The Carried Interest Tax Debate - Installment Two: Carried Interest as Part of a New Tax Plan
October 9, 2008
Tobias J. Butler
Terrence Allen Childers
Stuart C. Johnson
M. Todd Wade
The following discussion on the “Carried Interest Tax Debate” is the first installment of a two-part series that analyzes the potential ramifications of a change in the tax treatment of an equity fund manager’s carried interest against the backdrop of the impending United States presidential election.
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Ryan v. Lyondell Chemical Co.
October 6, 2008
Mitesh Patel
Michael K. Rafter
On July 29, 2008 the Delaware Chancery Court decided the case of Ryan v. Lyondell Chemical Company (“Ryan”)(Del. Ch., July 29, 2008), and found that despite a shareholder stock price well above the market rate, seemingly customary deal protection terms and overwhelming stockholder approval, independent directors could be held to be personally liable for their role in approving a cash merger.
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Federal Reserve Loosens Limitations on Private Equity Investments in Banking Organizations
Private Equity/Financial Institutions
September 25, 2008
Stuart C. Johnson
Robert D. Klingler
Kathryn Knudson
Amanda Lang Norcross
On September 22, 2008, the Federal Reserve Board issued a policy statement easing the limitations on private equity investments in banks and bank holding companies. The policy statement addresses when such an investment creates a presumption of “control” which would require registration as a bank holding company.
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The Carried Interest Tax Debate: An Overview - 08/08
Private Equity & Venture Capital
August 2008
Tobias J. Butler
Terrence Allen Childers
Carried interest, or the percentage of profits equity fund managers and general partners earn for managerial services, is currently taxed at the capital gains rate of 15%. However, proposed revisions to the Internal Revenue Code would classify, and then tax, carried interest as general income - a change that could subject managers to significantly higher income taxes.
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The SPAC as an Alternative Exit Opportunity for Private Equity Firms - 07/08
Private Equity & Venture Capital
July 16, 2008
Terrence Allen Childers
Hannah Yi Crockett
Rick Miller
Michael K. Rafter
Eliot W. Robinson
Against the backdrop of today's tightening initial public offering and credit markets, private equity firms are finding it increasingly difficult to exit their investments using traditional vehicles. The special purpose acquisition company, or SPAC, presents an intriguing exit opportunity for private equity firms looking to capitalize on the ready capital and flexibility offered by SPACs.
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Evidentiary & Attorneys' Fees Issues Surrounding Tenant Debtor's Assumption of Lease - 06/08
Business & Finance
June 23, 2008
Brian A. Kilmer
A recent case involving a tenant debtor's motion to assume its real property lease demonstrates that bankruptcy courts can and will examine evidence in addition to a debtor's financial capabilities and/or payment of a security deposit or guarantee to determine whether a tenant debtor has established "adequate assurance of future performance."
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Stock Options Revisited: A Renewed Focus on Net Exercise Provisions - 06/11/08
Private Equity & Venture Capital
June 13, 2008
Jody M. Arogeti
M. Todd Wade
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FTC Warns Firms that it will Challenge Acquisitions that Take Place in Small Increments - 06/08
Business & Finance
June 2008
Louis C. Spelios
Firms should exercise caution when acquiring smaller competitors through a series of mergers which could have anti-competitive effects on the market.
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Senate Bill 436: Majority Voting For Directors Of Publicly Traded Georgia Corporations - 05/08
Business & Finance
May 2008
Robert J. Lystad
Thomas R. McNeill
Louis C. Spelios
On May 7, 2008, Governor Sonny Purdue signed Senate Bill 436 into law. Senate Bill 436 allows, among other things, for the bylaws of a publicly traded corporation incorporated under the laws of Georgia to set a director voting standard greater than the plurality standard contained in Georgia Code Section 14-2-728.
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Recent Delaware Cases Highlight the Importance of Specificity in Advance Notice Bylaw Provisions and Annual Meeting Notices - 05/08
Private Equity & Venture Capital
May 2008
Andrew R. Hough
Kevin A. McGill
A pair of Delaware Court of Chancery decisions narrowly interpreted advance notice bylaw provisions.
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Federal District Court Rules That a Joint Bidding Arrangement by Private Equity Funds Did Not Violate Antitrust Laws
Private Equity
March 13, 2008
Tobias J. Butler
F. Donald Nelms, Jr.
G. Patrick Watson
On February 21, 2008, the U.S. District Court for the Western District of Washington ruled that a joint bidding arrangement between competing private equity funds in a contest for corporate control did not violate the Sherman Act.
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Amendments to the HSR Act - 02/08
Business & Finance
February 4, 2008
Riccarda Heising
Louis C. Spelios
G. Patrick Watson
On January 29, 2008, the Federal Trade Commission formally adopted amendments to the rules and regulations under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
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Recent Cases Highlight Important Considerations Regarding Confidentiality Agreements - 01/08
Private Equity
January 8, 2008
Jody M. Arogeti
M. Todd Wade
Misuse of Confidential Information - Recently, a potential investor was ordered to pay $80 million for breaching a confidentiality agreement, alerting investors that they need to consider carefully before entering into what may seem like a routine, benign confidentiality.
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An Update on Earnouts in M&A Transactions - 12/07
Private Equity and Venture Capital
December 12, 2007
Stuart C. Johnson
LaPoint v. Amerisource Bergen Corporation
An earnout is a traditional way of bridging different expectations of value between a buyer and a seller in an M&A transaction.
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SEC Shortens Holding Periods for Unregistered Stock - 11/07
Business and Finance
November 20, 2007
Robert D. Klingler
Michael K. Rafter
On November 15, 2007 the Securities and Exchange Commission (SEC) announced amendments to Securities Act Rules 144 and 145 that are intended to reduce the cost of capital and increase access to capital.
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The Bright Light: Director Payments to Themselves and the Entire Fairness Test - 11/07
Private Equity & Venture Capital
November 14, 2007
Stuart C. Johnson
Thomas R. McNeill
Christopher J. Rylands
A recent Delaware case is an important reminder of the care which should be taken by directors in considering bonuses that include payments to themselves.
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Practical Implications of the Supreme Court's Recent Decision - 08/02/07
Private Equity
August 2, 2007
Thomas R. McNeill
Mitesh Patel
On June 28, 2007, in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 550 U.S. ___, (2007), overruling Dr. Miles Medical Co. v. John D. Park & Sons, 220 U.S. 373 (1911), the Supreme Court overruled a nearly 100 year old antitrust decision by holding that vertical agreements to institute minimum resale price maintenance are not per se illegal. Courts must now judge such agreements on a case-by-case basis under a rule of reason.
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Supreme Court Overrules Per Se Prohibition on Retail Price Maintenance - 07/06/07
Business & Finance
July 5, 2007
Thomas R. McNeill
G. Patrick Watson
In a decision sure to cause both manufacturers and retailers to examine their resale pricing policies, on June 28, 2007, the United States Supreme Court overruled the nearly 100 year old rule that agreements to establish minimum resale prices constitute per se violations of section 1 of the Sherman Act.
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NASDAQ Capital Market Securities to Receive Blue Sky Exemptions - 05/07
Business & Finance
May 21, 2007
Terrence Allen Childers
Robert D. Klingler
Eliot W. Robinson
The Securities and Exchange Commission approved an amendment to a rule under Section 18 of the Securities Act of 1933 that will designate securities listed on the Nasdaq Capital Market as for purposes of Section 18.
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Recent Supreme Court Cases Emphasize Importance of Monitoring Patent Portfolio for Investors - 05/08/07
Business & Finance: Private Equity & Venture Capital
May 8, 2007
Amanda Lang Norcross
Ryan T. Pumpian
M. Todd Wade
The Supreme Court has handed down two decisions this year that make obtaining and protecting patents more difficult. These decisions highlight important issues for companies as they seek new patents or make business decisions affected by previously issued patents and for investors in analyzing potential investments.
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Delaware Court Considers Fiduciary Duty Issues in Stock Option Backdating and Spring-Loading - 04/24/07
Business & Finance
April 24, 2007
Eliot W. Robinson
While most of the attention and controversy regarding stock option grant practices has focused on potential accounting misstatements and related securities law violations, a pair of recent decisions of the Delaware Chancery Court demonstrates that corporate law fiduciary duty issues are presented as well.
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Searching for Capital: Selected Legal Issues - 04/2007
Private Equity
April 11, 2007
Stuart C. Johnson
Robert J. Lystad
Many entrepreneurs ask third parties to help them raise capital. Such persons can be classified in two different ways, from a legal perspective: as a "finder" or as a "broker-dealer". This Alert will summarize the differences between "finders" and "broker-dealers," the potential risks of using the wrong person to accomplish fundraising activities, and best practices to consider when undertaking to raise capital.
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Executive Compensation Disclosure Memo Series
2007
Katherine M. Koops
Eliot W. Robinson
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SEC Proposes New Rules That Impact Private Funds and Their Advisers - 01/23/07
Business & Finance
January 23, 2007
Hannah Yi Crockett
Andrew R. Hough
M. Todd Wade
On December 13, 2006, the Securities and Exchange Commission voted unanimously to propose new rules and amendments designed to provide additional protections for investors in private funds.
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SEC Further Revises Compensation Disclosure Rules for 2007 Proxy Season - 01/09/07
Business & Finance
January 9, 2007
Terrence Allen Childers
Eliot W. Robinson
The Securities and Exchange Commission recently made additional changes to the newly adopted executive and director compensation disclosure requirements. These new modifications, which were adopted as interim final rules and will be effective immediately upon publication in the Federal Register, will apply to 2007 proxy statements.
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SEC Allows Electronic Delivery of Proxy Material - 01/02/07
Business & Finance
January 2, 2007
G. William Speer
At an open meeting on December 13, 2006, the Securities and Exchange Commission unanimously adopted amendments to its proxy rules, effective July 1, 2007, that will allow, but not require, companies to furnish proxy materials to shareholders through a "notice and access" model using the internet.
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Executive Compensation Disclosure Memo Series - Part 6 of 6 - 12/18/06
Business & Finance
December 18, 2006
Eliot W. Robinson
Corporate Governance Disclosures: Part 6, and the final installment, of our Executive Compensation Disclosure Memo Series summarizes the expanded corporate governance disclosure requirements under newly adopted Item 407 of Regulation S-K and, for small business issuers, Regulation S-B.
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SEC Proposes Interpretive Guidance to Assist Management in the Implementation of Section 404 of the Sarbanes-Oxley Act
Business & Finance
December 14, 2006
G. William Speer
On December 13, 2006, at an open meeting of the Securities and Exchange Commission, the SEC proposed interpretive guidance for company management to improve implementation of Section 404 of the Sarbanes-Oxley Act.
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Executive Compensation Disclosure Memo Series - Part 5 of 6
Business & Finance
December 8, 2006
Part 5 of 6 of the Executive Compensation Disclosure Memo Series summarizes the newly adopted rules with respect to the (i) disclosure of related person transactions and (ii) revised requirements for information to be reported in the beneficial ownership table.
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Executive Compensation Disclosure Memo Series - Part 4 of 6
Business & Finance
December 5, 2006
Part 4 of 6 of the Executive Compensation Disclosure Memo Series summarizes the principal aspects of the supplemental tables that are required to accompany the Summary Compensation Table (discussed in part 3 of 6) in proxy statements (or 10-K's for companies not subject to the proxy rules) filed during the upcoming proxy season.
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Executive Compensation Disclosure Memo Series - Part 3 of 6
Business & Finance
November 20, 2006
Part 3 of 6 of the Executive Compensation Disclosure Memo Series summarizes the principal aspects of the Summary Compensation Table and the Director Compensation Table, which are required in proxy statements (or 10-K's for companies not subject to the proxy rules) filed during the upcoming proxy season.
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Important Considerations Regarding Letters of Intent - 11/15/06
Private Equity
November 15, 2006
Amanda Lang Norcross
M. Todd Wade
Recently, the United States District Court for the Southern District of New York held that the terms of a letter of intent were not definite enough to constitute a binding agreement. This ruling was particularly unsettling to the plaintiff, the potential buyer of the defendant, who had incurred $100,000 in due diligence expenses and had expected reimbursement for those expenses when the transaction fell apart.
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Executive Compensation Disclosure Memo Series - Part 2 of 6
Business & Finance
November 10, 2006
Part 2 of 6 summarizes the principal aspects of the new Compensation Discussion and Analysis section that will be required in proxy statements (or 10-K's for companies not subject to the proxy rules) filed in the upcoming proxy season.
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Executive Compensation Disclosure - Changes to Form 8-K - 11/07/06
Financial Institutions
November 7, 2006
Katherine M. Koops
Public companies will now need to disclose compensation changes on Form 8-K only if they are truly "material" to investors. The SEC has revised Form 8-K disclosures of compensation changes and has moved them from Item 1.01 to Item 5.02 in order to separate them from "material agreement" disclosure.
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Private Equity Update: Pension Act Liberalizes ERISA 'Plan Asset' Rules - 09/07/06
Business & Finance
September 7, 2006
Richard L. Arenburg
Stuart C. Johnson
Robert J. Lystad
Steven G. Schaffer
The Pension Protection Act of 2006 (the "Act") was passed by the United States House of Representatives on July 28, 2006, and the United States Senate on August 3, 2006. The Act removes government benefit plans, certain church benefit plans, and foreign benefit plans from the ERISA definition of "plan assets." This change is a significant benefit to many private equity, venture capital and hedge funds (collectively, "private equity funds") because they will no longer be subject to ERISA fiduciary duties or need to meet the Venture Capital Operating Company requirements to avoid ERISA fiduciary responsibilities.
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Maryland Accepting Biotechnology Investment Tax Credits Applications - 07/06/06
Biotechnology & Life Sciences
July 6, 2006
Michael H. Chanin
Christopher J. Rodgers
On July 3, 2006, Maryland's Department of Business and Economic and Business Development began accepting applications for the qualification of Maryland biotechnology companies under the Biotechnology Investment Incentive Act.
The Maryland General Assembly passed this ground breaking Act in April in order to increase investment in Maryland's growing biotechnology industry, and in the words of Governor Ehrlich, to convince investors that "Maryland is back open for business."
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Trend Toward Majority Voting Twisted With Proposed Legislation - 06/28/06
Business & Finance
June 28, 2006
We are advising all our public company clients and friends to be aware of a new development in Delaware law that may make it easier for shareholder proposals favoring the election of directors by "majority votes" of stockholders. While these proposals have been around for some time, 2006 has seen almost a doubling of shareholder proposals on this subject, at least six of which have been adopted. We expect to see more activity on this issue in coming months.
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Powell Goldstein Participates in 2006 Directors College - 06/16/06
Business & Finance
June 16, 2006
Rick Miller
On June 14th and 15th, 2006 lawyers from Powell Goldstein participated in the "Directors College," sponsored by the University of Georgia's Terry College of Business. "Directors colleges" have developed in an academic setting in recent years as public company directors have sought to increase their knowledge to minimize risks.
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Gun-Jumpers Beware - 04/28/06
Business & Finance and Antitrust & Trade Regulation
April 28, 2006
Robert J. Lystad
Louis C. Spelios
G. Patrick Watson
In a recent enforcement action regarding the pre-closing activities of parties to a merger agreement, the Department of Justice (the "DOJ") confirmed that it will continue to vigorously pursue and prosecute "gun-jumpers" in acquisitions subject to the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act").
A "gun-jumping" violation of the HSR Act occurs when a buyer attempts to exercise "beneficial ownership" over a seller's business prior to expiration of this waiting period.
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Advisory Committee on Smaller Public Companies Approves Final Report to the SEC - 04/24/2006
Business Transactions and Financial Institutions
April 24, 2006
Eliot W. Robinson
G. William Speer
M. Todd Wade
Committee Recommends Section 404 Relief for Smaller Companies
On April 20, 2006, the SEC's Advisory Committee on Smaller Public Companies held its final meeting and approved a final report to be delivered to the SEC. The final version of the report remains substantially the same as prior versions that have been released to the public for comment. At the heart of the report is the Advisory Committee's recommendation that relief from the requirements of Section 404 of the Sarbanes-Oxley Act relating to internal control over financial reporting be granted to companies meeting the definitions of "microcap" and "smallcap" companies as described in the report. A description of these definitions and a summary of the proposed relief appear below.
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Georgia Legislature Approves Amendments to Georgia Corporation Code - 04/03/06
Business & Finance and Securities & Corporate Litigation
April 3, 2006
Thomas R. McNeill
Thomas S. Richey
Louis C. Spelios
Last week, the Georgia Legislature approved Senate Bill 469, a bill which affects how Georgia corporations conduct their affairs by modernizing the Georgia Corporate Code. Specifically, the bill contains provisions which relate to: the approval process for corporate transactions; the advancement of expenses to persons entitled to indemnification as corporate directors and officers, as well as the obligation of a corporation to indemnify; proceedings during bankruptcy; and the process by which corporations, limited liability companies, and partnerships, may elect another legal form. The bill is awaiting signature by Georgia Governor Sonny Perdue.
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SEC Provides Guidance on Definition of "Perquisites" - 03/02/06
Business & Finance
March 2, 2006
Amanda Lang Norcross
M. Todd Wade
While the SEC continues to take the position that it is not appropriate for the securities rules to give a bright line definition of perquisite, the SEC recently provided interpretive guidance as to what is and is not a perquisite and therefore required to be reported as an element of executive compensation.
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Supreme Court Rules on Patent and Joint Venture Antitrust Issues - 03/02/06
Business & Finance
March 2, 2006
G. Patrick Watson
In this alert you will find:
1. Supreme Court Says Joint Venture Pricing Agreement Does Not Violate Antitrust Law
2. Supreme Court Rules That Patent Tying Is Not Per Se Illegal
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Delaware Ruling Reminds Sellers to Tell the Truth - 02/22/06
Business & Finance
February 22, 2006
Terrence Allen Childers
Riccarda Heising
From Delaware last week comes an important reminder to all private companies that in the contract of a merger or acquisition, the ability to protect a seller from post-closing fraud claims is limited.
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Assumption of Liabilities in Asset Acquisitions: Make Sure You Know What You're Getting - 02/21/06
Business & Finance
February 21, 2006
Stuart C. Johnson
M. Todd Wade
When agreeing to assume the liabilities related to the assets that one is acquiring, be careful that the agreement spells out the liabilities being assumed. Otherwise, as illustrated by the recent decision from the Eleventh Circuit Court of Appeals in Clanton v. Internet Global, LLC, you may find yourself taking on more obligations than initially presumed.
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Amendments to the HSR Act - 01/20/06
Business & Finance
January 20, 2006
Riccarda Heising
Louis C. Spelios
G. Patrick Watson
On January 13, 2006, the Federal Trade Commission (the "FTC") formally adopted amendments to the rules and regulations under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act").
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Proposed Changes To Executive Compensation Disclosure Announced By The SEC - 01/18/06
Business & Finance
January 18, 2006
Terrence Allen Childers
Eliot W. Robinson
At an open meeting held on January 17, 2006, the Securities and Exchange Commission (SEC) voted to publish for comment proposed rules that would significantly change disclosure requirements.
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SEC Revises Accelerated Filer Definition And Accelerated Deadlines For Filing Periodic Reports - 01/12/06
Business & Finance
January 12, 2006
Amanda Lang Norcross
The Securities and Exchange Commission recently established three tiers of periodic report filers. As of December 27, 2005, there are three separate categories of periodic report filers: (1) a "large accelerated filer" category for companies having $700 million or more in public float; (2) a revised "accelerated filer" category for companies having between $75 million and $700 million in public float; and (3) a "non-accelerated filer" category for all issuers with less than $75 million in public float.
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New Exchange Act Disclosure Requirements - 12/06/05
Business & Finance
December 5, 2005
Amanda Lang Norcross
G. William Speer
The new securities reform rules, which became effective on December 1, 2005, require new disclosures regarding unresolved SEC comments and risk factors.
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COSO Issues Draft Guidance for Smaller Businesses - Relief from High Soxa Costs? - 10/31/05
Business & Finance
October 31, 2005
The Committee of Sponsoring Organizations of the Treadway Commission ("COSO") has released an important new exposure draft of "Guidance for Smaller Public Companies Reporting on Internal Control over Financial Reporting." This draft guidance was generated to give smaller businesses an alternative to COSO's full-blown "Framework" for internal controls.
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SEC Acts to Provide Section 404 Relief to Non-Accelerated Filing Companies and Amends Requirements in Connection With Periodic Report Filing Deadlines - 09/21/05
Business & Finance
September 21, 2005
Katherine M. Koops
This morning, in an open meeting, the Securities and Exchange Commission issued proposed rules amending certain requirements in connection with periodic reports filed under the Securities Exchange Act of 1934.
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Franchise Noncompetition Laws Continue To Evolve - 09/15/05
Business & Finance
September 15, 2005
Louis C. Spelios
As any business owner knows, navigating the various (and often conflicting) state laws to write a noncompetition clause can be a challenge. For the owner of a franchise, the waters are even murkier.
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Recent Revisions to Section 16 - 08/29/05
Business & Finance
August 29, 2005
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SEC Small Company Panel Recommends Section 404 Relief - 08/22/05
Business & Finance
August 22, 2005
Joseph M. Berl (retired)
Terrence Allen Childers
Kathryn Knudson
Katherine M. Koops
Walter G. Moeling, IV
Eliot W. Robinson
G. William Speer
M. Todd Wade
On August 10, the Securities and Exchange Commission's Advisory Committee on Smaller Public Companies approved three recommendations intended to provide relief to small companies struggling to comply with Section 404 of the Sarbanes-Oxley Act and other federal securities laws.
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Supreme Court Reverses Criminal Conviction of Arthur Andersen for Destroying Documents in Enron Case - 06/06/05
Technology & Intellectual Property Litigation
June 6, 2005
John R. Bielema
Ralph J. Caccia
Michael H. Chanin
Eliot W. Robinson
G. Patrick Watson
Although the U.S. Supreme Court unanimously reversed the criminal conviction of Arthur Andersen for destroying documents in the Enron matter, the decision reinforces the need for companies to develop and uniformly administer document retention policies and to routinely review compliance with those policies.
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Delaware Supreme Court Determines California Law Infringes On Established Corporate Choice Of Law Principles - 05/27/05
Business Transactions & Corporate Finance Client Alert
May 27, 2005
Terrence Allen Childers
Katherine M. Koops
Rick Miller
Eliot W. Robinson
G. William Speer
On May 5, 2005, the Delaware Supreme Court, in VantagePoint Venture Partners 1996 v. Examen, Inc., rejected a California statute that effectively amended a foreign corporation's articles of incorporation to comply with California law, thereby circumventing the so-called "internal affairs doctrine."
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Delaware Refines Its View of Material Adverse Effects - 05/27/05
Frontier Oil Corp. V. Holly Corp. - 2005 Del. Ch. LEXIS 57
May 27, 2005
When Frontier Oil Corporation and Holly Corporation, each mid-sized petroleum refiners, first began merger discussions in 2002, both Frontier and Holly shared a vision for their future combined business and tremendous enthusiasm for the merger. On March 30, 2003, the parties agreed to merge. Under the terms of the merger agreement, the Holly shareholders were entitled to receive Frontier stock plus approximately $11.00 per share in cash for an aggregate purchase price of $450 million.
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SEC and PCAOB Issue Statements on Internal Control Reporting Requirements - 5/24/05
Business Transactions & Corporate Finance Client Alert
May 24, 2005
Suzanne J. Roberts (retired)
On May 16, 2005, the SEC and the PCAOB, in a coordinated effort, issued statements and guidance concerning the internal control reporting requirements of Section 404 of the Sarbanes-Oxley Act of 2002. The release of these statements followed a roundtable discussion on implementation of these requirements hosted by the SEC and attended by the board members of the PCAOB. The statements are intended to respond to issues encountered in the first year in which the reports on internal control over financial reporting were required.
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SEC Convenes Advisory Committee on Smaller Public Companies and Roundtable on Internal Controls - 04/20/05
Business Transaction & Corporate Finance
April 20, 2005
Rick Miller
Eliot W. Robinson
G. William Speer
On April 12, 2005, the SEC held the inaugural meeting of its Advisory Committee on Smaller Public Companies. The Committee's objective is to assess the regulatory system for smaller public companies under United States securities laws, including the Sarbanes-Oxley Act of 2002, and to make recommendations for changes. The following day the SEC convened a Roundtable to discuss the recently effective internal control reporting provisions of Sarbanes-Oxley.
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SEC Defers Mandatory Option Expensing For Many Companies - 04/18/05
Revised Effective Date for FAS 123(R)
April 18, 2005
Joseph M. Berl (retired)
Rick Miller
Eliot W. Robinson
G. William Speer
M. Todd Wade
On April 14, the SEC delayed the date by which many companies must implement FAS 123(R), which requires the expensing of employee stock options. The SEC's new rule allows public companies to implement FAS 123(R) at the beginning of their next fiscal year, rather than the next reporting period, that begins after June 15, 2005.
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Ninth Circuit Defines "Extraordinary Payments" under Sarbanes-Oxley's Pre-Litigation Freeze Rules - 4/5/05
Business Transactions and Corporate Finance Client Alert
April 5, 2005
The U.S. Court of Appeals for the Ninth Circuit affirmed a district court's order temporarily placing in escrow more than $37.6 million in severance payments to the former CEO and CFO of Gemstar-TV Guide International, Inc. holding that the payments were "extraordinary" under Section 1103 of the Sarbanes-Oxley Act of 2002.
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SEC Issues Staff Accounting Bulletin 107 Regarding FAS 123(R) - 03/31/05
Business Transactions & Corporate Finance
March 31, 2005
Kathryn Knudson
Katherine M. Koops
Thomas R. McNeill
Rick Miller
Eliot W. Robinson
G. William Speer
M. Todd Wade
On March 29, 2005, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 107 to provide interpretive guidance regarding the interaction between revised Statement of Financial Accounting Standards No. 123 and certain SEC rules and regulations.
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SEC Settles Selective Disclosure Enforcement Action for Reaffirmation of Earnings - 03/31/05
Business Transactions & Corporate Finance
March 31, 2005
Kathryn Knudson
Katherine M. Koops
Thomas R. McNeill
Rick Miller
Eliot W. Robinson
G. William Speer
M. Todd Wade
Private Reaffirmation Violated Regulation FD
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New Amendments to the HSR Act - 03/04/05
Business Transactions & Corporate Finance Client Alert
March 4, 2005
Larry I. Bogart (retired)
Louis C. Spelios
G. Patrick Watson
Within the last several weeks, the Federal Trade Commission (the "FTC") has formally adopted amendments to the rules and regulations under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. These amendments modify the existing requirements for advance notification of certain mergers and acquisitions to the Justice Department and the FTC, which are designed to allow those agencies to conduct any antitrust investigation of the transaction that those agencies consider warranted.
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New Regulations Concerning Relationships With Auditors and Preapproval of Services Performed by Auditors - 2003
Corporate Compliance - Security Series 2003 - 8
In This Alert: General Considerations; Disclosure Requirements; Prohibited Non-Audit Services; Audit Committee Preapproval of Auditor Services; Hiring Auditors for Employees; Partner Rotation; Prohibited Auditor Compensation
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SEC Adopts Final Rules Related to Professional Conduct for Attorneys - 2003
Corporate Compliance - Security Series 2003 - 9
In This Alert: Attorneys Covered by the Rules; Reporting Requirements; The QLCC Reporting Alternative; Issuer Confidences; Responsibilities of Supervisory Attorneys and Subordinate Attorneys;
Sanctions and Disciplinary Actions; "Noisy Withdrawal" Revisited and an Alternative Proposed
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Mandatory Electronic Filing and Website Posting of Section 16 Reports - 2003
Corporate Compliance - Security Series 2003 - 10
In This Alert: Effective Date; Methods of Electronic Filing; Extension of Same Day Filing Deadline; Disclosure of Late Filings; Access Codes
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SEC Implements "Internal Control" Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications - 2003
Corporate Compliance - Security Series 2003 - 11
In This Alert: SEC Implements Internal Control Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications; New Filing Requirements for Certifications Accompanying Exchange Act Reports
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Requirements for Public Company Websites - 2003
Corporate Compliance - Security Series 2003 - 12
Key Points: Periodic Reports; Section 16 Filings - Forms 3, 4 and 5; Earnings Releases; Code of Ethics; Proposed NYSE Requirements; Preparation
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SEC Proposes Rules Requiring Electronic Filing and Website Posting Of Forms 3, 4 And 5 - 2003
Corporate Compliance - Security Series 2003 - 5
In This Alert: What Companies Should Do Now; Required Electronic Filing of Forms 3, 4 and 5; Required Website Posting of Forms 3, 4 and 5
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SEC Adopts Rules Regarding Codes of Ethics and Audit Committee Financial Expert - 2003
Corporate Compliance - Security Series 2003 - 6
In This Alert: Codes of Ethics Disclosure; Audit Committee Financial Expert Disclosure; Safe Harbor for Audit Committee Financial Experts; Additional Guidance
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Standards Related to Listed Company Audit Committees - 2003
Corporate Compliance - Security Series 2003 - 7
In This Alert: Audit Committee Member Independence; Responsibilities Relating to Registered Public Accounting Firms; Procedures for Handling Complaints; Authority to Engage Advisors; Funding; Other Factors; Changes in Audit Committee Disclosure Requirements
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PCAOB Proposes Additional Restrictions on Auditors - 12/29/04
December 29, 2004
Joseph M. Berl (retired)
Kathryn Knudson
Katherine M. Koops
Rick Miller
Eliot W. Robinson
G. William Speer
M. Todd Wade
On December 14, 2004, the Public Company Accounting Oversight Board ("PCAOB") issued a release proposing rules that would place additional restrictions on auditors.
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SEC Grants Extension For Filing Section 404 Internal Control Reports and Attestations - 12/04
Corporate Finance
Suzanne J. Roberts (retired)
Eliot W. Robinson
G. William Speer
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Increased SEC Aggressiveness in Investigations and Enforcement Actions: New Initiatives, Tougher Stances, Wider Exposure and Stiffer Penalties for Non-cooperation - 09/04
Securities & Corporate Litigation
September 15, 2004
Jennifer Devine Odom
Thomas S. Richey
W. Scott Sorrels
The SEC's new aggressive approach to investigations and enforcement has significantly raised the stakes for public companies in crisis, their officers and directors, and third parties who do business with them. The SEC's treatment of "cooperation" in its investigations requires immediate decisions by companies, their officers and directors and their counsel upon the first hint of employee misconduct or financial irregularities. These early decisions will likely affect the course of future litigation against the company and insurance coverage.
What do you need to know as an officer or director of a public company, as an individual or company doing business with a public company, or as counsel or auditors of a public company?
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U.S. Sentencing Guidelines Require "Effective" Compliance Programs: What Does That Mean?
Corporate Finance
Pending changes to the Federal Sentencing Guidelines for corporations and other organizations, mandated by the Sarbanes-Oxley Act, are currently before Congress. In this Client Alert, we discuss the proposed changes to the Guidelines' requirements for an effective compliance program and what must be done to existing compliance programs to raise them to the new standards.
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Delaware Court Voids "Preclusive" and "Coercive" Lock-Ups in Merger Context - 06/03
Business Transactions and Corporate Finance
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Mandatory Electronic Filing of Section 16 Reports - 05/03
Corporate Compliance
May 7, 2003
In This Alert: Effective Date, Methods of Electronic Filing, Extension of Same Day Filing, Deadline Disclosure of Late Filings, and Access Codes
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Department of Justice Issues New Guidelines for Federal Prosecution of Business Organizations - 03/03
Corporate Compliance
On January 20, 2003, Deputy Attorney General Larry Thompson issued a memorandum entitled "Principles of Federal Prosecution of Business Organizations," (the "Indictment Guidelines"). The Indictment Guidelines were issued with little, if any, fanfare, and there was scant media coverage.
Nevertheless, the covering memorandum describes the guidelines as a "revised set of principles to guide Department prosecutors as they make the decision whether to seek charges against a business organizatio
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Specific Recommendations For Compliance Action In Connection With Section 302 Certification Under Sarbanes-Oxley Act Of 2002 - 10/02
Business Transaction and Corporate Finance
October 1, 2002
The Sarbanes-Oxley legislation that was so quickly enacted last summer has been characterized by some commentators as the most sweeping securities law legislation since the enactment of the Securities Act of 1933.
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Congress In a Hurry: Sarbanes-Oxley Act Passed and Signed by President Makes Sweeping Changes to U.S. Securities Laws - 07/02
Corporate Compliance
During the past week, Congress enacted, and the President has now signed, the Sarbanes-Oxley Act (the "Act"), which is the most sweeping securities legislation since the 1930s. Our Firm has been monitoring this legislation closely, along with other developments regarding corporate governance, disclosure, and the securities and accounting industries. Many portions (click here) of the Act may be effective immediately.
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NYSE Proposes New Corporate Governance Standards For Listed Companies - 06/02
Business Transactions and Corporate Finance
On June 6, 2002, the New York Stock Exchange released recommendations for new listing standards affecting corporate governance of NYSE-listed companies.
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SEC Proposes Rules To Accelerate Due Dates For Periodic Reports And To Disclose Certain Management Transactions - 04/17/02
On April 11, 2002, the Securities and Exchange Commission announced proposed rules (i) accelerating periodic report filing dates; (ii) requiring disclosure concerning website access to periodic reports; and (iii) mandating Form 8-K disclosure regarding certain management transactions. Each of these proposed rules, assuming they are adopted, will likely have a substantial effect on a
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