Category Archives: Treatise Update

Treatise Update – Hedge Fund Regulation (Second Edition)

Hedge Fund Regulation offers a thorough examination of hedge funds and the ever-changing regulations that impact their structure, activities, and operations. Hedge fund counsel and financial industry stakeholders will find invaluable pointers on Regulations D, S, and other statutes; anti-money laundering and privacy compliance; highly-regulated investors; complex assets and transactions; and federal agency reporting requirements. The guide includes flowcharts and checklists that cover investment advisor registration, CPO annual reporting, and recordkeeping requirements.

Highlights from the updated release include:

Rationale for Regulation: Updated analysis concerning the SEC’s regulatory shift towards more substantive regulation of investment advisers (see section 3:4).
Marketing the Manager: Added discussion of recent SEC enforcement activity regarding the Marketing Rule (see section 6:2.1[B][4][e][iv]).
Compliance: Extensive revisions to cover the new rules and rule amendments under the Investment Advisers Act that substantially modify existing regulatory requirements and create new compliance obligations for investment advisers to private funds (see section 13:8). Updated discussion of SEC examinations of investment advisers (see section 13:14).
Books and Records: Revisions address new SEC books and records requirements related to recent major modifications to the Investment Advisers Act. Updated analysis of recent significant changes to Form PF (see section 14:3.2).

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

Financial Product Fundamentals offers a comprehensive dive into the regulatory, pricing, marketing, and viability issues surrounding registered offerings. It also provides the legal fundamentals underlying private placements, real estate investment trusts, hedge and exchange-traded funds, and other registered offering types. The book gives pointers on completing and filing Forms F-1 and 20-F, navigating policy closings, devising IPO timelines, and more. In addition, this compendium addresses the Dodd-Frank Act, SEC actions, foreign broker-dealers, advertising in connection with prospectuses, insurance-linked securities, and life settlements.

Highlights from the updated release include:

Alternative Capital Raising for Public Companies: Revision covers the settlement cycle for ATM offerings (see section 2A:2.2[E]).
International Securities Offerings: New discussion covers the Holding Foreign Companies Accountable Act (see section 3:13).
Special Purpose Acquisition Companies: New discussions cover the adoption of a U.S. federal excise tax on corporate share repurchases (see section 5A:8.4); the 2022–2023 SPACs special meetings for approval of business combinations and extensions of business combination deadlines and liquidations (see section 5A:8.5); the ratification actions in Delaware (see section 5A:8.6); and restructurings and re-SPACs (see section 5A:8.7).
Sustainable Finance: Extensive updates to Chapter 5, with new coverage of sustainability-linked loan documentation guidance (see section 5B:4.4); the EU Corporate Sustainability Reporting Directive, which came into force in January 2023 (see section 5B:5.3); and the EU green bond standard (see section 5B:5.4).
Exchange-Traded Funds: Revisions cover 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”) (see section 17:3.3).

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

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Treatise Update – Patent Licensing and Selling: Strategy, Negotiation, Forms (Second Edition)

Patent Licensing and Selling guides practitioners through the fundamentals of drafting and structuring profitable patent licensing deals. Containing more than 350 sample agreements and clauses, the book provides actionable strategies to negotiate these deals. It also highlights terms that can trigger delays and disputes, strategies around exclusive licenses, and pointers for selecting markets for specific licensees. In addition, the text integrates discussion on infringement protection and enforcement steps, license duration and termination guidelines, and confidentiality considerations.

The new release includes revised and expanded coverage of the following topics:

Definitions: New sections 1:1.1 and 1:5.1[C] discuss the implications of failing to define a term, using the as term “affiliate” as an example and showing the need to uncover the identity of each affiliate (section 1:5.1[A]) and to determine whether an entity qualifies as an affiliate (section 1:5.1[B]), as well as any limitations around the term (section 1:5.1[C]), the consequences of leaving the term “affiliate” undefined (section 1:5.1[D]), which edition of dictionary to use (section 1:5.1[E]), and the overall lessons to be learned (section 1:5.1[F]).
Additional future licenses: Inclusion of a sample provision dealing with a situation in which the licensee discovers that he or she unknowingly developed products that infringed patents already owned by the licensor and that are not licensed to the licensee under the patent license agreement (see section 2:5.4).
Royalties: Added information on withholding taxes on royalty payments (see NEW section 4:9.8).
Prosecution and maintenance: Instruction on the consequences of a party’s decision to abandon prosecution and maintenance (see section 6:3.2[A]).
Licensee efforts: Extensive coverage of a licensee’s obligation to use “best efforts” and commercially reasonable efforts (see section 12:1.1 and section 12:6, respectively).
Technology license agreements: New coverage around licensing of other intellectual property, such as trade secrets, confidential information, and know-how (see NEW Chapter 20).
New contract provisions: Examples 1:5B, 1:9, and 1:20 (Definition of affiliate); Example 1:41A (Choice of law); Example 1:51A (Commercially reasonable efforts); Example 2:53 (Additional future patent license; licensee infringing licensor patents not licensed under the patent license agreement); Examples 4:55A, 4:55B, and 4:55C (Tax withholding); Example 5:10 (Audit; payment for audit); and Example 6:6 (Notice of intent to abandon prosecution or maintenance of licensed patents).

The Table of Examples, Table of Authorities,and Index have also been updated.

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Treatise Update – Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition)

Fragomen on Immigration Fundamentals reveals the nuances of U.S. immigration law and practice along with the agency, legislative, and executive policies shaping the current environment for immigrants and asylum seekers. Packed with practical tips for employment-based and family-based immigration, avenues to permanent residence, naturalization obstacles, statutory admission denials, and the administrative and judicial review of unfavorable decisions, the book also features templatized immigration forms for key case milestones in the immigration process.

Some of the important recent developments discussed in this release include:

PERM applications: Coverage of the DOL’s transition of online PERM application filings from its legacy PERM Online portal to the FLAG system and the resulting restructuring of the application form (see section 2:2.5). For additional recent developments in the PERM context, check out this recent PLI Chronicle article, Wage Transparency Laws Add Extra Layer of Complexity to Labor Certification Recruitment.
Employer’s ability to pay: Discussion of the significantly expanded guidance from the USCIS regarding an employer’s ability to pay the proffered wage for immigrant petitions (see section 2:6.1[B]).
Age-out protection: Clarification of the requirements that children of permanent residents and derivative family members of principal family-based immigrants must meet to receive age-out protection (see section 3:3.4[A]).
Failure to apply in safe third country: Updates regarding the status of the Biden Administration’s rule creating a rebuttable presumption that migrants who attempt to cross the southern border without seeking asylum in a third country through which they traveled or procuring an asylum appointment through the CBP One mobile app are ineligible for asylum (see section 6:2.6[C][7]).
Screening of job applicants: New DOJ guidance provides helpful tips on avoiding citizenship status discrimination when complying with export control laws, reaffirming that employers cannot rely on them to limit jobs to U.S. citizens or workers with other citizenship or immigration statuses (see section 10:3.3[B]).

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Treatise Update – Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition)

Directors’ and Officers’ Liability expounds the legal responsibilities of board directors and corporate officers of publicly-traded companies, the penalties that they face if they fail to meet their obligations, and the protections that are offered them under the law or by agreement. The book also delves into director and officer duties, exculpation, indemnity, insurance, cybersecurity, and contested mergers and acquisitions. It highlights unique case studies relevant to pharmaceutical, biotechnology, hospitality, retail, and other sectors.

Highlights of this release include updated discussion of the following topics:

Board Diversity Legislation and Litigation: Litigation continues in challenges to California’s S.B. 826 and A.B. 979, which require public companies to diversify their boards. Both laws have been ruled unconstitutional, but appeals are pending before the Ninth Circuit in Meland v. Weber and Alliance for Fair Board Recruitment v. Weber. See § 2:3.3[C] for discussion of the latest developments.
Amendments to Rule 10b5-1: In December 2022, the SEC adopted amendments to Rule 10b5-1 to introduce new requirements for Rule 10b5-1 trading plans and elicit more comprehensive disclosure related to insider trading policies and the timing of certain option grants to officers and directors of public companies. See § 4:4.1[B] for explanation of the rule changes.
Anti-D&I Shareholder Derivative Litigation: As companies push to adopt D&I initiatives some have been confronted with an anti-D&I backlash in the form of shareholder derivative suits. One such significant case brought against Starbucks was recently dismissed by the District Court for the Eastern District of Washington. See § 8:6.2[B] for discussion of the court’s holding.

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Treatise Update – Doing Business Under the Foreign Corrupt Practices Act (Second Edition)

Doing Business Under the Foreign Corrupt Practices Act (Second Edition) helps corporate lawyers, in-house sales teams, and other U.S.-based and overseas stakeholders understand the issues and rules they should consider when negotiating transactions or accepting compensation in compliance with the FCPA. Readers will learn the necessary, proactive steps for identifying and avoiding common FCPA transactional illegalities.

The book addresses key information regarding whistleblower considerations and harsh penalties for falsified books and records, mischaracterized payments, fictitious invoices, insufficient internal accounting controls, and more. This title also includes helpful sample acknowledgements, compliance plans, and agreement clauses that address FCPA considerations.

Key updates in the new release include:

The SEC’s Amended Whistleblower Rules: Coverage of the August 2022 changes to the SEC’s final rules implementing the whistleblower provisions (see section 1:1).
Case Law Developments: Discussion of the holdings in United States v. Hoskins and United States v. Rafoi-Bleuler regarding the scope of the term “agent” as applied to a foreign national (see section 4:1.3).
The DOJ’s Updated Evaluation Guidance: Information regarding the DOJ’s March 2023 guidance emphasizing the importance of implementing compliance-promotion criteria in a company’s compensation and bonus system (see section 10:1).
New Appendix B62: Department of Justice FCPA Opinion Release— Situation Involving Extortion or Duress.
New Appendix B63: Department of Justice FCPA Opinion Release— Payment of Travel Expenses for Post-Adoption Supervision.

In addition, the book offers information on the latest cases, enforcement actions, and settlements and provides several adaptable forms and templates (see the Related Items tab under “Forms”).

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Treatise Update – Patent Litigation (Third Edition)

Patent Litigation (Third Edition) enhances every patent litigator’s ability to prevail at trial while helping to cut the costs and complexity of litigation. Written by leading patent litigators, the treatise provides guidance on various infringement actions and their respective burdens of proof. It also offers pointers on conducting comprehensive pre-suit investigations; developing potent case themes; assembling strong litigation teams; developing smart budgets; maximizing the persuasive impact of documents, exhibits, and witnesses; and making savvy use of technology, jury consultants, and litigation support vendors.

Highlights of this release include updated discussion of the following topics:

Substantive Issues of a Patent Case: Defenses against patent validity, such as collateral estoppel and unadjudicated claims, applicant-admitted prior art, obviousness, and inadequately disclosed claims (see sections 1:3.3[B], 1:3.3[C], 1:3.3[F], and 1:3.3[H]) and, in the area of inequitable conduct before the PTO, the mitigation of nondisclosure of information through supplemental examination (see section 1:3.4[A][4]).
Discovery and Privilege: Use of testimony from patent law experts (see section 4:4.4[C]).
Nondiscovery Motions and Court-Initiated Procedures: Markman proceedings and claim construction (see section 7:2).
Witnesses Special to a Patent Case: Inventor testimony (see section 8:2.1[A]).
Damages and Attorney’s Fees: Consequences of the district court’s failure to address prejudgment interest (see section 9:10.1) and willfulness and enhanced damages (see section 9:11.1).
Trial: Rule 50(a) and Rule 50(b) motions (see sections 12:12.3 and 12:14); Rule 59 motions for a new trial and altering or amending the judgment (see new section 12:14.4); and Rule 60 proceedings for relief from judgment (see new section 12:14.5).

The Table of Authorities and Index have also been updated.

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For additional recent developments in patent litigation, check out this recent PLI Chronicle article, PTAB’s Longhorn Decision Could Signal More USPTO OED Disciplinary Proceedings.

Treatise Update – Variable Annuities and Other Insurance Investment Products (Third Edition)

Variable Annuities and Other Insurance Investment Products offers accessible guidance to the federal and state regulation of variable annuities and insurance investment products. Readers will learn the professional duties and compliance responsibilities expected of issuers of insurance investment products. The book includes instructive examples around product design, approvals, administration and distribution, marketing, and inspections. The book further features conversations addressing special investment products, state insurance licensing requirements and suitability rules, index-linked variable annuities, registered index-linked annuities (RILA), and life settlements.

Highlights of the new release include:

ERISA Issues: New discussion of Prohibited Transaction Exemption 2020-02 (“PTE 2020-02”) which allows investment advice fiduciaries to receive compensation that would otherwise be prohibited in connection with providing investment advice and engaging in certain principal transactions (see section 6:9).
Insurer Exchange Programs: Covers the SEC’s announcement of settled charges against an insurance-affiliated broker-dealer/principal underwriter for improper exchange offers related to the affiliated insurer’s variable annuities (see section 13:5).
Advertising: Reviews FINRA Rule 5123 (“Private Placements of Securities”), a separate FINRA Rule that sets forth filing requirements for private placements (see section 19:4.2[B][13]), and the performance inception date for variable annuity performance advertising (see section 19:5.1[A][1]).
Senior Investors: Discusses actions by federal and state securities and insurance regulators to enhance the supervisory obligations of financial institutions dealing with senior investors (see section 27:2.1).

In addition, the Table of Authorities and Index have been updated to incorporate the latest developments and regulatory changes.

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Treatise Update – Taxation of Intellectual Property: Law and Practice

Taxation of Intellectual Property covers the tax consequences of creating, buying, exploiting, and selling various intellectual property assets (including patents, trade secrets, copyrights, trademarks, and computer software), as well as the tax considerations affecting intellectual property litigation. It identifies the IP taxation fundamentals relevant to individuals, corporations, partnerships, and non-profits and includes in-depth coverage of the various deductions applicable to patent royalties, salaries of researchers, and infringement-related legal fees.

Some of the recent developments discussed in this new release include:

Alternative Minimum Tax (AMT) for Corporations: Coverage of the repeal of the AMT for corporations by the Tax Cuts and Jobs Act of 2017 (TCJA) and the subsequent updates to this by the Inflation Reduction Act of 2022 (see section 3:2.3).
Research or Experimental Expenditure Deductions: Discussion of the new 5-year capitalization and amortization rule imposed on research or experimental expenditures by the TCJA (see section 4:3).
Research Credit for Small Business and Start-Ups: Provides the increased amount of the credit that small businesses and start-ups can apply against their payroll tax liability pursuant to the Inflation Reduction Act of 2022 (see section 4:6).
Tax Treatment of NFTs: Answers the question of whether an NFT used in trade or business would qualify as a Section 1231 asset eligible for capital gains treatment (see section 6:3.5[A][1]).
Litigation Expenses: Extensive coverage of the Actavis Lab v. United States case which dealt with the issue of whether a generic drug manufacturer’s patent infringement litigation expenses were tax deductible (see section 7:1.1[C]).
Charitable Contributions of Cryptocurrency: Explanation of the circumstances in which a qualified appraisal is required for charitable contributions of cryptocurrency (see section 9:4.4[A]).

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Treatise Update – Hillman on Documenting Secured Transactions: Effective Drafting and Litigation (Third Edition)

Hillman on Documenting Secured Transactions offers grounded guidance on best practices for documenting and litigating secured transactions prepared pursuant to Revised Article 9 of the Uniform Commercial Code (U.C.C.). It offers a working grasp of the legal, technical, and business aspects of Article 9 transactions and examines the effects of the 2022 Amendments on nearly every article of the U.C.C. To gain free access to Chapter 18, which addresses the 2022 Amendments in more detail, click here.

Among the many topics updated in this new release are the following:

Perfection: A table of the new perfection methods under the 2022 Amendments (see section 2:6.2).
Signed Security Agreements: A listing of the increased number of situations in which a signed security agreement is not necessary under the 2022 Amendments (see section 4:1.2).
After-Acquired Collateral: A summary of the ways in which the 2022 Amendments narrow the scope of the prohibitions against security interests in after-acquired consumer goods or commercial tort claims (see section 7:2).
Control Under the 2022 Amendments: A discussion of how the 2022 Amendments offer new ways to perfect security interests in digital assets (see section 18:4).
Unperfected Security Interests: An explanation of the changes the 2022 Amendments make to U.C.C. § 9-317(b) regarding buyers who receive delivery (see section 19:2.1).

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