Category Archives: Corporate & Securities

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

Directors’ and Officers’ Liability provides a cutting edge, straightforward explanation of the obligations of directors and officers of public 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. This treatise for corporate counsel, private practitioners, and for directors and officers themselves guides readers through the essentials of the current law, recent developments, and emerging issues of directors’ and officers’ liability.  This title covers the sources of law governing the duties of directors and officers; the key facets of board committees; the duties of directors and officers under state corporate law and federal and state securities laws; private civil actions and public enforcement; exculpation, indemnity, and insurance; cybersecurity; contested mergers and acquisitions; Securities Act suits filed in state court; special issues in pharma and biotech; and more.

The highlights for the latest release for Directors’ and Officers’ Liability  include:

  • Emerging Issues: A Revival of Caremark Claims. Two recent decisions, one issued by the Delaware Supreme Court in June 2019 and another issued by the Delaware Court of Chancery in October 2019, herald what might be a new era of shareholders asserting Caremark claims, breach of the duty of loyalty by a failure of oversight, and those claims surviving motions to dismiss. See new section 8:7 and section 3:3.14 for a review of Caremark and analysis of Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation.
  • Federal Forum Exclusive Venue Provisions for Securities Act Claims. In Sciabacucchi v. Salzberg, the Delaware Court of Chancery held that company charter provisions stating that federal courts shall be the exclusive forum for Securities Act class action claims are invalid. See new section 1:4.2 for a history and analysis of jurisdiction over securities class actions under the PSLRA, SLUSA, and the latest Delaware cases.

This essential treatise is available on PLI PLUS.  If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Initial Public Offerings: A Practical Guide to Going Public (Second Edition)

Providing expert guidance on how to create a winning IPO, Initial Public Offerings: A Practical Guide to Going Public (Second Edition), is packed with best practices, planning tips, checklists and sample documents to help implements its guidance.  Numerous developments—originating from the SEC, FINRA, Congress, and the private sector—continue to shape the IPO landscape. Completely revised and expanded, this latest release (release #7) addresses key changes in legal requirements and market practices of critical interest to IPO companies, lawyers, and market professionals alike.

The latest release for Initial Public Offerings updates many chapters, some of which include:

Among the new developments covered in this release are:

  • Updated IPO market statistics and outlook, including IPO company metrics (see §§ 1:5 and 21:2 to 21:6, Figures 1-3 to 1-8, and Appendix 20C).
  • Pre-IPO fundraising, including updated discussion of initial coin offerings (see § 2:8.1[I]) and updated market statistics on the use of various other financing techniques (see § 2:8).
  • ­Equity compensation, including updated market data on the terms and size of stock incentive plans (see § 2:6.3[B]) and employee stock purchase plans (see § 4:7); and updated discussion of the tax deferral opportunity presented by section 83(i) of the Internal Revenue Code (see§ 8:4.4).
  • Updated discussion of estate planning for pre-IPO company executives (see § 8:5).
  • EGC considerations, including updated adoption rates (by company industry) for key items of relief available to EGCs (see Table 10-2).
  • Quiet period updates, including the SEC’s proposal to allow any company to engage in “test-the-waters” communications with eligible institutional investors in connection with any registered securities offering (see §§ 11:2.2[E] and 18:8.1) and new examples of quiet-period concerns in IPOs and direct listings (see § 11:3.3[B]).
  • Form S-1 preparation, including updated discussion of disclosure requirements and illustrative SEC comments (see § 13:2.1), updated prospectus data (see § 13:2.2), and a description of the SEC’s new streamlined procedures for obtaining confidential treatment of eligible portions of material contracts (see §§ 13:2.4 and 16:7).
  • SEC review, including a summary of the realignment of Corp Fin’s disclosure review program (see § 17:2.2) and updated statistics on the nature and timing of SEC comments on Form S-1 filings (see § 17:3.7, Table 17-3, and Table 17-4).
  • Public company reporting developments, including updated disclosure requirements and proposed changes to the tests for accelerated filer and large accelerated filer status (see §§ 22:2.1, 22:2.2, and 22:2.3), and recent and proposed rule amendments as part of the SEC staff’s ongoing disclosure effectiveness initiative (see § 22:2.5).

This essential treatise is available on PLI PLUS.  If you would like to order a print copy, please contact libraryrelations@pli.edu

Treatise Update: Friedman on Leases

Friedman on Leases (Sixth Edition) clarifies and analyzes the full range of lease provisions and conceivable landlord-tenant situations to give you unsurpassed practical instruction on how to negotiate and draft airtight agreements that protect your clients’ rights and minimize their liability exposure.

Friedman on Leases includes numerous case decisions with commentary and valuable sample lease clauses and agreements that help practitioners to: draft, negotiate, and amend every essential document involved in commercial leasing, modify lease provisions for the full variety of landlord-tenant arrangements, anticipate and resolve problematic transaction developments, and also avoid drafting errors, including omissions, ambiguities, and fatal terminology. 

The latest update to Friedman on Leases (Sixth Edition) continues to provide balanced coverage of tenant and landlord concerns and updates the treatise with the most current legal, regulatory, and compliance requirements and developments. Highlights of Release #8 include:

  • Chapter 2, The Parties. Updated to include situations where a tenant constitutes a partnership, consisting of two or more parties who are partners under applicable state law (see section 2:1.5).
  • Chapter 3, The Premises. Updated to include a New York Appellate Division holding that a tenant’s right to “use and enjoyment” is implied, especially if the space is leased for a specific expressed purpose (see
  • section 3:2.2).
  • Chapter 5, Rent. Provides a new sample “most favored nation” provision in an office lease (see section 5:7).
  • Chapter 7, Assignment, Subletting, and Mortgaging by Tenant. Updated to include a Nebraska Supreme Court case that reviewed whether taking possession and paying rent satisfy the statute of frauds so as to make the possessor liable on the lease as an assuming party (see section 7:5.1[C][1][a]).

This treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update – The Securities Law of Public Finance

This two-volume resource, cited by the SEC for its excellence in illuminating legal issues, clarifies and analyzes how federal securities laws and regulations apply, directly and indirectly, to securities issued by state and local governments.

The Securities Law of Public Finance is a valuable resource for bond lawyers, municipal officials, underwriters, broker-dealers, investment advisers, regulators, and anyone else involved in the business of financing the activities of state and local government.

The key updates to the Securities Law of Public Finance include:

  • New Chapter – Regulation of Municipal Broker-Dealers in Private Placements: New chapter 10B, by Paul S. Maco, deals with private placements, which developed as a form of transaction to avoid the registration requirements of section 5 of the Securities Act of 1933. Such transactions, while exempt from registration, are subject to the remaining provisiions of the Securities Act, including its civil liability and antifraud provisions as well as the antifraud provisions of section 10 of the Securities Exchange Act of 1934 and Rule 10b-5. The discussion provides a brief overview of the broad reach of federal securities law and the requirement for registration as well as antifraud proscriptions, the availability of class and transaction exemptions from registration but not antifraud provisions through private placements, and the application of the antifraud provisions and broker-dealer law to placement agents.
  • Lorenzo decision – Dissemination of New Issue Offering Documents: In March 2019, the Supreme Court held in Lorenzo v. Securities & Exchange Commision that a defendant who disseminates the material misstatement of another—and thus cannot be liable under the second subsection of Rule 10b-5 for “making” the statement—can nevertheless be liable under other provisions of the securities laws that proscribe “any device, scheme, or artifice to defraud.” The release discusses some possible implications for public finance, including the dissemination of preliminary and final official statements. See new § 6:4.2.
  • Duties of underwriters’ counsel – Underwriters’ Due Diligence on New Issues of Municipal Securities: In addition to being familiar with applicable law and codes of ethics, lawyers expecting to serve as underwriters’ counsel should become familiar with the SIFMA Model Memorandum to Underwriter’s Counsel and the NABL Model Letter of Underwriters’ Counsel. There are a number of differences in approach between the two model documents that underwriters’ counsel may need to address early in its representation of the underwriters to avoid misunderstanding. See new § 7:5.1[D][2].
  • Continuing disclosure—duty to correct and duty to update – Continuing Disclosure: A duty to correct arises when a statement intended for the investing market, such as an official statement, contains an incorrect statement that, at the time the statement was made, the issuer believed to be true, but subsequently discovered new information reveals that the statement made was incorrect and material. The duty to update applies where a correct statement is said to become inaccurate after it is made because of new circumstances. New material in the release elaborated upon the distinction, discussing the differing approaches among the circuits in defining and imposing duties. See § 9:3.2.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

New Edition! Health Care M&A Answer Book

M&A activity in the health care industry is at its highest level since the 1980s. Health Care Mergers and Acquisitions Answer Book (2019 Edition) provides the reader with a roadmap to this booming sector, offering practical advice on how to address the various industry-specific issues arising in health care acquisitions. Its broad coverage, presented in Q&A format, is organized into four parts — structuring transactions, due diligence, documentation, and special topics.

Health Care Mergers and Acquisitions Answer Book analyzes recent health care transactions and provides practice tips on how to avoid the various pitfalls that may be encountered while working on health care transactions. It covers dealmaking involving pharmaceutical and biotech companies, hospitals, health insurers and private equity and financial services firms investing in the health care sector.

In addition to transactions involving outright acquisitions of health care companies, Health Care Mergers and Acquisitions Answer Book reviews alternative structures used in health care M&A transactions, such as joint ventures, strategic alliances, product and portfolio acquisitions, option transactions, and licensing and collaboration agreements.

This essential answer book is available on PLI PLUS. If you would like to purchase a print copy, please email libraryrelations@pli.edu.

New Edition! Master the 8-K

Master the 8-K is one of the publications in PLI’s SEC Compliance and Disclosure Series. This clear, concise, and comprehensive guide to filing the SEC’s Form 8-K is a tool that every securities lawyer or person who is responsible for a company’s periodic SEC reports will want to have close at hand. With sample disclosure language and detailed appendices containing the Form 8-K itself, key regulations, SEC compliance and disclosure interpretations (C&DIs), this title is a stand-alone resource for anyone seeking to master the 8-K.

In this easy-to-use book, each Form 8-K Item is separately analyzed and begins with “highlights” that, at a glance, alert you to critical matters about that Item, such as whether the “safe harbor” applies, whether there are exhibit requirements, whether there are possible update requirements, and whether there are critical definitions to consider. Each section then provides step-by-step instructions and expert practice tips.

This updated new edition of Master the 8-K provides current guidance primarily designed to address the SEC’s 2018 and 2019 rule changes that were intended to modernize and simplify disclosure requirements, such as:

  • Permitting omission of schedules and attachments from many exhibits;
  • Streamlining the rules for incorporation by reference; and
  • An innovative new approach to confidential treatment, which allows companies to redact confidential information from exhibits without the need to submit formal confidential treatment requests.

This treatise is available on PLI PLUS. If you would like to purchase a print copy, please email libraryrelations@pli.edu.

Blockchain Resources on PLI PLUS

Blockchain and distributed ledger technology have been dramatically transforming all industries, including the legal profession. The implementation of “smart contracts” is just one way blockchain technology directly affects lawyers and law firms.

The following are some of the many key blockchain-related topics that lawyers need to understand in order to effectively represent their clients:

  • The evolving landscape of token and ICO regulation
  • The expansion of blockchain technology and smart contracts
  • Legislative and regulatory initiatives affecting blockchain technology and digital assets
  • Intellectual property and blockchain
  • The mechanics of cross-border payments through correspondent banks and payment systems
  • Challenges and solutions for GDPR compliance

Below, we’ve highlighted some of our blockchain articles that may be of particular interest:

Technology Transactions Update

Technology Transactions: A Practical Guide to Drafting and Negotiating Commercial Agreements is an indispensable guide to drafting, reviewing, and negotiating technology transaction agreements. Editor Mark G. Malven, with more than twenty years of experience handling thousands of tech transactions and representing customers as well as technology vendors, combines his legal expertise and that of eleven other contributors from the legal and business worlds to deliver streamlined, practical, easy-to-access guidance.

This release presents the latest developments in the field, affecting most of the chapters in the book. Among the changes are:

  • Chapter 10, Information Security Agreements: This new chapter covers the drafting, review, and negotiation of information security (“InfoSec”) agreements. InfoSec agreements have become more prevalent in service provider relationships as a result of the explosion of electronic data coupled with increasing legal and regulatory risk associated with privacy breaches. InfoSec agreements go beyond the basic limitations on use and disclosure of confidential information covered by NDAs, for example, by imposing specific obligations for each information type covered, imposing obligations as to how the recipient must safeguard information, and allowing for audits of the recipient’s treatment of information. A sample InfoSec agreement is included.
  • Chapter 21, Enforcement of Online Terms and Conditions: This new chapter provides an introduction to enforceability considerations when drafting online terms and conditions, including browsewrap, clickwrap, and in-box contracting. It includes discussion of arbitration clauses in such contexts.
  • Chapter 17, Privacy: HIPAA and Business Associate Agreements: New section 17:6, Enforcement Actions, discusses recent enforcement activity by the U.S. Department of Health and Human Services Office for Civil Rights (OCR), including an action against the University of Texas MD Anderson Cancer Center for violations arising from the loss of a laptop computer and two thumb drives, each of which stored unencrypted PHI, resulting in the OCR’s imposition of $4.3 million in penalties, and another action against Anthem, Inc. pertaining to the unauthorized disclosure of nearly 80 million unencrypted patient records, resulting in a resulting in a resolution agreement with a settlement of $16 million, the highest settlement amount to date associated with an OCR-enforced unauthorized disclosure matter.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Financial Institutions Answer Book—2019 Edition just published!

Financial Institutions Answer Book provides a comprehensive overview of the complex federal requirements regulating financial institutions in the United States.

Every aspect of a financial institution’s life cycle is covered, from understanding the differences in regulation based on what type of charter is chosen, through ongoing capital and deposit activities requirements and major changes in corporate control, to the cessation of entity activity through merger, acquisition, or entity failure.

Financial Institutions Answer Book is a practical Q&A reference covering a range of topics related to law, governance, and compliance, including:
• Creation of branch offices
• Deposit Activity
• Corporate governance
• Executive compensation
• Deposit insurance requirements
• Insider and affiliate transactions
• Anti-money laundering and U.S. trade sanctions
• Examination and audit
• Privacy and data security

Reflecting the increased federal concern with fraud, money laundering and protecting the federal taxpayer from bank defaults, individual chapters are devoted to describing in detail the federal enforcement agencies and their powers, anti-money laundering and other fraud issues, the required examinations and audit process, and recent regulatory approaches to problem banks and failure.

This Answer Book is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Updated for 2019! Corporate Political Activities Deskbook (2019 Edition)

Corporate Political Activities Deskbook provides a thorough grounding in the law of federal and state campaign finance, pay-to-play, lobbying, and gift compliance. It serves as a practical manual for attorneys who advise corporations about involvement in the political process.

Among the updates in this edition the 2019 Edition are the following:

This Deskbook is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.