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May 20, 2013
High Court May Use SOX Case To Put DOL In Its Place
The U.S. Supreme Court agreed Monday to hear its first-ever Sarbanes-Oxley Act whistleblower case, in which it might not only decide whether SOX's anti-retaliation provision covers employees at private contractors of public companies, but also clarify how much deference courts should afford agencies like the U.S. Department of Labor when it comes to interpreting the law, attorneys say.
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May 20, 2013
Fighting Agencies May Be Tougher After High Court Ruling
The U.S. Supreme Court's Monday ruling in favor of the Federal Communications Commission, which held that courts should apply a deferential standard of review when federal agencies interpret the limits of their own authority, may make it tougher for regulated businesses to fight agency actions, attorneys say.
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May 20, 2013
Senate Dems Press CFTC To Revisit Energy Swap Market Regs
Six Senate Democrats from the West Coast urged the U.S. Commodity Futures Trading Commission on Monday to investigate its swaps trader registration regulations, claiming the majority of energy swaps traders are exempt from CFTC monitoring based on current standards and that decision violates Dodd-Frank Act requirements.
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May 20, 2013
Lew Likely To Face Flak Over IRS, Not Financial Rules
Treasury Secretary Jack Lew is scheduled to address potential risks to the financial system when he appears before Congress this week, but the growing scandal over the Internal Revenue Service's targeting of conservative groups threatens to overshadow his eagerly anticipated faceoff with lawmakers over everything from systemically important financial institutions to money market fund reform.
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May 20, 2013
Investors Give Libor Antitrust Claims Another Shot
Investors pushed Friday to revive their antitrust claims against Bank of America Corp., JPMorgan Chase & Co. and other top banks accused of rigging the London Interbank Offered Rate as part of multidistrict litigation over the rate scandal.
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May 20, 2013
Cybersecurity Standards Need Flexibility, NIST Told
The National Institute of Standards and Technology on Thursday released an analysis of hundreds of initial comments on proposed cybersecurity measures to protect critical infrastructure, with respondents stressing that the framework should allow for flexibility and emphasize risk management over compliance standards.
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May 20, 2013
Ex-Morgan Stanley Exec Fights Kickback Rap In 2nd Circ.
A former Morgan Stanley & Co. executive asked the Second Circuit on Monday to overturn a conviction on charges he steered stock-loan business to his family in exchange for kickbacks, arguing that some work was performed for the money.
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May 20, 2013
Morgan Stanley Wins Arbitration Of Tribe's $26M RICO Suit
A Florida federal judge on Friday refused to permit an Indian tribe to sue Morgan Stanley Smith Barney LLC for allegedly aiding an embezzlement spree that drained $26 million from tribal coffers, rejecting the tribe's bid to invalidate an arbitration agreement.
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May 20, 2013
Agencies Deserve Deference On Jurisdiction, Justices Say
The U.S. Supreme Court ruled Monday that courts should apply a deferential standard of review toward a federal agency's definition of its own jurisdiction, siding with the Federal Communications Commission in a fight with local government agencies over zoning rules for wireless facilities.
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May 20, 2013
Fannie, Freddie Exempt From Transfer Tax, 6th Circ. Says
The Sixth Circuit on Monday ruled Fannie Mae and Freddie Mac are federal agencies exempt from real estate transfer taxes, overturning a lower court that said two Michigan counties could collect such taxes and dealing a blow to similar suits across the country.
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May 20, 2013
Goldman To Exit ICBC Investment With $1.1B Stock Sale
Goldman Sachs Group Inc. on Monday launched the sale of its entire $1.1 billion stake in Industrial and Commercial Bank of China, exiting the Chinese financial giant seven years after it first bought pre-IPO shares, according to an offering document.
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May 20, 2013
PBGC Wants 2nd Circ. To Rethink Morgan Stanley ERISA Case
The Pension Benefit Guaranty Corp. on Friday asked the Second Circuit for an en banc rehearing of its case alleging Morgan Stanley Investment Management Inc. negligently invested a pension plan's assets in mortgage-backed securities, saying the case's dismissal hinders enforcement of the Employee Retirement Income Security Act.
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May 20, 2013
Federal Law Preempts BofA Seating Suit, Judge Says
A California federal judge on Monday tossed a putative class action against Bank of America Corp. over suitable seating for its tellers, finding a California regulation requiring suitable seating in the workplace “offends and frustrates” the intent of the National Banking Act.
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May 20, 2013
Arcapita Urges Judge To Subordinate $120M Sale Claims
Arcapita Bank BSC on Thursday contended that Tide Natural Gas Storage I LP’s claims against the Bahraini bank’s estate must be subordinated below all other creditor claims because of Tide’s $515 million purchase of an Arcapita subsidiary’s natural gas assets.
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May 20, 2013
FDIC Loses Fight Over $30M In Imperial Capital Bankruptcy
A California judge on Thursday rejected a bid by the Federal Deposit Insurance Corp. to claim $30 million in tax refunds as the receiver of the failed Imperial Capital Bank, saying the funds belong instead to the bank's parent under the terms of a prebankruptcy contract.
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May 20, 2013
$8.5B BofA Settlement Will Be Weighed By Judge, Not Jury
A New York state judge said Monday that she alone, and not a jury, will decide if Bank of America Corp. can go through with a $8.5 billion mortgage-backed securities settlement, finding that the process used doesn't require a jury.
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May 20, 2013
Morgan Stanley Sells Indian Wealth Unit To UK Bank
Morgan Stanley India has agreed to sell its wealth management unit, which accounts for roughly 5 percent of the financial services firm's revenue in the country, to U.K.-based global bank Standard Chartered PLC, the potential buyer said Monday.
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May 17, 2013
JPMorgan Backs Dimon Before Shareholder Vote On Split Role
JPMorgan Chase & Co. on Thursday urged shareholders to reject a proposal by activist investors that would split the CEO and chairman of the board positions, both of which are held by the embattled James Dimon, who presided over the company during its infamous $6.2 billion “London Whale” loss.
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May 17, 2013
First American Charges Excess Mortgage Fees, Class Claims
First American Title Co. was hit with a proposed class action in Texas on Friday that claims it overcharged homeowners for mortgage fees even though it knew the exact amounts to be paid to counties.
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May 17, 2013
ING Gave Morgan Stanley Kickbacks For 401(k) Biz, Suit Says
An Alabama medical laboratory filed a proposed class action in New York federal court on Friday alleging Morgan Stanley & Co. Inc. encouraged the lab to use ING Life Insurance and Annuity Co. to administer its employees' 401(k) plan because ING paid the brokerage firm extra fees.
Expert Analysis
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Rise Of The Machines — Predictive Coding Goes Mainstream
The pros of using predictive coding far outweigh the cons. Given the heavy pressure on law firms and in-house counsel to reduce discovery costs, as well as the Justice Department's recent stance on the subject, it appears predictive coding will continue to emerge from the obscure world of legal technology to the mainstream of legal practice, say Michael Moscato and Myles Bartley of Curtis Mallet-Prevost Colt & Mosle LLP.
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Unprecedented FCPA Wake-Up Call For US Broker-Dealers
The extraordinary criminal bribery charges against two registered representatives of a U.S. broker-dealer and a high-level Venezuelan government official highlight that a broker-dealer’s anti-money laundering procedures, as well as oversight of their registered people, should have a Foreign Corrupt Practices Act component if the firm is doing international business, say attorneys with Duane Morris LLP.
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Libor Litigation Must Overcome Significant Obstacles
When U.S. District Judge Naomi Reice Buchwald dismissed a consolidated, multidistrict batch of antitrust and racketeering suits in Manhattan earlier this spring, she suggested plaintiffs seeking to recover from banking giants at the heart of the interest rate-fixing scandal might have better luck with securities fraud claims. But those plaintiffs will need to be lucky indeed. Two recent developments show that obstacles are inherent and, perhaps, insurmountable, say attorneys with Choate Hall & Stewart LLP.
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SEC Eyes Advisory Contract Approval Disclosures
A recent settlement with the U.S. Securities and Exchange Commission by mutual fund directors and service providers answers a number of questions for many in the mutual fund industry and provides insight into SEC enforcement priorities, say attorneys with Morgan Lewis & Bockius LLP.
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How The Fed's Stress Test Rules Mitigate Systemic Risk
The savings and loan holding company regulatory regime established by the Dodd-Frank Act appears to be having the ultimate effect of reducing the number of SLHCs, especially those that are predominantly insurance enterprises, say attorneys with Debevoise & Plimpton LLP.
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The Who, What And Why Of Public-Private Partnerships
Public-private partnerships have been used in a wide range of sectors to provide public services, from power plants and railroads to hospitals and sanitation plants. Yet there are a variety of potential contractual arrangements and the financing of a PPP can be complex, say Maryam Khosharay and Herbert Glaser of Haynes and Boone LLP.
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A Tale Of 2 Burdens Of Proof In Ch. 11
As a matter of strategy, it can be vital to understand the differing burdens of proof under various provisions of the Bankruptcy Code and when those burdens shift. For example, the Southern District of New York recently clarified the distinction between section 362(d) and 363(e) burdens of proof in In re AMR Corp., say attorneys with Duane Morris LLP.
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Insights From An Under-The-Radar CDO Case
A case that seems to have gone relatively unnoticed is ASR Levensverzekering NV v. Swiss Re Financial Products Corporation. Dismissed by the New York Supreme Court, the case provides useful insights into the application of New York fraud and contract law in the context of complex financial transactions, say James Bliss and Kevin Broughel of Paul Hastings LLP.
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E-Discovery In The Cloud: Who Can Get Your Data?
Many lawyers are asking whether placing electronically stored information in the cloud could inadvertently waive the attorney-client privilege and whether the government or a civil litigant could obtain ESI directly from a cloud service provider. In answering these questions, there are a number of aspects of the cloud worth considering, say Timothy Broas and Matthew Saxon of Winston & Strawn LLP.
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Commercial Leasing Recovery Remains Uneven
In addressing trends in the current commercial leasing market, several patterns are apparent. For one, many property owners that have been able to survive foreclosure now face the specter of refinancing their property in the mixing bowl of loss of market value, lenders requiring a lower loan-to-value ratio, and reduced cash flow from the property, says Barry Katz of Arnstein & Lehr LLP.