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SEC Expands the Definition of Accredited Investors: Action Required

On August 26, 2020, the Securities and Exchange Commission (the “SEC”) adopted previously proposed amendments (the “Amendments”) that expand the definition of “accredited investor” (or “AI”) applicable to private placements under Regulation D, and the definition of “qualified institutional buyer” (or “QIB”) under Rule 144A, each under the Securities Act of 1933, as amended (the…

Client Alerts | November 9, 2020 | Investment Management | Securities and Corporate Finance

LIBOR Transition – ISDA Prepares to Launch 2020 IBOR Fallbacks Protocol and Supplement

Following a favorable review from the Antitrust Division of the U.S. Department of Justice, the International Swaps and Derivatives Association (“ISDA”) announced on October 9, 2020 that it intends to publish a protocol, along with updates to its standardized documentation to provide for fallback rates and procedures to account for the potential discontinuation of certain…

Client Alerts | October 19, 2020 | Derivatives | Investment Management

SEC Proposes New “Finder” Exemption Registration

In an effort to assist small businesses raise capital, on October 7, 2020, the Securities and Exchange Commission (the “SEC”) voted to propose a new limited, conditional exemption (the “Proposed Exemption”) from the broker-dealer registration requirements of Section 15(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) for natural persons who…

Client Alerts | October 16, 2020 | Securities and Corporate Finance

SEC Amends Rule 14a-8 To Raise the Bar for Shareholder Proposals

On September 23, 2020, the Securities and Exchange Commission (the “SEC”) announced that it had voted to adopt amendments to Rule 14a-8 and the process for shareholder proposals (the “Amendments”).1 The Amendments purport to “modernize” the shareholder proposal process, but in practice will limit the range of shareholders who are eligible for their proposals to…

Client Alerts | September 29, 2020 | Hedge Funds | Investment Management | Investor Activism

Safer Than Ever: Nine West Decision Buttresses Bankruptcy Safe Harbor

A recent decision by a New York district court confirms that the defendant-friendly holding of the Second Circuit’s Tribune decision (discussed in our prior alert) will be applied broadly to benefit defendants and rejects efforts by plaintiffs to work around Tribune. The decision, In re Nine West LBO Securities Litigation, reaffirms the vitality of the…

Client Alerts | September 22, 2020 | Creditors’ Rights and Bankruptcy Litigation

Go West! Delaware Forum Selection Clause Nullified by California Constitution

On July 29, 2020, the Superior Court of California, County of Los Angeles, handed down a decision with potentially great significance to parties to contracts with Delaware forum selection clauses. West v. Access Control Related Enterprises, LLC In 2017, plaintiff William West (“West”) sued his former employer, Access Control Related Enterprises, LLC (“ACRE”) in California,…

Client Alerts | September 3, 2020 | Commercial and Corporate Litigation | Employment Litigation

All’s Fair That Is Not Unfair: Third Circuit Refuses To Strictly Enforce Subordination Agreement In Cramdown

The Third Circuit Court of Appeals has affirmed the confirmation of a plan of reorganization that did not strictly enforce the subordination provisions of certain public debt issuances. The decision, In re Tribune Co., illustrates limits to the utility of subordination agreements and provides a new standard for the implementation of the “unfair discrimination” test…

Client Alerts | September 2, 2020 | Creditors’ Rights and Bankruptcy Litigation

The Impact on Fund Investors and Fund Managers of the New Regulations on the Business Interest Expense Limitation under Section 163(j)

The Tax Cuts and Jobs Act (the “TCJA”), enacted on December 22, 2017, made significant changes to Section 163(j) of the Internal Revenue Code of 1986, as amended (the “Code”), regarding the deductibility of business interest expense. For tax years 2018 through 2025, Section 163(j) of the Code generally limits a taxpayer’s business interest expense…

Client Alerts | August 25, 2020 | Business Advice and Planning