Category Archives: Treatise Update

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

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)

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)

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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Treatise Update: Mutual Funds and Exchange Traded Funds Regulation (Third Edition)

Mutual Funds and Exchange Traded Funds Regulation (Third Edition) offers professionals who work at or advise mutual and exchange-traded funds an in-depth look into the SEC and DOL rules that impact these funds. Readers will discover insights on taxation considerations, prospectus delivery and disclosure standards, safe harbors, valuation practices, compliance concerns, conflicts of interest, contract drafting, marketing, and inspector request response strategies.

The new release includes updates to the following chapters:

Chapter 11, Proxy Voting, reviews the SEC’s July 2022 rescission of part of the 2020 amendments to the proxy and solicitation rules under the Exchange Act; the November 2022 SEC amendments designed to enhance disclosures by investment companies regarding proxy votes; and the 2022 DOL Rule changes to the prior rulemaking.
Chapter 25, SEC Inspections, provides updated discussions on routine examinations and the characteristics the SEC’s Office of Compliance Inspections and Examinations (EXAMS) uses when ranking firms; and the incorporation of the new Marketing Rule into the examination process.
Chapter 32, Money Market Funds, covers Rule 2a-7 and the other rules (the “2023 Amendments”) that govern money market funds, including changes to the liquidity fee and redemption gate framework under Rule 2a-7; and disclosure Form N-1A and Form N-MFP. New discussion of the amendment to Rule 2a-7 to allow stable NAV money market funds to implement a reverse distribution or similar share cancellation mechanism (RDM) that would reduce the number of the fund’s outstanding shares in order to maintain a stable share price in a negative interest rate environment.
Chapter 35,Exchange-Traded Funds, includes revisions to Rule 12d1-4 under the Investment Company Act, a new rule designed to streamline and enhance the regulatory framework for funds that invest in other funds (“funds of funds”).
Chapter 45, Investment Management M&A, discusses the Inflation Reduction Act.

The Table of Authorities and Index have also been updated for this release.

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Treatise Update: Sinclair on Federal Civil Practice (Fifth Edition)

Sinclair on Federal Civil Practice is a two-volume treatise that is designed to give quick and authoritative answers for issues arising in federal civil litigation and to serve as a guide to the principal rules and tactical considerations guiding lawsuits in the federal courts. It starts with the layout of the court system and the nature of its key personnel, followed by jurisdiction and venue principles, and then turns to the sequence of litigation, from pleading to discovery, trial, and then appeal, while explaining the rationale of the rules, citing the key interpretive cases, and offering court-tested practice tips.

The new release includes the following updates:

Chapter 1: The Federal Judicial System includes a new detailed discussion of alternative dispute resolution in federal civil practice.
The Compendia of Recent Cases includes numerous recent federal cases, providing a quick resource for identifying relevant authorities (See the Compendia of Recent Cases Volume 1 and Volume 2).

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Treatise Update: Commercial Legal Finance

Commercial Legal Finance is a comprehensive guide to the commercial legal finance industry that offers practical guidance on the mechanics of litigation and arbitration finance in key jurisdictions and practice areas around the world. This book introduces the benefits and use cases for commercial legal finance for in-house and law firm lawyers and addresses key questions concerned with legal finance structures, pricing, and mechanics, providing a step-by-step overview of the process for obtaining legal finance.

Highlights from the new release include:

New Chapter on Legal Finance and Insurance: As the commercial legal finance field has developed to address the needs of businesses to transfer or share legal risk, it has intersected with another discipline that regularly trades in such risk: the commercial insurance industry. This new chapter discusses the relationship between legal finance and insurance products that facilitate or complement the funding and monetization of legal claims offered by legal financiers (see Chapter 12).

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Treatise Update: Likelihood of Confusion in Trademark Law (Second Edition)

Likelihood of Confusion in Trademark Law provides a comprehensive explanation of the significant multi-factor test, giving you a better understanding of the key elements used by courts to determine if likelihood of confusion exists. This book includes hundreds of real-life examples that help to showcase the different kinds of trademarks that are likely to be confused with established trademarks, and those that are not. This must-have reference includes effective, trial-tested strategies and tips on how to outmaneuver your opponent in court, whatever side you represent.

The new release includes updates to the following topics:

Proof: Covers the key Ninth Circuit decision in Punchbowl, Inc. v. AJ Press, LLC, noting that “the expressive nature of AJ Press’s use of the Punchbowl Mark and the fact that ‘punchbowl’ is a common word will certainly be relevant in the likelihood-of-confusion analysis” (See Section 1:8.2).
Sound: Highlights the Tenth’s Circuit’s decision in Elevate Federal Credit Union v. Elevations Credit Union where the marks at issue, used in banking services, shared the same root term but sounded different because of the difference in number of syllables and where the emphasis was placed (See Section 4:3.2).
Appearance: Takes note of JetBlue Airways Corp. v. Airblue Ltd., a decision in which the TTAB ruled that consumers could perceive services under the AIRBLUE mark as an extension of JetBlue’s services. The TTAB also noted that it “is sufficient for a finding of likelihood of confusion if relatedness is established for any item encompassed by the identification of services within a particular class in the application” (See Section 4:3.4[B]).

The Table of Cases has also been updated for this release.

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Treatise Update: Financial Product Fundamentals: Law, Business, Compliance (Second Edition)

Financial Product Fundamentals: Law, Business, Compliance (Second Edition) is a comprehensive reference on the regulations, benefits, advantages, pricing, distribution, marketing, and current and future viability of registered offerings. It includes expert analysis of private placements, mutual funds, hedge funds, money market funds, exchange traded funds, real estate investment trusts, international investment funds, variable insurance products, and other instruments. This treatise has been completely revised to reflect the Dodd-Frank Act, SEC actions, and other regulatory changes made to spur the economy and reform the financial markets.

The new release includes updates to the following chapters:

Chapter 2A provides revisions that cover the settlement cycle for ATM offerings.
Chapter 3 discusses the Holding Foreign Companies Accountable Act.
Chapter 5A discusses the adoption of a U.S. federal excise tax on corporate share; the 2022–2023 SPACs special meetings for approval of business combinations and extensions of business combination deadlines and liquidations; the ratification actions in Delaware: Garfield v. Boxed, No. 2022-0132-MTZ, 2022 BL 461782 (Del. Ch. Dec. 27, 2022), and In re Lordstown Motors Corp., No. 2023-0083-LWW, 2023 BL 56465 (Del. Ch. Feb. 21, 2023); and restructurings and re-SPACs.
Chapter 5B provides new coverage of sustainability-linked loan documentation guidance; the EU Corporate Sustainability Reporting Directive, which came into force in January 2023; and the EU green bond standard.
Chapter 9 discusses the recently amended Rule 2a-7 and the other rules (the “2023 Amendments”) that govern money market funds, including changes to the liquidity fee and redemption gate framework under Rule 2a-7; and disclosure Form N-1A and Form N-MFP. There’s also new discussion of the amendment to Rule 2a-7 to allow stable NAV money market funds to implement a reverse distribution or similar share cancellation mechanism (RDM) that would reduce the number of the fund’s outstanding shares in order to maintain a stable share price in a negative interest rate environment.
Chapter 17 covers new revisions to Rule 12d1-4 under the Investment Company Act, a new rule designed to streamline and enhance the regulatory framework for funds that invest in other funds (“funds of funds”).

The Table of Authorities and Index have also been updated for this release.

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Treatise Update: Hedge Fund Regulation (Second Edition)

Hedge Fund Regulation (Second Edition) provides a comprehensive understanding of hedge funds, from their history and investment strategies to the legal and compliance considerations affecting their structuring, management and market activities. It examines all aspects of these innovative investment vehicles and addresses current regulatory concerns that impact hedge funds, their managers and investors. Updated regularly to keep current with regulatory and enforcement developments, this book is designed to guide practitioners in structuring, organizing, and managing hedge funds.

The new release includes updates to the following chapters:

Chapter 23 addresses the SEC’s new “Dealer Rules” that expands the reach of dealer regulation to managers and funds deemed to be market liquidity providers.
Chapter 24 covers the revised requirements for filings under sections 13(d) and 13(g) of the Exchange Act as well as related SEC guidance on the applicability of beneficial ownership to cash-settled derivative securities and the parameters of group status. Added sections addressing new Form N-PX “say on pay” filing obligations and Short Position and Stock Lending Reporting.
Chapter 25 discusses revisions to the FSOC’s Guidance on Nonbank Financial Company Determinations and its related Analytic Framework for Financial Stability Risk Identification, which alter the considerations to be used to assess the SIFI status of nonbank financial companies.

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Treatise Update: Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age (Second Edition)

Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age is a comprehensive reference on the laws governing every area where data privacy and security is potentially at risk — including government records, electronic surveillance, the workplace, medical data, financial information, commercial transactions, and online activity, including communications involving children. This book gives crucial guidance on how to establish compliance programs that adhere to both federal and state regulations. The aim is to ensure data privacy and security, prevent cybercrime, and avoid potential consequences such as fines, penalties, legal cases, damages, and negative publicity.

Highlights from the new release include updates to the following chapters:

Chapter 4 discusses recent FTC focus on the consumer protection and competition risks associated with algorithms, AI, and automatic tools, including its employment of enforcement tools to disincentivize companies from using data that was wrongfully collected to develop AI.
Chapter 9 talks about a new standard set forth by the NLRB for determining whether an employer rule unlawfully interferes with employees’ exercise of Section 7 rights, overturning its prior standard. Under the current approach, following a showing that a challenged rule is presumptively unlawful, the employer can rebut the presumption by establishing that the rule is necessary to advance a legitimate and substantial business interest that it would not be able to advance with a more narrowly tailored rule.
Chapter 14 includes discussion of significant privacy protection developments globally, including in Argentina, India, Israel, Philippines, Saudi Arabia, Singapore, Switzerland, and Vietnam.

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