Federal Securities Law Source

Data breaches and due diligence

Chances are that you or someone you know has been the victim of a data breach. The high number of cyberattacks and data breaches, now reported almost daily, calls attention to the importance of addressing these areas in the due diligence process in M&A deals.

Whether a target company has had issues with cybersecurity breaches in the past is a question that should be on the top of all acquirer’s minds, especially if that target has an online presence. If the target is a consumer facing business who regularly collects personal information, acquirers should focus its due diligence requests on the security practices of the target. Has the target implemented credit card tokenization? Have they updated their point-of-sale systems? How long do they retain customer information? If a target does not have a consumer base, the due diligence may instead focus on other areas, including how the target protects its trade secrets or confidential information. Continue Reading

Why indemnification clauses need to be scrutinized in purchase and sale agreements

Indemnification clauses in purchase and sale agreements are intended to address the obligation of one party to indemnify and hold the other party harmless from direct and third party claims. However, indemnification clauses also allocate the risk of losses between the parties.

An indemnification clause should specify the rights of the parties following a breach of representations, warranties, covenants or the occurrence of a specific liability. On one hand, a buyer will negotiate an indemnification clause to expand the scope or availabilities of other remedies, at law or equity, including adding other persons whom the buyer may otherwise have difficulty recovering from and expanding the types of recoverable losses. On the other hand, a seller will negotiate an indemnification clause to limit indemnification as the exclusive remedy to permit more predictable outcomes and mitigate potential liability.

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Will the DOL continue to make ESOPs a compliance priority?

Greg Daugherty, our colleague at Employee Benefits Law Report shared a post exploring whether or not the Department of Labor (DOL) under President Trump will continue to make employee stock ownership plans (ESOPs) a compliance priority.

A recently filed case suggests that the DOL may continue to make a priority out of investigating potential abuses in ESOP transactions. As such, employers who are considering the adoption of the ESOP should be mindful of putting together an experienced team to guide them through the fiduciary issues. In particular, it is critical for the trustee of an ESOP to hire an independent appraiser that has not performed a preliminary ESOP feasibility study for the company, and the trustee and other fiduciaries of the ESOP should be engaged with the due diligence process.

Read the full post here.

FTC revises HSR and interlocking directorate thresholds

The Federal Trade Commission has announced annual filing threshold revisions under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act that set new antitrust reporting standards.

Jay Levine, our colleague at Antitrust Law Source, provides perspective about the updated HSR requirements in his recent blog post. Read the full article here: “FTC revises HSR and interlocking directorate thresholds.”

SEC enforces rules regarding use of non-GAAP measures and undisclosed perks

Last week, the Securities and Exchange Commission (SEC) made good on its promises to enforce violations of its non-GAAP financial measure disclosure rules. MDC Partners agreed to pay a $1.5 million dollar penalty to settle the SEC’s charges relating to non-GAAP disclosures made by the company. The SEC alleged that MDC Partners had misused several non-GAAP measures in its earnings releases and periodic reporting and that MDC Partners had failed to disclose perks that it had provided to its former chief executive officer. Continue Reading

Supreme Court affirms family insider trading conviction

On Tuesday, The United States Supreme Court unanimously affirmed an insider trading conviction by finding that inside information exchanged between relatives violates federal security laws. The case is Salman v. United States.

The decision provides new life to family insider trading prosecutions which had been stymied by the Second Circuit’s 2014 Newman decision. Newman held that, in order to convict a tipster of insider trading, the tipster had to have provided the information exchanged for some type of personal benefit.

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SEC forces Mickelson to return $1 million from insider trading

PGA golfer Phil Mickelson agreed to forfeit almost $1 million that the Securities and Exchange Commission (SEC) said was obtained through insider trading. Mickelson was named as a “relief defendant” in a criminal case, filed in the Southern District of New York against professional gambler William Walters and a former director of Dean Foods, Thomas Davis. Mickelson was not criminally charged but is subject to a SEC civil action requiring a claw back of profits he made from the improper trades.

According the SEC complaint, Walters received non-public, insider information from 2008 through 2012 about Dean Foods, the nation’s largest milk producer, from his long-time friend Davis, who was at the time chairman of Dean Foods. The inside information concerned plan to spin off subsidiary WhiteWave Foods Co.

In 2012, Mickelson received a telephone tip from Walters that Mickelson should purchase Dean Foods stock because the company was about to spin off its profitable subsidiary. At the time of the call, Mickelson owed Walters money over sports gambling bets. Walters is considered by many as the most successful sports bettor in the country. Continue Reading

Delaware Courts continue scrutiny of “disclosure only” settlements in M&A litigation

On Jan. 22, 2016, the Delaware Court of Chancery released its opinion in In re Trulia Stockholder Litigation in which it rejected a “disclosure only” settlement of a shareholders’ suit challenging an M&A transaction. This decision confirms the trend of increasing hostility of the Delaware courts towards “disclosure only” settlements and serves as a warning to plaintiffs firms that they will find it increasingly difficult to extract attorneys’ fees from companies in these types of settlements.

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Supreme Court to review insider trading case

The Supreme Court has agreed to consider something that lies at the center of nearly every insider trading case: what prosecutors need to prove to win an insider trading conviction. This case aims to determine exactly what benefits corporate insiders need to receive for tips they disclose to traders to be illegal. It is expected to resolve a split in federal appeals courts and will review a July ruling regarding trades made by Bassam Salman from the California-based 9th U.S. Circuit Court of Appeals. Specifically, the court will review whether prosecutors had to prove that Salman’s brother-in-law, Maher Ara, a Citigroup investment banker, disclosed the information in exchange for a personal benefit.

Salman was convicted in 2014 and received a three-year sentence. On appeal, Salman relied upon the recent decision in the U.S. Court of Appeals for the 2nd Circuit, United States v. Newman (Newman), to challenge his conviction. The 9th Circuit rejected the 2nd Circuit’s reasoning in Newman and upheld the conviction.

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Article sheds light on practice of private equity sponsored borrowers selecting lenders’ counsel

Andrew Ross Sorkin wrote an interesting article in Tuesday’s New York Times regarding the practice of private equity firms designating the legal counsel to be used by its lenders in a leveraged buyout financing. In other words, the private equity firms engaging in this practice are hand selecting, and paying the fees of, the lawyers that will be on the other side of the transaction negotiating on behalf of the banks against the private equity sponsored borrowers. This practice constitutes a clear conflict of interest that tilts the negotiations of the financing in favor of the private equity sponsored borrowers.

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