JD Supra United States

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  • The advantages of composable websites for Professional Services Marketing

    In this post, Adam Elgar, Co-founder of Passle, discusses the advantages of composable (or headless) websites for professional services marketing.
 He summaries the key advantages to this approach when it comes to building websites for professional service firms, from being risk-free to future-proofed.
 Read the article in full to find out more.

  • Happy Holidays: SEC Provides Temporary Rule 15c2-11 Reprieve

    In 2021, the staff (the “Staff”) of the Securities and Exchange Commission (the “SEC”) surprised the industry when it issued an interpretation stating that fixed income securities (including asset-backed securities) fall within the scope of Rule 15c2-11 under the Exchange Act (the “Rule”), which was previously thought to be applicable only to equity securities. The effect of the interpretation was that broker-dealers were prohibited from quoting securities sold pursuant to Rule 144A under the Securities Act, as well as other securities, in any quotation medium without determining that the issuer has made certain information about those securities publicly available. In response to industry comments, the SEC adopted a “phase-in” approach for fixed income securities (including asset-backed securities) sold pursuant to Rule 144A, giving market participants until January 4, 2023 to comply.
 Please see full Alert below for more information.

  • Matters To Consider for the 2023 Annual Meeting and Reporting Season

    Companies have important decisions to make as they prepare for the 2023 annual meeting and reporting season.
 We have compiled this overview of key issues — including SEC disclosure requirements, recent SEC guidance, executive compensation considerations and annual meeting and corporate governance trends — for companies to consider as they plan for the upcoming season. As always, we welcome any questions you have on these topics or other areas related to annual meeting and reporting matters.
 Please see full Publication below for more information.

  • Transatlantic Legal-Regulatory Update: Live from the Heart of Silicon Valley

    US and EU Life Sciences Law firms Fieldfisher & Gardner Law recently held a CLE event in Silicon Valley covering Healthcare Compliance, Data Privacy and Regulatory hot topics for MedTech and Pharma companies. Discussion topics included: 
 ·FDA Violations and the Park Doctrine Threat 
 ·EU Healthcare Compliance Update 
 ·Pre-Approval Communications and Trial Recruitment Do's and Don'ts 
 ·International Data Transfers: How to Ensure International Businesses Compliance 
 ·EU MDR Update and UK/Swiss Market Entry 
 ·Panel Discussion Featuring Distinguished Silicon Valley MedTech Industry GCs 
 Please reference the presentation for more details. A recording of the program is also available at https://gardner.law/event/transatlanticlegal-regulatory-update-livefromtheheartofsiliconvalley/.

  • The Past, Present, and Future of Women in Environmental Law

    The field of environmental law has seen many changes over the years, with demonstrable legal and policy victories for cleaner air and water. While the face of the environmental movement in its beginnings was predominantly male, women have become more prominent and influential within environmental law and policy over the decades. On July 26, 2022, the Environmental Law Institute’s Women in Environmental Law and Leadership Initiative hosted a cross-generational panel of women who explored opportunities and challenges for women in environmental law and policy “then and now,” and offered advice for the next generation of lawyers and policymakers breaking into the field. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations.
 Originally published in Environmental Law Reporter - December 2022.
 Please see full Article below for more information.

  • Data Privacy + Cybersecurity Insider - December 2022

 South Dakota Governor Bans State Workers from Using TikTok - 
 It is estimated that some 80 million Americans and more than one billion people use TikTok. It is well known that TikTok has a direct connection to the Chinese Communist Party, which is a foreign adversary of the U.S. This week, South Dakota Governor Kristi Noem signed an executive order banning all state workers or contractors from accessing TikTok’s website or app on any state-owned or leased devices. According to Governor Noem, “South Dakota will have no part in the intelligence gathering operations of the Chinese Communist Party.”
 Please see full Publication below for more information.

  • MarkIt to Market® - November 2022

    Thank you for reading the November 2022 issue of Sterne Kessler's MarkIt to Market® newsletter. This month, we address a precedential TTAB decision that presents interesting priority issues relating in particular to the effective date of cannabis applications, and share the open gTLD Sunrise period. We also feature articles from Law360 and Law.com that discuss the Jack Daniel's trademark case headed to the Supreme Court.
 In this issue:
 - Priority Pitfalls
 - gTLD Sunrise Period Now Open: November 2022
 - Trademarks at the U.S. Supreme Court
 Please see full Newsletter below for more information.

  • CFTC Crypto Charges & Settlements Timeline - October 2022 Update

    The Commodity Futures Trading Commission (CFTC) Settlements Timeline serves as an interactive compilation of select CFTC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets...
 Please see full Publication below for more information.

  • Examining The Waiver Of Recreational Immunity By Express Invitation After The California Supreme Court’s Decision In Hoffmann V. Young

    In 1963, the California legislature became concerned that private landowners were “bar[ring] public access to their land for recreational uses out of fear of incurring tort liability." Thus, it enacted Civ. Code, § 846 to encourage private property owners to allow the general public to engage in recreational activities free of charge on their property, with certain specified exceptions. There was very little case law involving § 846 until the early 1990s, and then it usually focused on whether an activity was “recreational” so as to allow a landowner to invoke immunity. In its recent decision in Hoffmann v. Young, however, the California Supreme Court has now begun the process of drilling down into how one of the exceptions to immunity operates. (See summary of the case at page 108, below.) This article reviews that case and explores its potential application in other contexts.
 Please see full Article below for more information.

  • Asset securitization, multi-generational asset management over time, and allocation of an asset’s exposure to creditor reach: Just a few of the myriad functions that the classic trust can perform

    The Anglo-American trust has convenient non-commercial and commercial applications that are difficult to replicate via the laws of agency and contract, operating either in tandem or alone. 
 The trust’s most convenient non-commercial application is the effective bestowal on persons not yet conceived, e.g., settlor’s currently non-existent issue, of enforceable equitable property rights, to include the imposition of enforceable conditions on enjoyment over time. To jerry-rig an agency-contract hybrid into an enforceable relationship between a fiduciary-equivalent and someone yet to be conceived (or otherwise currently unascertainable) would seem a heavy lift. Death terminates the classic agency. The standard third-party-beneficiary contract would need some serious ad hoc retro-fitting, assuming functional approximation of the Anglo-American trust is even achievable when it comes to multi-generational asset management over time.
 The Anglo-American trust relationship has convenient commercial applications, as well, such as securitization of illiquid property rights and the securing of property rights.
 As to securitization, think transfer of an illiquid parcel of real estate to trustee of a nominee trust in exchange for fully vested, non-spendthrifted shares of beneficial/equitable interest. Via the trust the economic interest is now readily divisible and transferable. Or instead of real estate think transfer of portfolio of stocks/bonds to trustee in exchange for vested shares of beneficial/equitable interests in “the fund.” The economic interest in “the fund” is now readily divisible and transferable. No wonder most mutual funds on this side of Atlantic are trusts.
 As to the securing function, the trust is tailor-made to protect one’s property rights from the reach of someone else’s creditors. Take the defined benefit plan sponsored by a corporation for the benefit of its employees. Associated with plan is a trust to hold and administer corporation’s contributions to plan. Here the trust performs not a securitization function but a securing function. The fund, comprised of employer’s contributions and internal earnings, is segregated from the general assets of the company and thus insulated from the reach of the company’s creditors in the event of the company’s insolvency, assuming fraudulent-conveyance doctrine is not implicated. “Particularly, trust law allows the parties to the trust to partition off a discrete set of assets for separate treatment in relationships formed with creditors.” Hansmann & Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U.L. Rev. 434 (1998). As to how the trust is employed to secure property interests of beneficiaries of qualified employee benefit plans, to include a brief mention of ERISA’s federal spendthrift preemption feature, see §9.5.1 of Loring and Rounds: A Trustee’s Handbook (2023), which section is reproduced in the appendix below. The Handbook is available for purchase at https://law-store.wolterskluwer.com/s/product/loring-rounds-trustees-hanbook-2023e/01t4R00000Ojr97QAB.

Featured documents

  • Are Iowa statutes prohibiting referral sales programs constitutional?

    The Iowa Supreme Court held that the statutes prohibiting referral sales programs were constitutional. The legislature is free to enact statues that protect the public welfare and suppress fraud, and may constitutional regulate legitimate business that is detrimental to the public. The sales...

  • Graber v. Prelin Industries Inc.

    he U.S. District Court held that the statute did not violate the due process rights of the executives at Prelin Industries. The executives claimed that they could not be summoned to South Dakota because they never personally entered the state or purposefully availed themselves of state laws....

  • Are Master Industries distributorships securities for state law purposes?

    The Colorado Court of Appeals affirmed the lower court judgment finding Master Industries Distributorships to be securities under Colorado State law. The company produced motivational courses that were sold through an MLM structure that stressed the sale of distributorships to downline member more...

  • Is the Louisiana state statute imposing criminal liability for promoters of "endless chain" schemes unconstitutionally vague?

    The Louisiana Supreme Court held that the state statute prohibiting "endless chain" schemes was not unconstitutionally vague because a person of normal intelligence could understand the statute. Though the statute was admittedly lacking clarity, it adequately appraised the general public...

  • Forever Living Products v. Blannter

    The Court found that a company can be liable under the anti-trust laws for prohibiting its distributors from carrying competing products, but that the regular prerequisites in an anti-trust action apply in the MLM industry just like any other. To run afoul of the Sherman and Clayton Acts, a company'...

  • When does the sale of memberships in a discount club cross the line into being an illegal pyramid scheme?

    The Missouri Court of Appeals held that the Membership Marketing did appear to be a pyramid-marketing program because the members were compensated based on the volume of additional membership sold, not on the amount of products or services consumed. Membership Marketing offered discounts on health...

  • Is a pyramid scheme a consumer or business transaction for purposes of the Ohio Consumer Sales Practices Act?

    The Ohio Court of Appeals held that the Consumer Sales Practices Act regulates the operation of a pyramid scheme even if some people refer to the scheme as a business opportunity. Howard operated a pure pyramid scheme called the Circle of Eight. At a recruitment event, she convinced a couple to pay ...

  • What is the proper definition of a security under New Mexico State law?

    The New Mexico Court of Appeals held that the definition of a security under New Mexico State law is the same a the definition of the Ninth Circuit in Glenn W. Turner, an investment of money with profits to come primarily from the efforts others. Using this definition of security, the Court held...

  • Harrison v. Dean Whitter Reynolds, Inc.

    Kenning and Carpenter worked for Dean Witter Reynolds. They told over 100 clients (including Plaintiff Henderson) that, as Dean Witter employees, they had access to discounted municipal bonds and would buy them on behalf of "special customers." The "special customers" would pay...

  • What is the proper standard for determining defamation of a company's products?

    The California Court of Appeals held that to be considered defamatory, the speaker must have been acting with actual malice. Actual malice is present if the speaker knows the statement is false, or if he has serious subjective doubts about the truth of the statement. Clark published a book claiming ...

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