Expert Analysis

• What End Of SEC Settlement Gag Rule Means For Defendants

  

  The U.S. Securities and Exchange Commission's recent rescinding of its gag rule prohibiting defendants from publicly denying allegations in settled SEC enforcement actions actually heightens the need to think strategically when negotiating resolutions and pursuing public denials of wrongdoing, say attorneys at Cleary.

• SEC's Co-Investment Relief Broadens Private Market Access

  

  The U.S. Securities and Exchange Commission's recent no-action letter to J.P. Morgan Investment Management permits open-end funds to co-invest with affiliates, removing a long-standing barrier open-end fund sponsors have faced in sourcing private market investments at scale, say attorneys at Debevoise.

• Your Next Litigation Hold Should Cover AI Chat Logs

  

  The Delaware Chancery Court’s recent decision in Fortis Advisors v. Krafton to treat a CEO’s artificial intelligence chats as substantive evidence is being read as a discovery warning to litigators, but there is a second duty-to-preserve lesson that is especially pertinent to in-house counsel, say attorneys at Faegre Drinker.

• Musk-OpenAI Verdict Shows Value Of Early-Stage Governance

  

  A California federal court's ruling last week in Musk v. Altman preserves the status quo at OpenAI, but signals to the technology industry at large that courts will not relitigate the governance decisions of early-stage organizations on a founder's competitive timetable, surfacing questions that will outlast the litigation, says attorney Alan N. Walter.

• How SEC, CFTC Proposal Would Ease Private Fund Reporting

  

  While the U.S. Securities and Exchange Commission and Commodity Futures Trading Commission’s recent proposal to streamline and lighten certain confidential reporting requirements could bring welcome changes for many private fund advisers, sponsors should consider important nuances of its potential impact, say attorneys at Simpson Thacher.

• Finding Borrower Risk In The Private Credit Covenant Mix

  

  Amid rising caution over private credit defaults, investors and their counsel can gain key insights about borrower risk from the particular combination of financial metrics included in a loan's covenants, not just the number of covenants, say Christopher Armstrong at Stanford University, and Carlo Gallimberti and David Tsui at Analysis Group.

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  Studying Foreign Languages Makes Me A Better Lawyer

  

  Studying Italian and Japanese has shown me that learning a new language can benefit a legal career in several ways, including by demonstrating the importance of approaching problems from a fresh perspective and the value of practicing patience with colleagues and clients, says Anna King at Genworth Financial.

• Del. Justices' Ripeness Ruling Shields Advance Notice Bylaws

  

  The Delaware Supreme Court’s recent decision dismissing two AES and Owens Corning stockholder challenges of advance notice bylaws as unripe provides corporations more room to insulate their nomination procedures from activist pressure, say attorneys at Reed Smith.

• Tax Teams Get No Bright-Line Rule From AI Privilege Cases

  

  Three recent appellate decisions that considered artificial intelligence in the context of attorney-client privilege protections illustrate that taxpayers and tax practitioners alike must consider the pertinent facts on a case-by-case basis, with particular attention to confidentiality, disclosure risk and system design, say attorneys at Morgan Lewis.

• Claiming The Narrative Before The SEC Files Charges

  

  Following the U.S. Securities and Exchange Commission's recent rescission of its no-deny rule, Scott Schneider at FTI Consulting, a former U.S. Securities and Exchange Commission communications official, details when and how to publicly respond to news of a pending regulatory inquiry targeting your company.

• SEC Enforcement Has Continued Its Asset Management Focus

  

  While the total number of U.S. Securities and Exchange Commission enforcement actions is down, certain novel theories of liability have been abandoned, and the SEC has embraced a back-to-basics posture, most of the regulatory risks for asset managers that existed in the prior commission have not gone away, say attorneys at Weil.

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  NY Times Word Puzzles Make Me A Better Lawyer

  

  Every morning I let The New York Times humble me with word games, which offer a chance to recalibrate my brain before the day's chaos arrives and remind me that a solution — whether to a puzzle or employment law issue — almost always exists once I find the right angle, says Amy Epstein Gluck at Pierson Ferdinand.

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  Law School's Missed Lesson: Diagnose Before Arguing

  

  Law school often skips over explicitly teaching students how to determine what kind of problem a case presents before they commit to a particular doctrinal path, which risks building arguments that are internally coherent but externally misaligned, says Melanie Oxhorn at Kobre & Kim.

• Becoming The Biz-Savvy GC That Portfolio Companies Need

  

  Candidates for general counsel roles at private equity-backed portfolio companies should prioritize proving their sector-specific experience, commercial judgment and ease with uncertainty — and attorneys hoping to be candidates in five to 10 years should start working on those skills now, says Dimitri Mastrocola at Major Lindsey.

• Del. Dispatch: The Hurdles To Early Fraud Claim Dismissal

  

  Particularly where the alleged facts may suggest potentially blatant or egregious misconduct, the pleading-stage standards highlighted in the Delaware Court of Chancery's recent decision in Diem v. Maisonette provide a ready route for the nondismissal of claims before a trial, say attorneys at Fried Frank.