Category Archives: Corporate & Securities

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:

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.

New Edition! International Corporate Practice

International Corporate Practice: A Practitioner’s Guide to Global Success provides guidance on building a comprehensive global legal department, including advice on structuring, staffing, and budgeting, as well as the use of foreign legal consultants and outsourcing.

Written by some of the nation’s leading corporate attorneys and edited by Carole Basri, this release for International Corporate Practice expands and updates the title with new material designed to enable lawyers to operate efficiently on the global stage. Topics discussed include the following:

  • International Attorney-Client Privilege: Chapter 2 provides updates on the privilege in the United States(Section 2:2.1); Germany, with special reference to the Volkswagen/Audi diesel scandal(Section 2:2.2[B]); Portugal, with respect to the Anti-Money Laundering and Terrorism Prevention Law of 2017 (Section 2:2.2[F]); and Brazil(Section2:2.4[B]).
  • International Internal Investigations: Chapter 9 adds new material on the European Union’s General Data Protection Regulation (GDPR), which replaced the European Data Protection Directive, particularly with respect to the requirement of adequate justification for transfers of personal data to countries outside the European Economic Area (Section 9:3.3[B]). Also covered are legal privilege issues in internal investigations in Germany and the United Kingdom (Section 9:4).
  • International Business Arbitration: Chapter 11 clarifies the difference between the “legal seat” of the arbitration and the “venue” (physical location) of the arbitration (Section 11.2.1[C], Section 11:5); addresses the use of temporary, emergency arbitrators (Section 11:2.2.3[A]); and explains the potential roles of the “court of secondary jurisdiction” and the “court of primary jurisdiction” in the enforcement or vacatur of an arbitration award (Section 11:10.2).
  • International Antibribery Laws: Chapter 18 highlights a variety of enforcement developments, including prosecutions under the Foreign Corrupt Practices Act of foreign subsidiaries of U.S. corporations, and significantly increased penalties and fines (Section 18:4.1), as well as with multilateral efforts under the OECD Convention (Section 18:4.2).

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

Treatise Update: Derivatives Deskbook

Derivatives Deskbook: Close-Out Netting, Risk Mitigation, Litigation (Second Edition) is a comprehensive resource geared to all users of swap agreements and derivatives, from financial institutions to corporate end users. Derivatives Deskbook defines the key terminology and identifies the major players; discusses the full range of documentation; and highlights techniques and best practices that can significantly minimize risks. It examines the termination events and events of default that can trigger the early termination of OTC derivative transactions; the complex process of calculating the early termination amounts due the parties under the transactions; and how these transactions can be terminated in ways that minimize the damage to the parties and to the global financial system.

Derivatives Deskbook further examines the impact of U.S. bankruptcy interrelationship on the termination and close-out netting process and what steps must be taken to comply with a counterparty that is or may become bankrupt. It also serves as a comprehensive resource to key litigation involving derivative transactions in major jurisdictions around the world.

Highlights of this Release #3 include:

  • Chapter 3: Collateral and Security Arrangements; New sections explore the new variation margin regulations adopted by regulators in a variety of major jurisdictions in reaction to the financial crisis to govern the posting of collateral in OTC derivative transactions. The regulations have been enacted by applicable regulators in the European Union, the United States, Switzerland, Canada, and Japan.
  • Chapter 6: Risk Mitigation and Close-out Netting; Revised section 6:6, Collateral Arrangements, examines the need, in large financings with multiple banks and counterparties, for intercreditor agreements to sort through the rights of the various creditors to the collateral securing their obligations. Typically, in an intercreditor agreement, a swap counterparty would agree to abstain from declaring certain events so that a minor breach with one swap counterparty under a swap agreement for dealers and those costs will likely be passed on to counterparties.
  • Chapter 8: Best Practices Recommendations; Revised section 8:4.1, Credit Support Annex, explains that the restrictions on hypothecation in the initial margin regulations are expected to increase the costs of swap agreements for dealers and those cost will likely be passed on to counterparties.

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

Treatise Update: Directors’ and Officers’ Liability

 

Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition) provides a cutting-edge, straightforward explanation of the obligations of directors and officers of public companies, the penalties they face if they fail to meet their obligations, and the protections available to them under the law or by agreement. Authors Barry Kaplan and Gregory Watts provide solid coverage of topics of utmost importance to directors and officers—the sources of law governing the duties of directors and officers; the key facets of board committees; D&O duties under state corporate law and federal and state securities laws; private civil actions and public enforcement; exculpations, indemnity, and insurance; cybersecurity; contested mergers and acquisitions; Securities Act suits filed in state court; special issues in pharma and biotech; and more.

Of particular note, the chapter on Emerging Issues provides readers with coverage of the latest new developments in the area. Regularly updated, this chapter brings readers’ attention to the latest on dynamic issues like D&O liability related to data breaches, sexual harassment, and climate change.

Director’ and Officers’ Liability is a vital resource for corporate and outside counsel and private practitioners—particularly those whose expertise and specialized training may not include corporate governance and securities.

Highlights of Release #2 include:

  • Emerging Issues: Chapter 8 has been extensively updated to bring you timely discussion of emerging areas of potential liability for directors and officers such as cryptocurrency and initial coin offerings, sexual harassment, and climate change.
  • Board Membership Policies: Gender and ethnic diversity is increasingly a criterion for membership on the board of a public company, and in September 2018, California became the first state to require public companies to have female directors on their boards.

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