Expert Analysis

• Keeping Tabs On Fight Over Board Diversity Rule At 5th Circ.

  

  Attorneys at Mintz dissect why the Fifth Circuit rejected a constitutional challenge to Nasdaq’s new requirement that listed companies disclose board diversity data, assess how a petition calling the decision pro-discrimination may fare, and discuss where companies that have yet to meet the exchange's diversity goals go next.

• Why SEC Is Worried AI Could Lead To Recession, Racial Bias

  

  U.S. Securities Exchange Commission Chair Gary Gensler recently indicated he believes the agency should have a seat at the artificial intelligence regulatory table, which he said, if left unchecked, could lead to systemic racial bias, IP issues and even a recession, says Nancy Wojtas at Cooley.

• How Shareholder Activists Are Targeting Insurers

  

  As shareholder activists take a closer look at the insurance industry, they are pushing insurers to take value-enhancing and climate-related measures — but insurers can prepare by anticipating activist concerns, maintaining robust shareholder engagement, and considering changes in response to the universal proxy rules, say attorneys at Debevoise.

• New CFTC Enforcement Policy May Finally Deter Recidivists

  

  The U.S. Commodity Futures Trading Commission’s recently announced policies designed to crack down on market misconduct recidivists may finally raise the stakes enough to motivate institutions to improve their compliance infrastructure, say Dan Chirlin and Marc Armas at Walden Macht.

• 5th Circ. Ruling May Beget Fraud Jury Instruction Appeals

  

  The Fifth Circuit’s recent U.S. v. Greenlaw decision, disapproving disjunctive fraudulent-intent jury instructions, will likely spawn appeals in mail, wire and securities fraud cases, but defendants must show that their deception furthered ends other than taking the victim's property, says Charles Fowler at McKool Smith.

• Libor Fallback To Prime May Increase Corporate Loan Costs

  

  Despite preparations and legislative actions related to the transition away from Libor earlier this year, there remains a contingent of corporate borrowers that have fallen through the cracks and could face increased costs if their loans default to prime rates, say Nathan Moore and Dana Bradley at WilmerHale.

• Calif. Climate Disclosure Laws: Next Steps For Companies

  

  A trio of new climate disclosure laws in California will impose far-reaching corporate reporting requirements — so companies doing business in the state must immediately begin working to substantiate their climate claims and update marketing materials, and consider getting involved in rulemaking that will shape the legislation's impact, say attorneys at Alston & Bird.

• Key Points From NY Regulators' Crypto Listing Update

  

  Virtual currency entities should review the New York State Department of Financial Services' recently proposed guidance for self-certification of coins, which features heightened listing standards and a new delisting framework, and evaluate its impact on their existing practices and coin-listing procedures, say attorneys at WilmerHale.

• Attorneys, Law Schools Must Adapt To New Era Of Evidence

  

  Technological advancements mean more direct evidence is being created than ever before, and attorneys as well as law schools must modify their methods to account for new challenges in how this evidence is collected and used to try cases, says Reuben Guttman at Guttman Buschner.

• Why Public Cos. Should Also Comply With SEC's Names Rule

  

  While the U.S. Securities and Exchange Commission's updated Names Rule specifically clarifies that funds must consider ESG factors in their investment strategies if their names so imply, public companies should also heed the message and conduct business consistent with the way they market or advertise themselves, says Spencer Feldman at Olshan Frome.

• Series

  ESG Around The World: The UK

  

  Following Brexit, the U.K. has adopted a different approach to regulating environmental, social and governance factors from the European Union — an approach that focuses on climate disclosures by U.K.-regulated entities, while steering clear of the more ambitious objectives pursued by the EU, say attorneys at Dechert.

• Lenders Must Prep For Ga. Commercial Financing Disclosures

  

  Since Georgia’s new commercial financing disclosure requirements may be a lender's first foray into complicated Truth-In-Lending-Act-style laws, providers should work with investor counterparties to prepare early disclosures, in compliance with statutory tolerances, for borrowers whose loan agreements take effect Jan. 1, says Melissa Richards at Buchalter.

• Best Practices For Cos. Navigating US-China Investigations

  

  Given recent enforcement trends and the broad jurisdictional reach of U.S. laws, companies with operations in China must enhance their compliance programs in order to balance new corporate enforcement expectations with Chinese data protection and privacy requirements, say attorneys at Paul Hastings.

• Tips For Litigating Against Pro Se Parties In Complex Disputes

  

  Litigating against self-represented parties in complex cases can pose unique challenges for attorneys, but for the most part, it requires the same skills that are useful in other cases — from documenting everything to understanding one’s ethical duties, says Bryan Ketroser at Alto Litigation.

• Planning Compliance For Updated FinCEN Reporting Rules

  

  Although the Financial Crimes Enforcement Network's reporting deadline for beneficial ownership information may seem far off, companies should act now to determine which corporate entities must report and what information must be collected, given the potential time, resources and legal questions involved, say attorneys at Crowell & Moring.