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Business Crimes Bulletin
ITC General Exclusion Orders Targeting All Importers Are On the Rise
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For importers of products potentially implicated by a requested GEO, the GEO can be a major threat even if the importer is not a respondent in the case.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Rio Tinto’
Anthony Michael Sabino
Part Three of a Three-Part Article
The first two installments exposited Janus Capital Group, Inc. v. First Derivative Traders and Lorenzo v. S.E.C., both essential to understanding S.E.C. v. Rio Tinto, the Second Circuit’s most recent holding regarding Rule 10b-5 “scheme” liability. Now we examine how the “Mother Court” of federal securities law has tended to that branch of the mighty judicial oak rooted in that venerable regulation.
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Entertainment Law & Finance
Ticket Resellers’ State House Campaign Raises Resale Royalty, Securities Law and Money Laundering Issues
Chris Castle
Should resale royalties be paid to artists and venues when tickets are resold? Such a resale royalty might encourage artists or sports teams to permit transferability for some or all their tickets. It would also help to value that property right. So how would that work?
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Business Crimes Bulletin
Limitations on Omissions Liability for Opinions Following 'Omnicare'
Gregory Silbert and Joshua Wesneski
“Everyone is entitled to his own opinion, but not his own facts.” The Supreme Court has applied this maxim to the securities laws, holding in Omnicare v. Laborers District Council , that while statements of opinion generally are not actionable, there are some narrow circumstances in which such statements entail or imply false or misleading assertions of fact.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Lorenzo’
Anthony Michael Sabino
Part Two of a Three-Part Article
This three-part series discusses the Second Circuit’s recent Securities law landmark case, S.E.C. v. Rio Tinto. However, in order to discuss Rio Tinto, it is important to first understand the Supreme Court landmark cases upon which Rio Tinto is based: Janus Capital Group, Inc. v. First Derivative Trader, discussed in the first installment, and S.E.C v. Lorenzo, discussed here.
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Business Crimes Bulletin
Securities Litigation In 2023 Showing Continued Muscle Flexing from the SEC
Jay A. Dubow, Joanna J. Cline and Kaitlin L. O’Donnell
Newer trends — such as environmental, social, and governance (ESG), cybersecurity-related disclosure violations, and cryptocurrency regulation — are likely to provide further fuel for securities litigation and enforcement.
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Business Crimes Bulletin
Insider Trading Evolving Beyond Just Securities As DOJ Targets NFTS and Crypto
Robert J. Anello and Richard F. Albert
In two recent notable cases involving NFTs and cryptocurrency markets, the DOJ has brought insider trading charges under the wire fraud statute without claiming that any securities were involved. These cases demonstrate the substantial flexibility federal prosecutors have — or at least believe they have — in charging insider trading and underscore the oft-recognized need for a federal statute expressly addressing insider trading.
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Business Crimes Bulletin
New Securities Suits Up Slightly, Despite Stock Drops
Ross Todd
Given the recent stock market carnage, one might expect that the courts were flooded with a fresh batch of securities suits. Stock drops, after all, are one necessary ingredient of stock drop suits. But according to Cornerstone Research’s mid-year assessment of new filings, the number of new class action securities cases filed in the first half ticked up only slightly compared to the first half of 2021.
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Business Crimes Bulletin
DOJ NFT Insider Trading Indictment Skirts Securities Question, But Litigates Like It Is
Isha Marathe
The question of whether an NFT is a security has come up several times, and United States of America v. Chastain in the Southern District of New York brings the dispute back to the forefront.
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Business Crimes Bulletin
Fourth Circuit: Shareholders Face High Bar In Demonstrating Scienter
Michael W. Mitchell and Edward Roche
A recent Fourth Circuit decision held that shareholders must meet a high bar in demonstrating scienter to avoid early dismissal of the case. The decision also shows the fact-intensive approach courts use to distinguish fraudulent statements from those that, even if mistaken, were made innocently.
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Business Crimes Bulletin
Disclosure of Investigations: Whether and When for Public Companies
Jacqueline C. Wolff and Karin M. Bell
You should be thinking about disclosure long before you even hear from a whistleblower, specifically, in terms of setting up policies and procedures governing how to handle the information flow from the investigative side of the house to the disclosure side.
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Business Crimes Bulletin
Second Circuit May Address SEC’s ‘Tolling Agreements’ Tool
Tom McParland
The U.S. Court of Appeals for the Second Circuit signaled last month that it may fully address, for the first time, the question of whether a decades-old change to federal law rendered a commonly used tool for extending U.S. Securities and Exchange Commission investigations unenforceable in federal court.
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Business Crimes Bulletin
Congress Leaves SEC Subject to Litigation Over Disgorgement
Sarah Aberg and Chris Bosch
Buried in the massive National Defense Authorization Act for Fiscal Year 2021 is §6501, a provision authorizing the SEC to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others.
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Business Crimes Bulletin
Congress Expands SEC Powers Just In Time for New Administration
Robert J. Anello and Richard F. Albert
Wall Street has greeted Gary Gensler’s nomination as Chair of the SEC with some trepidation, perhaps with good reason. Congress, by contrast, may have presented him with a powerful signing bonus.
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Business Crimes Bulletin
Shareholder Class Actions During, and After, COVID-19
Margaret A. Dale and Mark D. Harris
Given the current turmoil in the markets, an increasing number of plaintiffs are bringing shareholder class action suits, citing corporate statements about COVID-19. As first-quarter earnings season draws to a close, now is a good time to reflect on the shareholder class actions that have been brought to date related to COVID-19, and others potentially yet to come.
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Business Crimes Bulletin
SEC Targeting Fraudulent Disclosures During Pandemic
Russell Koonin and Adam Schwartz
In the midst the current COVID-19 pandemic, the SEC is paying attention. The Division of Enforcement has made clear that it will act, and act quickly, to stop fraudulent conduct that falls under its jurisdiction related to the pandemic.
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Business Crimes Bulletin
Stockholder Derivative Litigation Update
Joseph M. McLaughlin and Shannon K. McGovern
The Delaware Court of Chancery recently addressed a nearly unprecedented issue: the discovery and privilege implications of a special litigation committee’s (SLC) decision to hand over control of a company claim to a stockholder derivative plaintiff who initiated the claim and survived a motion to dismiss.
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Business Crimes Bulletin
SEC Proposes Changes to Accredited Investor Definition
Peter Fass
The definition of “accredited investor” uses income and net worth thresholds to identify natural persons as accredited investors.
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Business Crimes Bulletin
Insider Trading Policies and Cybersecurity
Michael J. Rivera and Abby I. Yi
Cybersecurity has been a high priority topic for the SEC the past few years. In September 2017, the SEC created a Cyber Unit within its Enforcement Division. This Cyber Unit had over 225 active investigations at the SEC’s 2018 fiscal year end. The SEC has focused in particular on cybersecurity risks facing public companies.
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Entertainment Law & Finance
Some Guidance on Federal Securities Law and Film Financing Disputes
Stan Soocher
Disputes over film financing agreements are common, but there are few court decisions that address film financing dustups involving §10(b) of the federal Securities Exchange Act. Now the U.S. District Court for the Middle District of Florida has issued a ruling that addresses the pleading requirements for alleging a §10(b) violation, in litigation between an investor and a film production company.
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Business Crimes Bulletin
It’s Getting Chilly: Federal Courts Continue to Wrestle With Impact of Aggressive DOJ Public Corruption Cases
Joseph F. Savage Jr. and Christopher J.C. Herbert
In an environment of aggressive federal prosecution and regulation both businesses and public officials are challenged to identify the permissible line between proper financial transactions — things like campaign contributions and business entertainment — and unlawful payments. And, in what the First Circuit called a “novel theory of Hobbs Act extortion,” public officials now have to struggle with the scope of permissible advocacy — when does advocacy for constituents become extortion?
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Business Crimes Bulletin
SEC’s Reboot on Waiver Requests in Enforcement Settlements
Robert J. Anello and Richard F. Albert
SEC Chairman Jay Clayton recently announced a change in how the SEC will consider requests for waivers of certain serious collateral consequences that would otherwise result from settlement of an SEC enforcement action. These collateral consequences, often referred to as “bad actor” or “bad boy” provisions, can vary greatly and may disqualify an entity from conducting certain business or utilizing certain means to offer securities.
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Business Crimes Bulletin
Business Crimes Hotline
Juliet Gunev
Canadian Clean Fuel Technology Company and Former CEO Pay $4.1 Million to Settle China Related FCPA Case
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Business Crimes Bulletin
In the Courts
Juliet Gunev
New York Brokerage and Two Executives Ordered to Pay $1.58 Million for Misleading Investors In High-Yield Securities Case
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The Bankruptcy Strategist
Fifth Circuit Subordinates Claim for Deemed Dividends
Michael L. Cook
“… [P]ayments owed to a shareholder by a bankrupt debtor, which are not quite dividends but which certainly look a lot like dividends, should be treated like the equity interests of a shareholder and subordinated to claims by creditors of the debtor,” held the U.S. Court of Appeals for the Fifth Circuit.
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Business Crimes Bulletin
“Mismarking”: Developments in Valuation Fraud
Telemachus P. Kasulis
As the DOJ expands its mismarking inquiries beyond stocks and bonds and into areas like private equity, recent cases illuminate the increasing need for robust internal controls designed to eliminate the incentives for an employee or manager to overvalue assets.
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Business Crimes Bulletin
In the Courts
Juliet Gunev
New Developments In Och-Ziff FCPA Settlement As Brooklyn Judge Grants Victim Status to Former Investors In Restitution Claim over Lost African Mining Venture
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Business Crimes Bulletin
They’re Baaaaack. Disclosure-Based 14(A) Claims Making a Ghostly Return
Johanna Fricano
Following the Delaware Chancery Court’s ruling in In re Trulia, Inc. that effectively closed the door to 14(a) disclosure-based settlements in Delaware state court, federal courts saw an influx of 14(a) “merger objection” litigation. More often than not, these suits are quickly dismissed following the company’s issuance of a supplemental proxy with additional disclosures and the parties negotiate a mootness fee. The transaction closes and all parties move on — or so we thought. An emerging trend suggests that exposure to 14(a) claims may coming back from the near dead.
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The Bankruptcy Strategist
Safe Harbor Shields Shareholders In Tribune Fraudulent Transfer Litigation
Michael L. Cook
The U.S. District Court for the Southern District of New York denied a litigation trustee’s motion for leave to file a sixth amended complaint that would have asserted constructive fraudulent transfer claims against 5,000 Tribune Company shareholders. The safe harbor of Bankruptcy Code §546(e) barred the trustee’s proposed claims.
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Business Crimes Bulletin
“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution
Jodi Misher Peikin and Justin Roller
The DOJ has signaled its intent to pursue prosecutions for spoofing — which the law defines as “bidding or offering with the intent to cancel the bid or offer before execution” — aggressively. This article begins with a brief discussion of the elements that the government must prove to establish commodities fraud and wire fraud. It then examines recent spoofing prosecutions that raise important questions about the applicability of the traditional fraud statutes to spoofing-related activity. How the federal courts answer these open questions will have significant implications for participants in the commodities markets.
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Robbing a Locked Bank Vault from Home: Legal Issues Raised by Cryptocurrency Frauds
Chris Ott
Cryptocurrency theft remains a major concern for traders and investors given that billions of dollars of cryptocurrency are stolen every year. These cutting-edge problems intersect in interesting ways with companies' existing fraud and anti-money laundering concerns, but it all starts with the cryptocurrency "wallet."
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The Bankruptcy Strategist
Secured Creditors Beware of Your Descriptions, Nomenclature and Terminations
Deirdre M. Richards and Howard C. Rubin
Secured creditors can learn a great deal from a few recent bankruptcy cases involving the Uniform Commercial Code that remind us that the “devil is in the details.” These cases show that it is unrealistic to expect forgiveness by a court after a misstep involving Article 9 of the UCC.
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Cybersecurity Law & Strategy
Robbing a Locked Bank Vault from Home: Legal Issues Raised by Cryptocurrency Frauds
Chris Ott
The advent of cryptocurrencies has raised a host of legal issues; some of the most immediate ones — such as whether cryptocurrencies are securities — appear to have been resolved, but cryptocurrency theft remains a major concern for traders and investors given that billions of dollars of cryptocurrency are stolen every year.
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The Bankruptcy Strategist
Fifth Circuit Affirms Shareholder Veto of Chapter 11 Petition
Michael L. Cook
“Federal law does not prevent a bona fide shareholder from exercising its right to vote against a bankruptcy petition just because it is also an unsecured creditor,” held the U.S. Court of Appeals for the Fifth Circuit in In re Franchise Services of North America, Inc. According to the court, applicable Delaware law would not “nullify the shareholder’s right to vote against the bankruptcy petition.”
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Business Crimes Bulletin
When Is a Bid or Offer a ‘Spoof’?
Jodi Misher Peikin and Brent M. Tunis
U.S. Supreme Court Denial of Cert Leaves Statute Vague
This article analyzes the confusion faced by commodity futures traders in assessing whether their trading strategies constitute illegal spoofing and examines whether the CFTC and Seventh Circuit have provided sufficient guidance on the distinction between spoofing and legitimate trading activity.
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The Corporate Counselor
Preparing for Proxy Season 2018: A Primer for General Counsel
Phil Brown
As we enter 2018, public companies across the United States will begin, in earnest, their preparations for this year’s proxy season and annual shareholder meetings. It is not an understatement to say that 2017 was a tumultuous year on many fronts — economically, politically and globally. As a result, general counsel should have several issues on their radar that could play a role in 2018’s proxy season.
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Cybersecurity Law & Strategy
SEC’s New Cyber Unit Moves to Tackle ‘Scam’ Coin Offering
Ben Hancock
In the First Enforcement Action Initiated By Its New “Cyber Unit,” the SEC Announced It Has Secured a Court Order to Freeze the Assets of Individuals Behind a “Scam” Initial Coin Offering
In the first enforcement action initiated by its new “Cyber Unit,” the Securities and Exchange Commission (SEC) recently announced it has secured a court order to freeze the assets of individuals behind a “scam” initial coin offering, or ICO.
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The Corporate Counselor
DE Supreme Court Clarifies Role of Deal Price In Appraisal Fair Value Determination
P. Clarkson Collins Jr.
Corporate practitioners have been closely following developments in Delaware's shareholder appraisal litigation. Much of the interest concerns the court's "fair value" determination and the risk that an acquiring company will have to pay appraisal petitioners more than the merger deal price. In a much-anticipated decision, the Delaware Supreme Court provides valuable guidance about the relative importance of the deal price in the court's adjudication of the "fair value" of a petitioner's shares.
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Cybersecurity Law & Strategy
There May Be 'No Do-Overs,' but SEC Hack Provides Important Security Lessons
Ed Silverstein
Even the Securities and Exchange Commission (SEC) can get hacked — and the recently announced cyber attack against the SEC is providing an important wake-up call for U.S. companies regulated by the powerful agency and the attorneys they work with.
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The Corporate Counselor
Reflections on Kokesh v. SEC
Dixie L. Johnson and M. Alexander Koch
Potential Ramifications of SEC Disgorgement Being a Penalty
Part Two of a Two-Part Article
The Kokesh decision raises potential consequences that move beyond the realm of SEC enforcement. They are discussed in depth in this article.
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Equipment Leasing Newsletter
Serving Two Masters: When 'Bankruptcy-Remote' Meets Public Policy
Pamela J. Martinson
Structured financing transactions make extensive use of entities formed for the specific purpose of reducing the likelihood that assets will be involved in a potential bankruptcy proceeding. Known as "bankruptcy-remote entities," or "BREs," these entities are subject to structures and covenants in financing documents and their own formation documents, which are designed to reduce the likelihood that the BRE will file for bankruptcy protection.
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The Corporate Counselor
Compensation Plans: Director-Specific Limits
Christopher B. Chuff, Joanna J. Cline, Douglass D. Herrmann and James H.S. Levine
A recent decision by the Delaware Court of Chancery serves as a reminder that boards of directors of Delaware corporations should consider amending their companies’ director compensation plans to include specific limits on the amount of compensation that a director may be awarded in a given year, and obtaining stockholder approval of such compensation plans.
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The Corporate Counselor
Court of Chancery Dismisses Post-Closing Challenge to Merger Transaction
Lewis H. Lazarus
Stockholders who believe that a board breached its fiduciary duties in connection with information provided to stockholders asked to vote for a merger transaction can either seek to enjoin the transaction or seek damages post-closing. In light of the Delaware courts’ jurisprudence post-Corwin, such claims are unlikely to succeed
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The Bankruptcy Strategist
The Intent of Section 546(e)
Sheryl P. Giugliano
Will Reversing a Transaction ‘Seriously Upset The Securities Market’ Ability to Function’?
On Dec. 1, 2016, Bankruptcy Judge Michael J. Kaplan, held that when a private company repurchases stock from a shareholder, and the payments were made "by" the company "to" the shareholder, through a bank, those payments are not protected by Bankruptcy Code § 546(e)'s safe harbor defense because its application "cannot be permitted to turn upon the use of a bank."
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The Corporate Counselor
Insider Trading Liability for Liability Based on Tips from Family
Eric Rieder
When the Supreme Court last year agreed to hear the defendant's appeal in United States v. Salman, it raised expectations in some quarters that it might significantly change insider trading law by curtailing liability for trading on tips from family members. But when it issued its opinion in December, it disappointed those expectations by unanimously reaffirming liability for trading on family tips, even where the tipper receives no monetary gain.
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