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SEC Clarifies Federal Fiduciary Duties of Investment Advisers
Lowenstein Sandler LLP, October 2019

  The Securities and Exchange Commission (the SEC) recently sought to clarify its position on federal fiduciary duties of investment advisers with an interpretation.1 The interpretation emphasized how client sophistication and the scope of an advisory relationship affect the fiduciary duties owed to particular clients. Determine Scope of Relationship All advisers owe fiduciary duties under the Investment Advisers Act of 1940, as amended (the Advisers Act)...

What the Changes to CFIUS Mean for Foreign Investment
Lowenstein Sandler LLP, July 2019

CFIUS is a U.S. federal interagency committee (“Committee”). The Committee reviews and approves foreign direct investment in U.S.-based businesses. Investment is restricted if it impairs national security. Under the new Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), what the Committee considers to be “national security” has recently changed to include emerging and critical technologies and sensitive personal data...

SEC Clarifies Federal Fiduciary Duties of Investment Advisers
Lowenstein Sandler LLP, July 2019

The Securities and Exchange Commission (the SEC) recently sought to clarify its position on federal fiduciary duties of investment advisers with an interpretation.1 The interpretation emphasized how client sophistication and the scope of an advisory relationship affect the fiduciary duties owed to particular clients. Determine Scope of Relationship All advisers owe fiduciary duties under the Investment Advisers Act of 1940, as amended (the Advisers Act)...

New York on Verge of Passing Landmark Data Security Legislation
Lowenstein Sandler LLP, June 2019

What You Need To Know: If signed into law, New York’s SHIELD Act will broaden the definition of protected information to include biometric data, email addresses, and corresponding passwords or security questions and answers. Unauthorized access, and not just unauthorized acquisition, to protected information would trigger breach notification requirements...

Securing Indemnification and Additional Insurance Coverage Requires Careful Drafting
Lowenstein Sandler LLP, January 2019

Insurance plays a prominent role in all real estate transactions. Stakeholders generally understand that insurance policies must be secured for the leasehold to address property damage and liability claims. However, stakeholders often do not pay attention to the precise contract language used to establish the insurance requirements and address how the waterfall of available insurance coverage will flow...

Fear of Brave? An Analysis of GDPR Challenges to Behavioral Advertising
Lowenstein Sandler LLP, November 2018

On September 12, 2018, a complaint was submitted to the Irish Data Protection Commission1on behalf of Johnny Ryan, Chief Policy and Industry Relations Officer at Brave Software, Inc., seeking to trigger, for the first time, an EU-wide investigation into certain data practices within the digital advertising industry...

Obstacles to IPOs Faced by Life Sciences Companies
Lowenstein Sandler LLP, October 2018

Initial public offerings (IPOs) are often seen as attractive by business owners in the life sciences or biotech field, writes Alan Wovsaniker, a partner with Lowenstein Sandler, in an Expert View column on the topic. The need for capital in a life sciences business tend to be great, as the cost to develop new drugs, therapies or medical devices is extremely expensive and it takes many years to receive regulatory approval to market and sell such drugs, therapies or medical devices...

SCOTUS Changes To Sales Tax Will Ripple Through to PE, VC & M&A Deals Involving Retailers
Lowenstein Sandler LLP, October 2018

Retailers have taken note of the dramatic shift in state sales tax law emerging from one of Justice Anthony Kennedy’s last Supreme Court decisions. As different states announce legislative and regulatory changes throughout the summer, retailers are scrambling and we’re now seeing the impact in venture capital, private equity, and merger and acquisition transactions involving commerce companies. On June 21, 2018 the U.S. Supreme Court decided South Dakota v...

State Initiatives to Control Drug Prices
Lowenstein Sandler LLP, October 2018

While the Trump administration and Congress have talked a lot about controlling drug prices, and the administration did recently float a much-criticized proposal to require drug companies to include list prices in TV ads, state governments have grown tired of waiting and seized the initiative in this area in imaginative ways. Over the past several years, numerous states have taken a broad variety of measures to control and influence prescription drug spending and prices...

Maximizing Insurance Coverage for Cyber Losses: Two New Decisions Highlight Potential Recovery Sources
Lowenstein Sandler LLP, July 2018

Businesses prudently and increasingly purchase stand-alone cyber insurance policies to manage the risk of cyber breaches and attacks. Two decisions from separate U.S. Courts of Appeals in the past two weeks highlight the fact that in-house counsel and risk managers should look to their organizations’ traditional insurance policies as a source of potential coverage for cyber-related losses. Spec’s Fam. Partners, Ltd. v. Hanover Ins. Co...

U.S. Supreme Court Rules for Privacy Protections in Requiring a Warrant to Access Cell Tower Location Data
Lowenstein Sandler LLP, July 2018

On June 22, 2018, the United States Supreme Court ruled inCarpenter v. United Statesthat the federal government needs a warrant to collect location data about cellphone users. Authored by Chief Justice John G...

Remain on Guard: Lessons for Trade Creditors in a post-Toys "R" Us World
Lowenstein Sandler LLP, June 2018

In today’s retail bankruptcy environment, obtaining “critical vendor status” is not enough. Many predict that 2018 will continue being an active year in retail bankruptcies, especially for highly leveraged retailers. Since our last article, numerous well-known retailers have filed for protection under the Bankruptcy Code, including: Bon-Ton, Claire’s, Nine West, and Toys “R” Us...

How to Survive a Late Notice Challenge in an Environmental Insurance Coverage Action
Lowenstein Sandler LLP, January 2018

Since the mid-1980’s, environmental insurance coverage claims have been the most complex of insurance coverage claims. Insurance companies usually will not voluntarily provide coverage for gradually-occurring environmental claims without a fight, which typically takes the form of insurance coverage litigation that can be costly and time-consuming. A policyholder must overcome many hurdles to obtain coverage for an environmental claim...

What a Sears Lawsuit Against a Supplier Means for Retailers
Lowenstein Sandler LLP, December 2017

  A lawsuit filed earlier this year by a Sears Holdings subsidiary could have far-reaching implications for suppliers selling to a customer suspected of financial distress. The lawsuit is particularly significant to those in the retail sector, as brick-and-mortar operations across the country struggle amid growing online competition...

Inflection Point for VR?
Lowenstein Sandler LLP, November 2017

 Despite predictions over the last several years that virtual reality (VR) and augmented reality (AR) were going to dominate consumer technology, adoption and sales have been slower than many had forecasted...

EPA's Recommendations to Jump-Start Superfund
Lowenstein Sandler LLP, August 2017

The United States Environmental Protection Agency (“USEPA”) Administrator Scott Pruitt has created a Superfund Task Force...

SEC Expands Use of Confidential IPO Filings
Lowenstein Sandler LLP, August 2017

On June 29,2017, the Securities and Exchange Commission (SEC) announced that it will permit all companies to confidentially submit draftregistration statements for review under the Securities Act...

Receipt of Goods Means Physical Possession in Determining Whether a Trade Vendor Has a Section 503(b)(9) Claim
Lowenstein Sandler LLP, July 2017

A recent decision by the United States Court of Appeals for the Third Circuit in In re World Imports, Ltd. ruled on a hotly contested issue of bankruptcy law that has significant ramifications for trade creditors selling goods to a debtor just prior to the debtor filing for bankruptcy...

Impact of Cross-Border Court-to-Court Communications on U.S. Creditors' Rights
Lowenstein Sandler LLP, July 2017

As U.S. businesses have gone global, so have their customers. U.S. companies selling abroad have been confronted with customers that have filed for relief under their country’s insolvency law. If the customer has a business or assets here in the U.S., he or she might then file either a Chapter 11 or Chapter 15 case in a U.S. bankruptcy court. Unlike a Chapter 11 case, a Chapter 15 case is not necessarily the “main event.” Yet, even in Chapter 15 cases, U.S...

Drug/Device Development Changes Imminent: 21st Century Cures Act Becomes Law
Lowenstein Sandler LLP, July 2017

Life sciences companies are navigating sweeping changes brought about by the 21st Century Cures Act (the “Cures Act” or the “Act”) signed in recent years. Of most interest to those companies is how the Act is changing the pathways and processes for developing and getting approval for new drugs and devices and new uses for existing products...

Pursuing Avoidance Power Claims Against Foreign Entities
Lowenstein Sandler LLP, July 2017

A recent decision by the Delaware Bankruptcy Court, in In re FAH Liquidating Corp., addressed the issue of whether a transfer of a debtor’s assets that occurred outside of the United States can be avoided and recovered under the Bankruptcy Code. The Bankruptcy Court held that a trustee or debtor-in-possession can avoid and recover fraudulent conveyances (and, by extension, preferential transfers) that occurred outside of the U.S...

What Can I Find Out About a Company From Its Website?
Lowenstein Sandler LLP, June 2017

Company websites are becoming an increasingly important source of information for investors as Congress and the Securities and Exchange Commission have passed regulations and national exchanges, including NYSE and NASDAQ, have issued rules that govern what, when and how content should be posted on them. The SEC has also published guidance on specific areas in which they do not have regulations, but want to prevent investor confusion...

Nasdaq Solicits Comments On Shareholder Approval Rules For Private Placements
Lowenstein Sandler LLP, June 2017

Earlier this year, Nasdaq posted a notice that it was seeking comments (the “Comment Solicitation”) to a potential revision to Nasdaq Listing Rule 5635(d) (the “Private Placement Rules” and such proposed revision, the “Proposed Rule”)...

Asset Management M&A Is Here To Stay
Lowenstein Sandler LLP, June 2017

There’s a lot of sound reasoning behind the idea that asset management mergers and acquisitions are likely to slow in 2017 after several very busy years, including $17.1 billion in transactions last year alone. Global equity market and political uncertainties abound — and as more investors flock to passive investments, there will be continued pressure on managers to lower fees and yet find ways to increase operational efficiencies to maintain profitability...

Salman v. United States And Its Impact On Insider-Trading Enforcement
Lowenstein Sandler LLP, May 2017

On December 6, 2016, the U.S. Supreme Court ended two years of uncertainty surrounding what actually constituted illegal “insider-trading” for the “tippers” who pass on confidential information to others, and for the “tippees” who receive the information and trade on it. In Salman v. United States, 1 the Court restored the status quo ante (or most of it, anyway) that had been disrupted by the Second Circuit’s landmark holding in United States v...

 

 

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