Dechert LLP (JD Supra United States)

2159 results for Dechert LLP (JD Supra United States)

  • Did the Distressed Debt Opportunity Slink by Me When I Wasn’t Looking?

    I have spoken to a number of people over the past months who have raised money or built technology to take advantage of a broadly anticipated distressed opportunity which was certainly to be occasioned by the pandemic.  Did I miss it?  Was I distracted by the First Family’s secret service chomping dog controversy or the upcoming UFO big reveal?  Did it get by me when I simply wasn’t at my desk,...

  • CISA, FBI Release Joint Cybersecurity Advisory Following Major DarkSide Ransomware Attack

    On May 11, 2021, the Cybersecurity and Infrastructure Security Agency (CISA) and the Federal Bureau of Investigation (FBI) released a joint advisory (Advisory) that encourages critical infrastructure (CI) asset owners and operators (e.g., companies in the communications, energy, defense, and transportation sectors, among others) to “adopt a heightened state of awareness” in light of the recent...

  • Indenture Trustees Must Provide Substantial Contribution to Qualify for Administrative Expense

    The United States Bankruptcy Court for the Southern District of Texas recently clarified the administrative expense standard applicable to indenture trustees by holding that they can recover fees and expenses as administrative expenses only when they make a “substantial contribution.” This standard requires a greater showing than “benefit to the estate,” which is the general administrative...

  • NFA Institutes New Operational Requirements for Members; Registered CPOs and CTAs Need to Take Action in Q3 and Q4 2021

    The National Futures Association has adopted two new operational requirements that will affect (among others) registered commodity pool operators and commodity trading advisors. Under new NFA Compliance Rule 2-50, as of June 30, 2021, registered CPOs will be required to file a notice with the NFA when a market or other significant adverse event affects a commodity pool’s ability to fulfil its...

  • Does Section 546(e) Bar Foreign Law Avoidance Actions in Chapter 15?

    Turns out, it depends on who you ask. Judge Bernstein said no. Recently, Judge Glenn said yes, but only for causes of action that resemble actual fraudulent transfers. It is unusual for the bankruptcy judges in Manhattan to disagree with each other, so let’s take a look at the issue.

  • LIBOR’s Winter is Coming

    God knows I’m as sick of LIBOR transition as you are and writing about it twice in quick succession is annoying, but I think necessary. Here’s the headline which I don’t think has gotten the visibility it deserves: LIBOR will largely end at the end of this year and not in the misty remove of June 2023. At that point, the regulated banking sector will no longer be able to lend or borrow

  • A Recent Ruling that Shari’a Compliant Investment Agreements Do Not Qualify for Safe Harbor Treatment May Have Broader Implications

    In a first, the Bankruptcy Court for the Southern District of New York in the Arcapita Bank case had to decide whether Shari’a compliant investment agreements, providing for Murabaha and Wakala transactions, qualify for the safe harbor protections provided in the bankruptcy code for securities contracts, forwards and swaps. The court held that they do not. Since the opinion runs about 100 pages...

  • Biden 2021 Tax Proposals: Individuals & Corporations

    The White House has released several tax proposals, culminating with remarks by President Biden in a Congressional address. These proposals include the American Families Plan, for which the White House released a fact sheet on April 28, 2021, and the Made in America Tax Plan, for which the White House released a fact sheet on March 31, 2021, followed by a U.S. Treasury report released on April 7,

  • Employee Retirement Income CYBERSecurity – DOL Issues New Cyber Authority Under ERISA

    Cybercrime increased exponentially in 2020 and into 2021, starting with the disruption caused by COVID-19 and the migration to a work from home environment. Phishing emails were up 35 times and ransom attacks were up 150 percent in 2020. Foreign state sponsored cyberattacks such as the one affecting Solar Winds, also highlighted the increased risks from vendors and suppliers.

  • Supreme Court Reins in Federal Trade Commission’s Disgorgement Authority

    The Supreme Court has ruled that the Federal Trade Commission (FTC) does not have authority under Section 13(b) of the FTC Act to seek disgorgement or restitution from defendants. The agency has increasingly relied on this authority to seek monetary penalties from defendants in antitrust cases, and the FTC’s desire to obtain such monetary remedies has influenced the FTC to bring cases in federal...

  • SOFR Transition: It’s Not Done Yet!

    We’ve written before about our anxiety regarding the fact that SOFR does not really seem fit for purpose to support commercial mortgage lending or indeed any cash product.  (The nonsense about charging interest in arrears should have been a tell, to be honest.)  Of course, the real problem is the absence of a credit-sensitive component to the new index, particularly in this time and place.  That...

  • SEC Division of Examinations Issues Risk Alert Regarding ESG Investing

    The staff of the SEC’s Division of Examinations (Division) released a risk alert on April 9, 2021 (Risk Alert).1 The Risk Alert discusses the staff’s observations following its recent examinations of investment advisers, as well as registered investment companies and private funds (collectively, funds), that engage in ESG investing. The Risk Alert includes a number of important considerations for

  • Employers and Domestic Abuse

    In this OnPoint we report on how employers can manage and support employees experiencing domestic abuse. Introduction - Domestic abuse is an issue that has become more prevalent due to the COVID-19 pandemic, not least as those who experience domestic abuse are potentially having to spend more time with their abuser. It can be a work-related issue, not just because employers have a duty of care...

  • New U.S. Sanctions Against Russia Target Sovereign Bonds and Malign Russian Actors

    On April 15, 2021, the United States imposed new sanctions expanding restrictions on the purchase of certain Russian sovereign debt and other financing instruments and adding numerous Russian entities and individuals to the List of Specially Designated Nationals (“SDN List”). These new sanctions largely were imposed under the authority of a new Executive Order issued by President Biden on April 15

  • Securities and Derivative Litigation: Quarterly Update

    For the first time in several years, securities fraud cases declined in 2020, largely due to the pandemic. However, we don’t expect this decrease to continue. Just three months into 2021, there are a number of issues trending in this practice area, including: Securities litigation against non-U.S.-based issuers.

  • A Modest Proposal: Why Can’t CRE CLOs Be More Like Corporate CLOs?

    Here at Dechert, we have market-leading practices in CRE CLO as well as corporate CLOs, including broadly syndicated and middle market structures.  So, every day that I peer into these two alternate universes, I’m astonished at how different these two fundamentally similar leverage technologies really are.  Certainly, even at a modest remove, they look pretty much the same.  A sponsor is looking...

  • PFAS: Expected Litigation Trends

    Key Takeaways - The PFAS litigation landscape – already involving PFAS manufacturers and purchasers of PFAS-containing fluoropolymers and firefighting films – is in the process of expanding, which is putting new companies and new industries in the spotlight, a process that may be accelerated by regulatory developments at the federal level.

  • Supreme Court Holds that an FCC Rule Change Was Not “Arbitrary and Capricious” Under the Administrative Procedure Act

    The U.S. Supreme Court issued a significant decision regarding the Administrative Procedure Act’s (“APA”) arbitrary-and-capricious standard. In FCC v. Prometheus Radio Project, the Court upheld a decision by the Federal Communications Commission (“FCC”) to repeal or modify three rules governing the ownership of broadcast media. The three rules had limited the number of radio stations, television...

  • 2021 Trends in Trademarks

    Big challenges in clearing new brands - U.S. trademark applications skyrocket - China accounts for 25 percent of U.S. filings - Fraudulent applications abound - “Are We Running Out of Trademarks?” The authors of a Harvard Law Review article posed this provocative question, crunched a monumental amount of data, and decided that the answer is “yes.” Marketers are “increasingly resorting to second-be

  • The Bankruptcy Court for the Southern District of New York Recharacterizes Debt as Equity

    In a recent decision, the Bankruptcy Court for the Southern District of New York held that a purported debt held by an entity with a near-majority membership interest in the Debtor was actually equity disguised as a loan.

  • SEC Division of Examinations Releases 2021 Examination Priorities

    The Securities and Exchange Commission’s Division of Examinations (EXAMS) published its report on 2021 Examination Priorities on March 3, 2021. The 2021 Examination Priorities cover eight broad topics: - The protection of retail investors, including seniors and those saving for retirement (with an emphasis on standards of conduct owed to retail investors); - Information security and...

  • Key Takeaways From the Supreme Court’s Personal Jurisdiction Decision in Ford Motor Company v. Montana Eighth Judicial District Court

    Yesterday, the Supreme Court issued an important decision in Ford Motor Company v. Montana Eighth Judicial District Court unanimously affirming the existence of personal jurisdiction over products liability claims by an in-state plaintiff for in-state injuries against an out-of-state defendant. Defendant Ford had sought to extend the Supreme Court’s decision in Bristol-Myers Squibb Co. v....

  • SEC Examinations Division Issues Risk Alert Regarding Digital Asset Securities

    The staff of the Securities and Exchange Commission’s Division of Examinations (Staff) on February 26, 2021, published a Risk Alert (Risk Alert)1 regarding digital asset securities.2 The Risk Alert highlights observations made by the Staff during examinations of investment advisers, broker-dealers, transfer agents and national securities exchanges (collectively, Firms) regarding activities...

  • No Triangular Setoff in the Third Circuit

    In a recent decision, the Court of Appeals for the Third Circuit closed the door on triangular setoffs, ruling that the mutuality requirement under Section 553 of the Bankruptcy Code must be strictly construed and requires that the debt and claim sought to be setoff must be between the same two parties. In re: Orexigen Therapeutics, Inc., No. 20-1136 (3d. Cir. 2021).

  • What A Long Strange Trip It’s Been: Final CCPA Regulation Amendments Approved

    On March 15, 2021, the California Attorney General (AG) announced that the California Office of Administrative Law approved a set of proposed amendments to the final California Consumer Privacy Act (CCPA) regulations that went into effect on August 14, 2020 (Regulations).

  • We All Need Practice Spelling ESG

    Let me first apologize to my readership. I have been very dilatory in getting this commentary done and this topic is… a bit daunting. In my defense, working for a living can get in the way of thinking and writing. In any event, I have been doing some considerable reading about Environmental, Social and Governance (ESG) issues recently. It had not really been on my screen, in a big way, but has...

  • Numerous Benefit Lifelines in the American Rescue Plan

    The American Rescue Plan Act of 2021 (“ARPA”), which was signed into law on March 11, 2021, includes a number of provisions relating to health and welfare plans that will be beneficial to many Americans. In addition, ARPA provides funding relief to single-employer defined benefit plans and significant financial assistance to the most underfunded multiemployer plans. However, ARPA does not rescue...

  • OFAC Action Against BitPay, Inc. Demonstrates Focus on Digital Currency Industry and Effective Sanctions Screening

    Key Takeaways - Because digital currencies allow for high-value transactions outside of the traditional U.S. banking system, OFAC has rigorously investigated whether digital currency service businesses may be facilitating transactions that are prohibited under various sanctions programs.

  • Who's Next? Virginia Passes Comprehensive Privacy Law

    On March 2, 2021, Virginia Governor Ralph Northam signed into law the Virginia Consumer Data Protection Act (VCDPA). The law passed the state legislature with strong bipartisan support. With a stroke of the pen, Virginia became the third state (following California and Nevada) to adopt a European-influenced consumer privacy law. Several other states, including Illinois, Massachusetts, and...

  • The U.S. and EU Coordinate Sanctions Related to Navalny Poisoning and Sentencing: Biden Administration’s First Sanctions Against Russia, and the EU’s first use of its Global Human Rights Sanctions Regime

    Executive Summary - On March 2, 2021, the Biden Administration, in a coordinated announcement by the U.S. Departments of Treasury, State, and Commerce, tightened export restrictions against Russia and imposed sanctions and other measures on certain Russian entities and individuals allegedly involved in the poisoning and subsequent imprisonment of Alexei Navalny, a Russian opposition leader and...

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