Securities

May 15, 2013
US In Talks With Switzerland, Japan On Bank Wind-Down Plans

U.S. bank regulators have opened discussions with their Swiss and Japanese counterparts on coordinating plans for winding down large financial institutions as part of an effort to figure out how to safely take apart a failing global bank, a top official said Wednesday.
May 15, 2013
Fla. Lawyer Apprehended In $137M Investment Fraud Scheme

A Florida lawyer was turned over to U.S. authorities Wednesday in Miami to be prosecuted for his alleged role in an international investment fraud scheme that scammed victims out of more than $137 million.
May 15, 2013
Deutsche Bank Unit Can't Duck $330M MBS Suit

A New York state judge Tuesday declined to dismiss a $330 million suit accusing a Deutsche Bank AG affiliate of making false statements about the quality of loans underlying its mortgage-backed securities, saying the suit fell within the appropriate statute of limitations.
May 15, 2013
Rotech Bondholders Want Baker & McKenzie Fees Capped

Rotech Healthcare Inc.’s bondholders on Wednesday echoed the bankrupt medical equipment maker’s opposition to the retention of Baker & McKenzie LLP on an hourly basis as counsel for the official equity committee, saying the firm should only be compensated by a contingent fee.
May 15, 2013
RINO, Execs Pay $3.5M To Settle SEC Skimming Suit

Project finance company RINO International Corp. and two executives on Wednesday reached a settlement worth more than $3.5 million with the U.S. Securities and Exchange Commission over allegations the executives spent millions skimmed off of a securities offering for luxury purchases.
May 15, 2013
Freddie Mac Asks 2nd Circ. To Affirm Toss Of Investor Suit

Freddie Mac on Tuesday urged the Second Circuit to affirm the dismissal of a proposed class action accusing it of misleading investors, saying a trial judge properly found the government-backed mortgage buyer did not conceal facts that, once revealed, caused investor losses.
May 15, 2013
Deals Rumor Mill: Sinopec, Siemens, Activision

Sinopec is ready to gain big through its engineering unit's anticipated $1.9 billion initial public offering, while Activision has hit a brick wall in talks with parent company Vivendi SA over the terms of a major share buyback that could be worth as much as $10 billion.
May 15, 2013
True Religion Shareholders Sue To Block $835M Buyout

True Religion Apparel Inc. and its board threw shareholders under the bus when they agreed to let TowerBrook Capital Partners take the designer jeans company private for $835 million, a proposed class of California shareholders alleged Tuesday.
May 15, 2013
Goldman Dodges Insurer's $63M MBS Suit In 2nd Circ.

The Second Circuit on Wednesday refused to revive a $62.5 million Liberty Mutual Insurance Co. suit alleging Goldman Sachs & Co. hid Fannie Mae’s exposure to toxic loans while underwriting the mortgage giant's securities deals in 2007, calling the case a "classic example of pleading fraud by hindsight."
May 14, 2013
Rotech's $30M DIP Loan OK'd Over Shareholders' Objections

Struggling medical equipment maker Rotech Healthcare Inc. won final approval for its $30 million debtor-in-possession package Tuesday, as a Delaware bankruptcy judge agreed to sign off on it despite strenuous opposition from Rotech's shareholders committee.
May 14, 2013
Morgans Director Wins Injunction To Halt Yucaipa Deal

A Delaware Chancery judge put Morgans Hotel Group Co.'s planned recapitalization on ice Tuesday, granting an injunction that prevents the hotel operator from moving forward immediately on its deal with private equity firm Yucaipa Cos. LLC and imposes a time frame for the shareholder vote on a possible board shakeup.
May 14, 2013
SEC Head Orders Review Of Cyberthreat Disclosure Guidance

U.S. Securities and Exchange Commission Chairman Mary Jo White has asked her staff to assess the effectiveness of staff-level guidance that pushes companies to disclose cyberthreats in their regulatory filings in order to determine if a more stern directive is needed, she said in a letter released Monday.
May 14, 2013
Goldman's Blankfein Needn't Testify In $1B Toxic Assets Suit

Goldman Sachs Group Inc. CEO Lloyd Blankfein escaped having to testify in an investor class action accusing Goldman of using collateralized debt obligations to unload $1.2 billion in toxic subprime mortgage-related assets onto hapless investors, a New York federal judge ruled Tuesday.
May 14, 2013
Nomura Escapes Suit Over $99M in MBS Trust Losses

A New York state judge on Friday threw out a $99 million lawsuit over allegedly defective mortgage-backed securities issued by Nomura Credit & Capital Inc., finding the majority investor in a loan trust waited too long to sue the bank for failing to repurchase securities.
May 14, 2013
Investors Can't Revive Suit Over Failed $60M Oil Rig Deal

A Texas appeals court on Tuesday ruled that a pair of oil and gas investors could not recover a commission their broker made on a $60 million offshore oil rig acquisition after allegedly misappropriating the investors’ business plan to steer the deal to another client.
May 14, 2013
Hospital's $350M Bond Issuance Suit Falls In 5th Circ.

A Louisiana hospital operator on Tuesday lost its suit over bond insurer National Public Finance Guarantee Corp.'s delay in deciding to approve its plan to issue $350 million in additional bonds, when the Fifth Circuit ruled their agreement allowed National Public to withhold approval.
May 14, 2013
Judge Rejects FirstMerit Shareholders' Say-On-Pay Suit

A federal judge on Friday dismissed derivative actions brought by shareholders in FirstMerit Corp. alleging that the bank's board improperly approved executive pay packages that investors rejected in a nonbinding say-on-pay vote.
May 14, 2013
Accused Insider Traders In Brocade Deal Plead Not Guilty

A former hedge fund professional and a corporate insider accused of sharing then-confidential details of a $3 billion acquisition by networking company Brocade Communications Systems Inc. pled not guilty Tuesday to insider trading charges.
May 14, 2013
EU Raids BP, Statoil Over Benchmark Rate Manipulation

The European Commission raided BP PLC and Statoil on Tuesday based on suspicions that the energy giants might have colluded to manipulate benchmark oil and biofuel rates used in derivatives and commodity sales.
May 14, 2013
Morgan Stanley Says Investors Limited In $145M MBS Fight

A Morgan Stanley attorney told a New York state judge on Tuesday that investors were overreaching by trying to force it to undo a mortgage-backed securities deal that allegedly cost them $145 million, saying their only remedy was repurchase of defective loans.

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Expert Analysis

No Mercy From IRS On Section 409A Compliance

Big Brother is paying attention to how you value your company’s stock for purposes of granting stock options, as evidenced by Sutardja v. United States, in which the U.S. Court of Federal Claims recently confirmed that Section 409A applies to discounted stock options. This case highlights the need to ensure that a determination of fair market value is defensible and complies with Section 409A, says Justin Stemple of Warner Norcross & Judd LLP.
3 Ways To Leverage Internet Access During Trial

A survey of local rules for courthouses with available Wi-Fi has shown that no courts expressly prohibit the use of Internet by lawyers to gain information about the venire. Interestingly, at least one appellate court has held that it was error not to allow counsel to access the Internet during jury selection, say Derek Sarafa and William O'Neil of Winston & Strawn LLP.
What Boards Can Learn From Morgan Keegan

Long-awaited U.S. Securities and Exchange Commission guidance on valuation, if and when issued, may address the SEC’s views as to the specific role it expects fund boards to play in the valuation process. In the meantime, there are a number of lessons that boards can draw from the Morgan Keegan actions, says Domenick Pugliese of Paul Hastings LLP.
What Flavor Are Your PE Fund Marketing Activities?

David Blass, the chief counsel in the Division of Trading and Markets at the U.S. Securities and Exchange Commission, recently described two “flavors” of activities that funds and their advisers should consider in evaluating potential broker-dealer status — “plain vanilla” and “dark chocolate with a subtle infusion of habañero,” say Amy Kroll and Michael Weissmann of Bingham McCutchen LLP.
Energy Market End-Users Let Out A Sigh Of Relief

Just one day before the end-user compliance date for swap reporting and record keeping under the Dodd-Frank Act, the U.S. Commodity Futures Trading Commission issued a no-action letter. While the scope of the relief provided in the letter varies depending on the status of the reporting counterparty, the letter should be welcomed by most of the energy market's end-user community, say attorneys with Sutherland Asbill & Brennan LLP.
Foreign Pension Funds Could Back US Infrastructure

In order to incentivize foreign pension funds to invest in U.S. infrastructure projects — such as oil and gas fields, pipelines, real estate development and toll roads — the Obama administration has proposed putting foreign pension funds on equal footing with U.S. pension funds that are permitted to invest in certain real estate assets on a tax-exempt basis. The proposal, if enacted, would open up certain classes of investment assets effectively unavailable to foreign pension funds, say James Reardon and Elizabeth Behncke of Bracewell & Giuliani LLP.
How To Perform A Corruption Risk Assessment

Virtually every authoritative source of guidance on effective anti-corruption compliance emphasizes the importance of conducting a companywide risk assessment. Companies may be tempted to gloss over this step, but without a clear vision of its particular corruption risks, a company's compliance efforts may turn out to be needlessly costly, inefficient and ineffective, say attorneys with K&L Gates LLP.
DGCL Amendments Could Increase Negotiated Tender Offers

If adopted, recently proposed amendments to the Delaware General Corporation Law should have a meaningful impact on, and lead to the increased use of, two-step public company acquisition structures, says Clifford Neimeth of Greenberg Traurig LLP.
What Do Staub And Sharef Really Tell Us?

While SEC v. Straub and SEC v. Sharef have provoked considerable commentary, they provide little, if any, insight for corporations in how to handle areas in which FCPA jurisdiction plays a key role, such as foreign acquisitions, joint ventures and successor liability. Moreover, the holdings appear to be closely wedded to the specific facts, rather than an illuminating new principle, say Robb Adkins and Krista Enns of Winston & Strawn LLP.
Spotlight On Keepwells And Excluded Obligations

There has been considerable discussion in syndicated lending circles recently regarding how to account for a new swap “clearing requirement” that significantly impacts loan documentation and became enforceable on March 31, 2013. Two particularly important means for lenders to address the clearing requirement are “keepwells” and excluding guarantee obligations of entities that are not “eligible contract participants,” say Andrew Colao and Amara Gossin of Weil Gotshal & Manges LLP.

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