Securities Act

...offer and sale of the buyer's shares to target shareholders must be registered under the Securities Act of 1933. If lock-up agreements to tender into the exchange offer are executed before the filing of the registration statement with the SEC, the SEC may object to the filing on the grounds that the lock-ups constitute a private offer by the buyer to the locked-up shareholders, and once an offering has commenced privately it must be completed privately. ...

...Custody Rule The SEC's adoption of amendments to Rule 206(4)-2 under the Investment Advisers Act of 1940 (the "Amended Custody Rule") and related changes to Form ADV will become effective on March 12, 2010. Pooled Investment Vehicles. ...

... In it, the authors discussed two sets of the key provisions of the Foreign Account Tax Compliance Act of 2009 incorporated into the Tax Extenders Act of 2009 (the "Act"): ...

...settlement for certain FCPA violations. In the Matter of NATCO Group Inc. , Securities Exchange Act Release No. 61325, Administrative Proceeding File No. ...

...Reform To quickly recap, H.R. 4173, the Wall Street Reform and Consumer Protection Act, passed the House on December 11, 2009 by a vote of 232-202. ...

...involving both foreign and domestic corporations in relation to the Foreign Corrupt Practices Act. Cook: My Foreign Corrupt Practices Act practice consists of four primary components: ...

...died in the interim. It was against this backdrop that Congress passed the Sarbanes-Oxley Act in 2002 (SOX). The thrust of SOX was to restore integrity to corporate governance and to ensure the investing public that the financial records of publicly traded corporations would accurately reflect the true financial condition of the company. ...

...2009, the Treasury Department delivered to Congress proposed legislation - the Investor Protection Act of 2009 (the "Treasury Legislation") - which is aimed at making the financial system more fair to consumers and investors. ...

...issued amendments to the rules that implement the privacy provisions of the Gramm-Leach-Bliley Act (the "GLB Act"). These amended rules, which are effective on December 31, 2009, announce the adoption by the Agencies of a model privacy form that financial institutions may rely on as a safe harbor to provide disclosures under the GLB Act privacy rules. ...

...House passed The Wall Street Reform and Consumer Protection Act of 2009 (the "Wall Street Reform Act")1 in a 223-202 vote.2 Among the bill's governance changes are provisions regarding shareholder "say on pay," independent compensation committees and proxy access.3 Introduced by Representative Barney Frank (D-MA), chairman of the House Financial Services Committee, the Wall Street Reform Act comes on the heels of a string of corporate governance changes proposed by the Obama administration and members of both houses of Congress earlier this year.4 The focus now turns to the Senate, where a similar bill introduced on November 10 by Banking Committee Chairman Chris Dodd (D-CT) is reported to be undergoing a significant bipartisan overhaul.5 While it remains unclear whether, or in what form, final legislation will be passed, senior management and directors at public companies should follow these developments closely. ...

...favor of proposals that provide stockholders with the ability to call a stockholder meeting or to act by written consent so long as the proposals will provide substantive rights to the stockholders. ...

...December 9, the House of Representatives, by a vote of 241-181, passed H.R. 4213, the Tax Extenders Act of 2009 (the "Extenders Act"). This legislation would extend a number of expiring tax provisions, while raising offsetting revenue by taxing the "carried interest" of fund managers as ordinary income. ...

...Corporate Counsel. On December 9, the House of Representatives passed the Tax Extenders Act of 2009 (the "Act"). The Act is notable because it incorporates the key provisions of the Foreign Account Tax Compliance Act of 2009 ("Fat Cat"). ...

...practice, he focuses on water resources. He has extensive experience with the Endangered Species Act , wetlands permitting issues and the Comprehensive Environmental Res-ponse and Compensation and Liability Act (CERCLA) Mr. ...

...represents a major pharmaceutical company in ANDA litigations brought pursuant to the Hatch-Waxman Act and also in a wide variety of disputes involving licensing and joint-development agreements. ...

...Fraud Section, Mr. Tyrrell led DOJ's enforcement efforts involving the Foreign Corrupt Practices Act, corporate, securities, commodities and investment fraud, health care fraud, procurement fraud, stimulus and rescue fraud, mortgage fraud, consumer fraud and identity theft. ...

...taken in response to emergencies relating to the release of hazardous substances, unless they act with gross negligence or intentional misconduct. The Lowenstein team consisted of Richard Ricci, Priya Masilamani and Alyson Powell. *** Lowenstein Sander is pleased to announce that five attorneys have been elected as Members of the firm effective January 1, 2010: ...

...issues involving corporate, securities, commodities and investment fraud, Foreign Corrupt Practices Act, health care fraud, procurement fraud, stimulus and rescue fraud, mortgage fraud and identity theft. ...

...in this manner where coverage for claims against the entity were barred, since companies can only act through their directors and officers. Moreover, the Court was concerned that permitting this type of distinction with regard to a global settlement would permit companies to structure settlements in a manner to maximize coverage under the indemnification provisions of a D&O policy where the payment was in fact restitutionary in nature. Conclusion This decision to deny coverage for settlement payments made to shareholders was largely driven by public policy concerns. ...

...these provisions restrict coverage for actions brought under Section 11 and 12 of the Securities Act of 1933. Many insurers, if requested, will add an endorsement expressly covering Section 11 and 12 claims. ...

...Financial Services Committee passed H.R. 3818, the Private Fund Investment Advisers Registration Act, introduced by Congressman Paul E. Kanjorski (D-PA). ...

...existence, value, and physical location of assets under management or in a fund. In order to act on the lessons learned, investors should examine and evaluate with their legal counsel and a forensic CPA the terms and conditions of the current relationship with their asset managers in order to know whether they are sufficient to: ...

...as investment advisers with the Securities and Exchange Commission under the Investment Advisers Act of 1940. This article examines the Kanjorski House bill and the Dodd Senate bill treatment of registration of managers of privately offered funds. ...

...recently introduced a discussion draft of the Private Fund Investment Advisers Registration Act of 2009 (Draft Legislation), based in large part on an earlier Treasury Department proposal. ...

...will be effective for the 2010 proxy season. Waters Amendment to the Investor Protection Act Representative Barney Frank (D-MA), chair of the House Financial Services Committee, has publicly stated that he will not take up corporate governance legislation until the Committee has completed its work on financial regulatory reform, which would be in early 2010. ...

...status of the SEC proposal to register hedge fund and private equity managers under the Advisers Act? Hill: There have been various proposals (including a proposed exemption for venture managers), but there is a general consensus that something will get passed at some point - who will be covered is the real question. ...

...does not apply unless and until the insured has admitted to committing a fraudulent or dishonest act, or upon a final adjudication that the insured has committed such an act. ...

...introduced in Congress, known as The Corporate and Financial Institution Compensation Fairness Act of 2009, would amend the Securities Exchange Act of 1934 to provide shareholders with an advisory vote on executive compensation, often referred to as "say on pay."4 A study released in September by The Conference Board Task Force on Executive Compensation endorsed proposals for shareholders to have greater input on pay decisions, and also for companies to adopt "clawback" policies, which would allow for the recovery of amounts paid to executives in the event circumstances change within a specified time-frame following a payment.5 At the same time, the Federal Reserve is pushing to issue bank compensation rules that would place regulators in the middle of compensation decisions traditionally reserved for boards and their compensation committees, and that would potentially allow the Fed to reject or amend them.6 While there are various pros and cons to each of the proposals, the shared goals and fundamental principals of these calls for reform are clear: ...

...belonging to the company regarding the offering in violation of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934. ...

...total of up to $750 million in loan guarantee funding under the American Recovery and Reinvestment Act of 2009,1 to support from $4 billion to $8 billion in loans for conventional commercial technology renewable energy generation projects. To implement the distribution of funding under this loan guarantee program, the Department of Energy ("DOE") announced the creation of its new Financial Institution Partnership Program ("FIPP"). ...

...risk, resolution of failing non-bank entities, and the Consumer Financial Protection Agency Act. We are examining these specific matters as they become part of the legislative agenda and plan to comment in the near future on what aspects of proposed legislation we feel do and do not comport with the principles that the House of Delegates has approved, as well as other ABA policies. ...

...each other's financial markets. One giant historical step was the Multi-Jurisdictional Disclosure Act of 1991, which harmonized securities disclosure requirements of both countries. ...

...It is indeed an honor to be serving as Chief Judge of the Mother Court. As you know, The Judiciary Act of 1789 established the Supreme Court of the United States. ...

...a basis for liability under the anti-fraud provisions of Section 10(b) of the Securities Exchange Act. Judge Fitzwater's decision marks a setback for the SEC in a case that has attracted substantial media coverage. More broadly, the ruling in Cuban , if adopted by other courts, would limit the reach of the misappropriation theory by requiring the SEC to prove that an individual who has traded on non-public, material information had an independent, pre-existing duty to the source of the information not to trade on that information. ...

...laundering policy for the Federal Reserve System. Shortly after my arrival, the USA PATRIOT Act was passed and we were in the middle of drafting regulations and examination procedures to implement the new anti-money laundering provisions. ...

...are going to see both an increase in the number of healthcare fraud prosecutions and False Claims Act cases being brought in the civil division of the Department of Justice and the U.S. ...

...While some proposals were considered and enacted into law - the American Recovery and Reinvestment Act of 2009 (also known as the Stimulus Bill), other legislation, such as healthcare reform and climate change, have stalled, clogging the legislative pipeline. ...

...bankruptcy.2 These events spurred new regulation in the form of the Credit Rating Agency Reform Act of 2006 ("Reform Act"), the main purpose of which was to promote accountability, transparency and competition in the insular credit rating industry.3 The Reform Act, however, was insufficient to prevent the credit crisis debacle that was built, in large part, on the favored credit ratings that the major CRAs bestowed on mortgage-backed securities that subsequently went belly-up and led to the demise of venerable financial institutions like Bear Stearns and Lehman Brothers. ...

...Rule 206(4)-5 (SEC Rel. No. IA-2910 (8/3/09)) (the "Proposed Rule") under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), designed to prevent "pay to play" practices by registered and nonregistered investment advisers compensating placement agents, finders and other intermediaries for procuring investment advisory business from government pension plans. ...

...would include requiring all private fund managers to be registered under the Investment Advisers Act of 1940, as amended (the "Advisers Act"). The Obama administration has recently proposed legislation titled Private Fund Investment Advisers Registration Act of 2009 (the "Proposed Legislation"). ...

...Schumer's Shareholder Bill of Rights and Representative Gary Peters's Shareholder Empowerment Act. These measures can radically change the way U.S. corporations are governed. ...

...cases, securities cases, export licensing work and a sub specialty in Foreign Corrupt Practices Act work. Many of these areas have both a civil and criminal component and involve dealing with issues that cross several disciplines. ...

...enterprises. For most enterprises, information is the organization's life-blood, but it can often act more like a raging river when left uncontrolled and unmanaged. ...

...are not regulated by the Securities and Exchange Commission. The Commodity Futures Modernization Act of 2000 also exempts CDS from regulation by preempting state and local gaming laws (except for general antifraud provisions) and exempting certain derivatives, including CDS, from regulation by the U.S. ...

...some positively and others negatively. S.445, the Attorney-Client Privilege Protection Act of 2009 sponsored by Senator Arlen Specter, will blunt the impact of federal prosecutors mandating privilege waivers as a sign of cooperation. ...

...power of a criminal charge, in that this would only be a charge - not a conviction - but the mere act of charging KPMG was perceived to mean its death knell. ...

...and Financial Account ("FBAR") reporting, historically and currently driven by the Bank Secretary Act ("BSA"), as of late captured the interest of the IRS, which now administers FBAR compliance. ...

...officials. The U.S. has punished several companies for violating the Foreign Corrupt Practices Act based in part on their business practices within Mexico. ...