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6/19/2018 - Alert
Kirkland & Ellis LLP
Trump Administration Announces New Tariffs on Chinese Goods
On June 15, 2018, the U.S. Trade Representative (“USTR”) released a list of $50 billion worth of products imported from China that will be subject to new 25% tariffs.
6/8/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 8, 2018
This issue includes the article "SEC Charges 13 Private Fund Advisers for Repeated Filing Failures," which discusses recent SEC enforcement actions that emphasize the importance of filing timely, accurate and complete required reports with financial regulators.
6/8/2018 - Alert
Supreme Court Decision Expected Soon in Amex "Anti-Steering" Case
On February 26, 2018, the U.S. Supreme Court heard oral argument in the matter of Ohio v. American Express. The issue before the Court was how the “rule of reason” should be applied in a two-sided market like the credit card industry, where companies like American Express simultaneously serve both merchants and cardholders during the course of a transaction.
6/4/2018 - M&A Update
Kirkland & Ellis LLP
Is Delaware Really a ‘Sandbagging State’?
Recent comments in a Delaware Supreme Court decision cast some doubts on the “pro-sandbagging” reputation of Delaware.
6/1/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 1, 2018
This issue includes the article "New California Independent Contractor Law Impacts PE Investments," which discusses a new test for determining whether companies have properly classified workers as independent contractors for purposes of California's wage and hour laws.
May/June 2018 - Article
Landslide
Split Personality: Constructing a Coherent Right of Publicity Statute
Joshua Simmons and Miranda Means authored this article regarding the "growing battleground" surrounding rights of publicity.
5/29/2018 - M&A Update
Kirkland & Ellis LLP
Post-Dell Appraisal – Still Work to be Done
In the aftermath of the long-awaited Delaware Supreme Court appraisal decisions in Dell (which we reviewed in a previous note) and DFC, there was cautious optimism that the court’s guidance would eliminate or at least significantly reduce the uncertainty that surrounded appraisal proceedings in Delaware courts in recent years.
May 2018 - Article
AFIRE News
US Income Tax Reform and the Impact on Real Estate
Stephen Butler and Paul Hendrickson authored an article regarding the 2017 tax reform package and its effect on the real estate industry.
5/23/2018 - Article
Law360
Adding Pakistan To 'Gray List' Has Important Consequences
Michael Casey, Marcus Thompson and Kartikey Mahajan discuss Pakistan's recent addition to the the Financial Action Task Force's “gray list” due to the country’s failure to adequately address terrorist financing activities within its borders.
5/21/2018 - Alert
Kirkland & Ellis LLP
CFIUS Reform Gathers Strength, with Private Equity and China Looming Large
On May 22, 2018, the Senate Committee on Banking, Housing, and Urban Affairs will hold a hearing to mark up its draft proposed amendment to the Foreign Investment Risk Review Modernization Act (“FIRRMA”).
5/16/2018 - M&A Update
Kirkland & Ellis LLP
Advance Notice Bylaw Deadlines – A Warning Shot
We recently noted a Washington state case that upheld the validity of advance notice bylaws as “common” and supported a company’s close review of a stockholder’s director nominations for compliance with bylaw requirements.
May 16, 2018 - Book
The Law Reviews
The Private Equity Review
Kirkland attorneys contributed to this publication regarding developments in private equity law across the globe.
5/10/2018 - Alert
Kirkland & Ellis LLP
President Trump Withdraws U.S. from the Iran Nuclear Deal and Sets in Motion Re-Imposition of Comprehensive Economic Sanctions
On May 8, 2018, President Trump announced that the U.S. was ending its participation in the Iran nuclear deal, known formally as the Joint Comprehensive Plan of Action (“JCPOA”), and instructed the Administration to take steps to re-impose economic sanctions broadly targeting the Iranian economy.
5/8/2018 - Alert
Kirkland & Ellis LLP
New Rules Impact Private Fund Advisers Managing Chinese Insurance Capital
While Chinese insurance companies have been active in making commitments to private investment funds recently, several new regulations imposed on the insurance sector by the Chinese government may slow the trend, and private fund managers may wish to reevaluate the regulatory and ongoing compliance burdens associated with managing Chinese insurance capital.
May 2018 - Article
Who's Who Legal
Aqua Products: Amendments For the Rest of Us
Kenneth R. Adamo, Eugene Goryunov and Noah S. Frank authored an article regarding the burden of proving patentability of amended claims.
Authors: Noah Frank
May 1, 2018 - Article
IFLR
Arbitration of audit disputes
Javier Rubinstein discusses the increasing use of arbitration in audit-related disputes.
5/1/2018 - AIM
Kirkland & Ellis LLP
SEC Proposes Standard of Conduct Interpretation and Enhanced Regulation for Investment Advisers; Private Fund Manager Penalized for Failing to Disclose Conflicts of Interest
On April 18, 2018, the Securities and Exchange Commission (“SEC”) proposed a long-anticipated package of rulemakings and interpretations aimed at establishing a broker-dealer standard of conduct and clarifying investor confusion about differences in a customer relationship with a broker-dealer and investment adviser.
4/27/2018 - Alert
Kirkland & Ellis LLP
SEC Proposes Broker-Dealer Standards of Conduct and Related Investment Adviser Rulemaking and Guidance
On April 18, 2018, the Securities and Exchange Commission (“SEC”) proposed a long-anticipated package of rulemakings and interpretations aimed at establishing a broker-dealer standard of conduct and clarifying investor confusion about differences in a customer relationship with a broker-dealer and investment adviser.
4/24/2018 - Alert
Kirkland & Ellis LLP
Risk Retention Reverberations: How Far Do the Effects of the LSTA Case Extend?
A recent federal appellate court decision on a narrow question of statutory interpretation is likely to have broad implications for the securitization market.
April 18, 2018 - Article
Bloomberg Corporate Law & Accountability Report
This is What the U.S. Government Thinks About CFIUS: Four Takeaways From the GAO’s Report on CFIUS
Mario Mancuso, Boyd Greene and Luci Hague authored this article regarding the U.S. Government and Accountability Office's report on the Committee on Foreign Investment in the United States and conclusions to be drawn from said report.
4/16/2018 - M&A Update
Kirkland & Ellis LLP
Advance Notice Bylaws – Advantage Confirmed
As we have noted in the past, advance notice bylaws are a near universal feature of the organizational documents of public companies. In their simplest form, they set a deadline, usually between 60 and 120 days before an upcoming stockholder meeting, by which a stockholder must give notice to the company of its intention to nominate director candidates and identify those nominees. Delaware courts have repeatedly upheld the validity of these provisions holding that they are “useful in permitting orderly shareholder meetings.”
4/13/2018 - AIM
Kirkland & Ellis LLP
SEC Risk Alert Cites Frequent Advisory Fee and Expense Compliance Issues
In recent years, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) has been focused on private fund managers’ fee and expense practices when examining registered advisers. On April 12, OCIE issued a Risk Alert detailing the most frequent advisory fee and expense compliance issues identified in examinations of registered advisers completed during the past two years.
April 13, 2018 - Article
Law360
Trump Tariffs May Violate Investment Treaty Protections
Javier Rubinstein and Lauren Friedman discuss whether the America First tariffs breach the U.S.’ international obligations to foreign investors.
4/12/2018 - Article
Bloomberg BNA's Corporate Law Resource Center
U.S. Targets Putin's Inner Circle: Five Takeaways for Companies and Investors
Mario Mancuso, Joanna Ritcey-Donohue, Sanjay Mullick and Lucille Hague authored an article regarding OFAC's new sanctions blacklisting individuals and entities associated with the Russian government.
4/5/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - April 5, 2018
This issue includes the article "IRS Temporarily Eases Withholding Regime for Secondary Sales of Partnership Interests," which discusses recently published guidance that provides interim answers to certain of the critical questions that remained after enactment of the 2017 tax legislation.
4/2/2018 - Alert
Kirkland & Ellis LLP
Singapore Introduces Deferred Prosecution Agreements
On 19 March 2018, Singapore passed legislation introducing the concept of the deferred prosecution agreement (“DPA”) to the jurisdiction for the first time.
April/May 2018 - Article
Pratt's Journal of Bankruptcy Law
Landmark Court Opinion Increases Liability Risk Profile for German Portfolio Company Management
The German Supreme Court, in an opinion published January 31, 2018, has tightened the rules for determining when a company is “cash flow insolvent” and by extension for determining when a director of a German company has a civil and criminal law obligation to file the company for bankruptcy.
3/29/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - March 29, 2018
This issue includes the article "BDC Leverage Caps to Increase, Creating Potential Opportunity for Credit and Private Equity Managers," which discusses the recently passed Consolidated Appropriations Act and its long-sought after measure to increase business development company leverage limits.
3/27/2018 - Alert
Kirkland & Ellis LLP
The Trump Administration Imposes Steel and Aluminum Import Tariffs, Linking International Trade With National Security
On March 23, 2018, tariffs of 25 percent on imported steel and 10 percent on imported aluminum went into effect for all countries not issued an exemption. Issued under Presidential Proclamations 9704 and 9705, the tariff orders are less far-reaching than originally announced.
3/26/2018 - Alert
Kirkland & Ellis LLP
D.C. Circuit Sets Aside FCC’s 2015 Order Addressing Portions of the Telephone Consumer Protection Act
On March 16, 2018, in a closely watched case regarding a 2015 FCC Declaratory Ruling (“2015 Declaratory Ruling”) on the meaning and scope of certain provisions of the Telephone Consumer Protection Act (“TCPA”), the U.S. Court of Appeals for the District of Columbia Circuit partially granted consolidated petitions to review the 2015 Declaratory Ruling (“D.C. Opinion”).
3/23/2018 - Article
New York Law Journal
‘Substantial Similarity’: A New Approach to Dismissing Implied-in-Fact Contract Claims?
Josh Simmons authored an article regarding implied-in-fact contract claims.
3/22/2018 - Alert
Kirkland & Ellis LLP
Trump Administration Bans Dealings in Venezuelan Cryptocurrency in a First Step Toward Extending Sanctions to Digital Currency Transactions
On March 19, 2018, President Trump issued an Executive Order “Taking Additional Steps to Address the Situation in Venezuela” (“Executive Order”) that prohibits U.S. persons from engaging in dealings in any digital currency, digital coin, or digital token issued by, for, or on behalf of the government of Venezuela.
3/21/2018 - Alert
Kirkland & Ellis LLP
Treasury Department Sanctions Russian Entities and Individuals for Cyberattacks and Election Interference, Indicating Additional Measures May be Forthcoming
On March 15, 2018, the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”) designated five entities and 19 individuals in response to Russian cyberattacks and Russia’s attempted interference in the 2016 U.S. presidential election.
3/20/2018 - Alert
Kirkland & Ellis LLP
Recent Developments in the Regulation of Methane Venting and Flaring from Natural Gas Wells on Public and Tribal Lands and Potential Next Steps
More than a year after it was originally issued, an Obama-era rule limiting methane venting and flaring from natural gas wells on public and tribal lands (the “Waste Prevention Rule”) may finally start being enforced, causing further uncertainty in a continuously shifting regulatory landscape.
3/19/2018 - Alert
Kirkland & Ellis LLP
Insider Trading Charges Levied in Connection with Data Breach
On March 14, 2018, a former Equifax executive was civilly and criminally charged by the U.S. Securities and Exchange Commission and the U.S. Department of Justice for allegedly exercising stock options and selling Equifax stock after learning about Equifax’s data breach in 2017.
3/14/2018 - Article
Bloomberg Law's Corporate Law & Accountability Report
Economic Sanctions and Export Controls Enforcement Update Q4 2017
Mario Mancuso, Joanna Ritcey-Donohue and Sanjay Mullick authored an article summarizing key national security enforcement actions and settlement agreements concerning economic sanctions and export controls.
3/13/2018 - Alert
Kirkland & Ellis LLP
Proposed Export Control Legislation Would Place New Restrictions on Technology Transfer, Even Within the U.S.
On February 15, 2018, U.S. House of Representatives Foreign Affairs Committee Chairman Ed Royce (R-CA) introduced the Export Control Reform Act of 2018 (“the Act”), which could have a significant impact on restricting access to U.S. technology, even within the U.S.
3/9/2018 - Alert
Kirkland & Ellis LLP
CFIUS Weighs in on Broadcom/Qualcomm Fight
On March 4, 2018, in a historic intervention, the Committee on Foreign Investment in the United States (CFIUS) signed an interim order mandating that Qualcomm Inc., a leading U.S. chip maker, postpone its annual meeting of shareholders for 30 days in order to provide CFIUS with time to conduct an initial review of the hostile bid by Broadcom Ltd., a Singapore-based semiconductor company.
March 9, 2018 - Article
New York Law Journal
Discovery in Cross-Border Disputes: Choosing Between Domestic Litigation and International Arbitration
When deciding which dispute resolution mechanism is best suited to a favorable outcome, discovery is a consideration of paramount importance. Whether one wishes to seek broad, offensive discovery of their adversary or a limited discovery as to their own records, such decisions can influence the choice between U.S. litigation and arbitration.
3/1/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - March 1, 2018
This issue includes the article "Supreme Court Narrows Whistleblower Protections Under Dodd-Frank," which discusses the Supreme Court's ruling that Dodd-Frank's whistleblower anti-retaliation protections only apply after an individual reports federal securities law violations directly to the SEC.
2/28/2018 - Alert
Kirkland & Ellis LLP
Key Takeaways from the SEC’s 2018 Cybersecurity Guidance
On February 21, 2018, the Securities and Exchange Commission (“SEC”) published new guidance regarding public company disclosures about cybersecurity risks and incidents (“2018 Guidance”).
2/27/2018 - Article
Bloomberg Law's Corporate Law & Accountability Report
Building an Effective ‘Risk-Based’ Compliance Program to Address International Risks, Even if You Already Have One
Mario Mancuso, Joanna Ritcey-Donohue, Sanjay Mullick and Diego Ortega authored an article providing a high-level roadmap for companies seeking to build effective risk-based compliance programs to address international risks.
2/26/2018 - Alert
Kirkland & Ellis LLP
New North Korea Sanctions Impact Shipping Transactions Worldwide
On February 23, 2018, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued some of the widest sweeping North Korea-related sanctions imposed to date.
2/23/2018 - Article
New York Law Journal
Challenges and Advice for Multinational Companies in Complying With Chinese Cybersecurity Law
Cori Lable, Jodi Wu and Zachary Brez authored an article providing an overview of the key requirements imposed by the CSL and a roadmap for multinational companies seeking to assess their obligations and responsibilities under the law.
2/22/2018 - Article
Legaltech News
The Class Action Litigation Consequences of Business Email Compromise Attacks
Sunil Shenoi, Seth Traxler and Gianni Cutri authored an article regarding class action litigation from BEC attacks.
2/9/2018 - Article
Bloomberg Law's Corporate Law & Accountability Report
CFIUS in 2018: What Lies Ahead
Mario Mancuso, Boyd Greene and Luci Hague authored an article regarding key CFIUS trends to watch in 2018.
2/8/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - February 8, 2018
This issue includes the articles "SEC Announces 2018 Examination Priorities," which discusses recently announced examination priorities from the SEC's Office of Compliance Inspections and Examinations; "Final Tax Bill Affects Executive Compensation and Equity-Based Incentive Programs," which discusses the tax bill's effect on the design of management equity incentive programs and other compensation arrangements; and "Revised Hart-Scott-Rodino Act Thresholds and Civil Penalty Amounts Announced," which addresses the FTC's annual revisions to HSR filing thresholds.
2/5/2018 - Article
Bloomberg Law Securities Regulation & Law Report
Effective International Risk Strategies for Nontraditional Investments
Asheesh Goel, Kim Nemirow and Nick Niles authored this article regarding potential solutions for private equity firms and other financial investors facing overpriced or oversubscribed equity auctions.
2/2/2018 - Article
Law360
Don't Let PFAS Leave A Mark On Your Business Transaction
Alexandra Farmer and Laura Mulherin authored an article regarding per- and poly-fluorinated alkylated substances (PFAS), recent litigation and regulatory action related to PFAS, and the options for assessing and mitigating PFAS risks in transactions.
2/2/2018 - Alert
Kirkland & Ellis International LLP
Landmark Court Opinion Increases Liability Risk Profile for German Portfolio Company Management
The German Supreme Court, in an opinion published January 31, 2018, has tightened the rules for determining when a company is “cash flow insolvent” and by extension for determining when a director of a German company has a civil and criminal law obligation to file the company for bankruptcy.
2/2/2018 - Article
New York Law Journal
Three Strategic Choices in E-Discovery
Christine Payne and Michelle Six authored an article regarding developing e-discovery strategy hand in hand with trial strategy.
2/2/2018 - Alert
Kirkland & Ellis LLP
U.S. Department of the Treasury Identifies Russian Political Leadership and Oligarchs, Though Ultimate Implications Remain Forthcoming
On January 29, 2018, the U.S. Department of the Treasury (“Treasury”) released the Report on Senior Foreign Political Figures and Oligarchs in the Russian Federation (“Report”) pursuant to Section 241 of the Countering America’s Adversaries Through Sanctions Act of 2017 (“CAATSA”).
2/1/2018 - Alert
Kirkland & Ellis LLP
2017 Tax Cuts and Jobs Act Eliminates Section 162(m) Performance-Based Pay Exemption and Expands Section 162(m) Coverage Generally
On December 22, 2017, President Trump signed into law the final draft of the Tax Cuts and Jobs Act (H.R. Bill 1, the “Act”), which, among other things, expands the scope of Internal Revenue Code Section 162(m) (“Section 162(m)”) for tax years beginning after December 31, 2017.
1/31/2018 - Alert
Kirkland & Ellis LLP
Revised Hart-Scott-Rodino Act Thresholds & Civil Penalty Amounts Announced
The Federal Trade Commission (“FTC”) announced revisions to the Hart-Scott-Rodino (“HSR”) Act filing thresholds on January 26, 2018.
Authors: Carla A. R. Hine, Ellen M. Jakovic, Michael D. Thorpe, Kurt J. Wunderlich
1/30/2018 - Book
Commodities & Futures Enforcement: Practice and Procedure in CFTC and SRO Investigations
The third edition of Commodities & Futures Enforcement: Practice and Procedure in CFTC and SRO Investigations authored by Kirkland & Ellis partner, Zachary S. Brez, P.C. was published in December 2017 as part of Bloomberg BNA’s Securities Practice Portfolio Series.
Authors: Zachary S. Brez P.C., Helen Gugel
1/30/2018 - Article
Law360
Recent Trends In Books And Records Demands
Matthew Solum and Vera Esses authored an article regarding recent opinions related to Section 220 of the Delaware General Corporation Law.
1/26/2018 - Article
New York Law Journal
CFTC 2018 Enforcement: Where the Puck Is Going
Zach Brez, Allison Lullo and Giselle Sedano authored an article regarding the technology-driven trends likely to appear in the CFTC's 2018 enforcement efforts in the three traditional brackets of CFTC actions.
1/25/2018 - Article
Journal of Corporate Renewal
Surviving Retail Distress: How Some Retailers Proved ‘Exceptions to the Rule’
Joshua Sussberg and Matthew Fagen discuss trends in commercial bankruptcies in 2017.
1/25/2018 - Alert
Kirkland & Ellis LLP
Trump Administration Imposes Substantial Tariffs Ushering in America First Trade Agenda
On January 22, 2018, President Trump acted on recommendations from the U.S. International Trade Commission (“ITC”) to impose tariffs on imports of large residential washing machines (“washers”) and solar cells and modules that were the subject of two “safeguard” investigations.
01/22/2018 - Alert
Kirkland & Ellis LLP
California Court Invalidates Parts of County Ordinance Banning Well Stimulation Treatments and Underground Wastewater Injection
On December 28, 2017, the California Superior Court for Monterey County issued a ruling striking down parts of a ballot-initiative measure that sought to prohibit use of land for hydraulic fracturing (i.e., fracking) treatments and oil and gas wastewater injection and impoundment. The outcome may have ripple effects throughout the industry as other municipalities consider similar bans on fracking and wastewater injection.
01/22/2018 - Alert
Kirkland & Ellis LLP
Mexico Signs ICSID Convention: Briefing for Clients With Mexican Interests
On January 11, 2018, Mexico’s Secretary of Economy signed the International Centre for Settlement of Investment Disputes (ICSID) Convention on behalf of Mexico. The long-awaited signature was penned amidst growing concerns about the outcome of the upcoming presidential election in Mexico and the prospect of changes to the North American Free Trade Agreement (NAFTA), in order to blunt the effect of these developments. In light of the current climate, clients with relevant interests in Mexico should consider whether to take advantage of available protections for their investments there, which may soon include ICSID protection.
01/22/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - January 22, 2018
This issue includes the article "2017 Review: Developments for SEC-Registered Private Fund Managers," which provides an overview of 2017 developments at the SEC affecting regulation of investment advisers and offers a look ahead at what to expect in 2018.
1/18/2018 - Article
Corporate Counsel
Voluntary Self-Disclosure of Sanctions Violations: Frameworks and Considerations in the US, UK (Part I)
Mike Casey co-authored an article examining the sanctions self-reporting regime in the United Kingdom.
1/16/2018 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - January 16, 2018
This issue includes the articles “Secondaries Beware: New Withholding Requirements for Transfers of Partnership Interests,” which explores recent U.S. tax legislation that may obligate a purchaser of a private equity fund interest to withhold a portion of the purchase price, and “New Local Laws Prohibit Employers From Asking About Prior Salary,” which examines legislation that bans employers from asking prospective employees about their past salaries.
Jan-Mar 2018 - Article
Corporate Disputes
Don't Get Stuck in the Penalty Box - The World Post-Makdessi
Richard Boynton and Noah Stewart-Ornstein authored an article regarding a 2015 UK Supreme Court decision related to contractual arrangements.
1/1/2018 - Article
Intellectual Property Law in Cyberspace
Digital Millennium Copyright Act: 20 Years Later
Joshua Simmons authored a chapter for this annual treatise covering legal issues at the interface of IP and the Internet.
12/22/2017 - Alert
Kirkland & Ellis LLP
Final Tax Bill Will Have Significant Impact on Business Decisions and Operations of U.S. Companies
President Trump signed this morning the final version of the tax reform bill commonly known as the Tax Cuts and Jobs Act, which was passed by Congress on December 20, 2017.
12/22/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 22, 2017
This issue includes the article "Final Tax Bill Will Have Significant Impact on Private Equity Sponsors and Their Portfolio Companies," which discusses the recently passed Tax Cuts and Jobs Act and its wide-ranging effects on private equity sponsors and their portfolio companies.
12/20/2017 - Article
Thomson Reuters Practical Law Arbitration Blog
2017 arbitration year in review
Harkiran Hothi, Chiraag Shah and Noah Stewart-Ornstein authored an article summarizing the big arbitration stories from 2017 and offering a look ahead at 2018.
12/19/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 19, 2017
This issue includes the article "Negotiated Deal Price is Best Evidence of Fair Value — Delaware Dispels the Dell Appraisal Overhang," which discusses the Delaware Supreme Court's strong rejection of the position that the participation of private equity and/or management makes deal price inherently suspect as a measure of fair value for appraisal purposes.
12/18/2017 - Article
New York Law Journal
Supreme Court's Decision In 'BMS' Presents New Hurdles To Forum Shoppers
Atif Khawaja authored an article regarding a recent Supreme Court decision that curtailed the exercise of specific jurisdiction over out-of-state corporate defendants.
Authors: Atif Khawaja
12/15/2017 - Alert
Kirkland & Ellis LLP
Washington’s New Asia Map: Five International Risk Themes to Watch
State visits are usually long on pageantry and short on substance — boardrooms can be forgiven for paying little attention to them. However, President Trump’s recent visit to Asia comes at a different time: the U.S.-China bilateral relationship is under stress; a crisis on the Korean peninsula continues to confound the U.S. and its allies; and the U.S. is trying to reinvigorate a “free and open Indo-Pacific” amid some skepticism of its long-term economic commitment to the region.
12/14/2017 - Alert
Kirkland & Ellis LLP
SEC Chairman Issues Statement on Cryptocurrencies and Initial Coin Offerings
On December 11, 2017, U.S. Securities and Exchange Commission Chairman Jay Clayton issued a statement expressing his general views on cryptocurrencies and initial coin offerings (ICOs) as they relate to market professionals, including broker-dealers, investment advisers, lawyers and accountants.
12/12/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 12, 2017
This issue includes the article "Indemnification Claims — Follow the Letter of the Contract," which discusses a number of recent Delaware decisions highlighting how courts expect buyers and sellers to strictly adhere to procedural requirements in disputes over indemnification claims.
12/12/2017 - Article
Bloomberg Law's Corporate Law & Accountability Report
Sanctions Year in Review
Mike Casey, Zach Brez and Kim Nemirow authored an article regarding significant developments with respect to sanctions policy and enforcement over the past 12 months.
12/11/2017 - M&A Update
Kirkland & Ellis LLP
Indemnification Claims – Follow the Letter of the Contract
Purchase agreements typically include fairly elaborate provisions addressing the step-by-step process of how a buyer can pursue an indemnification claim against a seller for breaches of the terms of the sale. A number of recent Delaware decisions highlight how courts expect parties — both buyers and sellers — to strictly adhere to those terms in the event of a dispute over an indemnification claim or risk losing their right to pursue or defend the claim.
12/11/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 11, 2017
This issue includes the article, "Private Fund Manager Settles with SEC for Alleged Compliance Failures Involving Employee Sharing Confidential Information with Spouse," which discusses a recent SEC settlement that serves as a reminder that an investment adviser's duty to supervise includes taking "sufficient," and not just any, steps to prevent the recurrence of violations of compliance policies and procedures.
12/5/2017 - Alert
Kirkland & Ellis LLP
DOJ Solidifies and Sharpens FCPA Enforcement Guidance
On November 29, 2017, the U.S. Department of Justice (“DOJ”) released a new enforcement policy for cases brought under the U.S. Foreign Corrupt Practices Act (“FCPA”), the primary U.S. law governing bribery of foreign government officials.
12/5/2017 - Article
Bloomberg Law's Corporate Law & Accountability Report
Unstacking and Unpacking U.S. Economic Sanctions Targeting Russia: Increasing Complexity and Uncertainty for U.S. Companies
Mario Mancuso, Sanjay Mullick and Josh Thompson authored an article regarding key concepts of major U.S. Russia sanctions regulations and the status of U.S.-Russia relations.
November/December 2017 - Article
The M&A Lawyer
Managing Foreign Investment Clearance Risk in Cross-Border Deals
Mario Mancuso, Anna Schwander, Luci Hague and Kristin Beharry authored this article regarding proposed CFIUS reforms.
11/29/2017 - Article
IFLR
US ponders complement to Cfius regime
Mario Mancuso, Boyd Greene and Luci Hague authored an article regarding newly proposed legislation that aims to broaden the power and scope of CFIUS, and related takeaways for boards and investors to consider.
11/27/2017 - Article
Law360
Mastermine, Mixed Claims And Ways To Avoid Indefiniteness
Joe Loy and Justin Bova authored an article regarding the issue of indefiniteness for mixed claims.
November 27, 2017 - Article
New York Law Journal
Through the Looking Glass: Transparency in Arbitration Costs and Costs Allocation
Javier Rubinstein, Lucila Hemmingsen and Jonathan Levin discuss the new London Court of International Arbitration report, which compares costs of cases administered by the LCIA between Jan. 1, 2013 and Dec. 31, 2016 with an estimate of the costs for those same cases had they been administered by competing institutions that use ad valorem cost calculation methods.
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.
11/13/2017 - 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.
10/13/2017 - 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 - Article
Law360
2 Pillars Of Commonsense Reform
Norm Champ authored an article regarding regulatory changes to consider ahead of future market disruptions.
Authors: Norm Champ P.C.
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.
9/15/2017 - Article
New York Law Journal
Hitting a Moving Target: Why Brick and Mortar Retail Is Alive and Well
Josh Sussberg, Chris Greco and Patrick Venter authored an article regarding opportunities for traditional retailers to succeed in a difficult industry and legal environment.
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.
9/11/2017 - Article
Life Sciences Intellectual Property Review
The road ahead: potential challenges facing CRISPR/Cas patents
Pat Carson and Ashley Ross authored an article regarding IP protection for CRISPR-related inventions.
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.
9/5/2017 - Article
Law360
My Supreme Court Debut: Inspiration From Eminem
Erin Murphy authored an article regarding her first time arguing before the U.S. Supreme Court.
Authors: Erin E. Murphy
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.
8/7/2017 - 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 - Article
Law360
Software IP — It's Not Just For Tech Cos. Anymore
Josh Simmons authored an article regarding software protection strategy.
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.
6/6/2017 - 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.
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.
March 2017 - Article
Thomson Reuters Westlaw
The effects of the Trump Administration on international trade: three days in the life of a Washington, DC international trade lawyer
Joanna Ritcey-Donohue authored an article regarding international trade under the Trump administration.
1/6/2017 - Article
Commercial Dispute Resolution
Litigation damage limitation
Lauren Casazza discussed the ever-increasing need for litigation crisis management.
11/8/2016 - Article
Thomson Reuters Practical Law Arbitration Blog
Standard Chartered Bank v TANESCO: contractual ICSID case calls finality of ICSID decisions into question
Richard Boynton and Philipp Kurek authored an article regarding the question of whether a tribunal can reconsider its previous decisions.
Authors: Richard Boynton
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