Category Archives: Corporate & Securities

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:

Lobby Disclosure Act: Chapter 6, Federal Lobbying and Gift Laws, reflects a new disclosure requirement, effective January 3, 2019, for filers under the LDA.
Federal limits on campaign contributions: Revised contribution limits for both individuals and PACs under the Bipartisan Campaign Reform Act of 2002 are presented in Chapter 2, Political Action Committees.
State laws on corporate contributions and lobbying: Several states have recently changed their approach to corporate contributions, and a chart in Chapter 4, State Laws, Rules, and Policies Impacting Corporate Government Relations, provides a quick reference for determining which states prohibit corporate-funded campaign contributions, which impose limits, and which have no prohibitions or limits on corporate contributions. In addition, the detailed survey of federal and state lobbying laws and survey of state contribution laws in chapter 4 has been updated.
Pay-to-play: Chapter 5, Pay-to-Play Rules, provides up-to-date information on the state and local jurisdictions that have pay-to-play rules.
Foreign agents registration: Exemptions to FARA have been revised and are reflected in Chapter 7, The Foreign Agents Registration Act (FARA).

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

New Title! Master the 10-K and 10-Q

The second in our SEC Compliance & Disclosure Series, Master the 10-K and 10-Q is your guide to preparing and filing the SEC’s annual Form 10-K and quarterly Form 10-Q, as required by the Exchange Act of 1934. Like its counterpart Master the 8-K, this step-by-step guide draws on the expertise of author Gary M. Brown to deliver clear coverage that highlights areas in which your company can implement or refine its disclosure controls and procedures in order to ensure accurate and timely filings. Key topics include:

Filing procedures and deadlines
Signature and certification requirements
Filing extensions
The impact of late filings
The “furnished” versus “filed” distinction
Technical aspects of incorporation by reference
Special rules for asset-backed issuers
Exhibit requirements

This standalone guide provides detailed analysis of both forms, as well as their related potential disclosure items, and is enhanced with compliance practice pointers and more than a dozen appendices containing related forms, regulations, and SEC guidance – everything you need to Master the 10-K and 10-Q.

This title 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 is widely regarded as the leading authority on commercial real estate leasing, recognized for its unsurpassed comprehensive and practical instruction, as well as its extensive and balanced coverage of the full range of tenant and landlord concerns. The updated Friedman on Leases, Sixth Edition continues to deliver not only the foundational knowledge required by novice practitioners, but also analysis of and insight into the most current and relevant developments facing seasoned practitioners in the commercial real estate field.

Highlights of this Release #6 include the following:

Sample Provisions; Determination of Cancellation Fee. New sample provision to determine the Cancellation Fee. (See Chapter 22. Option to Cancel Lease section 22:5.5)

Case Developments. Includes the latest developments in the following areas:

Interruption of Services. If a tenant can establish that the interruption of services has caused a constructive eviction of tenant, most courts have allowed tenants to plead constructive eviction as a defense to a non-payment of rent action (see Chapter 12. Landlord’s Services section 12:2);

Tenant’s Retention of Possession After End of Lease: Liability for Damages. A tenant may be found to have retained constructive possession of the premises, giving rise to a holdover tenancy, by failing to remove fixtures or improvements as required to restore the premises (see Chapter 18. Termination of Lease section 18:2);

Effect of Bankruptcy on Landlord’s Remedies for Default; Claims for Damages. In finding that the damages cap in section 502(b)(6) does not apply to damages for waste, trespass, or nuisance, the Ninth Circuit Court of Appeals proposed a test to resolve the question of application of the cap, which test has been adapted by some jurisdictions (see Chapter 20. Tenant Bankruptcy section 20:6.3); and

Mechanics’ Lien. The New York Court of Appeals held that consent for purposes of the Lien Law can be inferred from lease terms, and no express consent or privity between landlord and contractor is required (see Chapter 23. Alterations and Improvements by Tenant section 23:9).

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

Treatise Update: Hedge Fund Regulation

Covering on the of most dynamic and rapidly changing sectors of the asset management industry, Hedge Fund Regulation (Second Edition) is designed to provide comprehensive understanding of hedge funds. It provides a single source that examines all aspects of these innovative investment vehicles and addresses current regulatory concerns that impact hedge funds, their managers and investors. Hedge Fund Regulation is updated regularly by its author to keep current with regulatory and enforcement developments. The latest release addresses current issues in structuring, launching, and operating a hedge fund.

Highlights of Release #13 include:
• Chapter 9, Privacy Regulations. Revises discussion on the management of cybersecurity risks by commodity pool operators and commodity trading advisors to reflect recent updated guidance from the National Futures Association. See section 9:6.2.
• Chapter 14, Books and Records. Discussion of recent SEC Risk Alert highlighting practices that can assist an investment adviser in meeting its obligations under the SEC’s Books and Records Rule and Compliance Rule with respect to the increasing use of electronic communications. See section 14:2.
• Chapter 18, Commodity Pool Operators and Commodity Trading Advisers. New section 18:5.2, Internal Controls System, covering the NFA requirement for commodity pool operators to implement an internal controls system designed to protect operators to implement an internal controls system designed to protect customer funds, maintain accurate financial books and records, and assure compliance with NFA and CFTC requirements.
• Chapter 23, Broker-Dealer Status and Relationships. Revised section 23:4, Best Execution, to include discussion of recently adopted revisions to Exchange Act Rules 600 and 606 regarding broker-dealer disclosure obligations on their handling of institutional orders and its implications for investment adviser best execution analysis.
• Chapter 24, Disclosures of Market Participation. Revisions to discussion of Hart-Scott-Rodino Act (HSR Act) compliance, including updated HSR Act thresholds. See section 24:7.

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

Practice Area Webinars – Law School Summer Schedule

Sign up today for PLI’s monthly webinar series on PLI PLUS for law school librarians. Each monthly webinar will cover a different practice area; while also demonstrating the overall functionality of the research database.

These webinars are meant to be a convenient way to learn more about PLI content in an area of the law. Each webinar will start with an overview of relevant PLI resources to be followed by research scenarios. Attendees are welcome to submit their own research questions and scenarios up to one week prior to the webinar.

If you are interested in participating, please send an RSVP to PLUS@pli.edu.

Upcoming webinars:

MAY: Wednesday, May 29, 2019, 2:00pm ET: Immigration Law

JUNE: Wednesday, June 26, 2019, 2:00pm ET: Real Estate Law

JULY: Wednesday, July 31, 2019, 2:00pm ET: Tax Law

AUGUST: Wednesday, August 28, 2019, 2:00pm ET Corporate Law

Employment Law Yearbook 2019 Edition

Each edition of Employment Law Yearbook provides a comprehensive overview of the most important developments in employment law over the past year, including critical case decisions, legislative changes, government agency actions, and other events of interest to employers, employment and HR professionals, corporate attorneys, and employee advocates. Employment Law Yearbook 2019 details and analyzes recent legal developments, including:

California test for determining independent contractor status: The California Supreme Court has adopted a new test—the “ABC test”—to determine whether workers are to be classified as employees or independent contractors. Under this test, articulated in Dynamex Operations West v. Superior Court, workers are presumptively considered employees, but the employer may demonstrate a worker is more appropriately classified as an independent contractor if it proves all of several articulated factors. Chapter 1, Wage-and-Hour Issues, section 1:2.3[A], Independent Contractors.
Transgender discrimination: The Sixth Circuit, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., became the first federal appellate court to hold that discrimination based on an employee’s transgender status is sex discrimination under Title VII. A group of sixteen states has asked the Supreme Court to overturn the decision, but the Court has not yet decided whether to take up the case. Chapter 3, Gender and Sexual Orientation Discrimination and Sexual Harassment, section 3:2.2, Sexual Orientation and Gender Stereotyping.
Noncompete agreements: In August 2018, Massachusetts enacted a law that places limitations on noncompete agreements entered into on or after October 1, 2018. The law also adopts the Uniform Trade Secrets Act. Chapter 9, Guarding Trade Secrets, Section 9:3.1, Background.
New standard for evaluating facially neutral policies: In Boeing Co., the NLRB overturned the Lutheran Heritage “reasonably construe” standard and adopted a new balancing standard for evaluating facially neutral policies that potentially interfere with the exercise of section 7 rights. The NLRB delineated three categories of work rules based on the new standard. Chapter 11, Employee Blogging and Social Media, section 11:4.1[B][1], The New Standard of Reasonableness.

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

Social Media and the Law

Social Media and the Law examines the range of legal issues that can arise from the personal and professional use of social media, including concerns related to privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, defamation, advertising, and regulated industries. Relevant legislation, cases, trends, and industry responses are included in the discussions.

The most recent update covers many developments that occurred in this field in the last year. For example:

In September 2018, Tesla CEO Elon Musk settled a dispute with the SEC regarding his allegedly misleading tweet about taking Tesla private at $420 per share. The settlement included Musk paying $40 million in penalties and stepping down as Chairman of Tesla (see Chapter 1. The Social Media Phenomenon and Chapter 7. Compliance Considerations for Regulated Industries).
Recent studies demonstrate increasing use of AI, big data, and data analytics by employers to source and screen candidates (see Chapter 6. Employment and Workplace Issues).
In June 2018, the NLRB General Counsel’s Office issued a new guidance memorandum on employee handbook rules, following the NLRB’s Boeing decision. In it, the General Counsel detailed the types of rules that might be implicated under Boeing (see Chapter 6. Employment and Workplace Issues).
In Kumho Tires, the NLRB found an employer’s social media policy lawful under Boeing where it was in place to maintain the confidentiality of the company’s trade secrets and private or confidential information (see Chapter 6. Employment and Workplace Issues).
In In re CSGOLotto, Inc., the FTC for the first time brought an action against individual influencers for failure to disclose their connections with the advertiser (see Chapter 8 Advertising).

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

Securities Law and Practice Deskbook – Updated!

Securities Law and Practice Deskbook remains your definitive one-volume guide to the Securities Act of 1933 (“Securities Act”), the Securities Exchange Act of 1934 (“Exchange Act”), relevant rules and regulations, and key case law. The book is intended to serve as an initiation into the U.S. federal securities laws and the way that securities lawyers approach problems. It also is meant to serve more experienced practitioners as a general review and first resource when approaching an unfamiliar area of securities law.

Release #13 brings you up to date on the latest important developments in securities law. Highlights include:

• Chapter 5, Reach of Securities Act Regulation. Cryptocurrencies and “ICOs” (initial coin offerings) continue to be the rage at the U.S. Securities and Exchange Commission. The Commission brings a first-of-its-kind enforcement action against the operator of an unregistered token “exchange.” Significant fines and penalties continue to be imposed with respect to unregistered token offerings. Also , the Commission instituted and settled enforcement actions against celebrity promoters of ICOs for violations of the Securities Act’s “anti-touting” provisions. Finally, the Commission also pursues enforcement action against the 21st-century example of “free stock” “airdropping” tokens in blockchain scenarios.

• Chapter 6, Securities Act Registration Exemptions. The number of PIPE offerings was essentially flat during 2018, but offering amounts were up 44%, to $31 billion. In response to a congressional requirement, the Commission made Regulation A+ available to reporting companies.

• Chapter 8, Liability for Securities Act Violations. Beware the “tout sheet.” Emphasizing Commission enforcement action under Securities Act section 17(b), that section gets applied in connection with the Commission’s focus on ICOs as the Commission brings “anti-touting” enforcement actions against professional boxer Floyd Mayweather Jr. and music producer Khaled Khaled, known as DJ Khaled, for failing to disclose payments they received for promoting investments in ICOs.

• Chapter 9, Registration and Periodic Reporting Under the Exchange Act. An enforcement action against Tesla and Elon Musk underscores the need to proceed with caution when using social media to satisfy the company’s disclosure obligations. The Commission continues its focus on non-GAAP financial measures with first-of-its-kind enforcement action for violation of the “equal or greater prominence” requirement.

• Chapter 10, Regulation of Proxy Solicitations. After lengthy delay, the Commission adopts the hedging disclosure requirements that were required by section 955 of the Dodd-Frank Act. The fate of several Dodd-Frank rules (e.g., pay for performance and “clawbacks”), continues to be unclear. New Staff Legal Bulletins in the shareholder proposal area urge companies to submit board analyses when seeking to exclude shareholder proposals under the “ordinary business” and “economic relevance” grounds for exclusion.

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