Proskauer Rose LLP

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Eleven Times Square
(Eighth Avenue & 41st Street)
New York, NY 10036-8299, United States
Phone: 212.969.3000
Fax: 212.969.2900
Practice Groups
Areas Of Practice
  • Administrative Law
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Business Organizations
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Constitutional Law
  • Construction Law
  • Criminal Law
  • Debtor/Creditor
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Immigration Law
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Mergers & Acquisitions
  • Privacy
  • Products Liability
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Wills, Trusts, & Estate Planning
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Florida
  • Illinois
  • Louisiana
  • Massachusetts
  • New York
Other Countries
  • Brazil
  • China
  • France
  • Hong Kong
  • United Kingdom
Number of Attorneys
400+ Attorneys

DOJ Triples Down on Incentivizing Disclosures with Launch of Three-Year Corporate Whistleblower Awards Pilot Program

Corporate Whistleblower Awards Pilot Program (“Pilot Program”), aimed at incentivizing whistleblowers to report potential criminal conduct. The announcement was anticipated, having been previewed in March 2024 by Deputy Attorney…more

CFTC, Department of Justice (DOJ), Disclosure Requirements, False Claims Act (FCA), Federal Pilot Programs

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Three Point Shot - September 2023

Welcome to Three Point Shot, a newsletter brought to you by the Sports Law Group at Proskauer. Three Point Shot brings you the latest in sports law-related news and provides you with links to related materials. In this issue, we…more

Antitrust Provisions, Appeals, Arbitration, Constitutional Challenges, DMCA

See all updates »

Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

See all updates »

Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

See all updates »

No Money? No Problem: Recent IRS Favorable Guidance Regarding a REIT’s First Year

On October 4, 2024, the Internal Revenue Service (the “IRS”) released Private Letter Ruling 202440007, which concluded that the lack of income and assets in the first taxable year of an entity that had elected to be treated as a…more

Asset Test, Guidance Update, Income Taxes, Income Test, IRS

See all updates »

Question of the Week: What does the future of dealmaking look like for AI-related companies?

"We’re currently seeing a lot of follow-on investments into AI. For example, sponsors are making incremental investments into portfolio companies or using portco balance sheet cash and/or stock to finance acquisitions of…more

Acquisitions, Artificial Intelligence, Bias, Compliance, Cybersecurity

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“Boomerang” Indemnification/Advancement-Gilbert v. Unisys

Under Delaware law, executives (and former executives) may be entitled to indemnification and advancement from their employer for claims arising in connection with their employment. These rights to indemnification/advancement…more

Advancement, Attorney's Fees, Confidential Information, Contract Terms, Corporate Executives

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SEC Adopts Treasury Clearing Rules

On December 13, 2023, the Securities and Exchange Commission (“SEC”) adopted new rules that will have the effect of requiring central clearing of a broad range of cash transactions and repurchase transactions in U.S. treasury…more

Broker-Dealer, Derivatives, Mandatory Clearing Rule, Proposed Rules, Securities and Exchange Commission (SEC)

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IRS Releases Annual Increases to Health FSA and Transportation Fringe Benefit Limits for 2024

On November 9th, the IRS announced additional inflation adjustments for 2024, including to the annual contribution and carryover limits for healthcare flexible spending accounts and the monthly limit for qualified transportation…more

Flexible Spending Accounts, Fringe Benefits, Healthcare, Inflation Adjustments, IRS

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Seventh Circuit Rules: Just Saying it Doesn’t Make it So, for Class Certification

Defendants on the losing side of a class certification order were recently provided with a roadmap of how to challenge a district court’s analysis on appeal. On April 12, 2023, the United States Court of Appeals for the…more

Appeals, Class Certification, Coronavirus/COVID-19, Federal Rules of Civil Procedure, Putative Class Actions

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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Three Point Shot - May 2024

Mischief Afoot: Vans Kicks MSCHF’s Main Defense to Trademark Infringement to the Curb in Art Sneaker Dispute - If the shoe fits, wear it. Or so the Second Circuit mused in a recent decision, in which it “re-boxed” an art…more

Dilution, Enforcement, Fantasy Sports, First Amendment, Gaming Commissions

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The End of Chevron

When an ambiguity exists in a statute for which Congress has not chosen among the reasonable readings, who decides which possible reading should govern? For nearly four decades, courts have followed the rule of Chevron U.S.A.,…more

Administrative Procedure Act, Chevron Deference, Chevron v NRDC, Clean Air Act, Government Agencies

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

See all updates »

FTC Focus: How Scrutiny Of PBMs And Insulin May Play Out

This article is part of a monthly column that considers the significance of recent Federal Trade Commission announcements about antitrust issues. In this installment, we discuss the FTC's complaint on PBMs' conduct around…more

Administrative Complaints, Anti-Competitive, Article II, Drug Pricing, Due Process

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Wealth Management Update - December 2023

Shining a Light on the Corporate Transparency Act: FinCEN’s Rules for Beneficial Ownership Reporting - On January 1, 2021, Congress enacted the Corporate Transparency Act (the “CTA”) as part of the Anti-Money Laundering Act…more

Anti-Money Laundering, Beneficial Owner, Commodity Trading Advisors (CTAs), Corporate Transparency Act, Due Diligence

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Key Steps for Fund Managers to Avoid Scrutiny Under the SEC’s Pay-to-Play Rule

The SEC’s recent settlement involving a “pay-to-play” rule violation by a private equity firm is a timely reminder for fund managers, especially with the November elections approaching. As a refresher, Rule 206(4)-5 of the…more

Compliance, Employee Training, Enforcement, Exempt Reporting Advisers (ERAs), Fund Managers

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Private Credit Deep Dives – Going Exclusive (Europe)

In recent months, market participants have become increasingly optimistic about the probability of a “soft landing” in the US economy, whereby tight monetary policy is shown to have tamed inflation whilst avoiding triggering a…more

Beneficiaries, Creditors, Debt, EU, Financial Transactions

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[Podcast] Private Market Talks: Headlines, Headlines, Headlines with Ares’ Kipp deVeer

This is a special episode that we recorded live at Proskauer’s flagship Private Credit Summit, part of its private capital event series. More than 200 capital allocators, lenders and investors joined us for an afternoon of…more

Asset Management, Capital Markets, Credit, Creditors, Direct Lending

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[Podcast] Episode 50: Activism and EBEC

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group, Josh Apfelroth, partner in the Private Equity and Mergers &…more

Board of Directors, Compensation & Benefits, Corporate Governance, Employee Benefits, Executive Compensation

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Fifth Circuit Strikes Down Private Fund Adviser Rules

In a significant decision released Wednesday morning, a unanimous three-judge panel for the U.S. Court of Appeals for the Fifth Circuit vacated what have come to be known as the Private Fund Adviser Rules, a set of rules and…more

Appeals, Dodd-Frank, En Banc Review, Final Rules, Fraud

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U.S. Chamber Strikes Back At NLRB Joint-Employer Rule

On November 9, 2023, the United States Chamber of Commerce (“Chamber”) and a coalition of business groups filed suit in the Eastern District Court of Texas against the National Labor Relations Board (“NLRB”), alleging the…more

Administrative Procedure Act, Chamber of Commerce, Employees, Federal Trade Commission (FTC), Independent Contractors

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Where Do We Go From Here? Practical Considerations When Multidistrict Litigation Comes to an End

When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a…more

Case Consolidation, Commercial Litigation, Daubert Ruling, Depositions, Disclosure Requirements

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New Jersey Employers be Warned: Changes to New Jersey WARN Likely on the Horizon

Almost three years ago – in January of 2020 – New Jersey Governor Phil Murphy signed Senate Bill 3170 into law, which provided significant amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act – also known…more

Coronavirus/COVID-19, Executive Orders, New Jersey, WARN Act

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From cryptic to (some) clarity: English law and policy rising to the challenge of cryptoassets

Sir Geoffrey Vos, the Master of the Rolls wants English law to be at the forefront of developments relating to cryptoassets and smart contracts. In his thought-provoking foreword to the government-backed UK Jurisdictional…more

Cryptoassets, Cryptocurrency, Digital Assets, Financial Regulatory Reform, Financial Transactions

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HMRC updates guidance on UK tax status of non-UK entities and US LLCs post Anson

On 6 December, HMRC updated the section in its International Manual discussing the UK tax characterisation of overseas entities, and of Delaware (and other US) limited liability companies (LLCs) in particular (in INTM180000 and…more

Business Entities, Foreign Entities, HMRC, Limited Liability Company (LLC), Regulatory Requirements

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No Time Like Today for an Ultra-fast Restructuring

As we prepare for the next restructuring cycle, the US private credit industry is becoming more intrigued with ultra-fast bankruptcy cases. These chapter 11 cases grab headlines and last less than a day. Specifically, FullBeauty…more

Bankruptcy Code, Bankruptcy Reform, Chapter 11, Commercial Bankruptcy, Corporate Restructuring

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New York Legislature Proposes New Sovereign Debt Restructuring Bill

The New York State Legislature recently proposed a bill, entitled the Sovereign Debt Stability Act, intended to facilitate sovereign debt restructuring. The bill, which could be brought to a vote as soon as May or June 2024,…more

Bankruptcy Code, Bankruptcy Court, Commercial Bankruptcy, Debt, Debt Restructuring

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Coronavirus: A Checklist for the Hospitality Industry Executive

As the Coronavirus (COVID-19) continues to disrupt travel and almost every other aspect of day-to-day life, the hospitality industry faces unprecedented challenges. Hotel closings, employee furloughs and other drastic measures…more

Acquisitions, Commercial Contracts, Coronavirus/COVID-19, Mergers, OSHA

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Wide Reaching Reform to UK Employment Law Proposed for 2026

The UK Labour Government published the Employment Rights Bill (“Bill”) last week, alongside a “Next Steps to Make Work Pay” plan (“Plan”), introducing several key employment law changes that will impact all UK businesses,…more

Employment Contract, Harassment, Parental Leave, Paternity Leave, Pregnancy Discrimination

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California Inches Closer To Killing Arbitration As We Know It…

It’s not like we didn’t tell you so, cuz we did! Just last year, we predicted that the latest assault on employer arbitration rights had the potential to destroy arbitration everywhere in the country. Is Arbitration Becoming…more

Arbitration, California, Mandatory Arbitration Clauses, Sexual Harassment

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Pay Range Will Be Required in Massachusetts Job Ads Starting July 31, 2025

On July 31, 2024, Massachusetts Governor Maura Healey signed into law new legislation that requires employers with 25 or more employees in Massachusetts to include pay range in job ads. The statute requires that the posted pay…more

EEO, Equal Employment Opportunity Commission (EEOC), Good Faith, Job Ads, Private Right of Action

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Effect of the New NYSE and Nasdaq Clawback Listing Standards on Registered Funds and BDCs

Beginning on December 1, 2023, companies listed on the New York Stock Exchange (“NYSE”) and the Nasdaq Stock Market (“Nasdaq”) will need to adopt and comply with policies providing for the recovery, or “clawback”, of erroneously…more

Business Development Companies, Clawbacks, Incentive Compensation, Investment Adviser, Investment Company Act of 1940

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Implications of U.S. Supreme Court Decision Overturning Affirmative Action Precedent in Higher Education

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race-conscious admissions programs at Harvard College and the University of North Carolina…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity and Inclusion Standards (D&I), Employment Discrimination

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

Streamlining University IP Innovation: How the Improving Efficiency to Increase Competition Act Could Advance University Inventions

University-driven innovation is a cornerstone of societal progress, as academic institutions play a pivotal role in advancing research and technology that fuel economic growth, enhance quality of life, and address global…more

Bayh-Dole Act, Federal Funding, GAO, Innovation, Intellectual Property Protection

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No Money? No Problem: Recent IRS Favorable Guidance Regarding a REIT’s First Year

On October 4, 2024, the Internal Revenue Service (the “IRS”) released Private Letter Ruling 202440007, which concluded that the lack of income and assets in the first taxable year of an entity that had elected to be treated as a…more

Asset Test, Guidance Update, Income Taxes, Income Test, IRS

See all updates »

The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

See all updates »

Key Uniform Commercial Code Financing Statement (UCC-1) Requirements

The UCC‑1 form is a staple of any secured lending practice. In the wake of the 2022 proposed Uniform Commercial Code (UCC) amendments, which have been adopted in 24 jurisdictions, many jurisdictions have updated their UCC‑1…more

Commercial Bankruptcy, Filing Requirements, First Amendment, Fraud, Jurisdiction

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Become An Expert in Experts: A Practical Client Guide To Working With Experts In International Arbitration, Part 2

In the first part of this article, we discussed why we need experts in international arbitration, how to find the right expert to instruct, and some practical guidance on how to work with experts for the best results. In this…more

Arbitration, Arbitrators, Construction Disputes, Dispute Resolution, Expert Testimony

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Can Open Justice Be Too Open? A Review of Proposals to Provide Non-Parties Greater Access to Court Documents in England & Wales

In July 2019, the UK Supreme Court (UKSC) handed down a judgment in a case that concerned the extent and operation of the principle of open justice (Cape v Dring). The question before the UKSC was how much of the written…more

Commercial Litigation, Documentation, Rules of Civil Procedure, UK Supreme Court

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For All Intents and Purposes the Ninth Circuit Shakes Up Antitrust Law With Sidibe v. Sutter Decision

The June 4, 2024 Ninth Circuit Court of Appeals decision in Sidibe v. Sutter Health marks a potential shift in how rule of reason antitrust cases are approached and adjudicated. The opinion underscores the significance of…more

Antitrust Provisions, Appeals, CA Supreme Court, Healthcare, Jury Instructions

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Fifth Circuit Affirms DOL’s Right to Set Salary Minimum for White Collar Exemptions

In its September 11, 2024 opinion in Mayfield v. Department of Labor, the United States Court of Appeals for the Fifth Circuit held that the U.S. Department of Labor’s explicitly delegated authority to “define” and “delimit” the…more

Department of Labor (DOL), EAP, Fair Labor Standards Act (FLSA), Final Rules, Loper Bright Enterprises v Raimondo

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

See all updates »

Red Rock and a Hard Place: NLRB Issues First Post-Cemex Bargaining Order

On June 17, 2024, the National Labor Relations Board (“NLRB” or “Board”) issued its first mandatory bargaining order to an employer after its momentous decision in Cemex Construction Materials Pacific, LLC last year. The NLRB…more

Appeals, Collective Bargaining, NLRA, NLRB, Unfair Labor Practices

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Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding the…more

Breach of Contract, Controlling Stockholders, Corporate Counsel, Derivative Suit, Fee Reductions

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

See all updates »

DOL Unveils Final Amendment to QPAM Exemption

On April 3, 2024, the U.S. Department of Labor (the “DOL”) published in the federal register a final amendment to Prohibited Transaction Class Exemption 84-14 (the “QPAM Exemption”) that makes considerable changes to the…more

Benefit Plan Sponsors, Criminal Convictions, Deferred Prosecution Agreements, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA)

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Proskauer Q3 Private Credit Default Index Decreases to 1.95%

NEW YORK, October 23, 2024 – Leading international law firm Proskauer today revealed the results of its Q3 2024 Private Credit Default Index (“Default Index” or the “Index”), with an overall default rate of 1.95%. The Q3 default…more

Credit, Credit Rating Agencies, EBITDA, Interest Rates, Loans

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Talking Trends

In our latest Q&A series, we delve into the world of private credit through the lens of eminent women in the field — from professionals at the forefront of industry leadership to our own lawyers. Together, we navigate the trends…more

Acquisitions, Creditors, Interest Rates, Investment, Investors

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Ninth Circuit Clears Airline’s Arbitration by Estoppel Argument for Takeoff

Earlier this month, in Herrera v. Cathay Pacific Airways Ltd., a divided Ninth Circuit panel reversed the district court’s order denying Cathay Pacific Airways Ltd.’s motion to compel arbitration of a putative class action…more

Appeals, Arbitration, Arbitration Agreements, Estoppel, Third-Party Service Provider

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Question of the Week: Sports-focused capital investment remains strong. What is driving the influx of private capital into sports? - Insights

"In recent years, the value of professional sports leagues and teams has skyrocketed, as reflected by a number of record-breaking transactions. At the same time, we experienced an unprecedented accumulation of capital by private…more

Asset Management, Capital Investments, Investment, Investment Management, Investors

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OFCCP Publishes Notice of NEW FOIA Request and Provides Opportunity for Contractors to Object to Release of Their 2021 EEO-1 Type 2 Reports

On October 28, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register informing federal contractors that the agency has received two new Freedom of Information Act (“FOIA”)…more

Department of Labor (DOL), EEO-1, Federal Contractors, FOIA, OFCCP

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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NLRB Rules That Graduate Students Are Employees

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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Do California’s New Restrictions on Independent Contractors Apply Retroactively?

On May 1, we reported on the California Supreme Court’s opinion in Dynamex Operations West, Inc. v. Superior Court, in which the Supreme Court set forth the standard for determining if a worker may properly be classified as an…more

ABC Test, CA Supreme Court, Employer Liability Issues, Employment Litigation, Independent Contractors

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The Case for a PAGA Adequacy Requirement

In Arias v. Superior Court, 46 Cal. 4th 969 (2009), the California Supreme Court ruled that Private Attorneys General Act (PAGA) actions need not satisfy class action requirements, and in the fourteen years since, PAGA…more

Adequacy Requirement, Appeals, CA Supreme Court, Class Action, Enforcement

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Regulation Round Up - September 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Artificial Intelligence, Cryptoassets, ELTIF, Enforcement, Environmental Social & Governance (ESG)

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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FTC Focus: Private Equity Investments In Healthcare

U.S. antitrust regulators, particularly the Federal Trade Commission, have been stepping up scrutiny of private equity investments in healthcare. On March 5, the FTC, along with the U.S. Department of Justice and the U.S…more

Acquisitions, Antitrust Provisions, Department of Health and Human Services (HHS), Department of Justice (DOJ), Federal Trade Commission (FTC)

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SEC Adopts New SPAC Rules

On January 24, 2024, the SEC adopted new rules that apply to SPAC transactions and the adopted rules largely track the agency’s proposals with some notable exceptions. The new rules will become effective 125 days after…more

Capital Markets, Conflicts of Interest, Dilution, Disclosure Requirements, Enforcement Actions

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Commercial Fishermen Urge Supreme Court to Reel In Agency Authority

The U.S. Supreme Court has agreed to hear a case challenging its landmark 1984 decision in Chevron v. Natural Resources Defense Council. The high court’s ruling could have important implications on federal officials’ discretion…more

Chevron, Chevron Deference, Chevron v NRDC, Environmental Protection Agency (EPA), Fishing Industry

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"Commercially Reasonable Efforts” Clauses in Drug Development Deals: What Level of Protection Do They Really Provide?

Pharmaceutical drug development is expensive. One recent study estimates that the median cost to develop a new drug is $985 million, while the average is $1.3 billion. And those figures appear to be on the low end of a broad…more

Commercially Reasonable Efforts, Contract Terms, Drug Design, Funding Arrangements, IP License

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Pre-Petition Settlement Agreement Not an Assumable, Assignable, Executory Contract

In Svenhard’s Swedish Bakery v. United States Bakery, Bk. No. 19-15277, 2023 WL 5541420 (9th Cir. Aug. 29, 2023), the Ninth Circuit held that a settlement agreement that resolved an employer’s withdrawal liability to a…more

Chapter 11, Employee Retirement Income Security Act (ERISA), Executory Contracts, Proof of Claims, Releases

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Alumni Reflections: The Power of Mentorship & Camaraderie

Proskauer partner Mike Callahan sat down with alums Julie Kim, vice president and senior counsel at Warner Bros. Discovery, and Marjan Elbaum, general counsel at Banyan Software. Julie and Marjan developed an early bond at…more

Acquisitions, Career Development, Commercial Contracts, Mentor-Protege Program, Mergers

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BridgeBio Transaction Reflects Healthy Market for FDA Priority Review Vouchers

BridgeBio’s recently announced sale of an FDA Priority Review Voucher for $110 million reflects a robust secondary market for these regulatory fast passes. Prices for Priority Review Voucher (“PRVs”) reflect the high stakes…more

Biologics, Expedited FDA Approval, Food & Drug Regulations, Food and Drug Administration (FDA), Healthcare

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Ninth Circuit Provides Further Guidance on Trademark Lawsuits Involving “Expressive Works”

We previously discussed the United States Supreme Court’s June 2023 Jack Daniel’s Properties, Inc. v. VIP Products, LLC decision, which altered the way the “Rogers test,” a doctrine designed to protect First Amendment interests…more

Appeals, Corporate Counsel, First Amendment, Jack Daniels Properties Inc v VIP Products LLC, Lanham Act

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USPTO Announces 2019 Revised Patent Subject Matter Eligibility Guidance

On January 4, 2019, the United States Patent and Trademark Office (“USPTO”) released a significant, much-awaited revision to its patentable subject matter eligibility guidance. The “2019 Revised Patent Subject Matter Eligibility…more

Abstract Ideas, Guidance Update, Patent Applications, Patent Examinations, Patent-Eligible Subject Matter

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Game On! Microsoft and Activision Deal is One Step Closer to Actual Reality

On January 18, 2022, Microsoft’s acquisition of Activision, one of the world’s most-valuable gaming companies, was announced. In April 2023, the United Kingdom’s Competition and Markets Authority (CMA) blocked the deal on…more

Activision, Antitrust Provisions, Appeals, Federal Trade Commission (FTC), Mergers

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BE-11 Survey: Reporting Deadline Approaching

In April 2023, we published an overview of the BE-12, a benchmark survey conducted every five years by the Department of Commerce’s Bureau of Economic Analysis (“BEA”) to gather information about foreign direct investment in the…more

Bureau of Economic Analysis, Filing Deadlines, Financial Institutions, Foreign Corporations, Foreign Direct Investment

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Question of the Week: As the use cases for NFTs continue to evolve, what are some key considerations for brands, NFT issuers and holders and marketplaces?

As use cases for NFTs evolve from digital collectibles to more functional assets, sellers need to be more mindful than ever of what they are selling. There are still intellectual property related risks for any content associated…more

Artificial Intelligence, Cryptocurrency, Digital Assets, Non-Fungible Tokens (NFTs)

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UK Listing Rules Reform: Seeking to Boost Competitiveness

On 11 July 2024, the United Kingdom’s Financial Conduct Authority (“FCA”) published its final rules (PS24/6) for a new, simplified and more competitive UK listing regime (the “Rules”).The FCA’s overall aim is to create a more…more

Competition, Disclosure Requirements, Financial Conduct Authority (FCA), Investment Funds, Shareholders

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FINRA Proposes to Amend Rule 2210 to Permit Projected Performance and Targeted Returns in Institutional Communications

On November 13, 2023, FINRA filed with the SEC a proposal to amendment to Rule 2210 that would create a tailored exception from the general prohibition on projections in marketing materials and other communications with…more

Financial Industry Regulatory Authority (FINRA), Institutional Investment, Institutional Investors, Investment Company Act of 1940, Marketing

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The Broad Impact of Edwards v. Meril on the Safe Harbor Provision

The Federal Circuit’s decision in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., has garnered significant attention, especially concerning the application of the “safe harbor” provision under 35 U.S.C. § 271(e)(1)…more

Denial of Rehearing, En Banc Review, Food and Drug Administration (FDA), Generic Drugs, Hatch-Waxman

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Affirmations over Affidavits: Highly Anticipated NY Bill Promises to Simplify Civil Action

A welcome change may be afoot for New York lawmakers, as New York Senate Bill S5162 recently passed the Senate and Assembly judiciary committees. The bill, which may soon be delivered to the Governor for signature, would amend…more

Affidavits, Perjury, Proposed Legislation

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Deadlines Approaching for New ACA Section 1557 Nondiscrimination Requirements: Action Items for Covered Group Health Plans

Earlier this year, the Department of Health and Human Services (“HHS”) released a final rule under Section 1557 of the Affordable Care Act (“ACA”), which prohibits discrimination in health programs and activities. The 2024…more

Affordable Care Act, Covered Entities, Deadlines, Department of Health and Human Services (HHS), Employer Group Health Plans

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FTC Appeals Texas Federal Court’s Decision Halting Its Noncompete Ban Nationally

On October 18, 2024, the Federal Trade Commission (“FTC”) gave notice that it would appeal a Texas federal court’s decision halting its non-compete rule (the “Rule”) from taking effect as to all employers nationwide. The appeal…more

Appeals, Enforcement, Federal Bans, Federal Trade Commission (FTC), Non-Compete Agreements

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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SEC Proposes Extensive New Rules Applicable to SPACs and de-SPAC Transactions

On March 30, 2022, the Securities and Exchange Commission (the “SEC”) proposed a set of rules and amendments governing special purpose acquisition companies (“SPACs”) that will, if adopted, impose significant new regulatory…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Investment, Securities and Exchange Commission (SEC)

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Question of the Week: What does the future of dealmaking look like for AI-related companies?

"We’re currently seeing a lot of follow-on investments into AI. For example, sponsors are making incremental investments into portfolio companies or using portco balance sheet cash and/or stock to finance acquisitions of…more

Acquisitions, Artificial Intelligence, Bias, Compliance, Cybersecurity

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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Antitrust Enforcers Preview Incoming Spotlight on Blockchain

The tide of regulation of cryptocurrency and blockchain could be turning in the United States. Following comments by newly-confirmed Treasury Secretary (and former Federal Reserve Chair) Janet Yellen describing Bitcoin as…more

Antitrust Division, Bitcoin, Blockchain, CFTC, Competition

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California Climate Disclosure Laws – New Developments, Old Timelines

California Climate Disclosure Laws – New Developments, Old Timelines - The California legislature recently rejected Governor Gavin Newsom’s proposal to delay the deadlines to comply with California’s climate disclosure laws…more

California, CARB, Clean Air Act, Climate Change, Disclosure Requirements

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Sixth Circuit Again Invalidates ERISA Plan Arbitration Clause

The Sixth Circuit recently reversed a district court’s dismissal, and order requiring arbitration of, a proposed class action alleging fiduciary breaches in connection with the Kellogg Company 401(k) plan. Fleming v. Kellogg…more

401k, Arbitration, Breach of Duty, Employee Benefits, Employee Retirement Income Security Act (ERISA)

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Question of the Week: As the impact of return-to-office policies take shape and climbing interest rates increase capitalization rates, how are real estate deals being affected?

Yes, interest rates have skyrocketed when you look at the last 10 years, but the reality is also that folks were able to be quite successful in the ‘90s, with interest rates hovering around 7%. The better questions will all…more

Capitalization, Coronavirus/COVID-19, Interest Rates, Investors, Real Estate Market

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TikTok Challenges Montana’s Unprecedented Statewide Ban

Last month, TikTok sued Montana’s attorney general—alleging the state’s recent TikTok ban is unconstitutional and is preempted by federal law. On May 17, Montana Governor Greg Gianforte signed a first-of-its-kind law…more

China, Commerce Clause, Cybersecurity, National Security, Preemption

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SEC Brings First Liquidity Rule Enforcement Action Against Investment Adviser and Fund Board

On May 5, 2023, the Securities and Exchange Commission ("SEC") filed charges against Pinnacle Advisors LLC ("Pinnacle Advisers"), an investment adviser, for allegedly aiding and abetting violations of Rule 22e-4 (the "Liquidity…more

Civil Monetary Penalty, Enforcement Actions, Investment Adviser, Liquidity, Liquidity Risk Management Rule

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Delaware Court Of Chancery Refuses To Enforce Both Choice of Law Provision And Nationwide Non-Compete

On August 31, 2023, the Delaware Court of Chancery held, with respect to a non-compete provision in an employment agreement, that: (1) the choice of law provision selecting Delaware was “not necessarily binding”; and (2) the…more

Corporate Counsel, Delaware, Employment Policies, Non-Compete Agreements, Pre-Employment Agreements

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NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned…more

Administrative Law Judge (ALJ), Collective Bargaining Agreements (CBA), Discipline, Duty to Bargain, Employer Liability Issues

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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In the Orphan Drug Approval Race, Winner Takes All? Ramifications of Catalyst Pharms. v. Becerra

How is orphan drug exclusivity affected when the FDA-approved use for an orphan drug is arguably narrower than the treatment of the rare disease it was designated for? By way of background, a sponsor can obtain orphan drug…more

Biopharmaceutical, FDA Approval, Food and Drug Administration (FDA), Generic Drugs, Life Sciences

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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Agentic Artificial Intelligence: Looking Ahead to Potential Practical and Legal Issues When AI Gets Autonomous

Generative AI has been most synonymous in the public mind with “AI” since the commercial breakout of ChatGPT in November 2022. Consumers and businesses have seen the fruits of impressive innovation in various generative models’…more

Artificial Intelligence, Autonomy, Corporate Counsel, Disclaimers, License Agreements

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Supreme Court Holds that Copyright Damages Have No Time Limit

Under the Copyright Act, “there is no time limit on monetary recovery” for a timely claim. So held the Supreme Court last week in Warner Chappell Music, Inc. v. Nealy. Section 507 of the Copyright Act imposes a three-year…more

Copyright, Copyright Infringement, Copyright Litigation, Damages, Discovery Rule

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New York’s New Notice Requirement for Practice Management Deals Demonstrates a Trend That Should be Carefully Watched

Following New York State Governor Kathy Hochul’s proposal in February of this year (see our previous alert), the New York legislature passed and Governor Hochul signed a law on May 3, 2023, which significantly increases the…more

Confidentiality Policies, Disclosure Requirements, Health Care Providers, New York, Proposed Regulation

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Long-Awaited Revisions to HSR Reporting Rules Set to Take Effect This January

The Federal Trade Commission (“FTC”) has announced a final rulemaking on a unanimous vote that will expand the reporting requirements for mergers and acquisitions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976…more

Acquisitions, Federal Trade Commission (FTC), Final Rules, Hart-Scott-Rodino Act, Mergers

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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Unionization in Higher Education on the Rise – and Proskauer is Actively in the Thick of It

A recent report from the National Center for the Study of Collective Bargaining in Higher Education and the Professions underscores the dramatic increase in unionization across higher education—particularly in the private…more

Collective Bargaining, Colleges, Department of Labor (DOL), Unions, Universities

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D&O Policy Coverage: Specificity Matters in Bankruptcy Context

A recent decision by the United States Bankruptcy Court for the Southern District of Texas in In re Walker County Hospital Corporation serves as an important reminder to clients that are purchasing or renewing directors and…more

Bankruptcy Court, Chapter 11, Commercial Bankruptcy, D&O Insurance, Indemnification

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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OIG Reports that Clinical Trials Lack Diverse Subjects: What Role Can Artificial Intelligence Play?

As the largest public funder of biomedical research in the world, the National Institutes of Health (“NIH”) annually funds over $38 billion in extramural research, including about $6 billion for clinical trials. On May 28, 2024,…more

21st Century Cures Act, Affordable Care Act, Artificial Intelligence, Clinical Trials, Department of Health and Human Services (HHS)

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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Question of the Week: What is your outlook for private capital in 2024?

"Fund managers will continue to innovate and be creative in how they address challenges in the market. For example, fund and portfolio level restructurings will progress at a steady pace to address limitations on exit…more

Acquisitions, Capital Markets, Investment, Investors, Liquidity

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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The “Board Flip”: How Effective is the Pre-Petition Exercise of Proxy Rights in the Face of Bankruptcy?

When debt restructuring discussions are at an impasse and the reservoir of goodwill between the parties has run dry, stakeholders face difficult choices. For a lender, one of the most powerful tools available is the exercise of…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Borrowers, Debt Restructuring

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The End of Chevron

When an ambiguity exists in a statute for which Congress has not chosen among the reasonable readings, who decides which possible reading should govern? For nearly four decades, courts have followed the rule of Chevron U.S.A.,…more

Administrative Procedure Act, Chevron Deference, Chevron v NRDC, Clean Air Act, Government Agencies

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

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New York Legislature Proposes New Sovereign Debt Restructuring Bill

The New York State Legislature recently proposed a bill, entitled the Sovereign Debt Stability Act, intended to facilitate sovereign debt restructuring. The bill, which could be brought to a vote as soon as May or June 2024,…more

Bankruptcy Code, Bankruptcy Court, Commercial Bankruptcy, Debt, Debt Restructuring

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SEC Proposes Significant Amendments to Form PF

On January 26, 2022, the U.S. Securities and Exchange Commission (the “SEC”) proposed amendments to Form PF and related rules (the “Proposed Amendments”) under the Investment Advisers Act of 1940 (“Advisers Act”). Form PF is…more

Filing Requirements, Form PF, Hedge Funds, Investment Adviser, Investment Advisers Act of 1940

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Court Temporarily Stays New SEC Climate Change Disclosure Rules Amidst Widening Legal Challenges

Multiple legal challenges have already been launched against the SEC’s new climate change disclosure rules. Plaintiffs include Attorneys General from several states, a large business trade organization and a private energy…more

Climate Change, Corporate Governance, Disclosure Requirements, Enforcement Actions, Greenhouse Gas Emissions

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[Podcast] Private Market Talks: Powering the AI Revolution with DigitalBridge’s Kyle Colvin

Digital Infrastructure – the cell towers, data centers, fiber and small cells that power our wireless and mobile data – is one of the fastest growing investment sectors today. New technologies such as 5G and IoT have put…more

Artificial Intelligence, Asset Management, Capital Markets, Global Dealmaking, Global Market

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(De)Cease(d)-and-Desist: Supreme Court Deals Blow to NLRB Injunctive Power

On June 13, 2024, the U.S. Supreme Court dealt a blow to the National Labor Relations Board’s (“NLRB” or the “Board”) ability to seek injunctive relief during the pendency of an unfair labor practice proceeding. In a near…more

Amazon, Appeals, Cease and Desist Orders, Certiorari, Employment Litigation

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

The 8th Circuit Affirms a Preliminary Injunction Barring an Ex-Cigna Executive from Joining CVS Based on Two-Year Non-Compete Clause

On January 26, 2023, Cigna Corp. (“Cigna”) sued CVS Health Corp. (“CVS”) and its newly hired chief product officer Amy Bricker (“Bricker”), in the US District Court for the Eastern District of Missouri, for allegedly violating…more

Corporate Counsel, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements, Preliminary Injunctions

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Florida’s High Court Clarifies that Incorporating AAA Rules into an Arbitration Provision Delegates Arbitrability to Arbitrator

When a litigant seeks to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), there are two issues that must be resolved: (1) whether there is an agreement to arbitrate; and, if so, (2) whether the dispute at…more

AirBnB, American Arbitration Association, Arbitration, Arbitration Agreements, Federal Arbitration Act

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Final Ruling in Serta Reaches Decision on “Open Market Purchase”

Background In November 2016, Serta Simmons Bedding, LLC and certain affiliates (collectively, the “Debtors”) entered into credit facilities which provided for (i) $1.95 billion in first lien term loans (the “2016 Credit…more

Bankruptcy Court, Credit Agreements, Debtors, Final Rules, Good Faith

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Proskauer Hedge Start: Accepting Investments from Benefit Plan Investors Subject to ERISA - Insights

Special rules may apply to hedge funds that accept investments by “benefit plan investors” (Benefit Plan Investors) subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA), or Section 4975 of the…more

401k, Employee Retirement Income Security Act (ERISA), Investment Advisers Act of 1940, Investors

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The King is Back (in the Digital Era) | The ELVIS Act, Generative AI and Right of Publicity

On March 21, 2024, in a bold regulatory move, Tennessee Governor Bill Lee signed the Ensuring Likeness Voice and Image Security (“ELVIS”) Act (Tenn. Code Ann. §47-25-1101 et seq.) – a law which, as Gov. Lee stated, covers “new,…more

Artificial Intelligence, Cause of Action Accrual, Copyright, Copyright Infringement, Deep Fake

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Court Temporarily Stays New SEC Climate Change Disclosure Rules Amidst Widening Legal Challenges

Multiple legal challenges have already been launched against the SEC’s new climate change disclosure rules. Plaintiffs include Attorneys General from several states, a large business trade organization and a private energy…more

Climate Change, Corporate Governance, Disclosure Requirements, Enforcement Actions, Greenhouse Gas Emissions

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Home Is Where the Health Care Is: New Study Shows Increase in Number of Homebound Older Adults While CMS Expands Home Health Reimbursement Model

JAMA Internal Medicine recently published an article finding that the number of homebound adults aged 70 or older more than doubled during the last decade. In 2011, approximately 5% of adults aged 70 or older were homebound…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Healthcare Reform, Home Health Care, Medicare

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Jury Awards $450,000 For Employer’s Termination of Employee After Receiving Notice About Anxiety Disorder

On March 31, 2022, a Kentucky jury unanimously awarded $450,000 to an employee, who was terminated following two panic attacks the employee suffered at work. The jury concluded the employee’s anxiety disorder was a disability…more

Adverse Employment Action, Damages, Disability Discrimination, Employer Liability Issues, Employment Litigation

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SEC Proposes Broad New Climate Change Disclosure Requirements

In a 500-page release, the SEC has proposed significant new public company climate change disclosure requirements for both domestic companies and foreign private issuers, including the actual and potential impacts of climate…more

Annual Reports, Climate Change, Corporate Governance, Corporate Social Responsibility, Disclosure Requirements

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[Ongoing Program] Private Credit Summit 2021 - February 25th, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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The “Retailisation” of Private Funds – Key Considerations for Private Fund Managers

The “retailisation” of private funds has been one of the industry’s most significant trends in recent years, with fund managers seeking sources of capital beyond their usual institutional, professional and sophisticated investor…more

Asset Management, Capital Raising, ELTIF, EU, EuVECA

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Artificially Unintelligent: Attorneys Sanctioned for Misuse of ChatGPT

ChatGPT may be smart enough to pass the bar exam, but lawyers should take caution before relying on the Artificial Intelligence (“AI”) platform to conduct any legal business. On June 22, 2023, Judge P. Kevin Castel of the…more

Artificial Intelligence, Machine Learning, Motion to Dismiss, Rule 11, Sanctions

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Calls for USPTO to Adopt Policies to Modulate Drug Pricing

In the wake of the nomination of Kathi Vidal as Director of the USPTO, there will be significant attention paid to the agency’s responses to calls from both the executive and legislative branches to remake the agency’s perceived…more

Biden Administration, Biosimilars, Biotechnology, Competition, Drug Pricing

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A Fund Managers’ Guide to Maximizing D&O and E&O Insurance Coverage

As the economic impact of COVID-19 continues to reverberate across all global industries, there is an increased risk of claims being asserted against private fund managers, their funds and portfolio companies, as well as key…more

Contract Negotiations, Coronavirus/COVID-19, D&O Insurance, E&O Insurance, Fund Managers

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It’s Election Time: Time Off to Vote, Political Activities, and Political Speech in the Workplace

With Election Day quickly approaching, it is the right time for employers to refresh themselves on the various protections that may exist for their employees when it comes to voting and other political activities. Below is an…more

First Amendment, Free Speech, NLRA, Off-Duty Employees, Political Campaigns

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

See all updates »

Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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Del. Ruling Shows Tension Between 363 Sale And Labor Law

Navigating the Bankruptcy Code can present many traps for unsuspecting debtors, creditors or asset buyers. The U.S. District Court for the District of Delaware recently reminded bankruptcy participants of an often overlooked…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Creditors, Debtors

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Here We Go Again: Board Resurrects “Quickie” Election Rules

With over 58,000 workers reportedly unionizing so far in 2023 and the number of representation petitions on the rise, it comes as no surprise that the National Labor Relations Board (“NLRB” or the “Board”) continues to make…more

Appeals, NLRB, Quickie Election Rules, Rulemaking Process, Union Elections

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

See all updates »

2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

The Emerging Legal and Regulatory Risks of Loyalty Programs

As part of our commitment to keeping you informed of new regulatory developments and their potential implications, we have highlighted recent statements by federal officials concerning loyalty programs, such as those involving…more

Antitrust Provisions, Consumer Protection Laws, Customer-Loyalty Programs, Data Privacy, Privacy Laws

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Supreme Court Rules Discriminatory Job Transfers Need Not Produce “Significant” Harm to be Actionable Under Title VII

On April 17, 2024, the United States Supreme Court ruled on the standard under which a plaintiff can proceed with a claim for a discriminatory job transfer under Title VII of the Civil Rights Act of 1964 (“Title VII”), holding…more

Civil Rights Act, Discrimination, Employee Transfers, Employer Liability Issues, Employment Discrimination

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Deadlines Approaching for New ACA Section 1557 Nondiscrimination Requirements: Action Items for Covered Group Health Plans

Earlier this year, the Department of Health and Human Services (“HHS”) released a final rule under Section 1557 of the Affordable Care Act (“ACA”), which prohibits discrimination in health programs and activities. The 2024…more

Affordable Care Act, Covered Entities, Deadlines, Department of Health and Human Services (HHS), Employer Group Health Plans

See all updates »

Interaction between COBRA and Medicare in C-Suite Executive Severance and Retirement Arrangements

Both companies and their C-suite executives should be mindful of the interactions between COBRA and Medicare and their implications when negotiating a severance or retirement arrangement. This is because Medicare enrollment can…more

C-Suite Executives, Cafeteria Plans, COBRA, Employee Benefits, Medicare

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Ninth Circuit Panel Hears Oral Argument on the NLRB’s Transformative Cemex Decision

On October 21, 2024, the U.S. Court of Appeals for the Ninth Circuit in Cemex Construction Materials Pacific, LLC v. National Labor Relations Board, Case No. 23-2302 (9th Cir.) heard oral argument on the revised National Labor…more

Administrative Law Judge (ALJ), Appeals, Cemex, Good Faith, NLRA

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Same Song, Different Tune: Plaintiffs’ Bar Adds the Song-Beverly Credit Card Act to its Privacy Repertoire

Repurposing old laws to challenge new technologies has become the new normal in the privacy space. Plaintiffs continue to bring a kaleidoscope of privacy claims against companies in the tech age, reviving laws like the…more

CA Supreme Court, CIPA, Corporate Counsel, Eavesdropping, Personally Identifiable Information

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The Supreme Court Kept the Door Open to Genus Claims

The U.S. Supreme Court on May 18, 2023 delivered its decision on the scope of the patent enablement requirement, set forth in 35 U.S.C. § 112, in the antibody dispute Amgen, Inc. v. Sanofi. While the parties obtained finality,…more

Amgen, Biosimilars, Biotechnology, CAFC, Genus

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Insights on the NAV Lending Market – Full Year 2023

In the middle of 2023, we conducted an informal, small-scale survey to gather insights from prominent non-bank lenders on their activity in the net asset value (NAV) lending market for the first half of 2023. We have expanded…more

Borrowers, Fees, Lenders, Lending, NAV

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Question of the week: There are an increasing number of partnerships between media companies and sports betting operators. How have these deals evolved and changed over the past two years?

“At Proskauer, we had the privilege of a front row seat at sports betting’s “first pitch,” which was the strategic alliance we worked on between The Stars Group (TSG) and FOX to form FOX Bet. At least in the US, we are still in…more

Internet Streaming, Media, Partnerships, Sports, Sports Betting

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Third Circuit Recognizes Trade Secret Misappropriation Claim by Party Possessing (But Not Owning) the Trade Secret

It is not often that a United States Court of Appeals issues a decision on trade secrets, much less one involving the review of a bench trial that drew legal conclusions on the scope of trade secret law and the propriety of…more

Aiding and Abetting, Appeals, Bench Trial, Breach of Duty, Compensatory Damages

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

See all updates »

New York Nonprofit Revitalization Act Rollout Challenges

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the "Revitalization Act") quickly approaches, many charities operating in New York are confronting some difficult rollout challenges…more

Board of Directors, Corporate Officers, Economic Development, IRS, Nonprofits

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

See all updates »

Third Circuit Follows Fifth and Ninth Circuits on Treatment of Make-Whole Claims in Bankruptcy

In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Compensation

See all updates »

2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

Delaware Supreme Court Validates Forfeiture-For-Competition Provision in Unanimous Reversal of Chancery Court

In a win for businesses that rely on restrictive covenants to protect their assets and investments, on January 29, 2024, the Delaware Supreme Court unanimously reversed a Chancery Court decision that invalidated a…more

Compensation, Compliance, DE Supreme Court, Disbursement Issues, Employment Policies

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

See all updates »

UK Tax Round Up - September 2024

Welcome to the September 2024 edition of our UK Tax Round Up. This month has seen decisions on UK tax residence, VAT group eligibility and the Supreme Court’s ruling in the long running case involving the employment status of…more

Appeals, Barclays, Corporate Taxes, Court of Justice of the European Union (CJEU), Dismissals

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District Court Holds Unenforceable Trust Provision Requiring Attorneys’ Fees for Arbitration

Employers may be bound by multiemployer pension plans’ trust agreements and collections policies, but the force of these governing documents may have its limits. In Nevada Resorts Ass’n–Int’l All. of Theatrical Stage Emps. and…more

Arbitration, Attorney's Fees, PBGC, Pensions, Trusts

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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DOJ and FTC Release New Merger Guidelines

The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines on December 18, 2023. Following a 60-day public comment period that solicited over 30,000 comments from a variety of…more

Antitrust Provisions, Biden Administration, Competition, Department of Justice (DOJ), Federal Trade Commission (FTC)

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It’s Election Time: Time Off to Vote, Political Activities, and Political Speech in the Workplace

With Election Day quickly approaching, it is the right time for employers to refresh themselves on the various protections that may exist for their employees when it comes to voting and other political activities. Below is an…more

First Amendment, Free Speech, NLRA, Off-Duty Employees, Political Campaigns

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Wealth Management Update - January 2024

January 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The January applicable federal rate (“AFR”) for use with a sale to a defective grantor trust,…more

AFR, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts, Interest Rates, Intra-Family Loans

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CA Federal Court Dismisses Whistleblower Claims After Bench Trial

On July 26, 2021, the United States District Court for the Northern District of California held, after a bench trial, that Plaintiff Botta failed to prove that Defendant PricewaterhouseCoopers LLP (“PwC”) terminated his…more

Accounting Fraud, Employer Liability Issues, Hiring & Firing, Internal Controls, PricewaterhouseCoopers

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NLRB Issues “Fair Choice-Employee Voice” Final Rule

On July 26, 2024, the National Labor Relations Board (“NLRB” or “Board”) issued a final rule (the “2024 Rule”), codified at 29 C.F.R. 103.20–22, rescinding an earlier rule the Board issued in April 2020 (the “2020 Rule”) that…more

Collective Bargaining, Construction Industry, Decertification, Final Rules, NLRA

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FTC Continues to Stake Out Role as Key AI Regulator

While speaking at the annual conference of the National Advertising Division on September 19, 2023, the Federal Trade Commission (“FTC”) announced a generative AI (“AI”) policy that is consistent with Chairwoman Khan’s focus on…more

Artificial Intelligence, Civil Monetary Penalty, Corporate Counsel, Enforcement Actions, Federal Trade Commission (FTC)

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Ninth Circuit Revives Rail Worker’s Whistleblower Claims

The Ninth Circuit’s recent decision in Parker v. BNSF Railway Company, 112 F.4th 687 (9th Cir. 2024) underscores the burden faced by employers in defending against whistleblower retaliation claims assessed under the…more

Affirmative Defenses, Federal Railroad Safety Act, Retaliation, Sarbanes-Oxley, Whistleblowers

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TALF Program Update: Master Loan and Security Agreement and Updated FAQs - November 2020

On October 22, 2020, the Federal Reserve Bank of New York (“New York Fed”) released an amended form of Master Loan and Security Agreement (the “MLSA”), which governs loans issued under its Term Asset-Backed Loan Facility…more

Asset-Backed Securities, CARES Act, Collateral, Master Loan and Security Agreement (MLSA), SBA

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Sports and Sports Betting

The “The Age of AI – Sports and Sports Betting” Webinar offered a brief overview of how generative AI (“GenAI”) works and how AI is being used or is planning to be used in the sports and sports betting industries, and finished…more

Artificial Intelligence, Cybersecurity, Machine Learning, Proprietary Information, Social Media

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UPDATE: The SEC Extends Temporary Conditional Relief for Investment Advisers, Registered Funds and BDCs in Connection with Coronavirus Outbreak

On Wednesday, March 25, 2020, the U.S. Securities and Exchange Commission (the "SEC") issued an order under the Investment Advisers Act of 1940, as amended (the "Advisers Act") and an order under the Investment Company Act of…more

Coronavirus/COVID-19, Investment Adviser, Investment Advisers Act of 1940, Securities and Exchange Commission (SEC)

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PBGC Issues Guidance on New Special Financial Assistance Program for Troubled Multiemployer Pension Plans

As we previously reported, the American Rescue Plan Act of 2021 (“ARPA”) created a special financial assistance program that is administered by the Pension Benefit Guaranty Corporation (“PBGC”) and intended to extend the…more

American Rescue Plan Act of 2021, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), Interim Final Rules (IFR)

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Court Rejects Claims that Website’s Live Chat Feature Violates California’s Prohibitions on Wiretapping and Eavesdropping

Central District of California dismisses lawsuit alleging that a third-party’s interception of communications over a website’s live chat feature violated California’s wiretapping and eavesdropping prohibitions. Important…more

California, CIPA, Eavesdropping, Privacy Laws, State Privacy Laws

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Ninth Circuit Holds Clause Delegating Authority to Decide Arbitrability Is Valid Even If Broader Arbitration Agreement Is Not

Parties to an arbitration agreement sometimes choose to include a delegation clause, which is a provision that delegates to the arbitrator—rather than a court—gateway questions of arbitrability, such as whether the agreement…more

Arbitration, Arbitration Agreements, Delegation Clauses, Enforcement, Mandatory Arbitration Clauses

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Harris's Running Mate Announcement: Pay-to-Play Rule Implications for Investment Advisers

As reported today, Vice President Harris has announced Tim Walz, the sitting governor of Minnesota, as her running mate. This announcement is particularly significant for investment advisers due to the Advisers Act Political…more

Compensation, Investment Adviser, Kamala Harris, Pay-To-Play, Political Contributions

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No Good Deed Goes Unpunished: When Employers’ Good Intentions Inadvertently Create Increased Risk

Employment lawsuits typically involve allegations of an employer’s wrongdoing – claims that the employer or its agents intended to and did mistreat, discriminate, or retaliate against employees. However, these “bad actor”…more

Affirmative Action, Civil Rights Act, Confidential Information, Disclosure Requirements, Employer Liability Issues

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Private Credit Restructuring Trends: New Delaware Law Aids Secured Creditors in Getting Deals Done Out of Court

In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del. 2022) (“Stream TV”), which held an insolvent corporation could not…more

Chapter 11, Creditors, DE Supreme Court, Debt Forgiveness, Insolvency

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Proskauer Hedge Start: Accepting Investments from Benefit Plan Investors Subject to ERISA - Insights

Special rules may apply to hedge funds that accept investments by “benefit plan investors” (Benefit Plan Investors) subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA), or Section 4975 of the…more

401k, Employee Retirement Income Security Act (ERISA), Investment Advisers Act of 1940, Investors

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

Acquisitions, Capital Markets, Global Dealmaking, Mergers, Private Equity

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Amid Rise in Forever Chemicals Cases, Courts Dismiss PFAS Claims Which Rely on Inadequate Product Testing

As chemicals of concern litigation continues to surge across the nation, companies increasingly find their products under scrutiny for alleged contamination of these “forever chemicals.” These “forever chemicals” have become a…more

Consumer Protection Laws, Contamination, Cosmetics, Environmental Protection Agency (EPA), Hazardous Substances

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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NLRB GC Abruzzo Issues Guidance to Academic Institutions Addressing Conflicting Obligations under Labor and Student Privacy Laws

Earlier this week, the National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum GC 24-06 seeking to clarify the obligations imposed by the National Labor Relations Act (NLRA) on academic institutions to…more

Collective Bargaining, Department of Education, Disclosure Requirements, Educational Institutions, FERPA

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[Ongoing Program] Private Credit Summit 2021 - March 9th, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Entertainment Industry

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The Seventh Circuit Asks, “What’s Wrong With Having Lots of Patents?”

The answer? Not much, in itself. If one patent is good, 132 is probably fine too. That was Judge Easterbrook’s reasoning in a recent decision addressing indirect purchasers’ antitrust challenge to AbbVie’s so-called “patent…more

Patents, Pharmaceutical Patents, Sherman Act

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Extension of FBAR Filing Deadline for Certain Filers

On December 9, 2020, the Financial Crimes Enforcement Network (“FinCEN”) issued Notice 2020-1, extending the filing deadline for the Report of Foreign Bank and Financial Accounts, FinCEN Form 114 (FBAR), for certain individuals…more

FBAR, Filing Deadlines, FinCEN, Foreign Bank Accounts, Foreign Financial Accounts

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Supreme Court Rules on Moore v. U.S. – Upholds Mandatory Repatriation Tax

On June 20, 2024, the U.S. Supreme Court ruled 7-2 that the so called mandatory repatriation tax under Internal Revenue Code Section 965 (“MRT”) is constitutional. Justice Kavanaugh wrote the majority opinion..…more

Income Taxes, Internal Revenue Code (IRC), Moore v US, SCOTUS, Shareholders

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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The IRS and Senator Warren Raise Concerns about Lodging and Health Care REITs

On September 3, 2024, Senator Elizabeth Warren (D-MA) sent a letter to the Internal Revenue Service (the “IRS”) urging it to “increase enforcement scrutiny of REITs, especially large health and hospitality REITs that may be…more

Collective Bargaining Agreements (CBA), Healthcare, Independent Contractors, IRS, REIT

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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It Is Time to Address the VA’s Enormous Backlog of Claims for Disability Benefits

Nearly half of the 20 million veterans in the United States use at least one government benefit or service offered by U.S. Department of Veterans Affairs (commonly known as the “VA”). Many of these veterans have developed mental…more

Administrative Backlogs, Appeals, Bar Associations, Coronavirus/COVID-19, Delays

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EEOC Finalizes Rule for the Pregnant Workers Fairness Act

On April 19, 2024, the EEOC published its final rule regarding the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires covered employers to provide reasonable accommodations to qualified employees or candidates with a…more

Americans with Disabilities Act (ADA), Equal Employment Opportunity Commission (EEOC), Final Rules, Pregnancy, Pregnant Workers Fairness Act

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The End of Chevron

When an ambiguity exists in a statute for which Congress has not chosen among the reasonable readings, who decides which possible reading should govern? For nearly four decades, courts have followed the rule of Chevron U.S.A.,…more

Administrative Procedure Act, Chevron Deference, Chevron v NRDC, Clean Air Act, Government Agencies

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

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Legislating Around AI-Driven Algorithm Concerns

Pricing algorithms are nothing new. They are, generally speaking, computer programs intended to help sellers optimize prices in real time, or close to it. These programs can use data on demand, costs, or even competitors’ prices…more

Algorithms, Anti-Competitive, Artificial Intelligence, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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Private Credit Deep Dives – Portability (Europe)

One of the foundational provisions negotiated in almost every European leveraged loan agreement is the “Change of Control” definition and associated clauses. This provision is crucial because it directly impacts the risk profile…more

Acquisitions, Asset Management, Credit, Debt, Default

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Question of the Week: In 100 words or less, what are your expectations for M&A in 2023?

Based on what I have been seeing in the market, great opportunities exist for buyers and sellers in M&A despite indications of economic headwinds. Interest is still high for businesses with strong fundamentals, or those in…more

Acquisitions, Debt Market, Environmental Social & Governance (ESG), Interest Rates, Investment

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

See all updates »

Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Why Mentoring Matters: Proskauer's Brianna Reed

In our “Why Mentoring Matters” series, Proskauer tax associate Brianna Reed shares how participating in the firm’s Women’s Sponsorship Program led her to meet and learn from a partner mentor in a different practice group. This…more

Career Development, Mentors, Professional Development, Professional Networking, Women in the Law

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UK Arbitration H1 2020: 6 Months and 6 Key Messages from the English Courts, Part 2

With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. We identified 6 key developments…more

Arbitration, Arbitration Agreements, Arbitration Awards, Enforcement of Foreign Judgments, International Arbitration

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Proskauer Q3 Private Credit Default Index Decreases to 1.95%

NEW YORK, October 23, 2024 – Leading international law firm Proskauer today revealed the results of its Q3 2024 Private Credit Default Index (“Default Index” or the “Index”), with an overall default rate of 1.95%. The Q3 default…more

Credit, Credit Rating Agencies, EBITDA, Interest Rates, Loans

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In Split Ruling Second Circuit Declines to Compel Arbitration of ERISA Plan Claims

They say that April showers bring May flowers, but there were no flowers for ERISA plan sponsors and fiduciaries on May 1 when the Second Circuit held, in a ruling that provoked a vigorous dissenting opinion, that an ERISA…more

401k, Arbitration, Breach of Duty, Class Action, Derivatives

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

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SCOTUS Will Determine Employers’ Burden of Proof to Establish FLSA Exemptions

On June 17, 2024, the U.S. Supreme Court announced that it will tackle a 6-1 circuit split and decide an important wage and hour issue for employers: what burden of proof an employer must satisfy to demonstrate that its workers…more

Burden of Proof, Exemptions, Fair Labor Standards Act (FLSA), Minimum Wage, Over-Time

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Tethered to the Court: Ninth Circuit Holds that 100-Mile Limitation Applies to Remote Testimony

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the…more

Federal Rules of Civil Procedure, Good Cause, Remote Proceedings, Testimony

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021. The SBA is currently reviewing submitted SVO Grant applications and issuing awards. As of September 7, 2021, the SBA had made decisions on 93% of all…more

Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants, Infectious Diseases

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FinCEN Clarifies that Dissolved Entities are Subject to CTA Reporting Obligations

On July 8, 2024, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) released additional FAQs with respect to the beneficial ownership reporting requirements of dissolved entities. The Corporate…more

Beneficial Owner, Corporate Transparency Act, Dissolution, FinCEN, Reporting Requirements

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Regulation Round Up - September 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Artificial Intelligence, Cryptoassets, ELTIF, Enforcement, Environmental Social & Governance (ESG)

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UK National Security and Investment Act 2021 (NSIA) – Annual Report 2022

The UK Government recently published its Annual Report on the application of the National Security and Investment Act 2021 (NSIA). This first annual report covers the period from the commencing of the NSIA (4 January 2022) to 31…more

Annual Reports, Corporate Sales Transactions, Foreign Acquisitions, Foreign Direct Investment, Foreign Investment

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SEC Brings Charges against Blockchain-Based Trading Platform over Alleged Violations of Disclosure Rules

On January 10, 2022, the Securities and Exchange Commission (“SEC” or the “Commission”) announced it settled charges in In re tZERO ATS, LLC, No. 93938 (SEC Order Jan. 10, 2022) (“Order”)…more

Alternative Trading System (ATS), Blockchain, Cease and Desist Orders, Cryptocurrency, Digital Currency

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Texas Federal Court Sets Aside FTC’s Non-Compete Rule, Halting It From Taking Effect on September 4, 2024

On August 20, 2024, in Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E (N.D. Tex.), the United States District Court for the Northern District of Texas granted summary judgment to the plaintiffs and ordered the Federal…more

Administrative Procedure Act, Federal Trade Commission (FTC), Final Rules, FTC Act, Lack of Authority

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Two Sides of a Different Coin: Separating Businesses and Subsidiaries for Liability Protection

A parent corporation is typically not held liable for the acts of a subsidiary. As such, disregarding the corporate form (i.e., by piercing the corporate veil) and holding the parent liable is an extraordinary remedy. That said,…more

Compensation, Liability, Misappropriation, Parent Corporation, Piercing the Corporate Veil

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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Third Circuit Follows Fifth and Ninth Circuits on Treatment of Make-Whole Claims in Bankruptcy

In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Compensation

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

See all updates »

Third Circuit Follows Fifth and Ninth Circuits on Treatment of Make-Whole Claims in Bankruptcy

In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Compensation

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Countdown to 2025: New HSR Premerger Disclosure Rules

The Federal Trade Commission (“FTC” or the “Commission”) has announced a final rule (the “Final Rule”) significantly expanding the premerger notification and reporting requirements under the Hart‑Scott‑Rodino Antitrust…more

Acquisitions, American Bar Association (ABA), Antitrust Provisions, Competition, Department of Labor (DOL)

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Lending & Secured Finance 2022

Analysis and Update on the Continuing Evolution of Terms in Private Credit Transactions - Introduction - For the past 11 years, The Private Credit Group at Proskauer Rose LLP has tracked deal data for private credit…more

Borrowers, Credit, Financial Services Industry, Financial Transactions, Lenders

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New York Proposes First State Bitcoin Regulations

One might have thought the biggest news in the digital currency world lately was Dell announcing that it was now accepting bitcoin. However, after a series of highly-publicized hearings in January, New York State rolled out its…more

Bitcoin, Dell, Digital Assets, Licensing Rules, Proposed Regulation

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Notice 2024-02: IRS Offers Guidance on (Some) SECURE 2.0 Questions

Approximately one year after Congress enacted the SECURE 2.0 Act of 2022 (“SECURE 2.0”), the IRS issued Notice 2024-02, which addresses SECURE 2.0 implementation issues and extends the plan amendment deadline. Although Notice…more

401k, Automatic Enrollment, Benefit Plan Sponsors, Employer Contributions, Incentives

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Duty of Candor Continues Before the PTAB or Does it?     

In an unprecedented PTAB decision involving Spectrum Solutions LLC (“Spectrum”) (Petitioner) and Longhorn Vaccines & Diagnostics (“Longhorn”) (Patent Owner), the Board found all five challenged patents invalid and imposed…more

AIA Construction Forms, Claim Construction, Covenant of Good Faith and Fair Dealing, Duty of Candor, Inter Partes Review (IPR) Proceeding

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Executive Order Curbs China-Bound Tech Investment as Treasury Unveils New Rules

On August 9, 2023, President Biden signed Executive Order 14105 addressing investments by U.S. persons in certain identified national security technologies in “Countries of Concern,” initially naming The People’s Republic of…more

Advanced Notice of Proposed Rulemaking (ANPRM), Artificial Intelligence, China, Cybersecurity, Executive Orders

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FTC Focus: How Scrutiny Of PBMs And Insulin May Play Out

This article is part of a monthly column that considers the significance of recent Federal Trade Commission announcements about antitrust issues. In this installment, we discuss the FTC's complaint on PBMs' conduct around…more

Administrative Complaints, Anti-Competitive, Article II, Drug Pricing, Due Process

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New York Passes Law Recognizing Post-Mortem Right of Publicity and Creating Private Right of Action for Sexually Explicit Deepfakes

Celebrities domiciled in New York State at the time of their death will soon have a transferable post-mortem right of publicity, bringing the law in New York closer in line to several other states, like California, that…more

Advertising, Celebrities, Commercial Use, Deceased, Deep Fake

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Unionization in Higher Education on the Rise – and Proskauer is Actively in the Thick of It

A recent report from the National Center for the Study of Collective Bargaining in Higher Education and the Professions underscores the dramatic increase in unionization across higher education—particularly in the private…more

Collective Bargaining, Colleges, Department of Labor (DOL), Unions, Universities

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Key Uniform Commercial Code Financing Statement (UCC-1) Requirements

The UCC‑1 form is a staple of any secured lending practice. In the wake of the 2022 proposed Uniform Commercial Code (UCC) amendments, which have been adopted in 24 jurisdictions, many jurisdictions have updated their UCC‑1…more

Commercial Bankruptcy, Filing Requirements, First Amendment, Fraud, Jurisdiction

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District Court Dismisses Class Action Seeking Wilderness Therapy Benefits

A federal district court rebuffed putative class claims alleging that Cigna Health and Life Insurance Co. and two of the plans it administered violated the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) by…more

Class Action, Health and Welfare Plans, Mental Health, MHPAEA, Putative Class Actions

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Insights on the NAV Lending Market

We conducted an informal, small-scale survey during March to May 2023 to gather insights from prominent non-bank lenders on their activity over the past twelve months in the net asset value (NAV) lending market. In this report,…more

Banks, Financial Institutions, Lending

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OFCCP Publishes Notice of NEW FOIA Request and Provides Opportunity for Contractors to Object to Release of Their 2021 EEO-1 Type 2 Reports

On October 28, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register informing federal contractors that the agency has received two new Freedom of Information Act (“FOIA”)…more

Department of Labor (DOL), EEO-1, Federal Contractors, FOIA, OFCCP

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Third Circuit Follows Fifth and Ninth Circuits on Treatment of Make-Whole Claims in Bankruptcy

In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Compensation

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HIPAA Reproductive Health Care Rule: HHS Publishes Model Attestation

As discussed in our prior blog post, on April 26, 2024, the Office for Civil Rights (“OCR”) at the Department of Health and Human Services (“HHS”) issued final regulations (“Reproductive Health Care Rule”) under the Health…more

Attestation Requirements, Department of Health and Human Services (HHS), Health Insurance Portability and Accountability Act (HIPAA), OCR, PHI

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

Question of the Week: What do companies need to know if the Federal Trade Commission's proposed merger review changes are implemented?

“Merger review is about to get thornier. While the FTC and DOJ have been tightening the merger review process incrementally over the course of the Biden administration, the newly proposed HSR rule changes represent a wholesale…more

Acquisitions, Department of Justice (DOJ), Disclosure Requirements, Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Understanding the Increasing Use of Holdco NAV Loan Structures

While the market for NAV financings—loans to funds supported by the net asset value of their portfolios—grew in 2023 and continues to rapidly evolve, a consensus has developed around what is sometimes referred to as a “Holdco…more

Borrowers, Collateral, Financial Services Industry, Financing, Investors

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BREAKING:  Texas District Court Strikes Down NLRA Joint Employer Rule

On March 8, just three days before the National Labor Relations Board’s (the “Board”) new joint-employer standard was set to take effect, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas…more

Appeals, Chamber of Commerce, Contract Terms, Joint Employers, NLRA

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States and Healthcare Leaders Must Respond to New Health Equity Regulations

This year, the federal government’s new health equity regulations began taking effect. The regulations represent the government’s increased commitment to health equity advancement as a major part of its regulatory enforcement..…more

Centers for Medicare & Medicaid Services (CMS), Equity, Fee-for-Service, Healthcare, Inpatient Quality Reporting

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Legal Separateness: The Boundaries on Written Discovery

The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies from various kinds of liability and litigation. However, how much…more

Affiliated-Business Arrangements, Business Ownership, Commonality, Data Collection, Data Preservation

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OpenAI’s “Copyright Shield” Broadens User IP Indemnities for AI-created Content

In a previous post, we highlighted three key items to look out for when assessing the terms and conditions of generative artificial intelligence (“GAI”) tools: training rights, use restrictions and responsibility for outputs…more

Artificial Intelligence, Copyright, Copyright Infringement, Indemnification, Innovative Technology

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Without Equitable Monetary Relief, No Need for Asset Freeze or Receivership to Preserve Resources, and More Takeaways from the Eleventh Circuit

The Eleventh Circuit’s opinion last month in FTC v. On Point Capital Partners LLC, et al.,clarifies the ramifications of the Supreme Court’s ruling in AMG Capital Management regarding the prohibition of equitable monetary relief…more

AMG Capital Management LLC v FTC, Asset Freeze, Commercial Litigation, Disgorgement, Enforcement Authority

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Summary of the Biden Administration’s Fiscal Year 2025 Green Book Tax Proposals

On March 11, 2024, the Biden Administration released the Fiscal Year 2025 Budget, and the “General Explanations of the Administration’s Fiscal Year 2025 Revenue Proposals,” which is commonly referred to as the “Green Book.” The…more

Base Erosion and Anti-Abuse Tax (BEAT), Controlled Foreign Corporations, Corporate Taxes, Digital Assets, Excise Tax

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Court Gives Vanilla Ice Cream False Advertising Claims a Frosty Reception

Judge Louis L. Stanton of the Southern District of New York recently granted defendant Wegmans Food Markets’motion to dismiss claims alleging that Wegmans falsely labels its vanilla ice cream. Plaintiffs sued Wegmans for false…more

Class Action, De Minimis Claims, False Advertising, Food Manufacturers, Motion to Dismiss

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In A Surprise Move, California Enacts Boatload Of Employer-Friendly Laws – Nah, That Didn’t Actually Happen . . . It’ll Be More Burdensome Than Ever!

Unbowed and unbroken, California continues to work toward creating that Workers’ Paradise in the Sun, and this legislative session did not disappoint! Here are the latest new laws that will take effect by the first of the year…more

Anti-Discrimination Policies, FEHA, Independent Contractors, Job Ads, Paid Leave

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OFCCP Publishes Notice of NEW FOIA Request and Provides Opportunity for Contractors to Object to Release of Their 2021 EEO-1 Type 2 Reports

On October 28, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register informing federal contractors that the agency has received two new Freedom of Information Act (“FOIA”)…more

Department of Labor (DOL), EEO-1, Federal Contractors, FOIA, OFCCP

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It’s Election Time: Time Off to Vote, Political Activities, and Political Speech in the Workplace

With Election Day quickly approaching, it is the right time for employers to refresh themselves on the various protections that may exist for their employees when it comes to voting and other political activities. Below is an…more

First Amendment, Free Speech, NLRA, Off-Duty Employees, Political Campaigns

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Conflict Between Delaware LLC Act and Bankruptcy Code Affects Creditor Toolbox

As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of many,…more

Bankruptcy Code, Bankruptcy Court, Breach of Duty, Chapter 11, Chapter 7

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Proposed Regulations Provide Guidance to Exempt Organizations on Identifying Separate Unrelated Trade or Businesses

On April 23, the Treasury Department and the Internal Revenue Service (the "IRS") issued helpful proposed regulations under section 512(a)(6) of the Internal Revenue Code (the "proposed regulations"). Section 512(a)(6) was…more

Business Taxes, CARES Act, IRS, NAICS, Partnerships

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California Governor Vetoes Transaction Review Law, But Bill’s Rapid Advancement Underscores a Shifting Regulatory Landscape

California Assembly Bill 3129 (“AB3129”), which targeted for regulatory review a variety of health care transactions involving “private equity groups” and “hedge funds,” was vetoed by Governor Gavin Newsom on September 28,…more

Governor Newsom, Governor Vetoes, Healthcare Facilities, Hedge Funds, Investment

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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Recent FCA and AKS Litigation Highlights Use of Different Standards in Different Circuits

In an important decision limiting the reach of the Federal Anti-Kickback Statute (42 U.S.C. 1320a-7b(b)) (“AKS”) and its application to violations of the False Claims Act (31 U.S.C. 3729, et seq.) (“FCA”), the U.S. Court of…more

Anti-Kickback Statute, Appeals, But For Causation, Causation, Department of Health and Human Services (HHS)

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The End of Chevron

When an ambiguity exists in a statute for which Congress has not chosen among the reasonable readings, who decides which possible reading should govern? For nearly four decades, courts have followed the rule of Chevron U.S.A.,…more

Administrative Procedure Act, Chevron Deference, Chevron v NRDC, Clean Air Act, Government Agencies

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Ninth Circuit Panel Hears Oral Argument on the NLRB’s Transformative Cemex Decision

On October 21, 2024, the U.S. Court of Appeals for the Ninth Circuit in Cemex Construction Materials Pacific, LLC v. National Labor Relations Board, Case No. 23-2302 (9th Cir.) heard oral argument on the revised National Labor…more

Administrative Law Judge (ALJ), Appeals, Cemex, Good Faith, NLRA

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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An Archetypical Trade Secrets Claim with a Twist: Tribal Sovereign May be Sued in Court for Alleged Theft of Trade Secrets Related To its Participation in SBA Program

AQuate II, LLC v. Jessica Tedrick Myers and Kituwah Global Gov’t Group, LLC, is, as all parties put it, about “an archetypical trade secrets claim,” but with a couple of twists: sovereign immunity and an agreement to resolve…more

Business Development, SBA, Sovereign Immunity, Trade Secrets, Tribal Courts

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Thomson Reuters v. Ross Intelligence: D. Del. SJ Decision Provides Insight as Copyright Litigation Tests the Legality of Generative AI

Generative AI has taken the world by storm since OpenAI launched ChatGPT in November 2022. But the buzz and excitement of GAI has come with difficult legal questions that threaten the new technology. Several lawsuits—some of…more

Artificial Intelligence, Bots, Copyright, Copyright Infringement, Copyright Litigation

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Nothing Fishy About Whole Foods’ Fish Oil Supplement Product Label

In line with prior precedent, the Second Circuit recently affirmed that the product label for Whole Foods’ fish oil softgel product did not deceptively misstate the quantity of Omega-3s it contained.  Foster v. Whole Foods…more

Dismissals, Product Labels, Whole Foods

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It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances

The National Labor Relations Board (“NLRB”), in a 3-1 decision, held that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of the…more

Administrative Law Judge (ALJ), Black Lives Matter, Corporate Counsel, Employees, Employer Liability Issues

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The “Golden Share”: All That Glitters Is Not Gold

A recent, highly anticipated ruling by a Bankruptcy Court in Delaware has reilluminated the concept of a "golden share". While an appeal of the ruling seems likely, this latest ruling by Delaware Bankruptcy Judge Mary F. Walrath…more

Bankruptcy Court, Chapter 11, Corporate Charters, Creditors, Debtors-in-Possession

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Minneapolis Approves Paid Sick Leave Law

The Minneapolis city council has approved an ordinance requiring employers with six or more employees to provide up to 48 hours of paid sick leave each year. Employers with five or fewer employees will be required to provide up…more

City Councils, Employee Rights, Local Ordinance, New Legislation, Notice Requirements

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Q&A: What does 2024 have in store for European M&A?

There is a wealth of dry powder to spend but 2023 has seen M&A deal activity hampered by rising costs of debt, unstable markets, supply chain issues, general political uncertainty, and fear of global recession. So, what does…more

Acquisitions, Capital Investments, Coronavirus/COVID-19, Economic Downturn, Enforcement

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D&O Policy Coverage: Specificity Matters in Bankruptcy Context

A recent decision by the United States Bankruptcy Court for the Southern District of Texas in In re Walker County Hospital Corporation serves as an important reminder to clients that are purchasing or renewing directors and…more

Bankruptcy Court, Chapter 11, Commercial Bankruptcy, D&O Insurance, Indemnification

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The “Board Flip”: How Effective is the Pre-Petition Exercise of Proxy Rights in the Face of Bankruptcy?

When debt restructuring discussions are at an impasse and the reservoir of goodwill between the parties has run dry, stakeholders face difficult choices. For a lender, one of the most powerful tools available is the exercise of…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Borrowers, Debt Restructuring

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“Prettymuch All Goes to the Attorneys” No More?  Tentative Deal Reached to Reform California’s Broken Private Attorneys General Act

Inspired by a push to repeal the Private Attorneys General Act (PAGA) by ballot measure (which we previously covered here and here), and at the urging of Governor Gavin Newsom, stakeholders have reached an agreement in principle…more

California, Enforcement, Injunctive Relief, Labor Code, Penalties

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Wealth Management Update - November 2023

November Interest Rates for GRATS, Sales to Defective Grantor Trusts, Intra-Family Loans and Split-Interest Charitable Trusts - The November Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs…more

AFR, Beneficiaries, Gift Tax, Grantor Retained Annuity Trusts (GRATs), Intentionally Defective Grantor Trusts

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[Podcast] Episode 50: Activism and EBEC

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group, Josh Apfelroth, partner in the Private Equity and Mergers &…more

Board of Directors, Compensation & Benefits, Corporate Governance, Employee Benefits, Executive Compensation

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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Wealth Management Update - September 2024 - 2

September 2024 AFRs and 7520 Rate - The September 2024 Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 4.8%, a decrease from the August 2024 rate of 5.2%. The September…more

AFR, American Bar Association (ABA), Beneficiaries, Decanting, Declaratory Relief

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Coronavirus: Details Matter

As the Coronavirus (COVID-19) continues to disrupt markets and industries globally, businesses face significant internal and external challenges with how to identify and plan for issues caused by the outbreak. In response,…more

Business Interruption, Centers for Disease Control and Prevention (CDC), Contract Negotiations, Contract Terms, Coronavirus/COVID-19

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PAGA 2.0 – What Employers Need to Know As PAGA Reform Becomes Law

On June 27, 2024, by near-unanimous vote, the California Legislature passed two bills enacting much-needed reform to the Private Attorneys General Act (PAGA). We previously reported on the legislative compromise last week, when…more

Anti-Stacking Provisions, Audits, California, Compliance, Injunctive Relief

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New York Bans Mandatory Captive Audience Meetings

On September 6, New York State Governor Kathy Hochul signed into law (A6604 / S4982) a bill banning businesses from requiring employees to attend meetings or listen to communications where the “primary purpose” of such meetings…more

Damages, Equitable Relief, General Meetings, New York, NLRA

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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Supreme Court Clarifies Specific Jurisdiction and Ends Forum Shopping Spree

The Supreme Court has put an end to a jurisdictional contrivance used by the plaintiffs’ bar to shop for a friendly state forum, even if neither the plaintiff, nor the defendant, nor the actionable conduct took place in those…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, CA Supreme Court, Forum Shopping, Minimum Contacts, Out-of-State Companies

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Q&A: Trends in European Venture Capital Fundraising

Over the last decade, there has been a remarkable growth in European venture capital fundraising, underlining investors’ increasing appetite for innovation and entrepreneurial investments in Europe. While we are witnessing a…more

Asset Management, Capital Raising, EU, Investment Management, Private Equity

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Question of the Week: In 100 words or less, what are your expectations for M&A in 2023?

Based on what I have been seeing in the market, great opportunities exist for buyers and sellers in M&A despite indications of economic headwinds. Interest is still high for businesses with strong fundamentals, or those in…more

Acquisitions, Debt Market, Environmental Social & Governance (ESG), Interest Rates, Investment

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No Money? No Problem: Recent IRS Favorable Guidance Regarding a REIT’s First Year

On October 4, 2024, the Internal Revenue Service (the “IRS”) released Private Letter Ruling 202440007, which concluded that the lack of income and assets in the first taxable year of an entity that had elected to be treated as a…more

Asset Test, Guidance Update, Income Taxes, Income Test, IRS

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

See all updates »

Private Credit Restructuring Trends: Sponsor Capital Infusions in Times of Distress

One common denominator links nearly all stressed businesses: tight liquidity. After the liquidity hole is identified and sized, the discussion inevitably turns to the question of who will fund the necessary capital to extend the…more

Borrowers, Capital Raising, Chapter 11, Commercial Bankruptcy, Credit

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Quant Firm Applies to Issue ETF Share Classes in Mutual Funds

Dimensional Fund Advisors LP ("Dimensional"), a quantitative investment firm, recently filed an application for exemptive relief ("Application") with the Securities and Exchange Commission ("SEC"), seeking permission to offer…more

Board of Directors, Conflicts of Interest, ETFs, Exemptive Relief, Investment Adviser

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Question of the Week: As the impact of return-to-office policies take shape and climbing interest rates increase capitalization rates, how are real estate deals being affected?

Yes, interest rates have skyrocketed when you look at the last 10 years, but the reality is also that folks were able to be quite successful in the ‘90s, with interest rates hovering around 7%. The better questions will all…more

Capitalization, Coronavirus/COVID-19, Interest Rates, Investors, Real Estate Market

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Volcker Rule Amendments: Implications for Asset Managers

On June 25, 2020, the Federal Reserve Board, the OCC, the FDIC, the SEC and the CFTC (collectively, the "Agencies") adopted amendments (the "Amendments") to the regulations implementing section 13 of the Bank Holding Company…more

Asset Management, Bank Holding Company Act, Banking Sector, CFTC, Covered Funds

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California FTB Releases Updated Proposed Regulations on Market-Based Sourcing Rules – Implications for Asset Managers

On September 13, 2024, California’s Franchise Tax Board (“FTB”) released updated proposed regulations (“Draft Regulations”), which would amend the rules regarding market-based sourcing for sales other than sales of tangible…more

Asset Management, Beneficial Owner, California, Franchise Tax Board, Income Taxes

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Launch of the Taskforce on Inequality and Social-related Financial Disclosures

The Taskforce on Inequality and Social-related Financial Disclosures (“TISFD”) launched on 23 September 2024. Background - The TISFD is a global initiative with the aim of developing recommendations and guidance for…more

Climate Change, Disclosure Requirements, Endorsements, Environmental Social & Governance (ESG), EU

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Private Credit Explained: Plug The Gap - Minimizing Value Leakage -

When negotiating credit agreements, lenders will focus on how to maximize the prospect of their loan being repaid in full at maturity..…more

Borrowers, Cash Value, Compliance, Credit, Credit Agreements

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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What Being An 'Insider' Means In Ch. 11, And Why It Matters

After nearly a decade of historically low interest rates, many borrowers will now have to grapple with near-term maturities between 2025 and 2028 on approximately $4.9 trillion of corporate debt. While some borrowers may be…more

Bankruptcy Code, Bankruptcy Court, Business Operations, Chapter 11, Commercial Bankruptcy

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SEC Answers Questions on New Tailored Shareholder Report Requirements

The staff of the Division of Investment Management (the “Staff”) has issued a FAQ pertaining to the rule and form amendments adopted by the Securities and Exchange Commission (the “SEC”) in October 2022, which require open-end…more

Compliance, Corporate Governance, Disclosure Requirements, ETFs, Exchange-Traded Products

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Oregon CPOM Bill Inches Closer to Becoming Law, Targeting Investors and the PPM/Friendly PC Model

As described in our blog post last year, an increasing number of states across the country are seeking to regulate physician practice management (“PPM”) and private equity transactions in the health care sector. As part of this…more

Healthcare, Healthcare Reform, Investors, New Legislation, Oregon

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Arbitrator Should Decide Whether NY Or CA Law Should Apply

A California court has ruled that an arbitrator (not a judge) should decide on the applicability of California Labor Code Section 925 to a dispute between a law firm partner and his former law firm. Zhang v. Superior Court, 2022…more

Arbitration Agreements, Arbitrators, California, Labor Code, New York

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SEC Approves Exchange Listing Applications for Spot Bitcoin ETPs

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a…more

Bitcoin, Broker-Dealer, Chicago Mercantile Exchange (CME), Compliance, Conflicts of Interest

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SEC Approves Exchange Listing Applications for Spot Bitcoin ETPs

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a…more

Bitcoin, Broker-Dealer, Chicago Mercantile Exchange (CME), Compliance, Conflicts of Interest

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Launch of the Taskforce on Inequality and Social-related Financial Disclosures

The Taskforce on Inequality and Social-related Financial Disclosures (“TISFD”) launched on 23 September 2024. Background - The TISFD is a global initiative with the aim of developing recommendations and guidance for…more

Climate Change, Disclosure Requirements, Endorsements, Environmental Social & Governance (ESG), EU

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California Governor Vetoes Transaction Review Law, But Bill’s Rapid Advancement Underscores a Shifting Regulatory Landscape

California Assembly Bill 3129 (“AB3129”), which targeted for regulatory review a variety of health care transactions involving “private equity groups” and “hedge funds,” was vetoed by Governor Gavin Newsom on September 28,…more

Governor Newsom, Governor Vetoes, Healthcare Facilities, Hedge Funds, Investment

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11th Circuit Rejects Litigant’s “Creative Effort” To Escape Forum Selection Clause Requiring Federal Forum

Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh…more

Carnival Cruise Lines, Contract Terms, Forum, Forum Selection, Forum Shopping

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Congress Passes American Rescue Plan: What Employers Need to Know

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“Rescue Plan”), a $1.9 trillion COVID-19 relief package intended to provide continued economic relief to individuals, businesses, and state and local…more

American Rescue Plan Act of 2021, Biden Administration, CARES Act, Coronavirus/COVID-19, Covered Employer

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

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DOL Issues Framework to Guide Employers Using AI Recruiting and Hiring Tools

On September 24, 2024, the United States Department of Labor (“DOL”) announced the publication of an AI & Inclusive Hiring Framework (the “Framework”).  As discussed below, the Framework sets forth ten “Focus Areas” for…more

Artificial Intelligence, Automated Decision Systems (ADS), Department of Labor (DOL), Hiring & Firing, Job Applicants

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French DPA Issues Guidance Surrounding Practice of Web Scraping

On April 30, 2020, the French data protection authority, the CNIL, published a guidance surrounding considerations behind what it calls “commercial prospecting,” meaning scraping publicly available website data to obtain…more

Data Collection, Data Privacy, Data Protection Authority, Direct Marketing, General Data Protection Regulation (GDPR)

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

See all updates »

Q&A: Trends in European Venture Capital Fundraising

Over the last decade, there has been a remarkable growth in European venture capital fundraising, underlining investors’ increasing appetite for innovation and entrepreneurial investments in Europe. While we are witnessing a…more

Asset Management, Capital Raising, EU, Investment Management, Private Equity

See all updates »

Tennessee District Court: Dodd-Frank is Not a General Anti-Retaliation Law

The United States District Court for the Western District of Tennessee recently emphasized the limited scope of what constitutes protected activity under the Dodd-Frank Act’s (the Act) whistleblower protection provision, noting…more

Anti-Retaliation Provisions, Dodd-Frank, Internal Reporting, Motion to Dismiss, Retaliation

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DOL Updates Guidance on Pension and Health & Welfare Plan Cybersecurity Best Practices

In 2021, the U.S. Department of Labor (DOL) issued 3 documents outlining guidance on cybersecurity practices for benefits plans, which we discussed in a blog post at the time. The DOL recently issued revised versions of the…more

Benefit Plan Sponsors, Best Practices, Corporate Counsel, Cybersecurity, Department of Labor (DOL)

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Los Angeles County Court Rules $900 Million Jury Verdict “Shocked the Conscience” In Workplace Sexual Assault Case; Reduces It To $90 Million

As we previously reported, a Los Angeles jury awarded one of the largest verdicts in history in a sexual assault case in June 2024, doling out a massive $900 million verdict in favor of a plaintiff in a suit against billionaire…more

Damages, Jury Awards, Jury Verdicts, Punitive Damages, Sexual Assault

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UK government consults on taxation of carried interest

The newly elected UK Labour government published its call for evidence (see link here) on the taxation of carried interest on Monday 29 July 2024. This consultation by HM Treasury, cautiously anticipated following statements…more

Tax Reform, Taxation, UK

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FTC Focus: What Access To Patent Settlements Would Mean

The Federal Trade Commission has pursued aggressive and creative expansion of its antitrust enforcement efforts under the Biden administration, and the pharmaceutical industry is no exception. Indeed, in a recent interview, FTC…more

Antitrust Provisions, Enforcement, Federal Rules of Civil Procedure, Federal Trade Commission (FTC), FOIA

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Key UK Real Estate Concerns: Alarm bells sound clear warning to landlords over consequences of tenant planning breaches

This article explores a recent decision impacting landlords with property in the UK. In the case, the Proceeds of Crime Act 2002 (“POCA”) was utilised to confiscate rent monies collected from a tenant which had failed to comply…more

Breach of Contract, Compliance, Enforcement, Landlords, Proceeds of Crime Act 2002 (POCA)

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Employers To Face More Concurrent EEOC and Tort Suits after Second Circuit Decision

Last week the U.S. Court of Appeals for the Second Circuit held that filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) does not toll the statute of limitations for state-law tort…more

Discrimination, Equal Employment Opportunity Commission (EEOC), Sex Discrimination, Statute of Limitations

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Not So Fast:  D.C. Circuit Resists Invitation to Reject NLRB Deference

On July 5, 2024, in Hospital de la Concepcion v. NLRB, the D.C. Circuit was the first federal appeals court to weigh in on deference afforded to the National Labor Relations Board (“NLRB”) in the wake of the landmark U.S…more

Administrative Law Judge (ALJ), Administrative Procedure Act, Chevron Deference, Corporate Counsel, Loper Bright Enterprises v Raimondo

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Wide Reaching Reform to UK Employment Law Proposed for 2026

The UK Labour Government published the Employment Rights Bill (“Bill”) last week, alongside a “Next Steps to Make Work Pay” plan (“Plan”), introducing several key employment law changes that will impact all UK businesses,…more

Employment Contract, Harassment, Parental Leave, Paternity Leave, Pregnancy Discrimination

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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AB 3129 Passes California Legislature, Targeting Private Equity Health Care Transactions and Granting AG Consent Right

On August 31, 2024, the California State Assembly and State Senate passed Assembly Bill 3129 (“AB 3129”). If signed by Governor Newsom, AB 3129 would establish a comprehensive transaction review law that (i) targets private…more

California, Covered Transactions, Debt Financing, Healthcare, Hedge Funds

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Conflict Between Delaware LLC Act and Bankruptcy Code Affects Creditor Toolbox

As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of many,…more

Bankruptcy Code, Bankruptcy Court, Breach of Duty, Chapter 11, Chapter 7

See all updates »

Private Credit Restructuring Trends: Sponsor Capital Infusions in Times of Distress

One common denominator links nearly all stressed businesses: tight liquidity. After the liquidity hole is identified and sized, the discussion inevitably turns to the question of who will fund the necessary capital to extend the…more

Borrowers, Capital Raising, Chapter 11, Commercial Bankruptcy, Credit

See all updates »

Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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Front and Center: Latest SVO Grant Numbers (UPDATED)

The SBA stopped accepting new SVO Grant applications on August 20, 2021.  The SBA is currently reviewing submitted SVO Grant applications and issuing both initial and supplemental awards. As of December 13, 2021, the SBA had…more

Artists, Coronavirus/COVID-19, Entertainment Industry, Entertainment Venues, Federal Grants

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UK Tax Round Up - September 2024

Welcome to the September 2024 edition of our UK Tax Round Up. This month has seen decisions on UK tax residence, VAT group eligibility and the Supreme Court’s ruling in the long running case involving the employment status of…more

Appeals, Barclays, Corporate Taxes, Court of Justice of the European Union (CJEU), Dismissals

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Question of the Week: What are the biggest trends you’ve seen in credit fundraising so far this year and what do you expect the rest of 2024?

"In what has been a recently challenging fundraising environment, credit funds are still a bright spot for GPs. The new buzz about credit fund formation relates to the creation of 'evergreen' structures..…more

Credit, Fundraisers, Infrastructure, Investors, Real Estate Financing

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UK Tax Round Up - September 2024

Welcome to the September 2024 edition of our UK Tax Round Up. This month has seen decisions on UK tax residence, VAT group eligibility and the Supreme Court’s ruling in the long running case involving the employment status of…more

Appeals, Barclays, Corporate Taxes, Court of Justice of the European Union (CJEU), Dismissals

See all updates »

SECURE 2.0 Includes PBGC Premium Relief… for Some Plans

As previously discussed, the SECURE 2.0 Act of 2022 (“SECURE 2.0”) that was signed into law on December 29, 2022 as part of the 2023 Consolidated Appropriations Act includes a slew of changes for retirement plan sponsors and…more

21st Century Cures Act, Consolidated Appropriations Act (CAA), PBGC, Pensions, Retirement

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Question of the Week: What kind of competition do you expect in the private credit mid-market in the coming months?

“Lenders that can write bigger checks will have a competitive advantage for the remainder of the year. Many sponsors have accepted the fact that pricing and terms have tightened and now their main concern is ensuring they can…more

Competition, Lenders, Middle Market

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Proskauer Kicks Off Election Protection Efforts with Panel Discussion

To signal the official launch of Proskauer’s 2024 Election Protection efforts, Proskauer hosted a panel presentation on voting rights. With a presidential election coming up this fall, protecting the right to vote has never…more

American Civil Liberties Union (ACLU), Presidential Elections, Race Discrimination, Voting Rights

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Job Applicant’s Algorithmic Bias Discrimination Lawsuit Survives Motion to Dismiss

In a recent development in Mobley vs. Workday, Inc., the United States District Court for the Northern District of California denied in part Workday, Inc.’s (“Workday”) Motion to Dismiss, allowing the Plaintiff to pursue novel…more

ADEA, Algorithms, Americans with Disabilities Act (ADA), Artificial Intelligence, Automated Decision Systems (ADS)

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Protecting the Unhoused: Proskauer Files Amicus Brief on Behalf of the Coalition for the Homeless

In a major victory for unhoused New Yorkers, the New York Court of Appeals recently adopted the analysis of an amicus brief that was filed by Proskauer on behalf of the Coalition for the Homeless. The amicus brief supported the…more

Amicus Briefs, Appeals, Department of Buildings (DOB), Homeless Issues, Law Firm Associates

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In A Surprise Move, California Enacts Boatload Of Employer-Friendly Laws – Nah, That Didn’t Actually Happen . . . It’ll Be More Burdensome Than Ever!

Unbowed and unbroken, California continues to work toward creating that Workers’ Paradise in the Sun, and this legislative session did not disappoint! Here are the latest new laws that will take effect by the first of the year…more

Anti-Discrimination Policies, FEHA, Independent Contractors, Job Ads, Paid Leave

See all updates »

Price Gouging Weekly Round Up - April 2021

Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information for our clients and friends. New…more

Antitrust Provisions, Goods or Services, Natural Gas, Price Gouging, Public Utility

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

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OIG Reports that Clinical Trials Lack Diverse Subjects: What Role Can Artificial Intelligence Play?

As the largest public funder of biomedical research in the world, the National Institutes of Health (“NIH”) annually funds over $38 billion in extramural research, including about $6 billion for clinical trials. On May 28, 2024,…more

21st Century Cures Act, Affordable Care Act, Artificial Intelligence, Clinical Trials, Department of Health and Human Services (HHS)

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Private Credit Deep Dives – Call Protection (United States)

“Call protection” (which is referred to as a “prepayment fee”, “prepayment premium”, “call premium”, “prepayment penalty”, “non call”, “hard call”, “soft call” or “make whole”) is a core economic term in leveraged financings…more

Creditors, Initial Public Offering (IPO), Lenders, Loans, Prepaid Payment Products

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No Money? No Problem: Recent IRS Favorable Guidance Regarding a REIT’s First Year

On October 4, 2024, the Internal Revenue Service (the “IRS”) released Private Letter Ruling 202440007, which concluded that the lack of income and assets in the first taxable year of an entity that had elected to be treated as a…more

Asset Test, Guidance Update, Income Taxes, Income Test, IRS

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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FTC Focus: How Scrutiny Of PBMs And Insulin May Play Out

This article is part of a monthly column that considers the significance of recent Federal Trade Commission announcements about antitrust issues. In this installment, we discuss the FTC's complaint on PBMs' conduct around…more

Administrative Complaints, Anti-Competitive, Article II, Drug Pricing, Due Process

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Reform of the English Arbitration Act 1996: The Arbitration Bill in its New Form

We are keeping an eye on the progress of the reform of the English Arbitration Act 1996. The Arbitration Bill, first introduced in November 2023, was designed to update the Arbitration Act 1996 and reinforce England’s position…more

Arbitration, International Arbitration, Investment, Proposed Legislation, UK Supreme Court

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Reform of the English Arbitration Act 1996: The Arbitration Bill in its New Form

We are keeping an eye on the progress of the reform of the English Arbitration Act 1996. The Arbitration Bill, first introduced in November 2023, was designed to update the Arbitration Act 1996 and reinforce England’s position…more

Arbitration, International Arbitration, Investment, Proposed Legislation, UK Supreme Court

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

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Tax Court Holds That Active Limited Partners of State Law Limited Partnerships May Subject to Self-Employment Tax

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1] Managers of private equity and hedge funds are…more

Employment Tax, Income Taxes, IRS, Limited Partnerships, Partnerships

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Inclusion of Government Grants in EBITDA

In response to the COVID-19 epidemic, the U.S. government has provided relief to companies through various grant programs. The receipt of these grant proceeds represents a meaningful lifeline to many companies and the revenue…more

Accounting Standards, CARES Act, Coronavirus/COVID-19, Credit Agreements, EBITDA

See all updates »

California Enacts Additional Generative AI Bills Touching on Training Data and Healthcare Decisions

After several weeks of handwringing about the fate of SB 1047 – the controversial AI safety bill that would have required developers of powerful AI models and entities providing the computing resources to train such models to…more

Artificial Intelligence, California, California Consumer Privacy Act (CCPA), Data Collection, Healthcare

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SEC Continues Enforcement Program Targeting Late Beneficial Ownership Reports

Following its adoption almost one year ago of amended rules accelerating filing deadlines for Schedules 13G and 13D (and the imminent effectiveness of the new deadlines for 13Gs), the SEC has continued to bring enforcement cases…more

Amended Rules, Beneficial Owner, Enforcement, Securities and Exchange Commission (SEC), Settlement

See all updates »

Question of the Week: What are the biggest trends you’ve seen in credit fundraising so far this year and what do you expect the rest of 2024?

"In what has been a recently challenging fundraising environment, credit funds are still a bright spot for GPs. The new buzz about credit fund formation relates to the creation of 'evergreen' structures..…more

Credit, Fundraisers, Infrastructure, Investors, Real Estate Financing

See all updates »

Energy Transition: A New Risk Climate for Investors

Go to any private equity event in the last 12 months, and “energy transition” will have been discussed, meaning the shift in energy production away from fossil‑based systems to low or zero carbon ones. As fund managers continue…more

Climate Change, Energy Sector, Enforcement, Environmental Social & Governance (ESG), Investment

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

See all updates »

“Side Car” Funds – Solutions for Sourcing Capital

Given the current market volatility resulting from the COVID-19 pandemic, many fund sponsors are seeking additional sources of capital to protect and/or enhance their investment portfolios. There are many circumstances in which…more

Conflicts of Interest, Fund Sponsors, Institutional Investors, Investment Funds, Investment Management

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Federal Trade Commission Approves Final Rule Banning Most Noncompetes

On April 23, 2024, the Federal Trade Commission (“FTC”) voted 3-2 to issue a proposed final rule (“Final Rule”), which, absent a successful legal challenge, will ban most noncompete agreements in the United States. Despite…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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SPAC Disclosures – SEC Focuses in on Conflicts of Interests

On December 22, 2020, the staff of the Securities and Exchange Commission's Division of Corporation Finance issued new guidance with disclosure considerations for special purpose acquisition companies ("SPACs"). The new guidance…more

Capital Markets, Division of Corporate Finance, Initial Public Offering (IPO), New Guidance, Publicly-Traded Companies

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As NFTs Blur the Line Between “Receipt” and “Product”, Trademarks Owners Fight Over New Virtual Markets

Last month, our post about art NFTs and the DMCA highlighted the distinction between non-fungible tokens and the copyrighted works they represent. In the context of copyright, this dichotomy is generally uncontroversial: In most…more

Blockchain, Corporate Counsel, Fashion Industry, First Sale Doctrine, Intellectual Property Protection

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

See all updates »

Countdown to 2025: New HSR Premerger Disclosure Rules

The Federal Trade Commission (“FTC” or the “Commission”) has announced a final rule (the “Final Rule”) significantly expanding the premerger notification and reporting requirements under the Hart‑Scott‑Rodino Antitrust…more

Acquisitions, American Bar Association (ABA), Antitrust Provisions, Competition, Department of Labor (DOL)

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Question of the Week: As infrastructure assets evolve, how has that presented new opportunities for investors?

Infrastructure assets are going to remain highly attractive. This is partly because they offer all the characteristics that investors are looking for like long-term protection on revenues, decorrelation from economic cycles and…more

Asset Management, Inflation Adjustments, Infrastructure, Internal Revenue Code (IRC), Investors

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“Champion” Petfoods: Seventh Circuit Affirms Dismissal of False Advertising Suit Against Pet Food Company

We recently blogged about Champion Petfoods’ success in a Minnesota district court case alleging that it misrepresented the quality of its dog food and ingredients. Well, Champion Petfoods came back to defend its title in…more

Advertising, Animal Food, Article III, Class Action, Evidence

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In A Surprise Move, California Enacts Boatload Of Employer-Friendly Laws – Nah, That Didn’t Actually Happen . . . It’ll Be More Burdensome Than Ever!

Unbowed and unbroken, California continues to work toward creating that Workers’ Paradise in the Sun, and this legislative session did not disappoint! Here are the latest new laws that will take effect by the first of the year…more

Anti-Discrimination Policies, FEHA, Independent Contractors, Job Ads, Paid Leave

See all updates »

Proskauer on Price Gouging Compendium

A Unique Resource for Businesses Managing Price Gouging Compliance - The Proskauer on Price Gouging Compendium provides a detailed analysis of price gouging statutes over the 2020 to 2023 pandemic period, covering how price…more

Compliance, Coronavirus/COVID-19, Price Gouging

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DOL Proposes Significant Changes to the QPAM Exemption – What You Need to Know

On July 27, 2022, the U.S. Department of Labor (the “DOL”) issued notice of a proposed amendment (the “Proposed Amendment”) to Prohibited Transaction Class Exemption 84-14 (which is commonly referred to as the “QPAM Exemption”)…more

Criminal Convictions, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Exemptions, Proposed Amendments

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

See all updates »

Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Question of the Week: What do companies need to know if the Federal Trade Commission's proposed merger review changes are implemented?

“Merger review is about to get thornier. While the FTC and DOJ have been tightening the merger review process incrementally over the course of the Biden administration, the newly proposed HSR rule changes represent a wholesale…more

Acquisitions, Department of Justice (DOJ), Disclosure Requirements, Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Private Credit Lenders: What’s a “Structured Dismissal” and Why Should You Care?

Despite the Supreme Court’s rejection of a structured dismissal in 2017, there is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Private Lenders

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The “Retailisation” of Private Funds – Key Considerations for Private Fund Managers

The “retailisation” of private funds has been one of the industry’s most significant trends in recent years, with fund managers seeking sources of capital beyond their usual institutional, professional and sophisticated investor…more

Asset Management, Capital Raising, ELTIF, EU, EuVECA

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Employee Mobility and Trade Secrets in the Golden Era of Life Sciences Innovation

The life sciences sector is in its “golden era” of innovation with the convergence of disciplines—including genetics, immunology, cell biology, and artificial intelligence—changing the speed, efficiency, and cost at which…more

Breach of Contract, Breach of Duty, Fiduciary Duty, Innovation, Life Sciences

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Cos. Should Plan To Protect DEI Before Supreme Court Ruling

With the U.S. Supreme Court poised to reverse course on affirmative action, companies may soon find their corporate diversity and inclusion programs facing scrutiny. The court this term is considering whether to overturn the…more

Affirmative Action, Harvard University, Mandated Diversity Requirements, Oral Argument, SCOTUS

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Three Point Shot - May 2024

Mischief Afoot: Vans Kicks MSCHF’s Main Defense to Trademark Infringement to the Curb in Art Sneaker Dispute - If the shoe fits, wear it. Or so the Second Circuit mused in a recent decision, in which it “re-boxed” an art…more

Dilution, Enforcement, Fantasy Sports, First Amendment, Gaming Commissions

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Feeling Bullish: A Career in Private Credit

Interest in private credit has grown significantly in the past 12 months. As the syndicated market has slowed, direct lenders (and borrowers) are finding better deal flow and increased opportunities. Market pundits have deemed…more

Capital Markets, Investment, Investment Adviser, Investment Management, Investors

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New FTC Resolution Confirms Commission’s Intent to Regulate AI and Paves the Way for Future Investigations and Enforcement Actions

Making do on its promise to “use every tool” in its arsenal to regulate artificial intelligence (‘AI”), the Federal Trade Commission (“FTC”) unanimously approved a resolution on November 21, 2023 authorizing the use of…more

Artificial Intelligence, Civil Investigation Demand, Competition, Enforcement Actions, Federal Trade Commission (FTC)

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All Will Be Forgiven (or Not): What to Consider When Acquiring a Business with a PPP Loan

Since the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020, millions of businesses have applied for and received a Paycheck Protection Program (the “PPP”) loan from the U.S…more

CARES Act, Certification Requirements, Coronavirus/COVID-19, Loan Forgiveness, Loan Repayment Issues

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The Second Set of Proposed Opportunity Zone Regulations

Introduction - On April 17, 2019, the Internal Revenue Service (the “IRS”) and the U.S. Department of the Treasury (the “Treasury”) issued a second set of proposed regulations (the “Proposed Regulations”) under section…more

Anti-Abuse Rule, Capital Gains, Carried Interest, Holding Periods, Opportunity Zones

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[Ongoing Program] Private Credit Summit 2021 - March 2nd, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,…more

Borrowers, Compensation, Contract Terms, Corporate Executives, Creditors

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Physician Fee Schedule Final Rule for Calendar Year 2022 – CMS Cuts Rates and Extends Telehealth

On November 2, 2021, the Centers for Medicare and Medicaid Services (“CMS”) issued its Calendar Year (CY) 2022 Physician Fee Schedule (“PFS”) Final Rule. In this post, we sample some key highlights from the Final Rule…more

Centers for Medicare & Medicaid Services (CMS), FQHC, Health Care Providers, Healthcare, Healthcare Reform

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Key UK Real Estate Concerns: Alarm bells sound clear warning to landlords over consequences of tenant planning breaches

This article explores a recent decision impacting landlords with property in the UK. In the case, the Proceeds of Crime Act 2002 (“POCA”) was utilised to confiscate rent monies collected from a tenant which had failed to comply…more

Breach of Contract, Compliance, Enforcement, Landlords, Proceeds of Crime Act 2002 (POCA)

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FTC Appeals Texas Federal Court’s Decision Halting Its Noncompete Ban Nationally

On October 18, 2024, the Federal Trade Commission (“FTC”) gave notice that it would appeal a Texas federal court’s decision halting its non-compete rule (the “Rule”) from taking effect as to all employers nationwide. The appeal…more

Appeals, Enforcement, Federal Bans, Federal Trade Commission (FTC), Non-Compete Agreements

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Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading and…more

Corporate Restructuring, Creditors, Distressed Debt, EBITDA, Executive Compensation

See all updates »

Federal Court Upholds Arbitral Award Despite Failures to Disclose Potential Bias

The Eleventh Circuit upheld an arbitral award last month despite the arbitrators’ failure to make certain disclosures regarding potential sources of bias. The litigation involved a dispute between the Panama Canal Authority, the…more

Arbitration Awards, Bias, Construction Project, Disclosure Requirements, Federal Arbitration Act

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As Scrutiny Escalates, DOJ Announces the Formation of the Health Care Monopolies and Collusion Task Force

The U.S. Department of Justice (“DOJ”) recently announced the creation of the Health Care Monopolies and Collusion Task Force (the “HCMC Task Force”) aimed at resolving antitrust issues in the health care industry. …more

Antitrust Division, Collusion, Data Protection, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

See all updates »

2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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Latest 'Nuclear Verdict' Underscores Jury-Trial Employer Risk

Last month, in Jane Doe v. Alkiviades David, a Los Angeles Superior Court jury returned a verdict in a sexual assault and harassment case in the amount of $900 million. This verdict is one of the largest ever for a…more

Arbitration, Cause of Action Accrual, Compensatory Damages, Corporate Counsel, Employer Liability Issues

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UK Tax Round Up - September 2024

Welcome to the September 2024 edition of our UK Tax Round Up. This month has seen decisions on UK tax residence, VAT group eligibility and the Supreme Court’s ruling in the long running case involving the employment status of…more

Appeals, Barclays, Corporate Taxes, Court of Justice of the European Union (CJEU), Dismissals

See all updates »

CMS Proposes Additional Modifications to the Overpayment Rule Relating to the Deadline for Reporting and Returning Overpayments

In the context of Medicare Advantage (“MA”) reform initiatives, we previously addressed the Centers for Medicare & Medicaid Services’ (“CMS”) December 27, 2022 proposal to amend its regulations set forth at 42 C.F.R. §…more

Centers for Medicare & Medicaid Services (CMS), False Claims Act (FCA), Final Rules, Healthcare Fraud, Investigations

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New York Appellate Division Says No Private Action for Violations of Weekly Pay Law, Creating Split in Precedent

In a hotly anticipated decision, the Appellate Division, Second Department held on January 17, 2023 that no private right of action exists for a violation of Labor Law § 191(1)(a), which—absent a waiver by the Commissioner of…more

Appellate Jurisdiction, Employees, Employer Liability Issues, Labor Law Violations, New York

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Wealth Management Update - June 2024

June 2024 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split-Interest Charitable Trusts - The June Section 7520 rate for use in estate planning techniques such as CRTs, CLTs, QPRTs and…more

Generation-Skipping Transfer, Gift Tax, Grantor Retained Annuity Trusts (GRATs), Income Taxes, Individual Retirement Account (IRA)

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

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President Biden Signs Executive Order Requiring Project Labor Agreements for Large-Scale Federal Construction Projects ($35 Million)

On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”), which requires the federal government to require a project labor agreement…more

Biden Administration, Construction Project, Executive Orders, Federal Contractors, Labor Reform

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

SEC Continues Enforcement Program Targeting Late Beneficial Ownership Reports

Following its adoption almost one year ago of amended rules accelerating filing deadlines for Schedules 13G and 13D (and the imminent effectiveness of the new deadlines for 13Gs), the SEC has continued to bring enforcement cases…more

Amended Rules, Beneficial Owner, Enforcement, Securities and Exchange Commission (SEC), Settlement

See all updates »

No Amendment to Federal Rule of Evidence 702, At Least For Now

Federal Rule of Evidence 702, which governs the admissibility of expert testimony, was most recently amended in 2000 in response to Daubert and its progeny. In response to concerns about misapplication, the Advisory Committee on…more

Admissibility, Daubert Standards, Evidence, Expert Testimony, Expert Witness

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On The Rise: Union Representation Petitions Increase by 27% Over the Last Year

On October 14, 2024, the National Labor Relations Board (“NLRB” or the “Board”) issued a press release confirming the continued increase in union organizing efforts..…more

NLRA, NLRB, Unions

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From Opioids to Opt-Outs: Nonconsensual Third-Party Releases and the Aftermath of Purdue

On June 27, 2024, the U.S. Supreme Court released its 5-4 opinion in connection with the bankruptcy case of Purdue Pharma L.P. (“Purdue”). Over a vigorous dissent authored by Justice Kavanaugh, a narrow majority of the Supreme…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Opioid

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Private Credit Deep Dives – Change of Control (United States)

After an unprecedented post-COVID boom, M&A activity has slowed in recent months, with overall global M&A value down as much 44% in the first five months of 2023, according to a recent report by Bain & Company. Against this…more

Acquisitions, Beneficial Owner, Controlling Stockholders, Investment, Liquidity

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The Broad Impact of Edwards v. Meril on the Safe Harbor Provision

The Federal Circuit’s decision in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., has garnered significant attention, especially concerning the application of the “safe harbor” provision under 35 U.S.C. § 271(e)(1)…more

Denial of Rehearing, En Banc Review, Food and Drug Administration (FDA), Generic Drugs, Hatch-Waxman

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

See all updates »

U.S. FinCEN Extends Timeframe for Reporting Companies Created in 2024 to File Beneficial Ownership Information Reports

Today, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued a final rule aimed to ease compliance with certain aspects of the regulations promulgated under the Corporate Transparency Act. The…more

Beneficial Owner, Corporate Transparency Act, FinCEN, Notice of Proposed Rulemaking (NOPR)

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Final Mental Health Parity Regulations Released, with Plan Sponsor Action Required by 2025

Last week, the Departments of Labor, Treasury, and Health and Human Services finalized regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Although the final regulations step back from…more

Compliance, Health Plan Sponsors, Mental Health Parity Rule, MHPAEA, New Regulations

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Private Credit Explained: Plug The Gap - Minimizing Value Leakage -

When negotiating credit agreements, lenders will focus on how to maximize the prospect of their loan being repaid in full at maturity..…more

Borrowers, Cash Value, Compliance, Credit, Credit Agreements

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California Governor Vetoes Transaction Review Law, But Bill’s Rapid Advancement Underscores a Shifting Regulatory Landscape

California Assembly Bill 3129 (“AB3129”), which targeted for regulatory review a variety of health care transactions involving “private equity groups” and “hedge funds,” was vetoed by Governor Gavin Newsom on September 28,…more

Governor Newsom, Governor Vetoes, Healthcare Facilities, Hedge Funds, Investment

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Third Circuit Follows Fifth and Ninth Circuits on Treatment of Make-Whole Claims in Bankruptcy

In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Compensation

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Montana Supreme Court Finds Minimum Contacts in Social Media Posts Targeting State Residents

Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana…more

Defamation, Due Process, MT Supreme Court, Personal Jurisdiction, SCOTUS

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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SEC Continues Enforcement Program Targeting Late Beneficial Ownership Reports

Following its adoption almost one year ago of amended rules accelerating filing deadlines for Schedules 13G and 13D (and the imminent effectiveness of the new deadlines for 13Gs), the SEC has continued to bring enforcement cases…more

Amended Rules, Beneficial Owner, Enforcement, Securities and Exchange Commission (SEC), Settlement

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Private Credit Explained: Plug The Gap - Minimizing Value Leakage -

When negotiating credit agreements, lenders will focus on how to maximize the prospect of their loan being repaid in full at maturity..…more

Borrowers, Cash Value, Compliance, Credit, Credit Agreements

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Q&A: What will be the biggest trend or issue impacting the European private funds market in 2023?

Private equity is resilient and has been innovative in how it invests a large amount of dry powder. However, as we enter an uncertain market, what are the biggest factors that will impact how private markets raise and form their…more

Enforcement, Environmental Social & Governance (ESG), EU, Investment Adviser, Investors

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Supreme Court Rules That Agency Interpretive Rules Are Not Subject to Notice-and-Comment Rulemaking

Recently, the Supreme Court issued a unanimous judgment that government agency "interpretive rules" are not subject to notice-and-comment rulemaking, but cautioned that those same rules do not carry the "force and effect of…more

Administrative Procedure Act, Department of Labor (DOL), Fair Labor Standards Act (FLSA), Interpretive Rule, Notice and Comment

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Glass Lewis and ISS Announce Updates For 2024 Proxy Season

Glass Lewis (“GL”) recently released its annual Benchmark Policy Guidelines for 2024.  This update makes several changes to how the proxy advisory firm will evaluate company policies related to executive compensation. …more

Clawbacks, Dodd-Frank, Executive Compensation, Glass Lewis, Institutional Shareholder Services (ISS)

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Why Mentoring Matters: Proskauer's Brianna Reed

In our “Why Mentoring Matters” series, Proskauer tax associate Brianna Reed shares how participating in the firm’s Women’s Sponsorship Program led her to meet and learn from a partner mentor in a different practice group. This…more

Career Development, Mentors, Professional Development, Professional Networking, Women in the Law

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Relator, No More?  Florida Federal Court Declares Qui Tam Provisions of False Claims Act Unconstitutional, with Potentially Broad Implications for Government Fraud Litigation

On September 30, 2024, the U.S. District Court for the Middle District of Florida issued an order dismissing a qui tam case under the False Claims Act (“FCA”) and holding the relator provisions of the FCA to be unconstitutional…more

Anti-Kickback Statute, Appointments Clause, Article II, Consumer Financial Protection Bureau (CFPB), False Claims Act (FCA)

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Pay Range Will Be Required in Massachusetts Job Ads Starting July 31, 2025

On July 31, 2024, Massachusetts Governor Maura Healey signed into law new legislation that requires employers with 25 or more employees in Massachusetts to include pay range in job ads. The statute requires that the posted pay…more

EEO, Equal Employment Opportunity Commission (EEOC), Good Faith, Job Ads, Private Right of Action

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SCOTUS Will Determine Employers’ Burden of Proof to Establish FLSA Exemptions

On June 17, 2024, the U.S. Supreme Court announced that it will tackle a 6-1 circuit split and decide an important wage and hour issue for employers: what burden of proof an employer must satisfy to demonstrate that its workers…more

Burden of Proof, Exemptions, Fair Labor Standards Act (FLSA), Minimum Wage, Over-Time

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New York City Council Establishes Private Right of Action for NYC Earned Safe and Sick Time Act Violations

The New York City Council has passed a bill that creates a private right of action for individuals claiming violations of the NYC Earned Safe and Sick Time Act (“ESSTA”). The Council presented the bill to Mayor Eric Adams on…more

City of New York, Corporate Counsel, Labor Law Violations, New Legislation, Paid Sick Leave

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Congress Proposes SECURE 2.0 Technical Corrections Bill

As previously discussed, the SECURE 2.0 Act of 2022 (“SECURE 2.0”) was signed into law on December 29, 2022 as part of the 2023 Consolidated Appropriations Act, and included a myriad of required and optional plan design changes…more

401k, Automatic Enrollment, Consolidated Appropriations Act (CAA), Employee Retirement Income Security Act (ERISA), IRS

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Court Upholds SEC’s Victory in “Shadow Trading” Case

A federal court in California refused to grant a judgment or a new trial to a defendant who was found to have engaged in insider trading when he purchased securities of one company based on material nonpublic information…more

Acquisitions, Breach of Duty, Confidentiality Agreements, Fiduciary Duty, Insider Trading

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Deadlines Approaching for New ACA Section 1557 Nondiscrimination Requirements: Action Items for Covered Group Health Plans

Earlier this year, the Department of Health and Human Services (“HHS”) released a final rule under Section 1557 of the Affordable Care Act (“ACA”), which prohibits discrimination in health programs and activities. The 2024…more

Affordable Care Act, Covered Entities, Deadlines, Department of Health and Human Services (HHS), Employer Group Health Plans

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Agentic Artificial Intelligence: Looking Ahead to Potential Practical and Legal Issues When AI Gets Autonomous

Generative AI has been most synonymous in the public mind with “AI” since the commercial breakout of ChatGPT in November 2022. Consumers and businesses have seen the fruits of impressive innovation in various generative models’…more

Artificial Intelligence, Autonomy, Corporate Counsel, Disclaimers, License Agreements

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Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Wealth Management Update - September 2024 - 2

September 2024 AFRs and 7520 Rate - The September 2024 Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 4.8%, a decrease from the August 2024 rate of 5.2%. The September…more

AFR, American Bar Association (ABA), Beneficiaries, Decanting, Declaratory Relief

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The End of Chevron

When an ambiguity exists in a statute for which Congress has not chosen among the reasonable readings, who decides which possible reading should govern? For nearly four decades, courts have followed the rule of Chevron U.S.A.,…more

Administrative Procedure Act, Chevron Deference, Chevron v NRDC, Clean Air Act, Government Agencies

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Front and Center: SVO Grants through the SBA (UPDATED)

[co-author: Laura Peterson] Originally published on December 30, 2020 and updated as of March 18, 2021. The Consolidated Appropriations Act, 2021 (the “CAA”), which provides $900 billion in new COVID-19 relief funding, was…more

Artists, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Economic Aid Act, Entertainment Industry

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Question of the Week: How are current levels of dry powder impacting GPs and LPs in the secondary market?

"Dedicated available capital is estimated at $227 billion (as of June 30, 2022). We expect secondary investors to closely monitor valuations and public market conditions. But as investors continue to fundraise and deploy on pace…more

Business Valuations, EU, Investors, Liquidity, Mark-To-Market

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CA Court of Appeal Confirms Narrow Construction for Anti-SLAPP Commercial Speech Exemption

A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the basis…more

Anti-SLAPP, Commercial Speech, Defamation, Exemptions, First Amendment

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A Name is Not Enough: Ninth Circuit Finds No Standing for First-to-File Shareholder to Appeal Securities Class Action

Imagine you are an investor and you decide to file a lawsuit after a company that you invest in suffers a stock drop. When you get to the courthouse, you find that you are the first person to file a federal securities class…more

Appeals, Centers for Medicare & Medicaid Services (CMS), Class Action, Class Certification, Federal Rules of Civil Procedure

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ILPA Guidance on NAV Facilities

On 25 July 2024, the Institutional Limited Partners Association ("ILPA") published guidance (the "Guidance") on the use of net asset value ("NAV") facilities. The Guidance specifically applies to private equity funds and does…more

Borrowing Statutes, Consent, Documentation, Institutional Limited Partners Association (ILPA), Investors

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Guide to “Recycling” Options for Fund Managers

The ongoing COVID-19 crisis is presenting fund managers with numerous challenges. One key challenge is to make sure that their portfolio companies have sufficient capital available to weather this particular storm. But how can…more

Capital Markets, Coronavirus/COVID-19, Crisis Management, Fund Managers, Investment Adviser

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Recent Federal Circuit Decision Highlights Importance of Analogous Prior Art Doctrine

The Court of Appeals for the Federal Circuit recently addressed the issue of “analogous prior art,” a patent law doctrine fundamental to the legal determination of whether a patent is invalid as obvious over the prior art. The…more

Analogous Art, Appeals, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Mylan Pharmaceuticals

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New Jersey Employers be Warned: Changes to New Jersey WARN Likely on the Horizon

Almost three years ago – in January of 2020 – New Jersey Governor Phil Murphy signed Senate Bill 3170 into law, which provided significant amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act – also known…more

Coronavirus/COVID-19, Executive Orders, New Jersey, WARN Act

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New York State Legislature Approves Law That Prohibits No Fault Attendance Policies

The New York State legislature recently passed a bill (Senate Bill S1958A) that, if and when enacted into law, would amend the New York Labor Law to clarify that employers who maintain “no fault” or absence control policies may…more

Absenteeism, Adverse Employment Action, Attendance, Employer Liability Issues, Employment Policies

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Agencies Update Guidance on Group Health Plan Contraceptive Coverage Requirements

The Departments of Labor, Treasury, and Health and Human Services (the “Departments”) recently issued guidance for group health plans outlining a “therapeutic equivalence” medical management technique for required preventive…more

Affordable Care Act, Department of Health and Human Services (HHS), Department of Labor (DOL), Employer Group Health Plans, Food and Drug Administration (FDA)

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DOJ Messaging App Warnings Undermine Trust In Counsel

In the last several months, the Antitrust Division of the U.S. Department of Justice has been issuing increasingly ominous warnings to companies and executives about the consequences of not preserving ephemeral messaging and…more

Antitrust Division, Attorney-Client Privilege, Criminal Prosecution, Data Preservation, Data Retention

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Supreme Court Rules on Moore v. U.S. – Upholds Mandatory Repatriation Tax

On June 20, 2024, the U.S. Supreme Court ruled 7-2 that the so called mandatory repatriation tax under Internal Revenue Code Section 965 (“MRT”) is constitutional. Justice Kavanaugh wrote the majority opinion..…more

Income Taxes, Internal Revenue Code (IRC), Moore v US, SCOTUS, Shareholders

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Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

Acquisitions, Capital Markets, Global Dealmaking, Mergers, Private Equity

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Fifth Circuit Reverses Dismissal of 401(k) Fees Claims

The Fifth Circuit recently reversed a district court’s dismissal of claims that the fiduciaries of a 401(k) plan breached the duty of prudence under ERISA by offering participants retail share classes instead of cheaper…more

401k, Article III, Class Action, Employee Retirement Income Security Act (ERISA), Excessive Fees

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d Cir…more

Arbitration, Auto-Renewal, Corporate Counsel, FinTech, Mandatory Arbitration Clauses

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Game of Tomes: A Guide to the DOL’s Retirement Security Rule Proposal

The new “retirement security rule” package, issued by the U.S. Department of Labor (the “DOL”) on October 31, 2023, is the latest chapter in an almost 15-year effort by the DOL to amend the five-part test in its 1975 regulation…more

401k, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary-Standards, Individual Retirement Account (IRA)

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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On The Rise: Union Representation Petitions Increase by 27% Over the Last Year

On October 14, 2024, the National Labor Relations Board (“NLRB” or the “Board”) issued a press release confirming the continued increase in union organizing efforts..…more

NLRA, NLRB, Unions

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Be Smarter Than a Lizard: Overcoming Reptile Theory in the Discovery Phase

It’s no secret: plaintiffs’ attorneys want to win big. Using reptile theory, plaintiffs (and their counsel) are enjoying gargantuan jury verdicts. Through thoughtful and strategic lawyering, however, the harsh effects of reptile…more

Commercial Litigation, Discovery, Evidence, Jury Trial, Litigation Strategies

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

See all updates »

How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

See all updates »

Ready to Sell All or a Portion of your Management Company? – A Checklist of Asset Manager M&A Considerations

Many closely-held asset management firms are considering selling their business or bringing in outside investors. Taking this next step in the life cycle of a firm can bring needed liquidity to the founders, provide capital to…more

Acquisitions, Asset Management, Change of Control, Contract Negotiations, Investment Adviser

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Q&A: The Bottom Line of Russian Sanctions’ Impact on AML for Private Funds

Earlier this spring, following the Russian invasion of Ukraine, the Biden administration issued a series of executive orders imposing strong sanctions against Russia. Over the last few months, those sanctions have continued to…more

Anti-Money Laundering, Biden Administration, Economic Sanctions, Enforcement, Foreign Policy

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Four Things You May Not Know About … USERRA

In the second in a series of blogs examining often overlooked or misunderstood provisions of common employment laws, today we are covering four things employers may not know about the federal Uniformed Services Employment and…more

Anti-Discrimination Policies, Class Action, Employer Group Health Plans, Family and Medical Leave Act (FMLA), Military Service Members

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The Never-Ending Fiduciary Rule Story Continues: Effective Date of DOL’s Newest Fiduciary Investment Advice Rule Delayed by Federal Court in Texas

The Department of Labor (“DOL”) recently issued final rules (the “Final Rules”) which expanded what it means to provide fiduciary “investment advice” under ERISA and Section 4975 of the Code (discussed here). The Final Rules…more

Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary, Individual Retirement Account (IRA), Investment

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UK Tax Round Up - September 2024

Welcome to the September 2024 edition of our UK Tax Round Up. This month has seen decisions on UK tax residence, VAT group eligibility and the Supreme Court’s ruling in the long running case involving the employment status of…more

Appeals, Barclays, Corporate Taxes, Court of Justice of the European Union (CJEU), Dismissals

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NYS DFS Revisits PBM Regulation with Scaled-Back Draft Rules

On February 6, 2024, the New York State Department of Financial Services (“DFS”) released “pre-proposed” consolidated rulemaking related to the business practices of Pharmacy Benefit Managers (“PBMs”) licensed to operate in New…more

Audits, Licensing Rules, NYDFS, Pharmacies, Pharmacy Benefit Manager (PBM)

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Tax Relief for American Families and Workers Act of 2024

On January 17, 2024, Senate Finance Committee Chairman Ron Wyden (D-Ore.) and House Ways and Means Committee Chairman Jason Smith (R-Mo.) released a bill, the “Tax Relief for American Families and Workers Act of 2024” (“TRAFA”…more

1099s, Child Tax Credit, EBITDA, IRS, Popular

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Coronavirus: Details Matter

As the Coronavirus (COVID-19) continues to disrupt markets and industries globally, businesses face significant internal and external challenges with how to identify and plan for issues caused by the outbreak. In response,…more

Business Interruption, Centers for Disease Control and Prevention (CDC), Contract Negotiations, Contract Terms, Coronavirus/COVID-19

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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District Court Holds Unenforceable Trust Provision Requiring Attorneys’ Fees for Arbitration

Employers may be bound by multiemployer pension plans’ trust agreements and collections policies, but the force of these governing documents may have its limits. In Nevada Resorts Ass’n–Int’l All. of Theatrical Stage Emps. and…more

Arbitration, Attorney's Fees, PBGC, Pensions, Trusts

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Shortly After its Online Tracking Technologies Bulletin is Declared Unlawful, HHS-OCR Stands Down, Withdraws Appeal

On August 29, 2024, the Office for Civil Rights of the United States Department of Health and Human Services (“HHS-OCR”) withdrew its appeal of an order by the United States District Court for the Northern District of Texas’…more

Administrative Procedure Act, Class Action, Covered Entities, Department of Health and Human Services (HHS), Health Insurance Portability and Accountability Act (HIPAA)

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[Podcast] Episode 49: Rep and Warranty Insurance and Executive Compensation and Employees Benefits

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Employee Benefits and Executive Compensation Group, Simon Sharpe, partner and member of our Private Equity and Mergers & Acquisitions groups and Nick…more

Acquisitions, Employee Benefits, Executive Compensation, Insurance Industry, Mergers

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Talking Trends with Blue Owl

In Women in Private Credit: Talking Trends, we delve into the world of private credit through the lens of eminent women in the field — from professionals at the forefront of industry leadership to our own lawyers. Together, we…more

Acquisitions, Capital Investments, Credit Agreements, Economic Growth, Institutional Investment

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Digital Dollars: Amid the COVID-19 Crisis, Support for a U.S. Digital Currency Emerges

During congressional debates over the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a relatively novel idea was the focus of proposals from the Senate and House of Representatives: “digital dollars.” Several…more

CARES Act, Coronavirus/COVID-19, Digital Currency, Financial Stimulus, Proposed Legislation

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Game Over: Court Dismisses Class Action Lawsuit Over Gaming Computer Performance

The gaming industry is increasingly becoming a target for consumer class actions, as plaintiffs’ attorneys are scrutinizing the marketing and performance claims of gaming PCs and accessories.  However, gaming companies are not…more

Class Action, Dismissals, Fraud, Gaming, Lanham Act

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Coronavirus: A Checklist for the Hospitality Industry Executive

As the Coronavirus (COVID-19) continues to disrupt travel and almost every other aspect of day-to-day life, the hospitality industry faces unprecedented challenges. Hotel closings, employee furloughs and other drastic measures…more

Acquisitions, Commercial Contracts, Coronavirus/COVID-19, Mergers, OSHA

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Eleventh Circuit Affirms Rejection of Employee’s SOX Claim for Lack of Protected Activity

On September 25, 2023, the U.S. Court of Appeals for the Eleventh Circuit affirmed the Department of Labor’s Administrative Review Board’s rejection of an employee’s Sarbanes–Oxley Act (SOX) retaliation claim, holding the…more

Appeals, Corporate Counsel, Employee Misconduct, OSHA, Retaliation

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Celebrating Individualism and Authenticity with Phillip Lim

Proskauer’s Asian Lawyer Affinity Group and Ares teamed up for a dynamic Q&A with fashion luminary and activist Phillip Lim, delving into the interplay between identity and entrepreneurship. Moderated by Ares' COO Jana Markowicz…more

Activist, Brand, Diversity and Inclusion Standards (D&I)

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Deadline Dexterity: PTAB Has Authority to Issue Decisions After Statutory Deadline

Recently, in Purdue Pharma L.P. v. Collegium Pharmaceutical, Inc., the Federal Circuit held for the first time that the Patent Trial and Appeal Board (“the Board”) has the authority to issue a Final Written Decision even after…more

America Invents Act, Final Written Decisions, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents

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EV Trade Secrets Litigation Series: EV Trade Secrets Dispute Takes a Twist as $71M Verdict is Overturned

Continuing our series on electric vehicle (EV) trade secret litigations, a federal judge has overturned a jury’s verdict awarding $71 million to Zunum Aero, Inc. for The Boeing Company’s violation of the Washington Trade Secrets…more

Boeing, Electric Vehicles, Intellectual Property Litigation, Investors, Jury Verdicts

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DOJ Triples Down on Incentivizing Disclosures with Launch of Three-Year Corporate Whistleblower Awards Pilot Program

Corporate Whistleblower Awards Pilot Program (“Pilot Program”), aimed at incentivizing whistleblowers to report potential criminal conduct. The announcement was anticipated, having been previewed in March 2024 by Deputy Attorney…more

CFTC, Department of Justice (DOJ), Disclosure Requirements, False Claims Act (FCA), Federal Pilot Programs

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Pro Bono Work and the Impact of Growing Inequality

Pro bono work regularly makes a meaningful difference in people’s lives, whether by securing a favorable outcome for an individual or resolving a class action case affecting thousands. While it’s important to recognize and…more

Affordable Housing, Class Action, Healthcare, Mental Health, Poverty

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Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Entertainment Industry

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Launch of the Taskforce on Inequality and Social-related Financial Disclosures

The Taskforce on Inequality and Social-related Financial Disclosures (“TISFD”) launched on 23 September 2024. Background - The TISFD is a global initiative with the aim of developing recommendations and guidance for…more

Climate Change, Disclosure Requirements, Endorsements, Environmental Social & Governance (ESG), EU

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Federal Circuit Clarifies Reach of “Artificial” Act of Patent Infringement

Litigators in the life sciences field are no doubt familiar with the so-called “artificial” act of infringement established by 35 U.S.C. § 271(e)(2)(A)-(B): namely, that a party can be sued for patent infringement by merely…more

Abbreviated New Drug Application (ANDA), Biosimilars, Patent Infringement, Patents, Pharmaceutical Patents

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New Proposed Regulations Would Impact the Determination of Domestically Controlled REIT and Structures for Sovereign Wealth Funds’ US Real Estate Investments

On December 28, 2022, the Internal Revenue Service (the “IRS”) and the Treasury Department released proposed regulations (the “Proposed Regulations”) under sections 892 and 897 of the Internal Revenue Code (the “Code”). If…more

FIRPTA, Income Taxes, IRS, Proposed Regulation, Real Estate Investments

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DOL Issues Framework to Guide Employers Using AI Recruiting and Hiring Tools

On September 24, 2024, the United States Department of Labor (“DOL”) announced the publication of an AI & Inclusive Hiring Framework (the “Framework”).  As discussed below, the Framework sets forth ten “Focus Areas” for…more

Artificial Intelligence, Automated Decision Systems (ADS), Department of Labor (DOL), Hiring & Firing, Job Applicants

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DOL's “New” PAID Self-Reporting Program of Questionable Value to Employers

Earlier this week, the U.S. Department of Labor’s Wage and Hour Division announced the upcoming launch of a “new” pilot program called the Payroll Audit Independent Determination program (“PAID”). Under PAID, employers can come…more

Audits, Corporate Counsel, Department of Labor (DOL), Employer Liability Issues, Fair Labor Standards Act (FLSA)

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On The Rise: Union Representation Petitions Increase by 27% Over the Last Year

On October 14, 2024, the National Labor Relations Board (“NLRB” or the “Board”) issued a press release confirming the continued increase in union organizing efforts..…more

NLRA, NLRB, Unions

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DOJ, SEC Focus Should Prompt Clawback Policies Review

The fall of 2022 has been a very active period when it comes to executive compensation and regulators focusing on clawing back compensation paid to executive officers. The U.S. Securities and Exchange Commission's recent…more

Clawbacks, Compensation, Department of Justice (DOJ), Dodd-Frank, Executive Compensation

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FinCEN Clarifies that Dissolved Entities are Subject to CTA Reporting Obligations

On July 8, 2024, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) released additional FAQs with respect to the beneficial ownership reporting requirements of dissolved entities. The Corporate…more

Beneficial Owner, Corporate Transparency Act, Dissolution, FinCEN, Reporting Requirements

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Amid Rise in Forever Chemicals Cases, Courts Dismiss PFAS Claims Which Rely on Inadequate Product Testing

As chemicals of concern litigation continues to surge across the nation, companies increasingly find their products under scrutiny for alleged contamination of these “forever chemicals.” These “forever chemicals” have become a…more

Consumer Protection Laws, Contamination, Cosmetics, Environmental Protection Agency (EPA), Hazardous Substances

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Navigating Chapter 11 Reorganizations during COVID-19: New Complications or Business as Usual?

In the best of times, a chapter 11 reorganization is an uncertain and stressful process for all involved. When the disruptive effects of COVID-19 are added to the mix, and many businesses face significant economic difficulties,…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19, Creditors

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Pre-Election Drug Pricing Regulation Efforts: Where Does Congress Stand?

The regulation of drug prices has received significant recent bipartisan support in Congress. Democrats and Republicans in both houses have proposed approximately eighty bills relating to drug pricing over the past two years…more

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Drug Pricing, Legislative Agendas, Life Sciences

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UN Working Group on Arbitrary Detention Declares Detention of Sri Lankan Author Violated International Law

Working alongside Freedom Now, a nonprofit organization dedicated to advocacy for prisoners of conscience around the world, Proskauer obtained a victory before the United Nations Working Group on Arbitrary Detention (the…more

Human Rights, Prisoners, Pro Bono, Religion, Sri Lanka

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Q&A: What will be the biggest trend or issue impacting the European private funds market in 2023?

Private equity is resilient and has been innovative in how it invests a large amount of dry powder. However, as we enter an uncertain market, what are the biggest factors that will impact how private markets raise and form their…more

Enforcement, Environmental Social & Governance (ESG), EU, Investment Adviser, Investors

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COVID-19 “Not a Golden Ticket” to Avoid Discovery Obligations

The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life. However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it…more

Commercial Litigation, Coronavirus/COVID-19, Court Schedules, Depositions, Discovery

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Section 1446(f) Proposed Regulations: Key Guidance on Partnership Interest Transfers by Non-U.S. Persons

On May 13, 2019, the U.S. Internal Revenue Service (“IRS”) and Treasury Department published proposed regulations providing guidance on the rules imposing withholding and reporting requirements under the Code on dispositions of…more

FIRPTA, Foreign Persons, Income Taxes, International Tax Issues, IRS

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2020 Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This yearly report provides a summary of some of the significant changes and developments that occurred in the past year in the hedge fund and private equity spaces, as well as certain recommended practices that investment…more

Hedge Funds, Popular, Private Equity, Private Equity Funds, Securities and Exchange Commission (SEC)

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From Opioids to Opt-Outs: Nonconsensual Third-Party Releases and the Aftermath of Purdue

On June 27, 2024, the U.S. Supreme Court released its 5-4 opinion in connection with the bankruptcy case of Purdue Pharma L.P. (“Purdue”). Over a vigorous dissent authored by Justice Kavanaugh, a narrow majority of the Supreme…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Opioid

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Talking Trends with Blue Owl

In Women in Private Credit: Talking Trends, we delve into the world of private credit through the lens of eminent women in the field — from professionals at the forefront of industry leadership to our own lawyers. Together, we…more

Acquisitions, Capital Investments, Credit Agreements, Economic Growth, Institutional Investment

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of…more

Appeals, Commercial Speech, Dairy Farmers, First Amendment, Food Labeling

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The Sneak Peek: Secondaries Pulse Check

Pent up dry powder? Biggest emerging secondaries sectors? Leverage still a viable means to finance deals? Below is a “sneak peek” into what our Proskauer panelists have to say on these big topics. They, along with our lineup of…more

Acquisitions, Financing, Global Market, Interest Rates, Investors

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Private Credit Deep Dives – Portability (Europe)

One of the foundational provisions negotiated in almost every European leveraged loan agreement is the “Change of Control” definition and associated clauses. This provision is crucial because it directly impacts the risk profile…more

Acquisitions, Asset Management, Credit, Debt, Default

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SEC Continues Enforcement Program Targeting Late Beneficial Ownership Reports

Following its adoption almost one year ago of amended rules accelerating filing deadlines for Schedules 13G and 13D (and the imminent effectiveness of the new deadlines for 13Gs), the SEC has continued to bring enforcement cases…more

Amended Rules, Beneficial Owner, Enforcement, Securities and Exchange Commission (SEC), Settlement

See all updates »

Taylor Swift and Congress Have “Bad Blood” with AI Deepfakes

On September 10, minutes after the first presidential debate between Donald Trump and Vice President Kamala Harris, an Instagram post set the political world abuzz: Taylor Swift endorsed Harris in the race. The announcement from…more

Artificial Intelligence, Civil Monetary Penalty, Deep Fake, Fair Use, Intellectual Property Protection

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How Employers Can Prep for CROWN Act Legislation

Since 2019, community leaders, organizations, and lawmakers have influenced a movement to introduce legislation—at all levels of government—that prohibits workplace discrimination based upon hairstyle and hair…more

Anti-Discrimination Policies, Civil Rights Act, Employer Liability Issues, Employment Litigation, Hairstyle Discrimination

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

See all updates »

State Tax Law Updates

A number of states have recently proposed or passed new laws related to state-level taxation, some of which are taxpayer-friendly and some of which are expected to impose additional tax burdens on taxpayers. They vary in subject…more

Carried Interest Tax Rates, Corporate Taxes, Income Taxes, Pass-Through Entities, SALT

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FinCEN Clarifies that Dissolved Entities are Subject to CTA Reporting Obligations

On July 8, 2024, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) released additional FAQs with respect to the beneficial ownership reporting requirements of dissolved entities. The Corporate…more

Beneficial Owner, Corporate Transparency Act, Dissolution, FinCEN, Reporting Requirements

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FTC Appeals Texas Federal Court’s Decision Halting Its Noncompete Ban Nationally

On October 18, 2024, the Federal Trade Commission (“FTC”) gave notice that it would appeal a Texas federal court’s decision halting its non-compete rule (the “Rule”) from taking effect as to all employers nationwide. The appeal…more

Appeals, Enforcement, Federal Bans, Federal Trade Commission (FTC), Non-Compete Agreements

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ILPA Guidance on NAV Facilities

On 25 July 2024, the Institutional Limited Partners Association ("ILPA") published guidance (the "Guidance") on the use of net asset value ("NAV") facilities. The Guidance specifically applies to private equity funds and does…more

Borrowing Statutes, Consent, Documentation, Institutional Limited Partners Association (ILPA), Investors

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SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections

On February 9, 2022, the U.S. Securities and Exchange Commission (the "SEC") proposed new rules and amendments to existing rules (the "Proposed Rules") under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Private Funds, Proposed Rules

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Interaction between COBRA and Medicare in C-Suite Executive Severance and Retirement Arrangements

Both companies and their C-suite executives should be mindful of the interactions between COBRA and Medicare and their implications when negotiating a severance or retirement arrangement. This is because Medicare enrollment can…more

C-Suite Executives, Cafeteria Plans, COBRA, Employee Benefits, Medicare

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Supreme Court Rules Discriminatory Job Transfers Need Not Produce “Significant” Harm to be Actionable Under Title VII

On April 17, 2024, the United States Supreme Court ruled on the standard under which a plaintiff can proceed with a claim for a discriminatory job transfer under Title VII of the Civil Rights Act of 1964 (“Title VII”), holding…more

Civil Rights Act, Discrimination, Employee Transfers, Employer Liability Issues, Employment Discrimination

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Los Angeles County Court Rules $900 Million Jury Verdict “Shocked the Conscience” In Workplace Sexual Assault Case; Reduces It To $90 Million

As we previously reported, a Los Angeles jury awarded one of the largest verdicts in history in a sexual assault case in June 2024, doling out a massive $900 million verdict in favor of a plaintiff in a suit against billionaire…more

Damages, Jury Awards, Jury Verdicts, Punitive Damages, Sexual Assault

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Federal Court Dismisses Arizona School District’s Appeal to End Desegregation Order

Last week, the Court of Appeals for the Ninth Circuit granted a request by Proskauer and our co-counsel, the Mexican American Legal Defense and Educational Fund (MALDEF) to block efforts by the Tucson Unified School District…more

Appeals, Desegregation, Dismissals, Pro Bono, Race Discrimination

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The Honeymoon is Over: Strikes on the Rise…Even Before A First Contract

While extensive high-profile strike activity was heavily reported throughout 2023, it was – striking– to analyze the hard data regarding 2023 strike activity in Bloomberg’s annual report that was just released. The report…more

Collective Bargaining Agreements (CBA), Corporate Counsel, Employee Rights, Employment Contract, SEIU

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Proskauer’s 2018 Global High-Yield Bond Study

Overview and Methodology - Welcome to this seventh edition of Proskauer’s Global High-Yield Bond Study, our analysis of market trends for high-yield bond offerings. Using analyses from our proprietary database of…more

Bond Issuers, Bondholders, Bonds, Capital Markets, Collateralized Loan Obligations

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Proskauer Secures Discharge Status Upgrade for Veteran After Nearly 50 Years

Since 2018, Proskauer has acted as pro bono legal counsel for a veteran who experienced racial discrimination during his service in the U.S. Marine Corps. Our client was stationed at Camp Pendleton in the mid-1970s. At that…more

Harassment, Pro Bono, PTSD, Race Discrimination, Sexual Harassment

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Question of the Week: What are some alternatives to traditional types of capital raising in the current uncertain environment?

During times of market volatility, it’s not uncommon to see issuers look for different ways to raise capital, such as registered direct or other forms of confidentially marketed offerings. These offerings involve securities that…more

Capital Raising, Investors, Market Volatility, Securities, Stock Prices

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Private Credit Deep Dives – Call Protection (United States)

“Call protection” (which is referred to as a “prepayment fee”, “prepayment premium”, “call premium”, “prepayment penalty”, “non call”, “hard call”, “soft call” or “make whole”) is a core economic term in leveraged financings…more

Creditors, Initial Public Offering (IPO), Lenders, Loans, Prepaid Payment Products

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Reminder: Illinois Equal Pay Registration Certificate Deadline Approaching

The Illinois Equal Pay Act (“IEPA”) was previously amended to require private businesses with more than 100 employees in Illinois to obtain an Equal Pay Registration Certificate (“EPRC”) by March 23, 2024, and every two years…more

Compliance, Deadlines, Department of Labor (DOL), EEO-1, Equal Pay

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Wealth Management Update - December 2021

Federal interest rates increased slightly for December of 2021 but remain fairly low historically. The December Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.6%, which is 0.2%…more

AFR, Embezzlement, Estate Planning, Gift Tax, Grantor Retained Annuity Trusts (GRATs)

See all updates »

Exodus From The Energy Charter Treaty – What is Left of Europe’s Protections for Investors?

As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the…more

Arbitration, Asset Management, Energy Charter Treaty, Energy Market, Energy Reform

See all updates »

Personal Planning Strategies - November 2024

What This Means for Your Current Will, Revocable Trust and Estate Plan - The estate and gift tax regimes have been permanent and unified since the passage of The American Taxpayer Relief Act of 2012 (the "2012 Act"). In 2017,…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift Tax, IRS

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Fifth Circuit Affirms Injunction Preventing Enforcement of Contractor Vaccine Mandate Against Louisiana, Indiana, and Mississippi

On December 19, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued in response to Executive…more

Article III, Employer Mandates, Enforcement, Federal Contractors, Injunctions

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The 8th Circuit Affirms a Preliminary Injunction Barring an Ex-Cigna Executive from Joining CVS Based on Two-Year Non-Compete Clause

On January 26, 2023, Cigna Corp. (“Cigna”) sued CVS Health Corp. (“CVS”) and its newly hired chief product officer Amy Bricker (“Bricker”), in the US District Court for the Eastern District of Missouri, for allegedly violating…more

Corporate Counsel, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements, Preliminary Injunctions

See all updates »

Launch of the Taskforce on Inequality and Social-related Financial Disclosures

The Taskforce on Inequality and Social-related Financial Disclosures (“TISFD”) launched on 23 September 2024. Background - The TISFD is a global initiative with the aim of developing recommendations and guidance for…more

Climate Change, Disclosure Requirements, Endorsements, Environmental Social & Governance (ESG), EU

See all updates »

SEC Answers Questions on New Tailored Shareholder Report Requirements

The staff of the Division of Investment Management (the “Staff”) has issued a FAQ pertaining to the rule and form amendments adopted by the Securities and Exchange Commission (the “SEC”) in October 2022, which require open-end…more

Compliance, Corporate Governance, Disclosure Requirements, ETFs, Exchange-Traded Products

See all updates »

California Supreme Court Delivers Big Win for Gig Companies

On July 25, 2024, the California Supreme Court upheld the constitutionality of Proposition 22, the law allowing gig economy workers to be classified as independent contractors. The decision ends a nearly four-year legal battle…more

ABC Test, CA Supreme Court, Delivery Drivers, Gig Economy, Independent Contractors

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Revised ICC Arbitration Rules Go into Effect

On March 1st, the revised Arbitration Rules of the International Chamber of Commerce (ICC) took effect. The revised Rules seek to enhance time and cost efficiency as well as transparency, and will apply to all arbitrations…more

Amended Rules, Arbitration, Discovery, Expedited Actions Process, Final Action

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Launch of the Taskforce on Inequality and Social-related Financial Disclosures

The Taskforce on Inequality and Social-related Financial Disclosures (“TISFD”) launched on 23 September 2024. Background - The TISFD is a global initiative with the aim of developing recommendations and guidance for…more

Climate Change, Disclosure Requirements, Endorsements, Environmental Social & Governance (ESG), EU

See all updates »

New California Evidentiary Standard Makes Admitting Defense Expert Testimony More Challenging

California’s evidentiary rules have changed. As of January 1, 2024, defense expert testimony in medical causation cases is subject to a higher threshold…more

Appeals, California, Causation, Defense Strategies, Evidence Codes

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Plead Your Case, Not Your Secrets: A Discussion of Recent Trade Secret Complaints

Taking legal action to protect a trade secret is unlike other intellectual property litigation since what you’re trying to protect is a secret. Plaintiffs must navigate a fine line between pleading their complaint with enough…more

Corporate Counsel, Defend Trade Secrets Act (DTSA), Failure To State A Claim, Intellectual Property Litigation, Intellectual Property Protection

See all updates »

Streamlining University IP Innovation: How the Improving Efficiency to Increase Competition Act Could Advance University Inventions

University-driven innovation is a cornerstone of societal progress, as academic institutions play a pivotal role in advancing research and technology that fuel economic growth, enhance quality of life, and address global…more

Bayh-Dole Act, Federal Funding, GAO, Innovation, Intellectual Property Protection

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Under The Hood Of The SEC Securitization Conflict Rule

Following the financial crisis of 2007-2009 and congressional investigations into the securitization market, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 prohibited securitization participants from…more

Conflicts of Interest, Dodd-Frank, Investors, Liquidity, Proposed Rules

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Staying Afloat in an Uncertain Economic World: Hope for the Best, Prepare for the Worst Private Credit Restructuring Year in Review

While global inflation and higher-for-longer interest rates dominated macroeconomic headlines over the last year, middle-market private credit restructurings witnessed three notable trends.  First, these credits remained…more

Automatic Stay, Bankruptcy Code, Bankruptcy Court, Chapter 11, Debt

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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United…more

Asset Management, Department of Defense (DOD), Economic Sanctions, Foreign Policy, Investment

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New York’s New Notice Requirement for Practice Management Deals Demonstrates a Trend That Should be Carefully Watched

Following New York State Governor Kathy Hochul’s proposal in February of this year (see our previous alert), the New York legislature passed and Governor Hochul signed a law on May 3, 2023, which significantly increases the…more

Confidentiality Policies, Disclosure Requirements, Health Care Providers, New York, Proposed Regulation

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AI Got It Wrong, Doesn’t Mean We Are Right: Practical Considerations for the Use of Generative AI for Commercial Litigators

Picture this: You’ve just been retained by a new client who has been named as a defendant in a complex commercial litigation. While the client has solid grounds to be dismissed from the case at an early stage via a dispositive…more

Artificial Intelligence, Attorney-Client Privilege, Commercial Litigation, Complex Litigation, Confidential Information

See all updates »

Trade Secret Wars Continue With Tech Companies Battling For Talent

In an era where trade secret misappropriation battles can shape corporate landscapes, the Apple v. Rivos case stands as a stark reminder of the importance of diligent onboarding practices when it comes to trade secrets. In this…more

Commercial Litigation, Defend Trade Secrets Act (DTSA), Employer Liability Issues, Employment Litigation, Misappropriation

See all updates »

Sixth Circuit Again Invalidates ERISA Plan Arbitration Clause

The Sixth Circuit recently reversed a district court’s dismissal, and order requiring arbitration of, a proposed class action alleging fiduciary breaches in connection with the Kellogg Company 401(k) plan. Fleming v. Kellogg…more

401k, Arbitration, Breach of Duty, Employee Benefits, Employee Retirement Income Security Act (ERISA)

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UK Supreme Court confirms no deduction for expenses related to share and asset sale

On 16 July 2024, the UK Supreme Court (SC) published its judgment in the case of Centrica Overseas Holdings Ltd (COHL) v HMRC. The ruling addresses the issue of whether professional advisory fees incurred in contemplation of a…more

Corporate Governance, Corporate Taxes, HMRC, International Tax Issues, Tax Reform

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U.S. Supreme Court: No ERISA Preemption for State Law Regulating PBMs

In a unanimous (8-0) opinion authored by Justice Sotomayor, the U.S. Supreme Court held that an Arkansas state law regulating rates at which pharmacy benefits managers (PBMs) reimburse pharmacies is not preempted by ERISA. …more

Benefit Plan Reimbursements, Employee Retirement Income Security Act (ERISA), Pharmacy Benefit Manager (PBM), Preemption, Rutledge v Pharmaceutical Care Management Association

See all updates »

Same Song, Different Tune: Plaintiffs’ Bar Adds the Song-Beverly Credit Card Act to its Privacy Repertoire

Repurposing old laws to challenge new technologies has become the new normal in the privacy space. Plaintiffs continue to bring a kaleidoscope of privacy claims against companies in the tech age, reviving laws like the…more

CA Supreme Court, CIPA, Corporate Counsel, Eavesdropping, Personally Identifiable Information

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Increase in Tax Audits of Use of Private Aircraft, a/k/a “Corporate Jets”

The IRS has announced a new audit campaign targeted at the use of private aircraft, a/k/a “corporate jets”. This has been an intensifying area of focus by the IRS over the last few years as a result of recently-increased tax…more

FOIA, IRS, Recordkeeping Requirements, Tax Audits, Tax Benefits

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Tax Provisions of the American Families Plan

On Wednesday, April 28th, the White House announced the American Families Plan, the “human capital” infrastructure proposal. The American Families Plan would spend $1.8 trillion, including $800 billion in tax cuts over ten…more

Capital Gains Tax, Income Taxes, IRS, Medicare, SALT

See all updates »

Court Rules that New York’s New Anti-SLAPP Law Applies Retroactively

On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims…more

Amended Legislation, Anti-SLAPP, Free Speech, Public Interest, Retroactive Application

See all updates »

California Climate Disclosure Laws – New Developments, Old Timelines

California Climate Disclosure Laws – New Developments, Old Timelines - The California legislature recently rejected Governor Gavin Newsom’s proposal to delay the deadlines to comply with California’s climate disclosure laws…more

California, CARB, Clean Air Act, Climate Change, Disclosure Requirements

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Key Issues When Navigating A Tenant's Bankruptcy

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid Corp. and WeWork Inc., each filed Chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

See all updates »

IRS Proposes 401(k) Plan Regulations Implementing Long-Term Part-Time Employee Eligibility Requirements

The day after Thanksgiving, while many of us were fortunate enough to be reaching for leftover pie, the IRS released proposed regulations implementing the requirement that 401(k) plan sponsors permit “long-term part-time…more

401k, Benefit Plan Sponsors, Employee Benefits, IRS, Part-Time Employees

See all updates »

Key Uniform Commercial Code Financing Statement (UCC-1) Requirements

The UCC‑1 form is a staple of any secured lending practice. In the wake of the 2022 proposed Uniform Commercial Code (UCC) amendments, which have been adopted in 24 jurisdictions, many jurisdictions have updated their UCC‑1…more

Commercial Bankruptcy, Filing Requirements, First Amendment, Fraud, Jurisdiction

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More Information Needed: Former Employee Dodges Trade Secrets Suit Brought by Interior Design Company

On May 1, 2024, in Design Gaps, Inc. v. Hall, 23CV040664-590, North Carolina’s business court dismissed an interior design company’s trade secret claim for failure to sufficiently plead the existence of trade secrets. The…more

Defend Trade Secrets Act (DTSA), Employer Liability Issues, Employment Litigation, Former Employee, Intellectual Property Protection

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Proskauer Hedge Start: Accepting Investments from Benefit Plan Investors Subject to ERISA - Insights

Special rules may apply to hedge funds that accept investments by “benefit plan investors” (Benefit Plan Investors) subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA), or Section 4975 of the…more

401k, Employee Retirement Income Security Act (ERISA), Investment Advisers Act of 1940, Investors

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NYC Office Tower Ch. 11 Shines Light On Blocking Provisions

This article analyzes PWM Property Management LLC's bankruptcy filing in the U.S. Bankruptcy Court for the District of Delaware to explain the impact of the use of corporate governance blocking provisions. The filing also…more

Bankruptcy Code, Bankruptcy Court, Blocking Power, Chapter 11, Commercial Bankruptcy

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Retail Marketers’ Antitrust Settlement Raises the Question: When Are Exclusive “Staggered” Contracts Anticompetitive?

If you ever noticed a coupon dispenser or colorful cardboard display while walking down the aisle of your local supermarket, there is a good chance it was put there by News Corp.’s News America Marketing (NAM) – in-store…more

Anti-Competitive, Antitrust Provisions, Competition, Contract Terms, Exclusivity

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District Court Holds Plan Cannot File Suit in Contravention of Trust Agreement

In Buckner v. Murray, No. 21-cv-567, 2024 WL 1366785 (D.D.C. Mar. 30, 2024), the court dismissed the United Mine Workers of America 1974 Pension Plan’s suit to collect $6.5 billion in withdrawal liability because the trustees…more

Article III, Commercial Bankruptcy, Dismissals, Employee Retirement Income Security Act (ERISA), Motion to Dismiss

See all updates »

Question of the Week: What types of creative financing are you seeing in deals lately? Why are we seeing an increase of these structures?

"Private credit managers are facing increased competition from investment banks, leading to a renewed availability of alternative options for larger borrowers who haven't had such choices for the past 18 months. In an effort to…more

Acquisitions, Capital Markets, Global Dealmaking, Mergers, Private Equity

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Designation of PFOA and PFOS as CERCLA Hazardous Substances

On May 8, 2024, the United States Environmental Protection Agency (“EPA”) published its final rule designating two types of per- and polyfluoroalkyl substances (“PFAS”) — specifically, perfluorooctanoic acid (“PFOA”) and…more

ASTM, Biosolids, CERCLA, Contamination, Drinking Water

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Fault Lines Expected to Deepen: Major False Claims Act Circuit Split

The health care industry is anxiously awaiting the First Circuit’s ruling on the standard of causation for actions brought under the False Claims Act (FCA) predicated on a federal Anti-Kickback Statute (AKS) violation. The First…more

Affordable Care Act, Anti-Kickback Statute, But For Causation, False Claims Act (FCA), Federal Health Care Programs (FHCP)

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New Legislation Modernizes New York Not-For-Profit Corporation Law

On November 21, 2022, Governor Kathy Hochul signed into law new legislation, which amends certain provisions of the New York Not-For-Profit Corporation Law (the “N-PCL”). The legislation, described in detail below, “modernizes…more

New Legislation, Nonprofits, Quorum

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Supreme Court Holds that Copyright Damages Have No Time Limit

Under the Copyright Act, “there is no time limit on monetary recovery” for a timely claim. So held the Supreme Court last week in Warner Chappell Music, Inc. v. Nealy. Section 507 of the Copyright Act imposes a three-year…more

Copyright, Copyright Infringement, Copyright Litigation, Damages, Discovery Rule

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

See all updates »

Regulation Round Up - September 2024

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation…more

Artificial Intelligence, Cryptoassets, ELTIF, Enforcement, Environmental Social & Governance (ESG)

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Three Point Shot - July 2024

12th Man Up in the First Half: Texas Court Rules that Aggies Athletic Foundation Owes No Fiduciary Duty to Football Boosters, Second Half to Reveal Winner on Contract Claims - There is perhaps no relationship stronger and no…more

Anti-SLAPP, Cease and Desist Orders, Contract Claims, Fiduciary Duty, Football

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FCA publishes Dear CEO letter setting out expectations for financial advisers and investment intermediaries

On 7 October 2024, the FCA issued a “Dear CEO letter” (“Letter”) to firms whose primary business is financial advice or investment intermediation. The Letter contains a summary of the FCA’s priorities and expectations of firms…more

Due Diligence, Financial Adviser, Financial Conduct Authority (FCA), Regulatory Agenda

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Wealth Management Update - September 2024 - 2

September 2024 AFRs and 7520 Rate - The September 2024 Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 4.8%, a decrease from the August 2024 rate of 5.2%. The September…more

AFR, American Bar Association (ABA), Beneficiaries, Decanting, Declaratory Relief

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SEC Proposes Extensive New Rules Applicable to SPACs and de-SPAC Transactions

On March 30, 2022, the Securities and Exchange Commission (the “SEC”) proposed a set of rules and amendments governing special purpose acquisition companies (“SPACs”) that will, if adopted, impose significant new regulatory…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Investment, Securities and Exchange Commission (SEC)

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Tax Court holds that an offshore fund is engaged in a U.S. trade or business

On November 15, 2023, the U.S. Tax Court held in YA Global Investments v. Commissioner that a non-U.S. private equity fund (YA Global) with a U.S. asset manager that bought equity and convertible debt of U.S. portfolio companies…more

Asset Management, Business Litigation, Income Taxes, Internal Revenue Code (IRC), International Tax Issues

See all updates »

Eleventh Circuit Narrows Nationwide Injunction On President Biden’s Contractor Vaccine Mandate

On August 26, the Eleventh Circuit issued its long-awaited decision in State of Georgia, et al v. President of the United States, et al, Case No. 21-14269. The Eleventh Circuit upheld, but narrowed, an existing nationwide…more

Biden Administration, Coronavirus/COVID-19, Employer Mandates, Enforcement, Federal Contractors

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Question of the Week: What region-specific considerations should dealmakers be aware of as they do business in Latin America?

Successful business in Latin America requires intimate knowledge of multiple jurisdictions and a deep comprehension of the cultures throughout the area. Each nation has its own legal pitfalls and social and traditional dos and…more

Disclosure Requirements, Environmental Social & Governance (ESG), Jurisdiction, Latin America, Private Funds

See all updates »

What’s in a Word? The Legal Battle over “Natural” in False Advertising

While class actions centered around “natural” claims remain popular with the plaintiffs’ bar, this past year has seen some growing skepticism from courts towards such lawsuits, particularly where plaintiffs fail to adequately…more

Consumer Protection Laws, Deceptively Misdescriptive, False Advertising, Labeling, Motion to Dismiss

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Illinois the Latest State to Enact Legislation Regulating Employers’ Use of AI

On August 9, 2024, Illinois Governor JB Pritzker signed into law HB3773, a bill amending the Illinois Human Rights Act to address employers’ use of artificial intelligence (AI). The amendment clarifies that it is a civil rights…more

Artificial Intelligence, Automated Decision Systems (ADS), Employment Policies, Human Rights, Illinois

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Key Issues When Navigating A Tenant's Bankruptcy

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid Corp. and WeWork Inc., each filed Chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

See all updates »

SEC Continues Enforcement Program Targeting Late Beneficial Ownership Reports

Following its adoption almost one year ago of amended rules accelerating filing deadlines for Schedules 13G and 13D (and the imminent effectiveness of the new deadlines for 13Gs), the SEC has continued to bring enforcement cases…more

Amended Rules, Beneficial Owner, Enforcement, Securities and Exchange Commission (SEC), Settlement

See all updates »

Proposed Regulations Issued on Reporting Obligations for Basket Contract Transactions

On July 12, 2024, the U.S. Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) issued proposed regulations that would classify “basket contract transactions”, which are derivatives (i) with a term of…more

Administrative Procedure Act, Derivatives, Disclosure Requirements, Investigations, IRS

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IRS Provides Guidance on Unrelated Business Income Tax Refunds

On Friday, December 20, 2019, President Trump signed into law government funding legislation for the 2020 fiscal year that includes a provision repealing Section 512(a)(7), commonly referred to as the “parking tax,” with…more

Amended Tax Returns, Federal Funding, Fringe Benefits, Income Taxes, IRS

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Fiduciary Access to Digital Assets and Accounts

Traditionally, a person’s most valuable assets to be distributed upon death consisted of tangible items such as real property, cash, jewelry and personal effects of sentimental value like photographs and letters. However, the…more

Digital Assets, Facebook, Fiduciary Duty, Google, PayPal

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Three Point Shot - November 2022

NBA Properties Lands Slam Dunk in Intellectual Property Win Heard Around the Globe - NBA Properties, Inc. (“NBAP”), the exclusive licensee of the National Basketball Association (“NBA”) and NBA teams’ distinctive trademarks,…more

Adidas, Appeals, Counterfeiting, Defamation, E-Commerce

See all updates »

The “Retailisation” of Private Funds – Key Considerations for Private Fund Managers

The “retailisation” of private funds has been one of the industry’s most significant trends in recent years, with fund managers seeking sources of capital beyond their usual institutional, professional and sophisticated investor…more

Asset Management, Capital Raising, ELTIF, EU, EuVECA

See all updates »

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