"One can say without exaggeration that this past year was probably the most dynamic single year in the more than thirty years since the FCPA was enacted." So began Assistant Attorney General Lanny Breuer in a recent recap of 2009 Foreign Corrupt Practices Act ("FCPA") enforcement. Indeed, for the fourth time in the last five years, the Department of Justice ("DOJ") and Securities and Exchange Commission ("SEC"), the statute's dual enforcers, set a record by bringing more FCPA prosecutions than in any prior year in the FCPA's history. Foreign anti-corruption prosecutions also have reached unprecedented levels. Once an erratic enforcement priority, combating international corruption has now garnered attention at the highest leve
January 4, 2010
On December 21, 2009, the Securities and Exchange Commission issued a proposed amendment to paragraph (c) of Rule 163 under the Securities Act of 1933, as amended.
January 4, 2010
The Securities and Exchange Commission (the "SEC") recently announced that it is re-opening the comment period for its June 2009 proposal regarding shareholder access to company proxy materials for director nominations (also known as "proxy access"). The SEC's proposed rules, if adopted, would establish a federal proxy access right and permit proxy access shareholder proposals in company proxy materials. The SEC is re-opening the comment period to allow interested persons to comment on additional data and analyses that were submitted on or after the close of the original comment period. In particular, the SEC is seeking comments on the four reports summarized below.
December 22, 2009
On December 21, 2009, President Obama signed the 2010 Defense Appropriations Act. Among other things, the Act extends the eligibility period for the COBRA premium subsidy from December 31, 2009 to February 28, 2010 and expands the maximum duration of the subsidy from 9 to 15 months. The longer subsidy period applies retroactively and will require plan administrators to provide a supplemental notice to affected individuals.BackgroundThe COBRA subsidy initially was included in The American Recovery and Reinvestment Act of 2009 (commonly known as the stimulus bill) and provided a temporary COBRA premium subsidy for employees who lost health plan coverage between September 1, 2008 and December 31, 2009 due to involuntary terminations of employment. Our February 24, 2009
December 22, 2009
Document preservation is one of the earliest and most important stages of document discovery. As federal courts continued to issue a steady flow of decisions in 2009 addressing the topic of document preservation and providing guidance to preserving parties, mastering the basic principles of document preservation is more important than ever.
December 22, 2009
Pending legislation could significantly increase the legal risks faced by foreign contractors doing business with the U.S. Government. On March 4, 2009, Senator Claire McCaskill (D-MO) introduced S.
December 21, 2009
At an open meeting held on December 16, 2009, the Securities and Exchange Commission ("SEC") approved a set of proposed rules to enhance the information provided to shareholders in company proxy statements regarding a number of risk oversight, compensation, board leadership and composition and other corporate governance matters. The SEC approved the final rules by a 4-to-1 vote, with Commissioner Kathleen Casey dissenting. The SEC released the text of the final rules on the same date they were adopted, with the 129 page adopting release available here. The new rules have an effective date of February 28, 2010, except that a rule change on how equity awards are reported in the Summary Compensation Table applies to all companies with fiscal years ending after Dece
December 16, 2009
New York associate Farrah Pepper is the author of "To Have and to Hold: A Romantic Guide to Document Preservation" [PDF] published online by ALM on December 16, 2009 at law.com.
December 16, 2009
The Weapon Systems Acquisition Reform Act of 2009 (WSARA) was signed into law by President Obama on May 22, 2009. Section 207 of WSARA requires the Secretary of Defense to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to "provide uniform guidance and tighten existing requirements for organizational conflicts of interest by contractors in major defense acquisition programs." The Department of Defense (DoD) will likely issue a proposed rule on organizational conflicts of interest (OCI) sometime during the coming months.
December 15, 2009
In his presentation of Pre-Budget Report -- Securing the Recovery: Growth & Opportunity (PBR), released on Wednesday, the UK's Chancellor of the Exchequer, Alistair Darling, unveiled a one-off "bank payroll tax" of 50 per cent on bank bonus payments which takes effect immediately and runs (unless extended!) until 5 April 2010.In the 216 page report, HM Treasury proudly notes that the UK has been at the forefront of international financial regulatory reform through its Presidency of the G20.
December 11, 2009
Recent Developments, Including the Draft Regulations Proposing to Eliminate the Safe Harbors, Could Increase the Number of Lawsuits Brought Against For-Profit SchoolsThis is our first of what we anticipate to be periodic communications regarding developments or issues relating to fraud investigations or lawsuits involving for-profit providers of post-secondary education. Unfortunately for the industry, over the past several years there have been a large number of False Claim Act (qui tam) lawsuits brought against for-profit schools. Because we have substantial experience handling these sorts of lawsuits (and all of the related issues), we thought it would be helpful to share with you our thoughts and analyses regarding issues that we believe are relevant to the industry.
December 10, 2009
On November 20, 2009, the United States Court of Appeals for the Second Circuit issued a decision reversing summary judgment for a financial services firm in a wage and hour action filed under the Fair Labor Standards Act ("FLSA"). Whalen v. J.P.
December 9, 2009
New York partner Mark K. Schonfeld is the author of "Courting Cooperators: The SEC's Effort to Motivate Individual Cooperation" [PDF] published in the December 9, 2009 issue of BNA's Corporate Counsel Weekly.Reproduced with permission from Corporate Counsel Weekly Newsletter, 24 CCW 376(Dec.
December 9, 2009
December 2009 The fifth issue of Gibson, Dunn & Crutcher's Environmental News: Climate Change newsletter is now available. We hope you will find this periodic briefing on recent legal developments concerning climate change and greenhouse gas emissions informative.
December 8, 2009
Gibson, Dunn & Crutcher is closely tracking key legislative matters as the first session of the 111th Congress draws to a close. This update focuses on H.R.
December 8, 2009
Recognizing that "financial institutions face significant challenges when working with commercial real estate ("CRE") borrowers that are experiencing diminished operating cash flows, depreciated collateral values, or prolonged sales and rental absorption rates," recently, members of the Federal Financial Institutions Examination Council ("FFIEC") (collectively, the "Regulators") adopted a new policy (the "Policy") that advocates the prudent workout of CRE loans. The purpose of the Policy is threefold--(1) to promote consistency among examiners responsible for evaluating financial institutions' efforts to renew or restructure loans; (2) to enhance the transparency of CRE workout transactions; and (3) to ensure that supervisory po
December 7, 2009
On November 19, 2009, RiskMetrics Group (RiskMetrics), a leading proxy advisory firm, released its U.S. and international corporate governance policy updates for the 2010 proxy season. Please see the U.S.
December 7, 2009
In late 2009, a California appellate court reaffirmed longstanding California law that limits the fiduciary duties directors owe to creditors and rejected extending fiduciary duties to creditors during the corporation's vague zone of insolvency.
December 7, 2009
On November 25, 2009, the Securities and Exchange Commission ("SEC") approved amendments to the corporate governance listing standards of the New York Stock Exchange ("NYSE"). The changes will take effect on January 1, 2010. As discussed in more detail below, the amendments, which the SEC approved in the form proposed in the NYSE's original release: (1) codify certain staff interpretations, (2) clarify various disclosure requirements, and (3) incorporate applicable SEC disclosure requirements into the NYSE listing standards. Because most of the amendments conform the NYSE listing standards to existing SEC rules, or are of a clarifying or updating nature, they should necessitate only minimal changes to a listed company's governance practices and disclos
December 4, 2009
Orange County partner Teresa J. Farrell and associate J.R. Sechrist are the authors of "Is There a Receiver in Your Life?" [PDF] publihsed in the December 2009 issue of Orange County Business Journal.
December 2, 2009