Category Archives: Practice Areas

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.

Treatise Update: Friedman and Smith on Contracts and Conveyances of Real Property

The Business Lawyer calls this PLI title “The ‘bible’ for any lawyer handling a real estate conveyance.” providing more than 140 sample forms, sample forms, sample clauses, and checklists that simplify and accelerate transactions, Friedman and Smith helps readers to carefully consider all the issues and options before finalizing a contract. This definitive resource gives guidance on how to handle unexpected problems and contingencies before they become deal-breakers; factor in a relevant case law when structuring sound agreements; and avoid drafting ambiguous or incomplete contracts that can lead to delays and aborted deals.

Highlights of this latest update of Friedman and Smith on Contracts and Conveyances of Real Property include:

  • Chapter 3, Assignments of Contracts. New discussion covers the rights of an assignee against the seller if the seller fails to perform a promise to the buyer included in the contract of sale (see section 3:2.4).
  • Chapter 14, Marketable Title. New discussion of Loring v. Whitney, 46 N.E. 57 (Mass. 1987), which illustrates how courts deal with drawing the line between litigation risk that is substantial versus too remote (see section 14:1.2).
  • Chapter 19, Easements—Creation. New discussion of the distinctions between easements appurtenant and easements in gross, including court-developed tests in cases of ambiguity (see section 19:3).
  • Chapter 22, Covenants—Scope and Termination. New discussion of eminent domain reviews the majority and minority views on whether restrictive covenants are property for takings purposes (see section 22:2.12).
  • Chapter 24, Contract Remedies for Seller Default. New discussions cover challenges to specific performance as a workable remedy for the buyer when the seller has problems with the title (see section 24:44.2), and review the viability of specific performance as a remedy for part of a contract and not for the remainder because the remainder is impossible to perform or the matter is one into which equity will not venture (see section 24:4.3).
  • Chapter 25, Time for Performance. Updated discussion of the “time of the essence” doctrine, including “time is of the essence” as an implied term and the consequences when time is essential and when time is not essential (see sections 25:2.1-25:2.4).
  • Chapter 26, Deed Elements. Updated discussion covers transfer tax, which is payable upon the recordation of a deed, triggering a requirement that the grantee report the amount of consideration to the reocording office that becomes part of the public record, which allows a title searcher to determine the parties’ reported consideration (see section 26:4).

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

2020 Edition! International Tax Controversies

International Tax Controversies is a practical guide to handling international tax audits and appeals, government-to-government cooperation and special dispute resolution mechanisms, and litigating international tax cases. Disputes with the IRS regarding international tax issues often present special issues in addition to those normally relevant in purely domestic tax controversies.

For example, questions may arise regarding the application of attorney-client privilege and other protections in the cross-border context. Where relevant documents, witnesses, and other information are held abroad, special procedures may be applicable. In addition, special dispute resolution mechanisms may be available in international tax disputes involving tax treaties and transfer pricing. Taxpayers should also be aware of the potential impact on the competent authority process of entering into closing agreements. Finally, country-by-country reporting data will be changed by the United States pursuant to bilateral competent authority arrangements (CAAs) entered into in connection with tax treaties and TIEAs that permit automatic exchanges of information.

International Tax Controversies explores these and other relevant issues in international tax cases, in addition to the issues and procedures that commonly arise in U.S. federal tax audits (whether or not focused on international issues).

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

Treatise Update: Trade Secrets

Trade Secrets: A Practitioner’s Guide is an indispensable resource that discusses all aspects of protecting trade secrets. It covers what a trade secret is, how it should be protected, and what to do when its secrecy is compromised. Trade Secrets examines in detail what trade secret misappropriation is, how can you prove it in court, how you can protect trade secret information during the course of litigation, and how you can gain appropriate legal and monetary remedies for clients for proven violations. It compares and contrasts trade secret protection with other forms of intellectual property such as copyright, patents, and trademarks.

This release updates and expands the text with new discussions of the law of trade secrets and related topics, including the following:

  • State statutory preemption of common law: The Fifth Circuit, reversing the district court in material part, held that the Louisiana Uniform Trade Secrets Act does not preempt civil law claims for conversion of information that does not constitute trade secrets (Brand Services, L.L.C. v. IREX Corp.). See § 1:5.5, at note 60.1.
  • Patent versus trade secret: In SAP America, Inc. v. Investpic, LLC, the Federal Circuit held that allegedly novel ideas for applying statistical techniques to financial information were unpatentable abstract ideas. If they were protectable at all, they were protectable as trade secrets. See §2:3.4, at note 87.40.
  • Secrecy: In CPI Card Group, Inc. v. Dwyer, the federal district court in Minnesota found that plaintiff CPI did not assure secrecy in emails that included alleged trade secrets. Although it could point to general measures it took to protect confidential information, “CPI has not shown a likelihood of proving that it took reasonable measures to protect the secrecy of the contents of this particular presentation.” See §4:13.1, at note 107.1.
  • Jury instructions: On December 6, 2018, the Florida Supreme Court approved changes in standard form jury instructions for trade secrets misappropriation cases; the new instructions are reproduced in chapter 12. See § 12:11.2, at note 127.1.
  • Remedies—disgorgement: In Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., the Federal Circuit held that a trade secret owner did not have the right to have a jury decide its claim for disgorgement of profits as a remedy for misappropriation. See § 13:3.5, at note 324.14.

This treatise 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.