 2017

On March 1, 2017, the U.S. Securities and Exchange Commission (“SEC”) adopted rule changes requiring public companies to include hyperlinks to specific exhibits in their SEC reports.Under SEC rules, public companies are entitled to incorporate – by reference into registration statements and periodic reports – exhibits that have previously been filed with the SEC...

CHCI: A Path to a Rewarding and Deeply Personal Career
Lowenstein Sandler LLP, February 2017

The morning we arrived at the U.S. Citizenship and Immigration Services office in Newark, New Jersey, the line stretched around the block. I was 11 years old, the son of Cuban immigrants and the grandson of a former political prisoner who had sought refuge in the United States—part of the first generation of my family born in this country...

Sparking Discussion and Adding Fuel to the Fire: FDA Discussion Paper On Laboratory Developed Tests (LDTs)
Lowenstein Sandler LLP, February 2017

On January 13, 2017, the U.S. Food and Drug Administration (FDA) released a discussion paper on laboratory developed tests (LDTs)1 that outlines a substantial lessening of the level of regulation proposed in a pair of 2014 draft guidances2 that, in late November, FDA announced it would not be finalizing...

Three Myths Holding Women Back from Career Advancement
Lowenstein Sandler LLP, February 2017

Marketing. Networking. Business Development. Two words and one phrase that most lawyers dread, but accept, as part of the reality of practicing law today. Some embrace the reality and find ways to fit these activities into their busy practices. Many others however, and women in particular, identify barriers that prevent them from pursuing these crucially important career-enhancing activities...

President Trump Directs Department of Labor to Reexamine Fiduciary Rule
Lowenstein Sandler LLP, February 2017

On February 3, 2017, President Donald J. Trump issued a presidential memorandum directing the U.S. Department of Labor (“DOL”) to reexamine regulations (known as the “Fiduciary Rule”) scheduled to take effect April 10, 2017. The controversial Fiduciary Rule would significantly expand those who are considered fiduciaries under the Employee Retirement Income Security Act of 1974 (commonly known as “ERISA”)...

Supreme Court to Hear Critical Issue of Time Limits on Investor Rights
Lowenstein Sandler LLP, January 2017

For the past several years, professional investment funds in New York have faced a dilemma: if they wanted to see the results of a securities class action and settlement before filing their own case, they ran the risk that their claims would be time-barred by that point. That may now change as the Supreme Court has agreed to decide whether the filing of a securities class action tolls the statute of repose for investors who decide to “opt out” of the class...

With A Whisper, Not A Shout, FDA Breaks Silence On Medical Product Communications
Lowenstein Sandler LLP, January 2017

By releasing two draft guidances on medical product communications, the FDA has broken its long silence on medical product communications. The timing of the release in the waning days of the Obama administration appears to be an effort by FDA to get its position on the record in an attempt to avoid being trumped by the incoming administration; that effort may be thwarted by the current administration’s move to roll back recently issued regulations...

OCIE Announces 2017 Examination Priorities
Lowenstein Sandler LLP, January 2017

Each year the Securities and Exchange Commission (“SEC”), through its Office of Compliance Inspections and Examinations (“OCIE”), issues a release identifying various areas in which the SEC plans to focus its efforts in examinations...

Finra Announces 2017 Examination Priorities
Lowenstein Sandler LLP, January 2017

Each year the Financial Industry Regulatory Authority (“FINRA”) issues a release identifying various areas in which FINRA plans to focus its efforts in their examinations. FINRA published its Annual Regulatory and Examination Priorities Letter (the “Priorities Letter”) on January 4, 2017 identifying the areas that will receive increased focus in FINRA’s 2017 examinations...

Is Cybersecurity at the Top of Your List for 2017? If So, You're on the Right Track.
Lowenstein Sandler LLP, January 2017

When Yahoo recently disclosed that information on over a billion user accounts had been stolen back in 2013, the news capped off a year of big, bad data breaches. Security and privacy issues have been so front-and-center, in fact, that the Yahoo incident wasn’t the most newsworthy cybersecurity story by a long shot — despite its being the biggest data breach in history. Hacks of presidential campaigns and subsequent data leaks underscored just how pivotal a breach can be...

Insurance 101 For Tech Companies
Lowenstein Sandler LLP, January 2017

Insurance 101 For Tech CompaniesBy Lynda A. Bennett and Eric Jesse of Lowenstein Sandler Insurance has a critical role in any tech company, whether it’s a start-up, securing seed money, or pathing toward an IPO or acquisition. Companies should keep in mind that their insurance needs will change and grow throughout that life cycle; therefore, those needs should be evaluated on a regular basis.   The Start-Up Stage...

The Outlook For Hart-Scott-Rodino Under President Trump
Lowenstein Sandler LLP, January 2017

Law360, New York (January 13, 2017, 1:38 PM EST) -- With the arrival of the Trump administration and the domestic and foreign policy shifts that may ensue, few eyes (and only the most narrowly focused) have looked at what changes may lie ahead with regard to Hart-Scott-Rodino antitrust premerger notification law and policy. Yet there are two reasons to believe that significant changes may be in store...

Important Change to Copyright Safe Harbor
Lowenstein Sandler LLP, December 2016

On Thursday, the Copyright Office mandates a new procedure for online service providers. Websites, hosting companies, mobile app publishers and other online services that permit user-generated content must designate an agent to receive notifications of claimed infringement under the Digital Millennium Copyright Act (DMCA). The new procedure is electronic and will be both faster and less expensive than the prior process...

U.S. Supreme Court Reaffirms Insider Trading Rules, Casting Doubt on Continued Utility of Second Circuit’s Newman Decision
Lowenstein Sandler LLP, December 2016

On December 6, the U.S. Supreme Court issued a unanimous decision, penned by Justice Samuel Alito, in the case of Salman v. United States. The decision clarifies that a quid pro quo relationship is not required between a tipper and tippee, where insider information is exchanged between parties in a close relationship and the tipper is providing the information to the tippee as a gift...

 

 

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