Category Archives: Corporate & Securities

Updated Treatise! Friedman on Leases (Sixth Edition)

Friedman on Leases is widely regarded as the leading authority on commercial real estate leasing, recognized for its extensive and balanced coverage of tenant and landlord concerns. This fifth release of 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.

The author, Andrew R. Berman, is Senior Vice-President and Associate General Counsel with Savills Studley in New York. He is a former real estate partner at Orrick Herrington, Akerman, and Sidley Austin, and is a law professor at New York Law School, where he founded the Center for Real Estate Studies and the Institute for In-House Counsel. Mr. Berman’s expertise in both practice and academia enable him to provide the broad perspective and insight that real estate professionals need in this rigorous and dynamic field.

Highlights of Release #5 include the following:

Fiduciary Capacity; Authority. Updated discussion reviews how Illinois, New York, and Pennsylvania approach a landlord-trustee’s power to lease in the absence of a special power. (See section 2:1.2.)
Taxes, Assessments. Updated discussion covers when a lease requires the tenant to pay the landlord additional rent based on future increases in real estate taxes. (See section 5:2.1.)
Amount of Percentage Rent. Updated with new examples that illustrate the different approaches to determine percentage rent, as well as a new sample percentage rent provision with percentages that vary and a cap. (See section 6:2.)
Holdover Tenant Versus Foreclosing Mortgagee. Updated to include cases that illustrate the uncertainty over whether an attornment provision affirms that privity of estate exists between the tenant and the purchaser, or whether it extends liability by way of privity of contract. (See section 8:3.)

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

Treatise Update: Mutual Funds and Exchange Traded Funds Regulation (Third Edition)

Mutual Funds and Exchange Traded Funds Regulation offers definitive and up-to-date legal and compliance information. This two-volume treatise is filled with practical advice on complex issues involving valuation, distribution through intermediaries, structuring a 12b-1 plan, conducting a compliance review, and guarding against conflicts of interest. Mutual Funds and Exchange Traded Funds Regulation is an essential compliance tool for securities attorneys, mutual fund practitioners, compliance personnel, and risk officers in fund complexes, and a valuable reference for business professionals and investors.

The latest update to Mutual Funds and Exchange Traded Funds Regulation, Third Edition expands the treatise to cover developments affecting mutual funds and exchange traded funds. Highlights of this release include:

Chapter 5, Shareholder Reports. New discussion covers the June 2018 changes to Form N-1A adopted by the SEC regarding the reporting and disclosure of liquidity information by mutual funds in fund shareholder reports (see section 5:2.2[D]); reviews the SEC’s June 2018 adoption of new Rule 30e-3 under the Investment Company Act, which gives mutual funds a “notice and access” option for delivering shareholder reports (see section 5:3.2[B]); and examines Form N-PORT, which is the new form in which funds (except for money market funds) are required to provide additional and more frequent reports of portfolio holdings, risk metrics, and other data monthly (see section 5:4).
Chapter 13A, Liquidity Risk Management Programs and Swing Pricing. New discussion covers the SEC’s statement in the Investment Company Liquidity Disclosure Release that “funds that believe they would have to maintain dual liquidity classification programs” may apply for exemptive relief from the liquidity classification requirements of Rule 22e-4 if they believe their existing liquidity risk management programs would “effectively accomplish the Commission’s stated goals.” (See section 13A:4.7.)
Chapter 16, Purchase and Sales of Mutual Fund Shares. Updated discussion reviews FASB Accounting Standards Codification 820 (ASC 820) (previously FAS 157), including its definition of and framework for measuring fair value (see section 16:3.2); covers the amendments to Rule 22c-1 to permit certain registered open-end investment companies (not money market funds or ETFs) employing so-called “swing pricing” (see section 16:3.3); and examines Rule 22e-4 under the Investment Company Act, which requires open-end investment companies, including ETFs (but not money market funds), to adopt a liquidity risk management program that satisfies certain minimum requirements (see section 16:4.1).

This treatise can be found on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.

New Treatise Edition: Variable Annuities and Other Insurance Investment Products

The growth of variable insurance products has been dramatic and reflects broader trends that have occurred in financial services over the past few decades. Variable products are a clear example of how insurance companies have expanded their product base to more directly link insurance and investment. In recent years, other insurance investment products, such as SEC-registered fixed annuities, have grown in importance. PLI helps you keep pace with these developments.

Edited by Clifford E. Kirsch, noted authority in the area of securities regulation and compliance, and with valuable contributions from more than two dozen other distinguished practitioners in the field, PLI Press’s new Third Edition of Variable Annuities and Other Insurance Investment Products (formerly Variable Annuities & Variable Life Insurance Regulation) provides attorneys, compliance personnel, and business professionals with the most current legal, regulatory, and procedural guidance regarding variable annuities and other insurance investment products.

The comprehensive coverage in Variable Annuities and Other Insurance Products is grouped broadly into two sections. Part I focuses on variable insurance products, which are subject to a complex regulatory framework that includes the federal securities laws, state insurance laws, ERISA, and tax. Part II covers other types of insurance investment products such as insurance-linked securities.

This essential treatise can be found on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.

Treatise Update! Mergers, Acquisitions and Tender Offers

Mergers, Acquisitions and Tender Offers: Law and Strategies is a five-volume guide to domestic and cross-border mergers, acquisitions, and tender offers, covering a range of aspects including corporate, securities federal income tax, antitrust, pre-merger notification, accounting, and valuation. The book focuses on private company and public company acquisitions negotiated and hostile transactions. The title takes a practical approach to these topics, and many of the chapters have appendices containing deal documents that illustrate the practical application of the particular topic.

Highlights of Release #16 include:

New section 1:7.38, A Deal Lawyer’s “Second (2018) Take” on the Impact on M&A of the Trump Administration’s Potential Changes to Laws and Regulations, explains how on balance these changes may have a positive impact on M&A. However, the 100% bonus depreciation and limit on the deductibility of interest go in opposite directions, with 100% depreciation being an incentive for taxable asset acquisitions, but with the limit on the deductibility of interest being a disincentive for financing an acquisition with debt.
New section 3:3.2, Due Diligence: Cryptocurrencies, exploring the use of cryptocurrencies in any merger or acquisition. The parties will want to know if the counterparty has used or has any exposure to cryptocurrencies, and this section provides an introduction to these products.
New section 9:1.2, Introduction to the Domestic Provisions of the 2017 Tax Cuts and Jobs Act (TCAJA), which examines sections of the TCAJA impacting domestic M&A transactions, including the section 199A deduction for certain active income of pass-through entities; the individual rate structure for dividends and capital; the combined individual and corporate rates; the benefit to C corporation shareholders from the deferral of the shareholder tax and the anti-deferral provisions; and the limitation on the deduction for business interest.
New section 12:14.14, The “Passing on of Efficiencies” Requirement Through the lens of Hershey—Pinnacle and UPMC—Pinnacle, which discusses how, in advancing any efficiencies defense, the merging parties must be cognizant of a passing-on requirement (which, in essence, requires that the benefit from a cognizable efficiency be passed on (at least to an extent) to consumers). The purpose of this section is to analyze the wisdom of this passing-on requirement by considering under standard microeconomic principles what is likely to happen to price and output in the several markets.
New summary updates to Volume 3, discussing some of the changes that will be made in the next update to chapters 14 through 28, reflecting developments after July 31, 2018.

This essential treatise is available on PLI PLUS, our online research database. If you’d like to purchase a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Investment Adviser Regulation

Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law (Third Edition) guides practitioners through the maze of statutory, SEC, and state standards impacting investment advisers, as well as provides advice on the practical aspects of building a practice. This book clarifies key status issues that determine registration and disclosure duties as well as liability exposure.

The most recent update to this treatise expands its coverage of the rules and regulations affecting investment advisers. Highlights of this release include:

Chapter 8A, Efforts to Impose a Uniform Standard of Care on Broker-Dealers and Advisers. Updated to include the March 2018 action by the Fifth Circuit Court of Appeals to vacate the Department of Labor fiduciary rule amendments (see sections 8A:7.1 and 8A:8.1).
Chapter 11, Custody and Protection of Customer Accounts. Updated with a new discussion of whether client relationships for which an adviser is providing exclusively non-investment advisory services are within the scope of the Custody Rule (see new section 11:4:2[A][2]).
Chapter 46, Hedge Funds. Extensively revised chapter, including updated coverage of raising capital (see section 46:4); avoiding investment company status (see section 46:5); hedge fund managers (see section 46:6); disclosure of market participation (see section 46:13); and systemic risk regulation (see section 46:15).
Chapter 49C, Offering Cross-Border Advisory and Broker-Dealer Services to Non-U.S. Clients. Extensively updated chapter, including new discussion of key considerations in offerings to European clients under MiFID (see section 49C:4.3).

This treatise is available on PLI PLUS, our online research database. If you’d like to purchase a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

New Journal! PLI Current: White Collar Practice Journal

We are pleased to announce the newest journal from PLI Press, PLI Current: White Collar Practice Journal. This journal is the first in a series of new journals from PLI Press dedicated to coverage of key practice areas. It will be published at least twice each year and features original articles written by the leading experts in this field—practicing attorneys, judges, scholars, and others, including PLI Press’s highly acclaimed authors and CLE faculty members—dedicated to bringing you expert commentary and analysis of developments in financial crimes and related issues.

Articles in this premier issue include:

An Assessment of the Impact of the Foreign Corrupt Practices Act over Its Forty-Year History, Don Zarin (Holland & Knight LLP)
Challenging the DOJ’s Accomplice Liability Strategy for Reaching Foreign Conduct in International Bribery Schemes, Colin R. Jennings, Steven A. Delchin (Squire Patton Boggs LLP)
Private Ownership and Public Trust: Combating Money Laundering by Requiring Beneficial Owners to Disclose Their Interests, Nicole Healy (Ropers Majeski Kohn & Bentley PC)
Cooperate and Risk Waiver? Balancing the Benefits of Government Cooperation with the Risks of Privilege Waiver in Conducting Internal Investigations, Melinda Haag, Rachel Muoio (Orrick, Herrington, Sutcliffe LLP)
Double Whammy: How the Landscape of Insider Trading Law Has Been Altered by the Second Circuit’s Martoma Decision and Prosecutors’ Creative Tactics Since Newman, Eugene Ingoglia, Tobias Fischer (Allen & Overy LLP)

This journal is available on PLI PLUS, our online research database. If you’d like to purchase a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

New Edition! Insider Trading Law and Compliance Answer Book (2019 Edition)

Insider Trading Law and Compliance Answer Book is an easy-to-use guide to the reach of the insider trading laws, the specifics that must be proved in court, the available defenses, the penalties, the current approaches taken by the SEC and the Department of Justice to insider trading violations, and the best compliance policies and procedures for firms to enact to minimize the chances of a violation.

More than two dozen experts at Schulte Roth & Zabel LLP share their knowledge in clear and succinct question-and-answer format. Updated with the latest key court decisions, the book provides timely and practical information for investors, corporate insiders, professional traders, investment advisers, broker-dealers, and other participants in the securities industry, as well as insights and analysis for the lawyers who advise and represent them.

Some highlights of the 2019 Edition:

New chapter: Insider Trading Law and Commodity Interests. Recent rulemaking and high-profile CFTC enforcement actions have made it clear that market participants and their counsel must be familiar with insider trading law as it applies to the commodity futures and derivatives markets. This new chapter explains the prohibitions on insider trading in the commodity futures market, compares the statutory provisions of the Commodity Exchange Act and the Securities Exchange Act, compares CFTC Rule 180.1 and the SEC Rule 10b-5, and discusses two recent “plant-the-flag” enforcement actions.
Are cryptocurrencies securities? In answering that question, the SEC signaled it will apply the “investment contract” test from Howey. Under that test, cryptocurrencies themselves might not be securities, but ICOs or other products sold to investors using cryptocurrencies as the underlying asset would be.
Nonpublic information and the Internet. See chapter 7 for new discussion of whether an issuer’s website can be a “recognized channel of distribution” for disclosures and whether information disclosed via social media is considered public.

This answer book is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

New Edition! Corporate Political Activities Deskbook (2018 Edition)

Corporate Political Activities Deskbook provides a thorough grounding in the current state of the law on federal and state campaign finance, pay-to-play, lobbying, gift compliance, and more. It serves as a practical manual for in-house attorneys and others who advise corporations about involvement in the political process, suggesting ways that corporations can utilize the available avenues of interacting with the government while avoiding negative press and legal and regulatory attention.

Among the developments discussed in the new 2018 edition are:

Trump ethics pledge: Non-career political appointees to the executive branch of the Trump administration must sign an ethics pledge. The “Trump Pledge” replaces a similar ethics pledge that President Obama required for appointees, but with some key differences: The pledge covers prohibition on the acceptance of gifts from registered lobbyists and restricts appointees from working on matters involving a former client or employer for which the appointee worked, or on which the appointee lobbied, in the previous two years. The pledge also imposes certain restrictions on lobbying activity on appointees upon leaving government service.

Ban on contributions by federal contractors: In Wagner v. FEC, a federal contractor was fined a $34,000 civil penalty for a $200,000 contribution to a “super PAC,” which the Federal Election Commission (FEC) found to have violated the ban on federal contractor contributions under Federal Election Campaign Act. The penalty is significant because while the FEC previously suggested that the federal contractor ban applied to super PAC contributions, it had not previously found actual violations to have occurred, leaving open some question regarding the FEC’s appetite for imposing penalties for such contributions.

Surveys of state and federal laws. The at-a-glance charts of state and federal lobbying laws and state contribution laws have been updated.

This essential and timely treatise is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Financial Product Fundamentals: Law, Business, Compliance

PLI recently updated Financial Product Fundamentals: Law, Business, Compliance (Second Edition).

To provide attorneys, compliance personnel, and business professionals with legal, regulatory, and procedural guidance regarding the various financial products, Clifford E. Kirsch has edited Financial
Product Fundamentals, which compiles his expertise as a noted practitioner in the areas of securities regulation and compliance, together with valuable contributions from other distinguished authorities in these practice areas.

Highlights of the latest version include:

Chapter 2: Limited Offerings and Private Placements. Updated to reflect recent amendments to Rule 504 under Regulation D that increase the aggregate amount of securities that may be offered and sold in any twelve-month period, and disqualify certain bad actors from relying on Rule 504.
Chapter 12, International Investment Funds. Commodity Futures Trading Commission (CFTC) registration analysis for commodity pool operators and commodity trading advisors (CTAs), as
well as the exemptions from registration as a CTA pursuant to Rules 4.14(a)(4), 4.14(a)(5), and 4.14(a)(8).
Chapter 17, Exchange-Traded Funds. New discussions covering ETF distribution and associated fees, Authorized Participants and Authorized Participant Agreements, and marketing and advertising considerations for ETFs. Discussion updated to include recent regulatory developments regarding listing standards, reporting requirements and risk disclosures, and the Liquidity Rule’s application to In-Kind ETFs.
Chapter 19, A Primer on Derivative Contracts and Their
Regulation. Updated discussion follows the actions of the CFTC and SEC in addressing the many Dodd-Frank issues under their respective jurisdictions to regulate the swaps marketplace.
Chapter 24, Exchange-Traded Notes and Similar Structured
Notes. New discussion covers issues with respect to other types of structured notes that are not listed on securities exchanges.
New Chapter 27, Interval Funds. New discussion places interval funds in their regulatory framework, and covers issues associated with their operation and distribution, as well as the investment strategies utilized by these funds.

This essential title is available on PLI PLUS, our online research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

New Edition! Financial Institutions Answer Book: Law, Governance, Compliance (2018 Edition)

PLI recently published the 2018 edition of Financial Institutions Answer Book, which provides a comprehensive overview of the complex federal requirements regulating financial institutions in the United States in an easily accessible Q&A format.

Every aspect of a financial institution 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 describes the requirements under each type of charter for the major areas of financial institution activity, such as:

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.

Published in a handy softcover volume, Financial Institutions Answer Book is a source for quick, concise answers for lawyers and other legal professionals, as well as financial institution managers, officers, directors, and anyone else who would like a comprehensive understanding of the legal framework regulating banks and other financial institutions.

This new answer book is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.