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11/21/2017 - Article
Law360
A Look At Argentina’s New Anti-Corruption Law
Kim Nemirow and Lucila Hemmingsen authored an article regarding Argentina's Law on Corporate Criminal Liability and Compliance Programs for Certain Corruption Cases.
11/21/2017 - Alert
Kirkland & Ellis LLP
The Administration Changes Course on Cuba
On November 8, 2017, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State’s Bureau of Economic and Business Affairs, and the U.S. Department of Commerce’s Bureau of Industry and Security jointly announced changes to U.S. trade controls on Cuba.
11/20/2017 - M&A Update
Kirkland & Ellis LLP
Making Sure Your Contract Rights Don’t Spin Away
Most commercial and corporate contracts provide that the agreement is binding on a party’s “successor and assigns”. This boilerplate clause, coupled with the legal consequences of a stock purchase or merger, covers most corporate transaction scenarios and ensures that the agreement remains with, and binding on, the business that signed the contract.
11/16/2017 - Article
Bloomberg Law's Corporate Law & Accountability Report
Export Controls and Economic Sanctions Enforcement Update Q317
Mario Mancuso, Joanna Ritcey-Donohue and Sanjay Mullick authored an article regarding key national security enforcement actions and settlement agreements concerning export controls and economic sanctions occurring in the period July 1 to Sept. 30.
11/15/2017 - Alert
Kirkland & Ellis LLP
Venezuela's Debt Crisis: Creditors' Options in a Disorderly Default
After months on the precipice of default, Venezuela’s President Maduro has acknowl-edged that Venezuela and its state-owned oil company PDVSA are unable to pay their debts. With a series of missed coupon payments and the 30-day grace period expired, all three major ratings agencies now rate Venezuela and PDVSA as in default or selective default.
Article
Law360
New Bipartisan CFIUS Reform Begins To Take Shape
Mario Mancuso, Boyd Greene and Lucille Hague authored an article regarding key elements of the Foreign Investment Risk Review Modernization Act (FIRRMA) and related takeaways for boards and investors to consider in both near-term transaction planning and overall investment strategy.
11/08/2017 - Alert
Kirkland & Ellis LLP
2017 Tax Cuts and Jobs Act Will Affect Compensation Plans and Arrangements
On November 2, 2017, the House Ways and Means Committee unveiled the first draft of the Tax Cuts and Jobs Act (H.R. Bill 1). Although the House Proposal is likely to change, if enacted as currently proposed, the House Proposal will significantly affect and curtail the design of executive compensation arrangements, as described below.
11/08/2017 - Alert
Kirkland & Ellis LLP
New Tax Bill Could Dramatically Impact Private Equity Funds and Public Companies
On November 2, 2017, House Republicans published their highly anticipated tax reform bill (as amended through November 6, the "House Proposal"). The House Proposal, if enacted, would represent the most significant revision of the Code since the Tax Reform Act of 1986, and could dramatically impact current market practices for raising investment capital, organizing business operations, structuring and financing M&A transactions, and compensating service providers. The House Proposal can be expected to change significantly as the process moves forward.
11/08/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - November 8, 2017
This issue includes the articles, "New Tax Bill Would Impact PE Funds and Their Portfolio Companies," and "Proposed Tax Plan Would Affect Executive Compensation and Equity-Based Incentive Programs," which explore the tax bill's potential impact on PE market practices and executive compensation, and "Private Equity and Iran," which discusses a shift in U.S. policy toward Iran.
11/07/2017 - Alert
Kirkland & Ellis LLP
Employee Benefit Plan Dollar Limits 2018
The Internal Revenue Service has announced the following 2018 dollar limits for employee benefit plans.
November 2, 2017 - Article
Lexis Practice Advisor
Calculating SEC Filing Fees
Matt Pacey, Justin Hoffman and Sara-Ashley Moreno authored an article regarding the fees collected by the SEC for certain filings pursuant to the Securities Act, the Exchange Act and the ICA.
November 2, 2017 - Article
Lexis Practice Advisor
SAS 72 Auditor Representation Letters
Matt Pacey, Justin Hoffman and Samantha Blons authored an article regarding auditor representation letters.
10/31/2017 - Alert
Kirkland & Ellis LLP
As Investigations Continue in Washington, U.S. State Department Issues Sanctions Guidance on Russia’s Defense and Intelligence Sectors
On October 27, 2017, the U.S. State Department released a list of 39 Russian entities identified as being involved in the defense and intelligence sectors, and as a result, U.S. and non-U.S. companies may face sanctions for doing business with these listed entities.
10/31/2017 - AIM
Kirkland & Ellis LLP
SEC Staff Issues No-Action Relief for Advisers Covered by MiFID II Research Payment Restrictions
Primarily of interest to registered fund and hedge fund advisers, on October 26, 2017, the SEC Staff issued three related no-action letters that permit certain market participants to comply with the research requirements of the EU’s Markets in Financial Instruments Directive (MiFID II) in a manner consistent with U.S. federal securities laws.
10/27/2017 - Article
Bloomberg Law White Collar Crime Report
Damming Warrants: The United States’ Latest Foreign Policy Tool?
Mike Casey, Asheesh Goel and Taryn Lewis authored this article regarding the recent usage of so-called ‘‘damming warrants’’ by the U.S. Department of Justice to curb money laundering activities by North Korea.
10/26/2017 - Article
Bloomberg BNA: Labor & Employment
Pro-Arbitration Policy Gets Put to the Test
A discussion of the application of the federal policy in favor of arbitration to agreements mandating arbitration of small-dollar consumer claims on a non-class-action basis, those in which an arbitration agreement potentially involves employment statutes, and those in which a party is a non-signatory to the arbitration agreement.
10/16/2017 - Article
New York Law Journal
September CFIUS Roundup: Lessons and Things to Watch
Mario Mancuso and Luci Hague authored an article regarding certain key CFIUS developments and related takewaways for boards and deal professionals.
10/13/17 - Article
Law360
SEC Stakes Claim As Digital Currency Regulator
Recently, the U.S. Securities and Exchange Commission reasserted its claim of regulatory authority over digital currencies when it charged an individual and his two companies with violating federal securities laws in connection with initial coin offerings (ICOs). Combined with other recent SEC actions and initiatives, these cases illustrate the SEC’s effort to stake its claim as a leading regulator of digital currencies.
10/13/2017 - Article
Law360
Strategic Considerations In Selecting Emergency Arbitration
Javier Rubinstein, Lauren Friedman and Seth Meyer authored an article regarding pursuing emergency relief in arbitration or in national courts.
Article
Bloomberg BNA’s Corporate Law & Accountability Report
U.S. Lifts Embargo on Sudan, Though Certain Sanctions and Export Control Restrictions Remain
Mario Mancuso and Sanjay Mullick authored an article regarding the U.S. government's easing of the majority of economic sanctions on Sudan.
10/12/2017 - Alert
Kirkland & Ellis LLP
Understanding the Rising Corruption, Sanctions and Money Laundering Risks of Doing Business with Venezuela
Recent actions by the U.S. and other governments targeting the government of Venezuela significantly raise the legal and reputational risks of doing business, directly or indirectly, with Venezuelan counterparties, and warrant close attention by financial institutions, companies and investors, especially those operating in or with the energy industry.
10/10/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - October 10, 2017
This issue includes the article, “DOJ Challenges Consummated Deal Months After HSR Waiting Period Expires,” which explores a recent case filed by the Antitrust Division of the DOJ and how it serves as a reminder to private equity sponsors that there is no legal bar to a governmental challenge to a transaction after expiration of the HSR waiting period, and after the deal closes.
10/4/2017 - Alert
Kirkland & Ellis LLP
DOJ Challenges Consummated Deal Months After HSR Waiting Period Expires
On September 26, 2017, the Antitrust Division of the U.S. Department of Justice filed a federal antitrust suit seeking to partially unwind the merger of Parker-Hannifin Corporation and Clarcor Inc. under Section 7 of the Clayton Act.
9/28/2017 - Article
Law360
5 Takeaways From The Largest FCPA Resolution
Samad Pardesi, Kim Nemirow and William Stuckwisch authored this article regarding the potential impact of the September 21, 2017, settlement between the U.S. Department of Justice, the U.S. Securities and Exchange Commission, and other foreign authorities with Sweden-based telecommunications firm Telia Company AB to resolve a multiyear probe into bribes paid in Uzbekistan.
09/26/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - September 26, 2017
This issue includes the article "SEC Settles with PE Fund Manager over Broken-Deal Expenses," which discusses a recent SEC settlement against a private equity fund manager alleging that the manager's private equity funds were inappropriately allocated and charged broken-deal expenses attributable to affiliated co-investors.
9/25/2017 - Article
Law360
Inside CFIUS’ Annual Report: 7 Highlights
Mario Mancuso, Boyd Greene and Luci Hague authored an article summarizing key information from the recently released CFIUS annual report for the 2015 calendar year.
9/25/17 - Article
Law360
Rescission In The Age Of Cryptocurrency
Robert Pommer and Darren Sandler discuss the SEC’s recent consideration of circumstances under which a virtual currency token will be deemed a security and subject to the federal securities laws.
9/25/2017 - Alert
Kirkland & Ellis LLP
Telia Pays Nearly $1 Billion in Penalties, Resulting in the Largest-Ever FCPA Resolution
On September 21, 2017, the U.S. Department of Justice (“DOJ”), the U.S. Securities and Exchange Commission (“SEC”), and other foreign authorities reached a combined $965 million settlement with Sweden-based telecommunications firm, Telia Company AB, to resolve a multi-year probe into bribes paid in Uzbekistan.
September 21, 2017 - Article
Bloomberg Law: Corporate Law & Accountability Report
CFIUS After Lattice: What Boards, Investors, and Bankers Need to Know Now
Mario Mancuso and Lucille Hague discuss the top five things about the Committee on Foreign Investment in the United States (‘‘CFIUS’’) climate that boards, investors, and bankers need to know now.
9/18/2017 - AIM
Kirkland & Ellis LLP
SEC Risk Alert Cites Frequent Advertising Rule Compliance Issues
On September 14, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert detailing the most frequent Advertising Rule compliance issues identified in examinations of registered advisers.
September 11, 2017 - Article
Law360
Sanctions Compliance Lessons From Recent OFAC Actions
Mike Casey, Zach Brez and Mario Mancuso authored this article regarding the Office of Foreign Assets Control's resolution of a trio of enforcement actions against U.S.-based and foreign-organized companies that had run afoul of the Iranian Transactions and Sanctions Regulations.
9/8/2017 - Alert
Kirkland & Ellis LLP
The Trump Administration Sharpens Secondary Sanctions — China and Russia Are On Notice
As recently as July 25, 2017, in a wide-ranging interview with the Wall Street Journal, President Trump suggested a willingness to offer trade-related inducements to China in return for China's assistance in peacefully resolving the North Korea problem. In recent weeks, however, as the threat from North Korea has intensified, the Trump administration has signaled a shift in tactics in dealing with China, North Korea's principal economic partner and strategic ally, and Russia.
September 2017 - Article
Global Investigations Review: The Investigations Review of the Americas 2018
United States: Handling Internal Investigations
Brigham Cannon, Erica Williams and Mark Schneider authored this article detailing the process of conducting an internal investigation in the United States.
September 2017 - Article
Getting the Deal Through
e-Commerce: United States
Gregg Kirchhoefer, Daniel Bond, Ashley Eisenberg and Adine Mitrani authored this article regarding developments in e-commerce law.
August 16, 2017 - Article
Law360
A Closer Look At EPA's Approach To CPP Rollback
Paul Tanaka, Devi Chandrasekaran and James Dolphin authored an article regarding the repeal of the Clean Power Plan.
Authors: Paul D. Tanaka
8/14/2017 - AIM
Kirkland & Ellis LLP
Revised Form ADV Effective for Filings After October 1, 2017
The SEC recently sent a notice to all SEC-registered investment advisers and exempt filers stating that all investment advisers filing Form ADV (e.g., for annual amendments or interim updates) must use the revised version of Form ADV for filings made on or after October 1, 2017.
Article
New York Law Journal
Expedited Arbitration: When Is Faster Better?
Javier Rubinstein, Lucila Hemmingsen and Seth Meyer authored an article regarding the pros and cons of expedited arbitration.
8/4/2017 - Alert
Kirkland & Ellis LLP
President Trump Signs Sanctions Bill Targeting Russia, North Korea and Iran
On August 2, 2017, President Trump signed into law the “Countering America’s Adversaries Through Sanctions Act,” which imposes new sanctions on Russia, North Korea and Iran and highlights the continuing challenges that companies face in complying with the constantly evolving sanctions landscape.
8/3/2017 - Alert
Kirkland & Ellis LLP
Unanimous Texas Court of Appeals Reverses Controversial Jury Verdict — No “Common Law” Business Partnership in Texas
On July 18, 2017, the Court of Appeals for the Fifth District of Texas at Dallas reversed an over $450 million trial judgment in Enterprise Products Partners, L.P. v. Energy Transfer Partners, L.P., 05-14-01383-CV, 2017 WL 3033312 (Tex. App. —Dallas July 18, 2017, no pet. h.).
8/2/2017 - AIM
Kirkland & Ellis LLP
SEC Settles with Affiliated Advisers and their Principal/CCO over Registration and Other Practices
The SEC recently settled a proceeding against two affiliated investment advisers related to the failure to register an investment adviser to two private funds and a number of other practices, which were inconsistent with the advisers’ obligations under the Advisers Act.
August 2017 - Article
Landslide: Section of Intellectual Property Law
Contentious Construction
Joshua Simmons and Megan McKeown authored this article regarding the copyrightability of computer language.
07/27/2017 - Alert
Kirkland & Ellis LLP
New Court Decision May Affect PE Fund Blocker Corporation Structures
Where a private equity fund invests in a flow-through portfolio company engaged in a U.S. business (i.e., a portfolio company organized as a partnership or LLC), certain tax-sensitive fund LPs — virtually all non-U.S. LPs and many U.S. tax-exempt LPs — typically elect to hold their share of such fund investment through a “blocker corporation.”
07/27/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - July 27, 2017
This issue includes the article "New Court Decision May Affect PE Fund Blocker Corporation Structures," which discusses a recent U.S. Tax Court decision that may cause private equity investors to consider using non-U.S. (rather than U.S.) blocker to hold investments in flow-through portfolio companies.
7/20/2017 - Alert
Kirkland & Ellis International LLP
No Comparison: Google Hit with Record EC Fine
Last month, the European Commission (EC) fined Google €2.4 billion for abusing its dominance in the search engine marketplace by favoring its own price comparison service in searches. This is the largest ever penalty against a single company by the EC.
7/18/2017 - Alert
Kirkland & Ellis LLP
Increasing U.S., Global Scrutiny of Foreign Investment: Things to Watch
In the past several weeks, stakeholders on both sides of the Atlantic have voiced increasing skepticism and concern regarding the potential impact of foreign investment on national security.
July 2017 - Article
Chambers and Partners: Law and Practice
Energy: Oil & Gas 2018
Kirkland partners Anthony Speier, David Castro and Chris Heasley authored this article regarding trends and developments in the energy space.
7/6/2017 - Alert
Kirkland & Ellis LLP
EU Renews Sanctions and Restrictive Measures Targeting Russia
Recently, the European Union (EU) renewed territorial sanctions and restrictive measures in respect of Russia, Crimea and Sevastopol.
July/August 2017 - Article
Intellectual Property Magazine
Home is Where the Heartland Is
This article discusses the need for lawyers to pay close attention to future rulings that implement May 2017's game-changing TC Heartland case.
6/30/2017 - Alert
Kirkland & Ellis LLP
SEC Allows All Companies to File Confidential Draft IPO Registration Statements
On June 29, 2017, the U.S. Securities and Exchange Commission (“SEC”) announced that, effective July 10, 2017, all companies will be permitted to confidentially file a draft registration statement with the SEC for an initial public offering or any other offering during the first 12 months after the effectiveness of a company’s IPO registration statement.
6/29/2017 - Alert
Kirkland & Ellis LLP
Getting Ahead of the Curve: Issues to Consider Before New Revenue Recognition Accounting Standard Takes Effect
The new revenue recognition standard ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606) (“ASC 606”) from the Financial Accounting Standards Board goes into effect for fiscal years starting after December 15, 2017.
6/29/2017 - M&A Update
Kirkland & Ellis LLP
The Long Arm of the MAC
Dealmakers have long recognized the implications of a Material Adverse Effect (MAE/MAC) standard in a merger agreement.
6/21/2017 - Alert
Kirkland & Ellis LLP
Changes in U.S. Cuba, Russia and Iran Sanctions Create Uncertainty for Global Businesses
On June 16, 2017, President Trump announced that the U.S. government would reverse certain of the Obama administration’s policy efforts to liberalize U.S. relations with Cuba.
June 19, 2017 - Article
PLI
Financial Services Mediation Answer Book: Mediation Submissions Chapter
Mediation submissions are often the first—and many times the best—opportunity to advocate in mediation. This chapter in the leading treatise on financial services mediation discusses these submissions, and includes helpful suggestions and considerations.
6/16/2017 - AIM
Kirkland & Ellis LLP
House Passes the Financial CHOICE Act, But Further Progress Uncertain
On June 8, 2017, the U.S. House of Representatives approved the Financial CHOICE Act (H.R. 10) along party lines. If the bill were to become law, it would replace much of the Dodd-Frank Act and scale back many post-2008 financial regulations.
6/14/2017 - Alert
Kirkland & Ellis LLP
U.S. Supreme Court Holds That Post-Sale Restrictions Are Unenforceable Under Patent Law and That Foreign Sales Exhaust U.S. Patents
The U.S. Supreme Court recently issued its much-anticipated opinion in the Impression Products patent exhaustion case.
6/8/2017 - Newsletter
Kirkland & Ellis LLP
Firmwide Diversity Digest
6/6/2017 - AIM
Kirkland & Ellis LLP
Supreme Court Limits SEC Disgorgement Remedy to Five Years
On June 5, the Supreme Court ruled that a five-year statute of limitations applies to disgorgement remedies that may be imposed by the SEC. The unanimous decision settles a previous Circuit split and overturns longstanding SEC practice, as it treats disgorgement as a penalty subject to the relevant statute of limitations, rather than as a matter of restitution, which generally is not.
June 2017 - Article
IAM Life Sciences 2017
Patent Eligibility and Life Sciences Patents
Leora Ben-Ami and Thomas Fleming authored this article regarding the impact of a U.S. Supreme Court ruling in a patent eligibility matter on biotech and diagnostic patents.
May 22, 2017 - Article
The New York Law Journal
Searching for Web Crawling's Legal Boundaries
Joshua Simmons discusses the increased use of web crawling technology.
5/19/2017 - Alert
Kirkland & Ellis LLP
U.S. Senators Raise Questions About CFIUS and Real Estate Transactions
On May 16, 2017, Senators Ron Wyden (D-OR), Sherrod Brown (D-OH), and Claire McCaskill (D-MO) formally requested that the U.S. Government Accountability Office (“GAO”) undertake a study to assess how the Committee on Foreign Investment in the United States (“CFIUS”) evaluates real estate transactions in the United States.
5/18/2017 - AIM
Kirkland & Ellis LLP
SEC’s OCIE Issues Cybersecurity Alert
On May 17, 2017, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Cybersecurity: Ransomware Alert in connection with the prior week’s widespread “WannaCry” ransomware attack, in which the Staff shared key takeaways from OCIE’s recent Examination Initiative to assess industry cybersecurity preparedness.
May 19, 2017 - Article
Lexis Practice Advisor
Oil and Gas Industry Practice Guide
Matt Pacey, Justin Hoffman and Michael Rigdon provide information regarding developments in the oil and gas industry.
5/9/2017 - M&A Update
Kirkland & Ellis LLP
Just How Preferred is Your Preferred?
Many financial investors structure their investments in private companies in the form of preferred stock. This instrument provides the investor with a preference as to dividends and liquidation proceeds over other equityholders, typically management or legacy stockholders, who hold common stock.
05/09/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - May 9, 2017
This issue includes the article "Just How Preferred is Your Preferred?," which discusses recent Delaware cases that highlight the benefits of tuning up the terms of preferred equity investments to mitigate the risk of fiduciary duty claims.
May 5, 2017 - Article
Lexis Practice Advisor
SPACs Continue To Be Attractive Capital-Raising Vehicles
Christian Nagler and David Curtiss authored an article regarding the market, structure and process for SPACs, and highlighted notable SPAC transactions.
5/4/2017 - Alert
Kirkland & Ellis LLP
Recent U.S. Supreme Court Decision Underscores the Importance of Treaty Planning to Protect Overseas Investments
Seizures of multinational companies’ assets in Venezuela have become all too common in recent years. The past weeks have brought two significant new developments, each of which highlights the importance of securing investment treaty protection — both in Venezuela specifically and in any nation where populism or unstable institutions lead to a high-risk investment climate.
May 2017 - Article
Association of Corporate Counsel
Strategically Managing Your Company’s Cross-Border Litigation Risks
Javier Rubinstein discusses potential solutions to cross-border legal problems.
4/25/2017 - Alert
Kirkland & Ellis LLP
Trump Administration Launches Rare Probe of the National Security Impact of Steel Imports
On April 20, 2017, the Trump Administration announced the initiation of an investigation under Section 232 of the Trade Expansion Act of 19621 to assess the impact of steel imports on U.S. national security. This “Section 232” investigation reflects another step towards implementation of the Trump Administration’s assertive “America First” international trade agenda, and provides further indication of the president’s intent to use all available mechanisms to promote robust trade enforcement.
4/19/2017 - Article
Law360
Is Multidistrict Litigation In Need Of Reform?
Douglas Smith authored this article regarding potential updates to multidistrict litigation.
04/19/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - April 19, 2017
This issue includes the articles, "Earn-Outs — (Be)Devil is in the Detail," which discusses two recent Delaware Chancery Court decisions that offer guidance to parties negotiating earnouts and milestones in acquisition agreements, and "HSR Gun-Jumping Update," which discusses a recent "gun-jumping" case emphasizing that merging parties must avoid coordinating business activities during the HSR waiting period.
4/17/2017 - Article
Pratt's Energy Law Report
DOJ Obtains $600,000 Settlement from Duke Energy for HSR Gun-Jumping Violation
Ian John, Jeffrey Ayer, and Jacob "Chuck" Boyars authored this article regarding a federal antitrust lawsuit against Duke Energy Corporation (Duke), alleging that Duke violated the Hart-Scott-Rodino Act of 1976 (HSR Act) by taking beneficial ownership of assets prior to the expiration or termination of the HSR Act waiting period.
4/6/2017 - Alert
Kirkland & Ellis LLP
Supreme Court Removes Laches Defense for Patent Cases: What Does This Mean for Lanham Act Cases?
In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, the U.S. Supreme Court extended its 2014 decision in Petrella v. Metro-Goldwyn-Mayer, Inc., which eliminated the laches defense in copyright infringement cases, to apply in patent cases.
4/6/2017 - Alert
Kirkland & Ellis LLP
Trump Administration Sets “America First” Trade Agenda in Motion
Last week, the Trump administration took several steps to begin implementation of its “America First” international trade agenda.
3/30/2017 - M&A Update
Kirkland & Ellis LLP
Earnouts – (Be)Devil is in the Detail
In an earlier M&A Update, we discussed the attraction of using earnouts to bridge valuation gaps but quoted VC Laster’s astute description of earnouts as “often convert[ing] today’s disagreement over price into tomorrow’s litigation over outcome.” Since then, we have seen a continued steady pace of lawsuits brought by disappointed sellers asserting that an earnout milestone in fact has been satisfied or that the buyer’s failure to use the requisite efforts caused the failure to hit the milestone or maximize the earnout.
March 21, 2017 - Article
Intellectual Property Magazine
Laches Do Not Trump Six-Year Limit on Damages
This article discusses the SCOTUS decision to significantly reduce the use of the laches defense in U.S. patent litigation.
3/20/2017 - Alert
Kirkland & Ellis LLP
[English] Macau’s New Anti-Money Laundering Rules Send Warnings to U.S.-Based Casinos with Operations in Macau
Effective May 13, 2016, the Gaming Inspection and Coordination Bureau of Macau promulgated Instruction No. 1/2016, entitled “Preventive Measures Against Crimes of Money Laundering and Terrorist Financing” (the “New Instruction”). The New Instruction aims to bring Macau’s AML regulatory regime closer to international standards through imposing regulations over junket operators and more comprehensive internal control requirements over casinos and junket operators.
3/20/2017 - Alert
Kirkland & Ellis LLP
[Simplified Chinese] Macau’s New Anti-Money Laundering Rules Send Warnings to U.S.-Based Casinos with Operations in Macau
Effective May 13, 2016, the Gaming Inspection and Coordination Bureau of Macau promulgated Instruction No. 1/2016, entitled “Preventive Measures Against Crimes of Money Laundering and Terrorist Financing” (the “New Instruction”). The New Instruction aims to bring Macau’s AML regulatory regime closer to international standards through imposing regulations over junket operators and more comprehensive internal control requirements over casinos and junket operators.
3/20/2017 - Alert
Kirkland & Ellis LLP
[Traditional Chinese] Macau’s New Anti-Money Laundering Rules Send Warnings to U.S.-Based Casinos with Operations in Macau
Effective May 13, 2016, the Gaming Inspection and Coordination Bureau of Macau promulgated Instruction No. 1/2016, entitled “Preventive Measures Against Crimes of Money Laundering and Terrorist Financing” (the “New Instruction”). The New Instruction aims to bring Macau’s AML regulatory regime closer to international standards through imposing regulations over junket operators and more comprehensive internal control requirements over casinos and junket operators.
March 17, 2017 - Article
New York Law Journal
'GE Oil & Gas v. Turbine Generation Services': An Agreement to (Dis)agree?
Matthew Solum authored this article regarding the impact of GE Oil & Gas v. Turbine Generation Services, a recent case that demonstrated term sheet agreement obligations under New York law.
Law360 - Article
Law360
4 Years In, Inter Partes Review May Not Be The Best Strategy
Paul Collier and Bruce Ratain authored this article regarding the impact of Inter Partes Review.
03/13/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - March 13, 2017
This issue features the article, "Recent Cyber-Attacks Against PE Firms and Portfolio Companies," which discusses two recent developments that are a reminder that sponsors and their portfolio companies should remain vigilant about protecting and monitoring their networks and sensitive information.
3/13/2017 - Alert
Kirkland & Ellis LLP
U.S. Imposes $1.19 Billion in Penalties on Chinese Company for Economic Sanctions and Export Control Violations
On March 7, 2017, Zhongxing Telecommunications Equipment Corporation, headquartered in the People’s Republic of China (“PRC”), along with its subsidiaries and affiliates (collectively, “ZTE”) entered into settlement agreements with the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”); U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”); and U.S. Department of Justice (“DOJ”) to resolve civil and criminal violations of U.S. economic sanctions and U.S. export control regulations.
03/08/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - March 8, 2017
This issue includes the articles "Minimizing Exposure in Controlling Sponsor M&A Transactions," which discusses how a Delaware court will analyze an M&A transaction by a controlling sponsor and how to design appropriate procedural safeguards to minimize litigation exposure, and "Revised Hart-Scott-Rodino Act Thresholds," which discusses the FTC's annual revisions to HSR filing thresholds.
3/2/2017 - Alert
Kirkland & Ellis LLP
Trump Administration Releases National Trade Policy Agenda for 2017
On March 1, 2017, the Office of the U.S. Trade Representative (“USTR”) released its National Trade Policy Agenda for 2017 (“Trade Agenda”) describing the president’s trade policy objectives.
2/23/2017 - Alert
Kirkland & Ellis LLP
FTC Merger Remedy Study
On February 3, 2017, the Federal Trade Commission released a study evaluating the effectiveness of its merger remedies and proposing updated best practices for merging parties and divestiture buyers (the “Merger Remedy Study” or the “Study”).
2/15/2017 - AIM
Kirkland & Ellis LLP
SEC Risk Alert Cites Frequent Adviser Deficiencies
On February 7, the SEC’s Office of Compliance Inspections and Examinations (OCIE) released a Risk Alert outlining the five areas of most frequently identified examination deficiencies in 2016.
2/10/2017 - M&A Update
Kirkland & Ellis LLP
No Eruption – Delaware Supreme Court Upholds Volcano Decision Applying Corwin Doctrine to 251(h) Tender Offers
The Delaware Supreme Court in a one-sentence decision upholding the Chancery decision in Volcano provided welcome clarity on Delaware’s Corwin doctrine. In Corwin, the Supreme Court decided that the deferential business judgment rule should be the standard of review in post-closing damages cases in mergers (other than those subject to entire fairness review) that have been approved by a fully informed majority of disinterested stockholders.
1/30/2017 - Alert
Kirkland & Ellis LLP
DOJ Obtains $600,000 Settlement from Duke Energy for HSR Gun-Jumping Violation
On January 18, 2017, the U.S. Department of Justice (DOJ) brought a federal antitrust lawsuit against Duke Energy Corporation (Duke), alleging that Duke violated the Hart-Scott-Rodino Act of 1976 (HSR Act) by taking beneficial ownership of assets prior to the expiration or termination of the HSR Act waiting period.
1/27/2017 - Alert
Kirkland & Ellis LLP
Key EU Legislative/Regulatory Updates
This Kirkland Alert sets out in summary form certain key legislative and regulatory developments in EU and UK legislation that are likely to have an impact on private equity and other fund managers and advisors in the United Kingdom.
1/25/2017 - Alert
Kirkland & Ellis LLP
Revised Hart-Scott-Rodino Act Thresholds Announced
The Federal Trade Commission (“FTC”) announced revisions to the Hart-Scott-Rodino (“HSR”) Act filing thresholds on January 19, 2017.
January 24, 2017 - Article
Daily Journal
Alternative Lending Likely Here to Stay
David Nemecek and Brian Ford authored an article regarding a recent shift toward alternative lending.
1/23/2017 - Alert
Kirkland & Ellis LLP
Second Circuit Vacates Marblegate and Removes Uncertainty Surrounding Out-of-Court Restructurings
The U.S. Court of Appeals for the Second Circuit vacated and remanded a controversial district court decision that had held that the Trust Indenture Act (TIA) prohibits amendments to an indenture if the practical impact would be to eliminate a bondholder’s right to receive payment.
1/20/2017 - Alert
Kirkland & Ellis LLP
Financial Regulation and Enforcement Under the Trump Administration
With a new administration set to assume power in Washington, D.C., on January 20, 2017, this Alert looks at its likely agenda for financial regulatory reform and potential shifts in enforcement priorities — changes that stand to have far-reaching implications for financial institutions and other actors from Wall Street to Main Street.
1/19/2017 - AIM
Kirkland & Ellis LLP
SEC Announces 2017 Examination Priorities and Continues Adviser Enforcement Focus
On January 12, 2017, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) published its Examination Priorities for 2017, many of which could impact private fund advisers.
1/11/2017 - AIM
Kirkland & Ellis LLP
2017 Private Fund Manager U.S. Filing Deadlines
As 2017 gets under way, registered advisers should plan for the upcoming year’s filing and compliance deadlines.
1/6/2017 - Article
Commercial Dispute Resolution
Litigation damage limitation
Lauren Casazza discussed the ever-increasing need for litigation crisis management.
12/30/2016 - Newsletter
Kirkland & Ellis LLP
Firmwide Diversity Digest
12/15/2016 - M&A Update
Kirkland & Ellis LLP
Controlling Stockholder M&A Does Not Equal (Automatic) Entire Fairness Review
Two years ago we highlighted a string of Delaware cases that addressed the question of whether a stockholder is deemed to be “controlling,” observing that the Delaware approach was nuanced with a focus on both the ownership percentage and exercise of actual control.
December 12, 2016 - Article
New York Law Journal
When Is an Oral Agreement Sufficiently Definite to Be Enforceable?
New York courts may enforce oral agreements, including agreements that can span a number of years and agreements for which all of the material terms are not specified. On the latter point, where a court can supply a missing term by using an agreed-upon “objective method,” the court may hold that the agreement is enforceable.
12/6/2016 - Alert
Kirkland & Ellis LLP
President Obama Heeds CFIUS and Blocks Chinese Takeover of German Semiconductor Company
On December 2, 2016, President Obama issued an executive order (the “Order”) blocking the proposed acquisition of German semiconductor manufacturer Aixtron SE’s (“Aixtron”) U.S. business (“Aixtron U.S.”) by a group of Chinese investors led by Fujian Grand Chip Investment Fund LP (the “Buyers”).
December 1, 2016 - Article
The Bankruptcy Strategist
Bankruptcy Reform in Saudi Arabia: Bridging Islamic Law and Modern Bankruptcy?
Patrick Venter and James Sprayregen authored this article discussing the restructuring of shari’ah-compliant Middle Eastern businesses. Kamran Bajwa also contributed to the article.
11/30/2016 - Alert
Kirkland & Ellis LLP
DOJ and FTC Release Joint Guidance for Human Resource Professionals on Naked No-Poaching and Wage-Fixing Agreements
On October 20, 2016, the U.S. Department of Justice, Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) (collectively the “Agencies”) issued joint guidance for human resource (“HR”) professionals and other relevant individuals detailing how to avoid potential violations of antitrust laws in employee hiring and compensation practices.
11/22/2016 - Alert
[English] New York State Department of Financial Services Fines Mega Bank and its New York Branch $180 Million for Alleged Violations of State Anti-Money Laundering Laws
Mega International Commercial Bank Co., Ltd. (“Mega Bank”) is a Taiwan-based international financial institution with approximately $103 billion in assets, including $9 billion at its New York branch (“New York Branch”). During a recent examination, regulators from the New York State Department of Financial Services (“NYDFS”) discovered numerous deficiencies in Mega Bank’s Anti-Money Laundering Laws (“AML”) compliance function. On August 19, 2016, the NYDFS entered into a consent order with Mega Bank and its New York Branch in which Mega Bank agreed to pay $180 million penalties and install an independent monitor for alleged violations of New York State AML requirements.
11/22/2016 - Alert
[Simplified Chinese] New York State Department of Financial Services Fines Mega Bank and its New York Branch $180 Million for Alleged Violations of State Anti-Money Laundering Laws
Mega International Commercial Bank Co., Ltd. (“Mega Bank”) is a Taiwan-based international financial institution with approximately $103 billion in assets, including $9 billion at its New York branch (“New York Branch”). During a recent examination, regulators from the New York State Department of Financial Services (“NYDFS”) discovered numerous deficiencies in Mega Bank’s Anti-Money Laundering Laws (“AML”) compliance function. On August 19, 2016, the NYDFS entered into a consent order with Mega Bank and its New York Branch in which Mega Bank agreed to pay $180 million penalties and install an independent monitor for alleged violations of New York State AML requirements.
11/22/2016 - Alert
[Traditional Chinese] New York State Department of Financial Services Fines Mega Bank and its New York Branch $180 Million for Alleged Violations of State Anti-Money Laundering Laws
Mega International Commercial Bank Co., Ltd. (“Mega Bank”) is a Taiwan-based international financial institution with approximately $103 billion in assets, including $9 billion at its New York branch (“New York Branch”). During a recent examination, regulators from the New York State Department of Financial Services (“NYDFS”) discovered numerous deficiencies in Mega Bank’s Anti-Money Laundering Laws (“AML”) compliance function. On August 19, 2016, the NYDFS entered into a consent order with Mega Bank and its New York Branch in which Mega Bank agreed to pay $180 million penalties and install an independent monitor for alleged violations of New York State AML requirements.
11/11/2016 - Alert
Kirkland & Ellis LLP
Employee Benefit Plan Dollar Limits 2017
The Internal Revenue Service has announced the following 2017 dollar limits for employee benefit plans.
November 8, 2016 - Article
Law360
The Burden Of E-Discovery In Patent Litigation: A Few Tips
Joseph Loy and David Draper authored an article discussing the burdens of e-discovery and ways that litigants can more effectively manage electronically stored information.
10/31/2016 - Alert
Kirkland & Ellis LLP
U.S. Relaxes Cuba Sanctions, Ends Burma Sanctions, Although Election Uncertainties and Compliance Challenges Remain
On October 14, 2016, President Obama approved a Presidential Policy Directive easing U.S. sanctions on Cuba. A week prior, on October 7, 2016, President Obama issued an Executive Order terminating U.S. sanctions on Burma, also known as Myanmar.
10/17/2016 - Alert
Kirkland & Ellis LLP
Dealmakers, Take Note: GAO to Study CFIUS at Congress' Urging
On October 3, 2016, the U.S. Government Accountability Office (“GAO”) announced that it would undertake an assessment of the Committee on Foreign Investment in the United States (“CFIUS”) review process to evaluate “how the current statutory and administrative authorities of the Committee on Foreign Investment in the United States have kept pace with the growing scope of foreign acquisitions in important economic sectors in the United States.” The GAO’s statement responds to a September 15 letter from 16 Members of Congress calling on the GAO to examine the advisability of identified enhancements to CFIUS’ authority and jurisdictional ambit.
10/10/2016 - M&A Update
Kirkland & Ellis LLP
Voting Standards Are Not That Standard
As we enter the homestretch of the presidential election and the quadrennial bewilderment at the vagaries of the Electoral College system, it is an opportune moment to highlight that the voting standards for corporate shareholder approvals in the United States can be similarly confounding.
October 2016 - Article
Entertainment Law Review
High Court Decision in Campbell v. Campbell Provides Food for Thought—Rights in the UB40 Name and Arguable Abandonment of Goodwill
Shannon Yavorsky authored this article discussing abandonment of goodwill in relation to Campbell v. Campbell.
September 23, 2016 - Article
Law360
Extraterritorial Reach Of U.S. Securities Laws Post-Morrison
Following the Morrison decision, courts have addressed the criminal and regulatory reach of our securities laws, and the application of those laws to financial transactions that take place, in whole or part, abroad.
9/21/2016 - AIM
Kirkland & Ellis LLP
SEC Settles with Private Equity Manager over Expense and Conflict Issues
The Securities and Exchange Commission (SEC) recently entered into a settlement with a private fund manager related to lack of disclosure and conflicts regarding expense allocations.
9/21/2016 - Alert
Kirkland & Ellis International LLP
Subordination of Senior Financial Creditors in German Bank Resolutions
From 1 January 2017 onwards, certain senior liabilities of German banks are subordinated by law to facilitate “bail-ins” under the Single Resolution Mechanism (SRM).
9/14/2016 - AIM
Kirkland & Ellis LLP
House Passes Investment Advisers Modernization Act of 2016, But Further Progress Uncertain
On September 9, 2016, the U.S. House of Representatives approved the Investment Advisers Modernization Act of 2016 (H.R. 5424) with bipartisan support.
September 2016 - Article
Pratt's Energy Law Report
EPA's Plan to Make Sweeping New Change to Regulation of Methane Emissions from Existing Oil and Gas Sources and Potential Next Steps
Paul Tanaka, Michael Saretsky, and Michael Mahoney authored this article regarding the U.S. Environmental Protection Agency plan to limit methane emissions from existing oil and gas sources in an effort to tackle climate change and reduce greenhouse gases from the energy sector.
September 2016 - Article
The International Comparative Legal Guide to: Patents 2017
Patents: USA
Ken Adamo and Eugene Goryunov contributed to this chapter regarding developments in patent law.
September 2016 - Article
Practical Law the Journal
Recent Trends in IPOs of Private Equity Sponsor-Backed U.S. Companies
Carol Anne Huff authored this article regarding the IPO market.
Authors: Carol Anne Huff
8/29/2016 - AIM
Kirkland & Ellis LLP
SEC Amends Adviser Registration Forms and Performance-Related Recordkeeping; 2016 Election Reminder
The SEC recently adopted rules increasing the amount of information required to be disclosed in Form ADV, as well as enhancing requirements regarding registered advisers’ performance-related records.
8/24/2016 - M&A Update
Kirkland & Ellis LLP
Advance Notice Bylaws in Light of Corvex/Williams – Displacing the Placeholder Nomination
Advance notice bylaws are a near universal feature of the organizational documents of public companies.
8/24/2016 - AIM
Kirkland & Ellis LLP
Private Equity Manager Settles SEC Proceeding over Accelerated Monitoring Fees and Other Practices
As part of the SEC’s continued focus on private equity manager fee and expense practices, the SEC recently settled another accelerated monitoring fee proceeding against four affiliated private equity fund managers, alleging that the acceleration of monitoring fees and certain other practices were inconsistent with Advisers Act fiduciary and other obligations.
8/15/2016 - M&A Update
Whack-a-Mole: The Evolving Landscape in M&A Litigation Following Trulia
The landmark January 2016 Delaware Chancery Court decision in Trulia has led to dramatic changes in the M&A litigation landscape.
August 3, 2016 - Article
Getting the Deal Through
e-Commerce: United States
Gregg Kirchhoefer, Shannon Yavorsky and Daniel Bond authored this article regarding developments in internet law.
July 29, 2016 - Article
The Wall Street Journal
An Iniquitous Raid on Private Equity
Norm Champ authored this article regarding a recent Securities and Exchange Commission enforcement action and its impact.
Authors: Norm Champ P.C.
7/26/2016 - Alert
Kirkland & Ellis LLP
IRS Issues Proposed Regulations on “Device” and “Active Trade or Business” Rules Under Section 355
On July 14, 2016, the Internal Revenue Service (the “IRS”) and the U.S. Treasury Department (“Treasury”) issued proposed regulations that are designed to limit taxpayers’ ability to engage in tax-free distributions under Section 355 (a “Section 355 Distribution”) in situations where either the distributing corporation (“Distributing”) or the controlled corporation (“Controlled”), or both, holds a disproportionally large amount of non-business assets (such as cash or a minority position in another corporation) in comparison to its business assets.
July 15, 2016 - Article
Legaltech News
How to Take Advantage of the New Federal Trade Secret Law
Joseph Loy and Phillip Hill discuss how companies can take full advantage of new trade secret protections.
July 7, 2016 - Article
Law360
Expedition Standards Tighten in M&A Litigation
The recent trend away from routine approval of disclosure-only settlements has also led the Delaware Chancery Court to grant motions to expedite discovery less frequently in M&A cases. Jay Lefkowitz, Matthew Solum and Adam Humann authored this article exploring this trend and noting that the Delaware Chancery Court remains ready, willing and able to grant expedition when appropriate.
7/5/2016 - AIM
Kirkland & Ellis LLP
SEC Proposes Rule Requiring Advisers to Adopt Business Continuity and Transition Plans
On June 28, 2016, the Securities and Exchange Commission (SEC)proposed a new rule that would require a registered investment adviser to adopt and implement written business continuity and transition plans designed to address risks related to significant disruptions in the adviser’s operations.
7/4/2016 - Alert
Kirkland & Ellis International LLP
On Your MARks: New EU Market Abuse Regime Now in Force
From 3 July 2016, the EU Market Abuse Regulation (EU Market Abuse Regulation) has direct effect across the EU, replacing the EU Market Abuse Directive (MAD). Pending the UK’s exit from the EU (and depending on the negotiated terms of that exit), MAR will, for some years at least, have direct effect in the UK and will impact issuers with securities listed on UK exchanges, as in other EU jurisdictions.
6/23/2016 - AIM
Kirkland & Ellis LLP
Adviser Settles SEC Proceeding for Failure to Safeguard Customer Data
The SEC recently entered into a consent order with a registered investment adviser and broker-dealer, settling allegations that it failed to adopt written policies and procedures reasonably designed to protect customer records and information, in violation of Regulation S-P’s Safeguards Rule.
6/21/2016 - Alert
Kirkland & Ellis LLP
U.S. Department of Labor Increases Salary Thresholds for Overtime Exempt Employees — Planning Should Begin Now for December 2016 Roll-Out
Employer wage obligations are expected to rise in the United States in 2017, now that the U.S. Department of Labor (“DOL”) has announced the implementation date of its new regulatory Rule increasing the minimum salary that must be paid to employees for them to qualify as overtime “exempt” under the federal Fair Labor Standards Act (“FLSA”).
6/16/2016 - Alert
Kirkland & Ellis LLP
OFAC Issues New Iran Guidance
On June 8, 2016, the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) issued new guidance in the form of frequently asked questions (“FAQs”) on the scope of sanctions relief available under the Joint Comprehensive Plan of Action (“JCPOA”).
06/15/2016 - Newsletter
Kirkland & Ellis LLP
Firmwide Diversity Digest
6/3/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 3, 2016
This issue includes the articles “Private Fund Manager Settles SEC Enforcement Case for Acting as Unregistered Broker,” which discusses the SEC’s first enforcement action alleging that a private equity fund manager acted as an unregistered broker-dealer, and “Divorce, Wall Street Style,” which discusses the macro trends surrounding terminated M&A transactions.
June 2016 - Article
Trusts & Estates
Planning at the Eleventh Hour
David Handler and Kristen Curatolo discuss how "eleventh hour" planning may help clients achieve favorable outcomes for their beneficiaries and avoid missing valuable opportunities.
5/25/2016 - Alert
Kirkland & Ellis LLP
U.S. Department of the Treasury Again Relaxes Burmese Sanctions
The U.S. government recently authorized transactions that enable U.S. companies to expand trade and other business with Burma (aka Myanmar), while also announcing new sanctions targeting specific Burmese companies.
5/23/2016 - M&A Update
Kirkland & Ellis LLP
Divorce, Wall Street Style
Taking a page from the Hollywood tabloids, recent deal press has been overtaken by a stream of reported breakups, real or speculated.
5/20/2016 - Alert
Kirkland & Ellis LLP
SEC Issues Guidance on Non-GAAP Financial Measures
A large percentage of S&P 500 companies report some form of non-GAAP financial measures.
5/9/2016 - M&A Update
Kirkland & Ellis LLP
An Unexpected Intersection of Deal-Related Indemnification and D&O Advancement
Purchase agreements in many private company transactions contain some form of two seemingly unrelated provisions: (1) an agreement by the sellers to indemnify the buyer for certain losses arising out of breaches of representations and warranties made by the sellers and (2) an agreement by the buyer to maintain or assume the rights of former directors and officers of the target contained in the target’s organizational documents to indemnification and advancement of expenses for actions taken prior to closing.
5/6/2016 - Article
Law360
Securities Class Actions: American Phenomenon Goes Global
Securities class action litigation, which at one time seemed to be confined to the United States, has become an increasingly global phenomenon. Jay Lefkowitz, Matthew Solum and Adam Humann authored this article regarding securities class action litigation and key international jurisdictions.”
5/3/2016 - Article
Law360
7 Stages Of Grief: Impact of Oil Downturn on Energy Attys
Andrew Calder, David Castro and Joshua Sussberg authored this article regarding developments in the oil industry.
4/28/2016 - Alert
Kirkland & Ellis LLP
Federal Trade Secrets Bill Poised to Become Law
A long-awaited federal trade secrets bill may soon become law.
4/25/2016 - Article
The Deal
Missed Earnings
Christine Strumpen-Darrie provides direction to companies that no longer expect to meet their previously published earnings guidance.
April 25, 2016 - Article
TIA 316(b) Opinion White Paper
Kirkland contributed to a white paper to provide guidance to practitioners in their consideration of the application of recent judicial opinions relating to Section 316(b) of the Trust Indenture Act of 1939, as amended (the “TIA”).
4/20/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - April 20, 2016
This issue includes the article “Court Holds PE Fund Liable for Bankrupt Portfolio Company’s Multiemployer Pension Obligation,” which discusses a recent decision imposing ERISA control group liability on two related PE funds, which will have a chilling effect on investments in companies with pension plans.
4/19/2016 - Alert
Kirkland & Ellis LLP
New U.S. Treasury Regulations Implement Inversion Rules, Take Aim at “Serial Inverters” and Earnings Stripping
On April 4, 2016, the U.S. Treasury Department (“Treasury”) and the Internal Revenue Service (the “IRS”) issued proposed and temporary regulations (the “Inversion Regulations”) addressing so-called inversion transactions.
4/13/2016 - Alert
Kirkland & Ellis LLP
EPA’s Plan to Make Sweeping New Change to Regulation of Methane Emissions from Existing Oil and Gas Sources and Potential Next Steps
On March 10, 2016, the U.S. Environmental Protection Agency (“EPA”) announced a plan to limit methane emissions from existing oil and gas sources in an effort to tackle climate change and reduce greenhouse gases from the energy sector.
4/13/2016 - Alert
Kirkland & Ellis LLP
Proposed Treasury Regulations on Debt-Equity Classification Change the Landscape for Related Party Financings
On April 4, 2016, the U.S. Treasury Department and the Internal Revenue Service (“IRS”) proposed new regulations that, if finalized, would dramatically change how debt instruments issued between related parties are treated and analyzed (the “Proposed Regulations”).
3/28/2016 - Article
Law360
M&A Indemnification: Who Should Control 3rd-Party Claims?
Brandon Vongsawad authored this article regarding M&A indemnification.
3/24/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - March 24, 2016
This issue includes the article “The IRS Targets Private Equity,” which discusses recent indications that the IRS intends to follow through on its publicly announced intent to audit more private equity funds.
3/22/2016 - Alert
Kirkland & Ellis LLP
U.S. Sanctions on Cuba — Political and Regulatory Steps Toward Normalization Continue
On March 20, 2016, President Obama arrived in Cuba for an historic visit aimed at engaging with the Cuban people and encouraging the nascent private sector.
3/21/2016 - M&A Update
Kirkland & Ellis LLP
Social Covenants in Mergers – Legal Promises or Moral Commitments?
With the return of acquirer stock as a featured form of consideration in many recent deals, dealmakers are once again focusing on “social” issues in striking a merger agreement.
3/10/2016 - Alert
Kirkland & Ellis LLP
Courts Increasingly Skeptical of Need to Routinely Disclose Government Investigations under Rule 10b-5
The U.S. District Court for the Southern District of New York, among the most important courts in the country for securities suits, has recently held that there exists no per se duty to disclose regulatory investigations, or even Wells Notices, to shareholders under Section 10(b) of the Exchange Act or Rule 10b-5.
3/4/2016 - Alert
Kirkland & Ellis LLP
CFIUS Annual Report to Congress: What Dealmakers Should Know
Recently, the Committee on Foreign Investment in the United States (“CFIUS”), an inter-agency committee authorized to review transactions that could result in the control of a U.S. business by a foreign person (“covered transactions”) in order to determine the effect of such transactions on the national security of the United States, released its unclassified Annual Report to Congress for the 2014 calendar year (the “Annual Report”).
2/22/2016 - Alert
Kirkland & Ellis LLP
New UK Law Will Require Public Disclosure of Individuals Anywhere in the World Who Control UK Companies
From 6 April 2016, most UK companies and limited liability partnerships will be required to identify and keep a register of any individuals – i.e., human beings – who ultimately control them, wherever in the world those individuals are located.
Authors: Sarah Brewer
2/8/2016 - Article
Law360
Challenging An Arbitrator Ab Initio: A Primer
In addition to considering challenging the neutrality of an arbitrator ex post, it is also important to consider challenging arbitrators at the beginning of an arbitration. Matthew Solum authored this article, which serves as a primer on the considerations and the bases relating to arbitrator challenges within the arbitration process.
2/8/2016 - M&A Update
Kirkland & Ellis LLP
Constituency Directors – Controlling the Information Flow
A growing number of public companies have recently added directors who are designees of activist hedge funds or other financial investors, often following a proxy contest or as a result of the settlement of a threatened or pending contest.
02/04/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - February 4, 2016
This issue includes the articles "Initial Public Offerings of Sponsor-Backed U.S. Corporations: 18-Month Survey Through December 31, 2015," which examines trends in corporate governance at newly public sponsor-backed companies, and "Revised Hart-Scott-Rodino Act Thresholds Announced," which reviews the FTC's annual revisions to HSR filing thresholds.
2/3/2016 - Alert
Kirkland & Ellis LLP
One Step Beyond: Potential Impacts of Proposed Methane and VOC Reduction Initiatives in Pennsylvania’s Oil and Gas Sector and Staying Ahead of the Curve
On January 19, 2016, the Pennsylvania Department of Environmental Protection (“PADEP”) announced a plan to curb fugitive methane and volatile organic compound (“VOC”) emissions associated with natural gas production, transmission and distribution operations in an effort to combat global warming and improve air quality.
2/2/2016 - Alert
Kirkland & Ellis LLP
Antitrust Update: EU Antitrust v. U.S. Companies
From time to time the European Commission (EC) is accused of unfairly targeting U.S. companies in its antitrust scrutiny.
1/28/2016 - Alert
Kirkland & Ellis LLP
Revised Hart-Scott-Rodino Act Thresholds Announced
The Federal Trade Commission (“FTC”) announced revisions to the Hart-Scott-Rodino (“HSR”) Act filing thresholds on January 21, 2016.
Authors: Ellen M. Jakovic, Michael D. Thorpe, Kurt Wunderlich
1/26/2016 - Alert
Kirkland & Ellis LLP
Iran Sanctions: A New Era Announced
On January 16, 2016, the U.S. and EU announced that a number of sanctions on Iran have been lifted under the Joint Comprehensive Plan of Action (“JCPOA”), following verification by the International Atomic Energy Agency that Iran has met its initial commitments to scale back key aspects of its nuclear program (“Implementation Day”).
1/22/2016 - Alert
Kirkland & Ellis LLP
China’s National Development and Reform Commission Signals Three Major Trends in Anti-Monopoly Law Enforcement in Latest Penalty Decisions
China’s National Development and Reform Commission (“NDRC”) issued its final penalty decisions against eight international shipping companies on December 31, 2015, after an investigation into their alleged price-fixing and market-sharing agreements that lasted almost a year and a half.
1/22/2016 - Alert
Kirkland & Ellis LLP
NYSE 2016 Compliance Guidance
On January 12, 2016, the NYSE released its annual recent developments memos for listed companies.
1/15/2016 - AIM
Kirkland & Ellis LLP
2016 Private Fund Manager U.S. Filing Deadlines
As 2016 gets underway, registered advisers should plan for the upcoming year’s filing and compliance deadlines, many of which fall on atypical dates because of the 2016 leap year and SEC holiday closings.
1/14/2016 - Alert
Kirkland & Ellis LLP
Federal Circuit Holds That Section 2(a) of the Lanham Act for Disparaging Marks is Unconstitutional under the First Amendment
The U.S. Court of Appeals for the Federal Circuit, ruling en banc, recently held that the portion of Section 2(a) of the Lanham Act that prohibits registration of disparaging trademarks is unconstitutional because “[i]t is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”
1/13/2016 - AIM
Kirkland & Ellis LLP
SEC Announces 2016 Examination Priorities for Private Fund Managers
On January 11, 2016, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) published its Examination Priorities for 2016.
1/5/2016 - Alert
Kirkland & Ellis LLP
The First BEPS Changes Come to the U.S.: The IRS Issues Proposed Regulations on Country-by-Country Reporting
On December 21, 2015, the U.S. Treasury and the Internal Revenue Service (the “IRS”) proposed important new regulations that will have significant impact on multinational enterprises (“MNEs”) with annual revenue of at least $850 million.
1/4/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - January 4, 2016
This issue includes the article “Private Fund Manager 2015 Review of Registered Investment Adviser Developments,” which recaps developments from 2015 in the SEC’s regulation of private fund managers, including the SEC’s increasing focus on undisclosed conflicts of interest.
1/1/2016 - Newsletter
Kirkland & Ellis LLP
Firmwide Diversity Digest
12/31/2015 - Article
Journal of Intellectual Property Law & Practice
A Step in the Right Direction for Louboutin
Shannon Yavorsky and Emma Flett authored this article regarding a recent decision of the EU General Court regarding Christian Louboutin's Community trade mark application for its iconic red sole trademark for high-heeled shoes.
Authors: Emma L. Flett
12/29/2015 - M&A Update
Director Removal Without Cause — Delaware Default Rule is in Fact the Rule
In a recent bench ruling on a summary judgment motion in a case involving Vaalco Energy, Vice Chancellor Laster held that a provision of a company’s charter or bylaws could not override the default rule under Delaware law that directors serving on a non-classified board (i.e., annually elected) may be removed with or without cause by vote of holders of a majority of the outstanding shares entitled to vote in director elections.
12/23/2015 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 23, 2015
This issue includes the article “New Legislation Significantly Changes Taxation of REITs and Non-U.S. Investors in U.S. Real Estate,” which discusses new tax legislation that blocks tax-free REIT spinoffs.
12/21/2015 - Alert
Kirkland & Ellis LLP
New Legislation Significantly Changes Taxation of REITs and Non-U.S. Investors in U.S. Real Estate
On December 18, 2015, the “Protecting Americans from Tax Hikes Act of 2015” was enacted.
12/11/2015 - Alert
Kirkland & Ellis LLP
First UK Deferred Prosecution Agreement — How High is the Bar?
On 30 November 2015, Standard Bank plc (“Standard Bank”) (now known as ICBC Standard Bank plc) became the first company to enter into a Deferred Prosecution Agreement (“DPA”) with the UK Serious Fraud Office (“SFO”).
12/1/2015 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 1, 2015
This issue includes the article “Kirkland Comments on IRS Management Fee Waiver Guidance,” which highlights comments that Kirkland submitted to the IRS regarding proposed regulations that, if finalized in their current form, would treat management fee waivers more harshly than IRS officials had previously suggested.
11/24/2015 - Alert
Kirkland & Ellis LLP
New Guidelines for Protecting Secured Lenders’ Share Foreclosure Rights in German Bankruptcies
On September 24, 2015, the German Supreme Court held that secured lenders of insolvent German debtors are not stayed from foreclosing on stocks in a German corporation (Aktiengesellschaft) in an insolvency of the pledgor, but only where those stocks have been placed in trust for the benefit of the lenders.
11/23/2015 - Alert
Kirkland & Ellis LLP
U.S. Treasury and Internal Revenue Service Issue New Anti-Inversion Guidance
Over the past several years, a number of high-profile transactions have been effectuated or proposed in which a U.S. corporation is technically acquired by a smaller foreign corporation in order to, in part, achieve a more efficient tax-profile for the U.S. corporation on a going forward basis (commonly referred to as an “inversion transaction”).
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