Category Archives: Treatise Update

Treatise Update: Broker-Dealer Regulation (Second Edition)

Broker-Dealer Regulation (Second Edition) covers the latest laws and regulations governing broker-dealers and provides a comprehensive and practical overview of the many requirements of this highly regulated area. This book instructs on how brokerage firms can satisfy SEC/SRO standards, with detailed coverage of registration reporting and record-keeping rules, suitability and best execution standards, ways of minimizing liability in the event of legal lapses, by documenting good-faith compliance efforts and the implementation of a tailor-made compliance program that can help detect and prevent illegal conduct within the firm. It’s filled with practical suggestions on how to best comply with requirements in such areas as electronic trading, safeguarding customer information, trading desk activities and business continuity planning.

The new release includes the following updates:

Chapter 5, Broker-Dealer and Associated Person Registration, covers FINRA’s Maintaining Qualifications Program.
Chapter 17, Research and Research Analysts, covers the EU Listing Act, which removes the market capitalization threshold and allows for the bundling of payments for research and execution services, if certain requirements are met.
Chapter 18, Electronic Trading, reviews the 2024 Amendments to Rule 605’s disclosure requirements.
Chapter 49, Investment Banking Compliance, reviews the SEC’s amendments, adopted on May 16, 2024, to Reg S-P; and the SEC’s proposed rules that would apply to the use of any “covered technology” by broker-dealers or investment advisers in “investor interactions,” and would require that such registrants establish policies and procedures to determine if the use of any such tool results in a conflict of interest that places the interests of the registrant ahead of the interests of investors, and to eliminate or neutralize that conflict.
Chapter 52, Private Banking and Wealth Management, discusses the May 2024 SEC and FinCEN Joint Notice of Proposed Rulemaking that will expand CIP obligations for SEC-Registered Investment Advisers and Exempt Reporting Advisers by requiring them to establish, document, and maintain written CIP procedures.
Chapter 53, Blockchain and Digital Assets, has been updated to cover regulatory developments involving digital securities and commodities.

The Table of Authorities and Index have also been updated.

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Treatise Update: Patent Law: A Practitioner’s Guide (Fourth Edition)

Patent Law: A Practitioner’s Guide (Fourth Edition)is a valuable guide for patent specialists and other intellectual property lawyers, corporate counsel and executives, inventors, and general practitioners representing inventors looking to gain knowledge of the legal framework governing patents. This includes developments under the America Invents Act, federal regulations and court decisions, the widely accepted four-step test used by the courts to determine an invention’s patentability, the various tests used to indicate direct infringement and other patent violations and drafting techniques used to prepare the full variety of documents, including specifications and claims.

The new release includes the following updates:

Section 1:7.1, Utility patent subject matter eligibility, discusses several Federal Circuit cases on section 101 eligibility including Weisner v. Google LLC, International Business Machines Corp. v. Zillow Group, Inc., and American Axle & Manufacturing v. Neapco Holdings.
Section 5:3.6, Statutory bars—disclosure, explores Mylan Pharmaceuticals Inc. v. Merck Sharp & Dohme Corp., in which the Federal Circuit considered whether prior disclosure of a genus of compounds and their pharmaceutically acceptable salts was sufficient to anticipate, under 35 U.S.C. §102, a claim directed to a species of a specific salt of a specific compound having a specific stoichiometric ratio.
Section 6:10.1, Unitary European patent, is a new section that reviews the unitary European patent and the now operative Unified Patent Court.
Section 24:6.1, Inter partes review, covers a Federal Circuit case considering whether applicant-admitted prior art could form the basis of invalidity in an IPR, and another case clarifying the scope of IPR estoppel under 35 U.S.C. § 315(e)(2).

The Tables of Authorities and Index have also been updated.

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Treatise Update: Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era (Second Edition)

Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era (Second Edition)dives into the federal and state regulations and agency rules addressing whistleblowers and international investigations. It provides practical advice on minimizing the risk and damage of whistleblower complaints against employers and conducting effective internal investigations. Practitioners and business professionals dealing with SOX Act and Dodd-Frank whistleblower actions will find valuable insights into dynamic case law and evolving rules that shape the rights of whistleblowers and the responsibilities of their employers. Readers will gain thorough coverage of key topics, including the elements of a prima facie case, employer defenses, compliance and crisis communication strategies, whistleblower protections, bounty provisions, and more.

The new release includes the following updates:

Expanded section 2:1.3, Employees Outside of the United States, explores Daramola v. Oracle America, Inc., in which the Ninth Circuit held that in the case of a Canadian citizen working in Canada for the Canadian subsidiary of a publicly traded U.S. parent company, any domestic (that is, U.S.) duties the employee performed were incidental to his foreign employment and, therefore, the application of SOX under these circumstances would not be domestic in nature.
Revised section 5:5, Causation, explains Murray v. UBS Securities, LLC, in which the Supreme Court held, that while a whistleblower bringing a claim under SOX must prove that the protected activity was a contributing factor in the unfavorable personnel action, a whistleblower need not also prove that the employer acted with retaliatory intent.
New chapter 7, EU Whistleblower Protection Directive, examines the Whistleblower Protection Directive 2019/1937 adopted by the EU to enhance the enforcement of EU law and policies in specific areas by laying down common minimum standards providing for a high level of protection of persons reporting breaches of EU law.

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Treatise Update: Friedman and Smith on Contracts and Conveyances of Real Property (Eighth Edition)

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Friedman and Smith on Contracts and Conveyances of Real Property (Eighth Edition) delivers essential information and guidance to practitioners in the field of real estate conveyancing by helping readers to carefully consider all of the issues and options before finalizing a contract, handle unexpected problems and contingencies, factor in a relevant case law when structuring sound agreements, and avoid drafting ambiguous or incomplete contracts. This book explains common law principles, and thousands of statutes and court decisions, creating a road map for readers on what course of action to take and what to avoid at every stage of real estate conveyancing.

Providing more than 140 sample forms, sample clauses, and checklists that simplify and accelerate transactions, Friedman and Smith on Contracts is a comprehensive guide to every aspect of real estate contracts and conveyances.

The new release includes updates on the following topics:

Chapter 1, Contracts of Sale, provides updated discussion on whether attorney review clauses are illusory.
Chapter 2, Parties to Contracts, includes updated discussion on whether an entity’s change of name on the enforceability of a contract.
Chapter 8, Misrepresentations by Sellers and Buyers, defines seller conduct that amounts to active concealment of defects.
Chapter 9, Mortgage Financing, includes discussion of “points,” which are upfront payments made at closing, sometimes referred to as a premium or discount or origination fees.
Chapter 10, Existing Mortgages—Continuation After Sale, provides discussion of N.Y. Real Prop. Law § 274-A, a New York statute that requires a mortgage holder to provide a payoff statement to a mortgagor who has signed a contract to sell or has received a written mortgage commitment from another lender.
Chapter 23, Contract Remedies for Buyer Default, includes updated discussion of seller’s damages after buyer’s breach, specifically determining the time of breach.
Chapter 24, Contract Remedies for Seller Default, covers the English Good Faith Rule and the American Rile with respect to damages resulting from the seller’s inability to convey proper title.
Chapter 26, Deed Elements, covers updated discussion of conveyances where grantee exercises undue influence over the grantor.
Chapter 33, Land Descriptions, reviews the “being the same” clause.
Chapter 34, Surveys, provides new discussion on when boundary lines touch or pass through buildings.

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Treatise Update: New York Elder Law (Second Edition)

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New York Elder Law provides authoritative guidance on how elder law practitioners and their clients can plan around and best confront the varied issues impacting the elderly. In addition to sample wills and helpful practice-orientated checklists, this book features the latest legal developments regarding Medicare, Medi-gap Insurance, Medicaid eligibility, Medicaid home care, nursing home rights, powers of attorney, and health care decision-making.

The new release includes the following updates:

Chapter 3, Medicaid for the Elderly, Blind, or Disabled, covers the E14 Waivers or exceptions put in place for Medicaid renewals from July 1, 2023, through May 2024.
Chapter 4, Medicaid Home Care: A Basic Introduction, includes new discussions covering the new form DOH-5770, Practitioner Statement of Need and LDSS’s submission of a web-based form to NYIA requesting expedited assessments upon receipt of an immediate need request.
Chapter 5, Nursing Homes, reviews visitation requirements for nursing homes, as well as residents’ rights.
Chapter 6, New York Power of Attorney, discusses the effect of a defective notarization on a power of attorney and the requirements to make gifts under the 2009 amendments to the NY GOL.
Chapter 7, Health Care Decision Making, provides new discussion of the Palliative Care Access Act.

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Treatise Update: Holtzschue on Real Estate Contracts and Closings: A Step-by-Step Guide to Buying and Selling Real Estate (Third Edition)

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Holtzschue on Real Estate Contracts and Closings provides thorough legal, technical, and strategic guidance to help implement dispute-free residential deals more quickly and easily. This practice guide clearly explains the governing law and customary industry practices to ensure that readers can successfully prepare for a sale or purchase of real estate, including knowing how to deal with the appropriate documents, tax issues, and brokers, drafting and negotiating the contract. Readers also receive a comprehensive dive and real-life examples of negotiation tactics, lease modifications, proactive planning of troublesome developments, drafting errors, liability mitigation measures, eviction considerations, on-premises conditions and repairs, and considerations relevant to different lease types.

The new release includes the following updates:

Chapter 1, Preparing for the Sale or Purchase, provides an updated discussion on financing.
Chapter 2, Drafting and Negotiating the Contract, includes the N.Y.S. Association of Realtors guidance effective August 17, 2024, for compliance with the National Association of Realtors’ antitrust brokerage commissions settlement.
Chapter 3, Preparing for the Closing, provides an updated discussion of deed descriptions.
Chapter 4, The Closing,includes the latest case developments.

The Tables of Authorities and Index have also been updated.

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Treatise Update: Commercial Ground Leases (Fourth Edition)

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Commercial Ground Leases (Fourth Edition) acquaints readers with key concepts, dispute resolution practices, and drafting strategies concerning commercial ground leases. The book features enlightening discussions on base and ground rents, reappraisals, tenant and landlord financing, subletting, exculpatory clauses, mortgage financing, insurance and damage considerations, defaults, redemption, and rights to repurchase, inflation indexing and other important commercial ground lease concepts, along with dozens of practice-ready forms and checklists.

The new release includes the following updates:

Chapter 3, Base Rent and Other Payments, includes an updated discussion of indexing and step rents.
Chapter 4, Reappraisal of Ground Rents, highlights a new discussion that traces the history of ground rent resets and provides an annotated form of reappraisal clause involving both use value and highest and best use reappraisal techniques.
Chapter 8 , Leasehold Financing, includes new lease provisions.
Appendix A, Ground Lease, includes updated Annual Minimum Rent provision during the Extended Term involves both use value and highest and best use reappraisal techniques.
Appendix X, Inflation Indexing, is updated with Chart 5, which covers the years 1950 to 2024, a total of seventy-five years.

The Tables of Authorities and Index have also been updated.

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Treatise Update: Exempt and Hybrid Securities Offerings (Fourth Edition)

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Exempt and Hybrid Securities Offerings (Fourth Edition) is a comprehensive reference on exempt and hybrid securities offerings, and a practical handbook, with step-by-step guides, practice pointers, and forms. This title gives practical guidance for each principal type of exempt offering, including private placements, venture capital financings, institutional debt private placements, PIPE transactions, structured PIPE transactions, Regulation A offerings, crowdfunding transactions, registered direct offerings, continuous offering programs, and more!

The new release includes the following updates which address important market and practice developments affecting exempt offerings:

Trends in the PIPE transaction market, registered direct offering market, and trends in at-the-market offerings
Proposed changes to the accredited investor definition
Proposed changes to Regulation D, Form D, and the Section 12(g) threshold
Changes to the NVCA forms
Amendments to Regulation M
Enforcement activity relating to Regulation M
Amendments to the rules of the securities exchanges relating to shareholder approval requirements
FINRA Notice to Members 23-08 relating to Private Placements
FINRA and other enforcement actions relating to Private Placements
The introduction of Rule 145a

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Bankruptcy Deskbook (Fifth Edition)

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Bankruptcy Deskbook provides you with practical guidance to help clients achieve fair remedies and to ensure you avoid legal problems along the way. This treatise covers the demands on Chapter 7 debtors, rules for Chapter 11 small business debtors, requirements for Chapter 13 individual debtors and compliance burdens on attorneys — including strict certification requirements and fee-arrangement disclosure rules that, if unmet, can lead to harsh sanctions. This book guides you step-by-step through the bankruptcy laws, clarifying the purpose, features, mechanics, advantages, and drawbacks of Chapters 7, 11, 12 and 13 in the era of BAPCPA.

All chapters in this treatise have been updated in this release to incorporate the most recent case law affecting issues such as:

Whether bankruptcy courts are bound by the “case-or-controversy” requirement that governs Article III courts.
Whether suits between non-debtors that might diminish the estate are deemed to be “related to” the debtor’s bankruptcy.
Whether an award of damages to remedy a stay violation is entitled to post-judgment interest.
Whether the ruling in Bartenwerfer is to be limited to situations involving agency or partner relationships.
Whether consolidation of an existing student loan satisfies the prepetition debt, creating a new post-petition debt that cannot be discharged without filing a new case.
Whether the failure of a creditor to cast a written vote constitutes acceptance or rejection of a bankruptcy plan.
Whether a settlement need be formally reduced to a writing to be approved by the bankruptcy court.

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Investment Adviser Regulation (Third Edition)

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Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law (Third Edition) is an essential resource for investment advisers, securities attorneys, compliance personnel, and federal and state regulators. This treatise guides practitioners through the maze of statutory, SEC, and state standards impacting investment advisers, as well as provides advice on the practical aspects of building a practice. It also clarifies key status issues that determine registration and disclosure duties as well as liability exposure.

Highlights of updated information in the latest release include:

Chapter 3, The Jurisdictional Divide Between the SEC and the States. Discussion of recently adopted amendments to Rule 203A-2(e) (commonly known as the “Internet Adviser Exemption”) (see section 3:2.3[C]).
Chapter 32, SEC Record-Keeping Requirements. In connection with adopting amendments to Rule 15c6-1(a) under the Exchange Act to shorten the standard settlement cycle for most broker-dealer trans- actions from T+2 to T+1, the SEC also adopted amendments to Rule 204-2 under the Investment Advisers Act that require all registered investment advisers to make and keep certain records for any transaction that is subject to the amended requirements. New discussion reviews these record-keeping requirements (see section 32:2.16).
Chapter 48, Advisers to Private Equity Funds—Practical Compliance Considerations. Discussion of the May 3, 2023, SEC amendments to Form PF requiring current reporting upon the occurrence of key events (see section 48:2.4[F]); and new discussion of the Private Fund Advisers Rule, which includes sweeping new rules and amendments to the Advisers Act applicable to private fund advisers (see section 48:7).
Chapter 49C, Offering Cross-Border Advisory and Broker-Dealer Services to Non-U.S. Clients; and Chapter 49E, Offering Cross-Border Investment Products and Advisory Services to Clients in Latin America. Discussion of Rule 206(4)-1 under the Investment Advisers Act (“Marketing Rule”), governing investment adviser marketing by replacing the prior investment adviser advertising and cash solicitation rules (see section 49C:2.8 and section 49E:4.2[E]).
Chapter 62, Investment Management M&A. Discussion reviews the Inflation Reduction Act (see section 62:4.1).

To aid in your research, the Table of Authorities and Index have been updated.

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