Category Archives: Corporate & Securities

Treatise Update – Corporate Legal Departments: Practicing Law in a Corporation

Corporate Legal Departments: Practicing Law in a Corporation provides invaluable guidance on a wide range of responsibilities and dilemmas in-house attorneys face. It advises on matters such as detecting and preventing internal legal problems, developing corporate business plans, pursuing new business opportunities, using cost-effective litigation strategies, and managing corporate crises. Highlights from this release include:

Chapter 5 and Chapter 11

  • Legal risk assessment: The release discusses the importance of conducting a legal risk assessment and its value to the company’s strategic plan. See new § 5:4 and §11:7.3.

Chapter 16

  • Corporate governance: This update adds discussion about the importance of corporate sustainability and environmental, societal, and governance (ESG) initiatives. See § 16:2.4.

Appendix A

  • In-House Counsel’s Handbook: This release includes extensive updates to Appendix A, which is designed to help in-house lawyers understand pertinent points in key areas of their practice. The following are of note:
    • Employment Law is updated. See Appendix A2.
    • Environmental Law is updated. See Appendix A3.
    • Securities Laws is updated. See Appendix A4.
    • Whistleblower Provisions of the Dodd-Frank Act is updated. See Appendix A5.
    • Intellectual Property in Marketing Communications is updated. See Appendix A10.
    • Privacy and Data Protection Law has been completely revised and updated. See Appendix A11.
    • Arbitration is updated. See Appendix A13.
    • Accounting for Nonaccountants is updated. See Appendix A16.
    • Immigration Law is updated. See Appendix A17.
    • Real Estate Leasing Transactions is updated. See Appendix A19.
    • In-House Counsel Pro Bono Programs is updated. See Appendix A20.

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Treatise Update – Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law (Third Edition)

Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law is an essential resource for investment advisers, securities attorneys, compliance personnel, and federal and state regulators, and a useful reference for today’s investors. It guides practitioners through a maze of statutory, SEC, and state standards as well as provides advice on the practical aspects of building a practice. 

This treatise update offers expanded coverage of the rules and regulations affecting investment advisers. Highlights of this new release include:

  • Chapter 9, Chapter 13, and Chapter 14 now present enhanced guidance on drafting advisory contracts and coverage of the SEC’s and DOL’s reexamination of recent rules related to proxy voting.  Notably, Chapter 14, Privacy of Client Financial Information: An Overview, has been extensively updated to examine the federal, state, and foreign data privacy laws that are most relevant to investment advisers operating primarily in the United States, and, according to these laws, what those advisers must do to protect the privacy of their clients’ financial information.
  • Chapter 45, Chapter 46, Chapter 46A, Chapter 48 and Chapter 49B feature the latest counsel to managers, sponsors, and overlay managers of Model-Based Advisory Programs; the recent adoption of Rule 152 that contains a single safe harbor simplifying the integration framework for securities offerings under the Securities Act of 1933 (see section 46:4.1[I] of the Hedge Funds chapter); and updated coverage of the implications of federal registration for a hedge fund manager (see section 46A:5).  These chapters provide updated information for advisers to private equity funds and collective trust funds and investment advisers in the retirement market.
  • Chapter 61, Chapter 63, Chapter 64, Chapter 65, Chapter 66, and Chapter 67 call attention to new information relevant to investment and digital advisers in the areas of marketing, blockchain and digital assets, data protection, and financial services cybersecurity. Additionally, a new Chapter 65 covers model risk considerations for investment advisers and Chapter 61 contains added discussion of the SEC’s redefinition of “readily available market quotations” as it is used throughout the Investment Company Act (see section 61:5).

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Treatise Update – Securities Investigations: Internal, Civil and Criminal

Securities Investigations: Internal, Civil and Criminal (Second Edition) provides the legal knowledge and practical strategies necessary to deal effectively with government and internal investigations. The new release of the treatise extensively updates it with the most recent developments governing internal, civil, and criminal investigations involving potential violation of the securities laws.  It also shares nuances and practical tips from experts in such investigations.

Key developments covered in the new release include:

  • “Property” and “Personal Benefit” under the Securities Statutes. Due to the U.S. Supreme Court vacating and remanding United States v. Blaszczak to the Second Circuit in light of Kelly v. United States, the question remains whether confidential information constitutes “property” under the securities statutes and how that may impact the holding that there is no personal benefit requirement in Title 18 cases. See Chapter 2 and Chapter 3 for discussion.
  • Cross-Border Regulation of the Financial Markets. See Chapter 13 for numerous new case summaries of SEC cross-border enforcement actions on insider trading, securities fraud, market manipulation, and the Foreign Corrupt Practices Act (FCPA).

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Treatise Update – Mergers, Acquisitions and Tender Offers: Law and Strategies — Corporate, Securities, Taxation, Antitrust, Cross Border

Mergers, Acquisitions and Tender Offers provides battle-tested, real-world advice on the entire M&A process. Packed with best practices, planning tips, checklists, and sample documents/agreements, this treatise offers comprehensive coverage of all aspects of the deal for domestic and cross-border mergers.

Highlights of the new release include:

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Treatise Update: Hedge Fund Regulation (Second Edition)

Covering one of the most dynamic sectors of the asset management industry, Hedge Fund Regulation (Second Edition) is a comprehensive guide providing insight into the history, investment strategies, structure, management, and market activities of hedge funds.  It addresses current regulatory concerns that impact these innovative investment vehicles, their managers, and investors. 

This seventeenth release to the treatise updates it with the latest considerations in structuring, launching, and operating a hedge fund. Highlights include:

  • Chapter 4, Private Placement. Now discusses the recent adoption of new Rule 152 that contains a single safe harbor simplifying the integration framework for securities offerings under the Securities Act of 1933.
  • Chapter 5, Commodity Pools. Revised in conjunction with other chapter updates.
  • Chapter 6, Marketing the Manager. Significantly updated to address the new Marketing Rule under the Investment Advisers Act of 1940.
  • Chapter 8, Anti-Money Laundering Regulations. Adds a discussion of the Anti-Money Laundering Act of 2020.
  • Chapter 13, Compliance. Revised to reflect revisions to the SEC’s whistleblower program.
  • Chapter 14, Books and Records. Updated with changes resulting from the SEC’s new Marketing Rule and revisions to CFTC Form CPO-PQR.
  • Chapter 18, Commodity Pool Operators and Commodity Trading Advisers. Adds discussion of amendments to CFTC Regulation 3.10(c) that provides a registration exemption for non-U.S. commodity pool operators (CPOs); new NFA Compliance Rule 2-50 requiring registered CPOs to notify the NFA upon the occurrence of certain events affecting a commodity pool operated by the CPO; and a new NFA requirement requiring Registered CPOs and Commodity Trading Advisers to adopt a written supervisory framework for outsourcing the performance of regulatory functions to third parties.
  • Chapter 24, Disclosures of Market Participation. Expanded discussion of Sections 13(d) and 16 under the Securities Exchange Act of 1934 and a new section addressing the CFTC’s Speculative Position Limits.
  • Chapter 26, Derivatives Markets Participants. Revisions including those addressing final CFTC regulations imposing capital requirements on swap dealers and major swap participants that are not subject to the capital requirements of a prudential regulator, and those governing real-time swaps public reporting, swaps regulatory reporting, and swaps data verification.

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New Title! FinTech, RegTech, and the Financial Services Industry

PLI Press is proud to announce the publication of the new treatise FinTech, RegTech, and the Financial Services Industry.

Editor Clifford Kirsch, a leading securities lawyer with more than 25 years of regulatory, corporate counsel, and private practice experience, and a team of 39 experts offer extensive analysis of the legal and compliance issues arising out of the increasingly rapid developments in financial technology, including crowdfunding, blockchain technology and cryptocurrency, and the advent of robo-advisors, and the emerging regulatory framework.

Divided into seven parts, this treatise:

  • Provides introductory discussions tracing the development of fintech, regtech, and suptech, as well as a review of the regulatory agencies that cover financial products and services that fall under the fintech umbrella.
  • Examines the business applications of fintech and their attendant regulatory implications, such as the use of digital technology by financial services firms to interact with customers; raising equity capital through the SEC’s Regulation Crowdfunding; and more.  
  • Covers the concept of creating a general ledger through blockchains, which can be relied upon by the public as a source of information of ownership.
  • Examines the issues that arise when considering the handling and use of data by fintechs.
  • Considers anti-money laundering in the fintech context.
  • Provides a discussion of the legal effectiveness of electronic signatures, electronic records, electronic delivery (“e-delivery”) of records, and electronic retention of records.
  • Discusses firms’ integration of data analytics into their compliance programs, as well as regulators’ use of data analytics to surveil financial markets for potential misconduct.

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More PLI Press books by Clifford Kirsch:

New Edition! Legal Guide to the Business of Marijuana

PLI Press is proud to announce the publication of the new edition of Legal Guide to the Business of Marijuana: Cannabis, Hemp and CBD Regulation (2021 Edition).

This is a unique resource for lawyers who represent clients in the fast-growing legal cannabis industry. For lawyers new to representing marijuana clients, the authors provide an understanding of the definitions of marijuana and other cannabis products, as well as a review of the policy and political issues that have led to the controversy and uncertainty of the current environment.

The book also offers critical guidance on a wide range of interrelated topics, including:

  • The complex and varying state regulation of medical and non-medical marijuana;
  • Federal law, enforcement, and preemption and their implications for employment, taxes, and banking;
  • Various aspects of establishing and managing a marijuana enterprise, including the growing, licensing, labeling, transporting, and distribution of marijuana and related products.

The new edition adds the latest on regulation of CBD products, the Final Rule for the Establishment of a Domestic Hemp Production Program, and the laws of the latest states to adopt some form of cannabis legalization—New Mexico, New York, South Dakota, and Virginia.

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Treatise Update: Proskauer on Privacy

Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age provides essential guidance to organizations on how to develop compliance programs, ensure data privacy and security, prevent cybercrime, and avoid or minimize fines, penalties, litigation, damages, and negative publicity.

Updated content from the new release includes:

  • Chapter 3, Medical Privacy, notes proposed changes to the HIPAA Privacy Rule to support individuals’ engagement in their care, remove barriers to coordinated care, and reduce regulatory burdens on the health care industry.
  • Chapter 9, Workplace Privacy, updates discussion of privacy concerns regarding COVID-19 infections; cannabis screening of employees and potential hires; use of biometrics; and recent NLRB rulings.
  • Chapter 13, Canadian Privacy Law, adds discussion of the statutory tort of invasion of privacy enacted in British Columbia, Saskatchewan, Manitoba, and Newfoundland; proposed amendments to PIPEDA under Bill C-11, which takes some lead from the GDPR; and proposed amendments to Quebec’s PIPA.
  • Chapter 17, Data Breach Litigation, incorporates summaries of recent significant data breach litigation, and expands circuit-specific discussions of the courts’ approaches to various issues including standing, causes of action, and damages.

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Treatise Update: Equipment Leasing– Leveraged Leasing

Equipment Leasing−Leveraged Leasing (Sixth Edition) provides readers with the comprehensive legal, tax, economic, accounting, environmental, and insurance information and advice they need to develop and implement leasing deals that maximize rewards and minimize risks.

The authoritative treatise was recently updated with new content to bring readers up to date on the cutting edge of the industry. Highlights from the new release (Release 1) include:

  • Chapter 29: Doing Business Under State Corporation Laws has been fully updated with the latest cases on suits by unqualified foreign corporations, the effect of subsequent qualification, defense of suits, and monetary penalties, as well as cases on doing business in interstate commerce, leasing personal property, and collecting debts.
  • New Appendix 29A provides state-by-state statutory citations on (1) the penalties imposed upon unqualified corporations that are doing business in the state and (2) the activities that may, or may not, constitute transacting intrastate business so as to require qualification.
  • New Appendix 29C includes state-by-state statutes and case law on LLCs doing business outside their state of formation, have also been updated.
  • Chapter 32: Leasing Outside the United States: Pickle, Loss Trapping, Subpart F, and Foreign Tax Credits has been updated with an extensive discussion of new concepts and statutory sections introduced by the Tax Cuts and Jobs Act (TCJA), including: Global Intangible Low Taxed Income (GILTI), Foreign-Derived Intangible Income (FDII), the base erosion and anti-abuse tax (the “BEAT”), the section 163(j) interest expense deduction limitation, and additional provisions impacting leasing transactions.

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Recommended Reading: Gary Brown’s Article in April’s PLI Chronicle

We regularly receive research requests related to proxy voting, which is why we were excited to see an article by Gary Brown on the “Background of Proxy Requirements” in this month’s issue of PLI Chronicle: Insights and Perspectives for the Legal Community.**

The article serves as an excellent primer on proxy voting requirements for shareholders in US corporations.  Brown, a partner at Nelson Mullins Riley & Scarborough LLP, regularly represents boards of directors and special committees of boards in matters involving SEC and Department of Justice investigations, activist shareholders, and strategic decisions. He is also part of PLI’s faculty and the author of several PLI Press publications including the recently published handbook Master the Proxy Statement.

**Articles published in the PLI Chronicle are available for any and everyone. Check out this month’s issue: PLI Chronicle: April 2021.