Developments from the SEC’s Advisory Committee on Small and Emerging Companies
May 2013
Louis Goldberg
Public Company Alert

Dodd-Frank Brings Regulatory Change to Investment Advisers
May 13, 2013
Patrick D. Sweeney, Matthew H. Kunkes
New York Law Journal
Patrick Sweeney, a corporate partner at Herrick, Feinstein and Matthew Kunkes, a corporate associate, were featured in the May 13, 2013 Financial Reform Special Section of the New York Law Journal. Their article addresses the regulatory impact  of Dodd-Frank on investment advisers and discusses changes emanating from Dodd-Frank's Title IV, the "Private Fund Investment Adviser Registration Act of 2010."

CFTC and SEC Jointly Adopt Identity Theft Red Flags Rules
May 2013
Irwin A. Kishner, Irwin M. Latner, Patrick D. Sweeney
Investment Adviser Alert

Corporate Alert: Protection Measures Found to Not Impermissibly Lock-up Transaction; Court Imposes Extreme Remedy for Failure to Produce Books and Records; SEC Provides Guidance on Unregistered Broker-Dealer Online Crowdsourcing Platforms; Proposed Legislation Facilities Use of Tender Offers in Transactions; SEC Issues Guidance Regarding Prohibition on Personal Loans
April 2013
Irwin A. Kishner, Daniel A. Etna
Corporate Alert

Impact of JOBS Act On 3rd-Party Marketers
April 3, 2013
Richard M. Morris
Law360
Richard M. Morris authored an article for the Expert Analysis section of Private Equity and Securities Law360 about how the JOBS Act, which was passed in April 2012, will likely change the business of third-party marketers by expanding the scope of permitted promotional activities in connection with offering investments in hedge and private equity funds.

Corporate Alert: Court Bolsters Limits on Director Liability; Reverse Triangular Merger Is Not An Assignment; Court Enjoins Board from Resisting Hostile Consent Solicitation; Consent of Shareholder is Invalid if Corresponding Exhibit Not Provided; Court Rules Statute of Limitations Starts Running Upon Occurrence of Fraud; Revised Uniform Limited Liability Company Act
March 2013
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Market Trends, Legal Developments, and Their Effect on M&A Documentation
2013
Irwin A. Kishner
Mergers and Acquisitions Law 2013: Top Lawyers on Trends and Key Strategies for the Upcoming Year
Irwin Kishner authored the chapter "Market Trends, Legal Developments, and Their Effect on M&A Documentation" for the book Mergers and Acquisitions Law 2013: Top Lawyers on Trends and Key Strategies for the Upcoming Year, published byThomson Reuters/Aspatore. 

Corporate Alert: NJ Enacts Angel Investor Tax Credit, Bank Found Not Guilty For Failing to Detect Fraud, Court Refuses to Dismiss Claims against Directors for Foreign Operations, Court Dismisses Corporate Waste Claim, Court Rules Board Conflict of Interest Insignificant in Merger Transaction, Short-Swing Profit Rule Inapplicable to Purchase and Sale of Different Series of Stock
February 2013
Irwin A. Kishner, Daniel A. Etna
Corporate Alert

Corporate Alert: "Don’t Ask, Don’t Waive” Provisions Not Prohibited; FTC Increases Thresholds; Court Imposes Fiduciary Duties; FINRA Issues Interim Form; Director’s Request Denied; Court Reaffirms Section 211 Requirement; Dept. of Justice Challenges Acquisition
January 2013
Edward B. Stevenson, Irwin A. Kishner

Corporate Alert: Court Enjoins "Don't Ask, Don't Waive" Provision; Regulation FD and Social Media; Court Upholds "Big Boy" Agreement; Court Upholds Non-Disclosure of Projections; Court Finds Manager of LLC Violated Fiduciary Duties; New Law Brings Changes to NJ LLCs
December 2012
Irwin A. Kishner, Daniel A. Etna
Corporate Alert

Corporate Alert: Court Addresses Waivers of General Partners’ Duties; Director Violates Duty of Loyalty; Court Rejects Stockholder Demand; Court Stresses Use of Corporation Law To Obtain Books; CFTC Issues Guidance on Energy Contracts
November 2012
Irwin A. Kishner, Edward B. Stevenson
Corporate Alert

Corporate Alert: Court Finds Breach of Duty of Loyalty by Director; Court Applies Contractual Analysis to Preferred Stock Claim; H-S-R Act Settlement Highlights Availability of Exemption; Popular M&A Structure Could Trigger Act Prohibitions; Obama Cites National Security Considerations to Block Chinese Investment; Business Dispute Arbitration Statute Ruled Unconstitutional
October 2012
Irwin A. Kishner, Daniel A. Etna

New FINRA Filing Requirement for Private Placements
October 2012
Irwin M. Latner, Patrick D. Sweeney, David A. Pentlow
Private Fund Alert

Corporate Alert: SEC Proposes to Eliminate Prohibition on General Solicitation and Advertising in Securities Offerings; SEC Implements New "Conflict Minerals" Disclosure Requirements; Court Refuses to Read Implied Covenant of Good Faith and Fair Dealing; SEC Approves New FINRA Rule 5123; Court Applies Business Judgment Rule; Court Dismissed Ultra Vires Claim
September 2012
Irwin A. Kishner, Edward B. Stevenson
Corporate Alert

Second Circuit Expands SEC's Reach in Charging Aiding and Abetting Securities Fraud
August 2012
Therese M. Doherty, Arthur G. Jakoby, Philip W. Raimondi
Securities Alert

Corporate Alert: Court Rules NDA "Use Restrictions" May Limit Pursuit of Alternative Opportunity; Court Finds No Obligation to Disclose Wells Notice; Court Decision Highlights Importance of Provisions; Court Affirms Promissory Note Exchange; FTC Changes Policy; FASB Seeks Comment on Private Company GAAP
August 2012
Irwin A. Kishner, Daniel A. Etna
Corporate Alert

Corporate Alert: SEC Adopts Comp. Committee Independence Rules, Delaware Supreme Court Upholds Violation of Confidentiality as Basis for Delaying Offer, U.S. Court Rules on Section 16 Liability, Delaware Court Imposes No General Fiduciary Duty to Minimize Taxes, Delaware Chancery Court Adheres to the Objective Theory of Contracts, NY Court of Appeals Rejects Lawsuit Against Barclays
July 2012
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Federal Court Sides with SIPC in Dispute with SEC, Rejecting SEC's Bid to Force SIPC to Cover Losses of Stanford Ponzi Scheme Victims
July 2012
Howard R. Elisofon, Steven D. Feldman, Jonathan L. Adler
Securities Alert

Corporate Alert: JOBS Act Creates "IPO On-Ramp"; Court Indicates that the Combination of No Shop Provisions and Don't-Ask-Don't-Waive Standstills May Constitute a Breach of Fiduciary Duties; Court Looks to Plain Meaning of Company's Charter to Define "Liquidation Event"; Court Upholds Confidentiality Agreements and Enjoins Hostile Bid
May 2012
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Corporate Alert: JOBS Act Signed into Law; Public Companies Gravitate Toward Lead Directors; Court Subjects Cash-out Merger; Court Limits Reach of State Antitrust Law; California Transparency in Supply Chains Act; Court Refuses to Toll Statute of Limitations
April 2012
Irwin A. Kishner, Daniel A. Etna
Corporate Alert

Corporate Alert: House Passes JOBS Act; Court Analyzes "§220" Demand; SEC Tightens Qualified Client Standard; Court Addresses CEO's Indemnification Claim; Court Defines Transactions Subject to the Anti-fraud Provisions of the Exchange Act; Court Refuses to Enjoin Merger; Court Analyzes Whether Controlling Stockholder, Chairman and CEO May Have Violated Contractual and Fiduciary Duties
March 2012
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Securities Update - SEC Cooperation Initiative
March 2012
Therese M. Doherty, Arthur G. Jakoby
Securities Alert

Public Company Perspectives
January 2012
Stephen E. Fox, Irwin A. Kishner

Corporate Alert: Court Holds LLC Managers Owe Fiduciary Duties, Court Addresses Doctrine of Corporate Opportunity, New York Authorizes Benefit Corporations, SEC Staff Issues Global No-Action Relief From Exchange Act Registration, NYSE Limits Discretionary Voting by Brokers, FTC Raises Hart-Scott-Rodino Act Thresholds
February 2012
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: New York Court of Appeals Rejects Martin Act Preemption; Court Enjoins an Annual Stockholder Meeting; SEC Brings 10b-5 Enforcement Action Against Private Company and Former Executive; Court Decision Enforces "No-Action" Clause under New York Law; New Jersey Trade Secrets Act Becomes Law; Federal Small Business Programs are Reauthorized
January 2012
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Corporate Alert: IPO Underwriter Found Not to Owe Fiduciary Duty to Issuer; Delaware Court Rules Against Stock Redemption; Delaware Court Finds Release Bars Claims; Delaware Court Applies Step Transaction Doctrine; California Corporate Officers Not Covered; SEC Amends Accredited Investors Net Worth Standard; Senators Propose Plan to Facilitate Capital Formation
December 2011
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: What Constitutes a Breach of an Agreement to Negotiate in Good Faith?; Transaction Fails Entire Fairness Doctrine; Delaware Court  Declares Directors Can Lose Independence if Intimidated to Act; Delaware Court Denies Appraisal Rights; SEC Approves Tougher Standards for Companies Going Public Through Reverse Mergers
November 2011
Edward B. Stevenson, Irwin A. Kishner

Public Company Perspectives
November 2011

Reporting By Investment Advisers to Private Funds and Certain Commodity Pool Operators and Commodity Trading Advisors on Form PF
November 2011
Irwin M. Latner, Patrick D. Sweeney, Irwin A. Kishner
Dodd-Frank Alert

Corporate Alert: Court Allows Insurers to Contest Policies, SEC Studying Crowdfunding, Court Disqualifies Vote of Preferred Stock, Court Addresses Bond Indenture Asset Disposition Covenant, Court Shows Flexibility, Court Rules in Favor of Investor, Court Refuses to Second Guess Compensation Decisions, SEC Declines to Challenge Access Decision
October 2011
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: NYSE Seeks to Tighten Rules for Reverse Mergers, Delaware Court of Chancery Upholds Transfer of Voting Interests, Second Circuit Addresses Economic Duress Claim Against Lender, Delaware Supreme Court Says No To Creditor Derivative Suits, IRS Proposes Regulations Regarding Performance-Based Compensation Exemption
September 2011
Irwin A. Kishner, Edward B. Stevenson

Inside the Minds: M&A Deal Strategies, 2011 Edition
2011
Irwin A. Kishner
Irwin Kishner and Brooke Crescenti co-authored the chapter "M&A Deals in a Recovering Economy: Key Concerns and Strategies" in the 2011 edition of Inside the Minds: M&A Deal Strategies.

Corporate Alert: General Release Trumps Minority Shareholder Fraud Claim; "Short Swing" Profit Issue of First Impression; Cease and Desist Order in Social Media Crowdfunding Venture; NJ WARN Act; Federal Bankruptcy Court in DE Extends Federal WARN Act Liability Beyond Employer; New Large Trader Reporting Requirements; FTC Changes to HSR Form; D.C. Circuit Vacates SEC's "Proxy Access" Rule
August 2011
Irwin A. Kishner, Daniel A. Etna

Public Company Perspectives
August 2011
Stephen E. Fox, Irwin A. Kishner

Corporate Alert: SEC Adopts Rule Defining "Family Offices"; Supreme Court Limits Scope of Persons Liable for Securities Fraud; SEC Adopts Rules for Venture Capital Exemption; Delaware Supreme Court Upholds Disgorgement; Enactment of the UK Bribery Act; SEC Amends Political Contribution Rules; Delaware Chancery Court Applies Derivative Requirement
July 2011
Edward B. Stevenson, Irwin A. Kishner

Very Much Ado About....Nothing: An Analysis of the Impact of American Needle v. NFL on Collective Bargaining and Merchandising in Professional Sports
Spring 2011
Irwin A. Kishner, Julie Albinsky
American Bar Association's Entertainment and Sports Lawyer
Irwin Kishner and Julie Albinsky co-authored "Very Much Ado About....Nothing: An Analysis of the Impact of American Needle v. NFL on Collective Bargaining and Merchandising in Professional Sports."  The article examines the practical impact of the Supreme Court's decision in American Needle v. NFL, refusing to grant the NFL blanket "single entity" status and therefore immunity from Section 1 of the Sherman Antitrust Act.

Corporate Alert: Del. Chancery Court Applies Revlon Standard, Del. Chancery Court Refuses to Enjoin Cash Tender Offer, SEC Adopts Rules Implementing Whistleblower Provisions, SEC Enters into First Deferred Prosecution Agreement, New Listing Option for Smaller Companies, FTC Issues Statement on Use of Escrow Arrangements
June 2011
Irwin A. Kishner, Daniel A. Etna

Financial Reform in the United States: The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
January 2011
Stephen D. Brodie
Juriste International
Steve Brodie wrote the Juriste International article "Financial Reform in the United States", in which he discusses major changes brought about by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

Corporate Alert: Court Considers Reverse Triangular Merger, Court Test for Aggregating a Series of Transactions, Court Guidance Regarding a Seller of Good Will Soliciting, Court Reaffirms Preferred Stockholder Rights, SEC Considers Extending Deadline, Court Enjoins Shareholder Vote, Massachusetts Proposes Regulation on Use of Expert Networks
May 2011
Edward B. Stevenson, Irwin A. Kishner

Corporate Alert: New Guidance on Materiality Standard, Delaware Chancery Court Clarifies Rights to Books and Records, SEC Proposes Rules on Compensation Arrangements, Delaware Chancery Court Provides Guidance on Top-Up Options, Delaware Chancery Court Rules Board of Directors Has Power to Defeat an Inadequate Tender Offer, Supreme Court Rules Against Privacy Rights
March 2011
Edward B. Stevenson, Irwin A. Kishner

Corporate Alert: SEC Issues Rules on "Say-on-Pay" and "Say-When-Pay", SEC Proposes Amendment to Net Worth Standard, Bill Introduced in NY Senate, DE Court Refuses to Dismiss Failed Merger Claims, DE Court Refuses to Dismiss Claim, DE Supreme Court Clarifies Enforceability of Forum Selection Clauses, City of New York Concludes Seeking Investments from Pension Funds is Lobbying
February 2011
Irwin A. Kishner, Daniel A. Etna

When Raising Funds, Silence Can Be Golden
January 2011
Richard M. Morris
Private Equity & Hedge Fund Alert

Labor Unrest in the NFL — What It Means for Sponsors, Television Partners and Licensees
February 11, 2011
Irwin A. Kishner, Matthew Pace
Sports Litigation Alert
Irwin Kishner, Matthew Pace and Rick Torres opine that a football strike or lockout would create potential problems for sponsors, broadcast partners and licensees. The article points out that creative materials are developed months in advance of their launch, meaning that sponsors must decide whether to invest time and money into creating and developing the materials, without knowing whether the next football season will be played as scheduled, delayed or cancelled entirely. Licensees, meanwhile, pay advances against royalties, and if the games aren't played, revenues from licensed merchandise will drop sharply.

SEC Proposes Dodd-Frank Whistleblower Rules
December 2010
Irwin M. Latner, Patrick D. Sweeney
Dodd-Frank Alert

Corporate Alert: Del. Supreme Court Reverses Ruling, Del. Chancery Court Rules Merger Agreement Binds Stockholders, SEC Brings Enforcement Action, Second Circuit Rules Executives May Not Be Indemnified, Del. Supreme Court Recognizes Right to Obtain Identities of Partners, Del. Chancery Court Provides Guidance on Letter of Intent, Del. Chancery Court Addresses Implied Covenant
December 2010
Irwin A. Kishner, Daniel A. Etna

Dodd-Frank Wall Street Reform Outline
Irwin M. Latner, Stephen D. Brodie, Patrick D. Sweeney, Julie Albinsky, Jessica D. Wessel
This outline, a briefing on the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, was used during the Fourth Annual Capital Markets Symposium on September 16, 2010.

Corporate Alert: Reasonableness of Merger Termination Fee Analyzed, Fiduciary Duty Not A Defense To Breach of Exclusivity Provision, Delaware Court Speaks to Judicial Dissolution of LLCs, Delaware Court Bars Creditors' Derivative Claims Against Insolvent LLC, Claims Barred on Behalf of a Corporation Against Outside Advisors in Corporate Frauds
November 2010
Edward B. Stevenson, Irwin A. Kishner
Corporate Alert

Protecting the Value of Employer-Owned Life Insurance
November 2010
Irwin A. Kishner, Fred R. Green, Gary Young
ERISA Alert

SEC Proposes “Family Office” Definition
November 2010
Irwin M. Latner, Patrick D. Sweeney, Richard M. Morris
Hedge Fund and Private Equity Fund Alert

Corporate Alert: Court Upholds NOL Poison Pill, Court Invalidates Poison Pill, Courts Affirms Validity of Bylaw Accelerating Annual Meeting of Stockholders, LLC Members Can Contract Away Obligation to Act Reasonably, Court Refuses to Second Guess Board Decision, SEC Amends Reporting Rule of Non-Accelerated Filers, MD&A Disclosure
October 2010
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: New Jersey Appellate Division Clarifies Scope of Shareholders' Inspection Rights; FTC Revises Horizontal Merger Guidelines; LLC Manager's Investment Not an "Investment Contract"; Delaware Supreme Court Addresses Standing Issues in Double Derivative Claims; Expanded Securities Fraud Liability for Fund Managers; The Benefit of Taking Dividends in 2010
September 2010
Edward B. Stevenson, Irwin A. Kishner

Corporate Alert: Stockholder Rights Plan Reaffirmed; Officers May Need To Reimburse Payments Received During Periods Later Restated; Law Firm Not Exempt from Broker-Dealer Registration; Duties Owed to Preferred Stockholders Rights Are Contractual, Not Fiduciary; Delaware Adds New Short-Form Merger Statute; SEC Recommends Life Settlements be Defined as Securities
August 2010
Irwin A. Kishner, Daniel A. Etna

The New Brochure Rules Adopted by the SEC
August 2010
Irwin M. Latner, Patrick D. Sweeney
Investment Adviser Alert

Corporate Alert: Limits Application of Federal Securities Laws Abroad; PCAOB Ruled Constitutional; Concept Release on the U.S. Proxy Statement; NASDAQ Clarifies Noncompliance Reporting Rules and Proposes Amendments; Lender Ability to Rely on Borrower Representations in Loan Agreements
July 2010
Irwin A. Kishner, Edward B. Stevenson

Recent Changes to "Accredited Investor" Standard
July 2010
Irwin M. Latner, Patrick D. Sweeney
Hedge Fund and Private Equity Fund Alert

Impact of New Financial Reform Legislation
July 2010
Irwin M. Latner, Patrick D. Sweeney
Hedge Fund and Private Equity Fund Alert

SEC Adopts "Pay to Play" Rule For Investment Advisers, Their Principals and Key Employees
July 2010
Irwin A. Kishner, Patrick D. Sweeney, Richard M. Morris
Investment Adviser Alert

Corporate Alert: NFL Teams’ Licensing JV Engaged in Concerted Action; American Jobs and Closing Tax Loopholes Act; Standards Governing Controlling Stockholder Tender Offers; New FINRA Guidance on Regulation D Private Placements; Guidance for Public Companies Regarding Forward-Looking Statements Safe Harbor; Merger Settlement; Out-of-Pocket Rule as Measure of Damages
June 2010
Irwin A. Kishner, Daniel A. Etna

What the Private Fund Investment Act of 2010 Means for You
June 2010
Irwin M. Latner, Patrick D. Sweeney
Hedge Fund Alert

Use New Prosecution Guidelines to Protect Your Company
June 2010
Steven D. Feldman, Avery S. Mehlman
White Collar Defense Alert

Corporate Alert: Revlon Duties Apply to Issuance of Notes Convertible Into a Controlling Interest; "Benefit Corporation” Legislation; Implied Covenant of Good Faith and Fair Dealing; Statute of Limitations in Securities Fraud Actions; Increases Filing Fees for 2011; ERISA Fiduciary Retains Deference; IRS Asking Employers to Answer 401(k) Questionnaire
May 2010
Irwin A. Kishner, Edward B. Stevenson

Corporate Alert: Interests Between Common and Preferred Stock Holders; “Principal Place of Business”; New Rules on Asset-Backed Securities; Improper Transfer of Shares; Special Litigation Process; Excessive Investment Advisory Fee Liability; WARN Act; NASDAQ’s Modifications of Press Release Requirements
April 2010
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Limitations of Fiduciary Duties in LLC Agreements Must Be Clear and Unambiguous, When is a Financing Term Sheet a Binding Agreement to Lend?, Massachusetts Data Security Regulation will Affect National Businesses, Delaware Court of Chancery Reviews Use of NOL Poison Pills, Interpretation of “Stockholder of Record” May Include Banks and Brokers
March 2010
Irwin A. Kishner, Edward B. Stevenson

Label with Care
March 2010
Food & Beverage Alert

Corporate Alert: One Word Says It All, Minority Shareholder’s Rights, New Arbitration Rules, Letter of Intent Binding, Trust Agreement Dispute, “Bet the Company” Transactions, Preliminary Merger Negotiations, Climate Change Disclosure, HSR Act, New Excise Tax
February 2010
Irwin A. Kishner, Daniel A. Etna

IRS Issues Section 409A Document Correction Program
February 2010
Fred R. Green, Irwin A. Kishner, Gary Young
Compensation Alert

Impact of Recent Amendments to SEC’s Custody Rule
February 2010
Irwin M. Latner, Patrick D. Sweeney
Investment Adviser Alert

Corporate Alert: Additional Remedies for Breach of Merger Agreement; Oral LLC Operating Agreements Subject to Statute of Frauds; New SEC Disclosure Rules for Proxy Solicitations, Annual Reports and Registration Statements; Corporate Proprietary Information at Risk for International Travelers; SEC Proposal Aims to Facilitate Issuer Access to Capital Markets
January 2010
Irwin A. Kishner, Edward B. Stevenson

DOJ Cracking Down on Foreign Dealings
January 2010
Steven D. Feldman
FCPA Alert

Corporate Quick Hit: Engagement Letter Claim; Legislation to Tax Carried Interests as Ordinary Income; Revlon Duties in Cash/Stock Mergers; G Enforcement Action; Judicial Dissolution Guidance; Heightened Review Standard to Merger; Commodity Pool Operators; Employment Verification Law; Financial Stability Improvement Act of 2009
December 2009
Irwin A. Kishner, Daniel A. Etna

A Rumor vs. Insider Trading—A Line You Don’t Want to Cross: Distinctions Financial Professionals Need to Know
November 2009
Steven D. Feldman
Securities Alert

Corporate Alert: Board Can Breach Fiduciary Duties by Improperly Favoring Preferred Stockholders; Director’s Duty to Disclose Wrongdoing When Negotiating a General Release; US Court of Appeals: Unauthorized Transfer of Software License by Merger Constitutes Copyright Infringement; SEC Votes to Regulate Dark Pools
November 2009
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: “Say on Pay” Policy; Sarbanes-Oxley “Claw back” Enforcement Action; Enforcing Regulation FD; Duty of Loyalty Standard; New Exchange Rules for Breaking Erroneous Stock Trades; Life Settlement Securitization; Final Stage of Sarbanes-Oxley Act; Pending Bill: Fund Managers to Register as Investment Advisors
October 2009
Irwin A. Kishner, Daniel A. Etna

A Forecast of M&A Activity Within the Asset Management Industry
2009
Irwin A. Kishner, David R. Hoffman
Financier Worldwide's, "Executing Deals in Economic Downturn"
Irwin Kishner and David Hoffman co-author the article, "A Forecast of M&A Activity Within the Asset Management Industry" in Financier Worldwide’s 2009 International Mergers & Acquisitions e-book entitled "Executing Deals in Economic Downturn."

Corporate Alert: Court Rejects Rating Agencies’ Reliance on First Amendment Protection in Investment Collapse Suit; SEC Investor Advisory Committee Announces Formation of Subcommittees; Can a Company Sue a Director of Its Subsidiary for Wrongdoing?; SEC and CFTC Conduct Joint Meetings on Regulation Harmonization; SEC Proposes Ban on Flash Orders—Update
September 2009
Irwin A. Kishner, Edward B. Stevenson

Reminder: Deadline for Filing Claims Against Lehman Brothers Debtors is September 22, 2009
September 2009
Lehman Alert

Final FDIC Regulations for Failed Bank Acquisitions: What's in Store for Private Equity Investors
September 2009
Richard M. Morris, Irwin A. Kishner, John A. Rogers Jr.
Private Equity Alert

Corporate Quick Hit: Directors Duties In a Sale of Control Transaction;“Flash Orders”; “Pay to Play” Practices by Investment Advisers; Division of Enforcement; First “Naked” Short Selling Enforcement Action; Advancement of Legal Expenses and Indemnification Rights; Recent Amendments to the Delaware General Corporation Law
August 2009
Irwin A. Kishner, Daniel A. Etna

Recent Amendments to the Delaware General Corporation Law
August 2009
Irwin A. Kishner, Daniel A. Etna

Caveat Emptor, Seller and Auctioneer When Sports Memorabilia Is for Sale
August 14 , 2009
Irwin A. Kishner, Liliana Chang
Sports Litigation Alert
Irwin Kishner—with assistance from summer associate Liliana Chang—authored the article “Caveat Emptor, Seller and Auctioneer When Sports Memorabilia Is for Sale,” in which he advises buyers, sellers, auctioneers and collectors of sports and entertainment memorabilia that dealing with large, reputable dealers and auctioneers helps minimize the risk of trading forgeries and items of questionable provenance.

Executive Compensation Plans –Time To Please Uncle Sam
August 2009
Richard M. Morris, Irwin A. Kishner
Compensation Alert

Corporate Alert: SEC Acts to Improve Corporate Governance and Enhance Investor Confidence; Federal Legislation Addresses “Say on Pay” and Compensation Committee Independence; Delaware Court of Chancery Penalizes LLC for Misdeeds of its Member; Supreme Court to Review Availability of ‘Class Action Arbitration’ Where Contract is Silent
July 2009
Irwin A. Kishner, Edward B. Stevenson

The Private Fund Investment Advisers Registration Act of 2009
July 2009
Irwin M. Latner, Patrick D. Sweeney
Investment Advisor Alert

Corporate Quick Hit: Credit Default Swaps; Change of Control Provisions in Indenture; Greater Rights to Nominate Directors; Interested Director Transactions Not Enforceable; Stricter Regulation on Investment Advisers; EU Seeks to Regulate Fund Managers; NYSE Reduces Market Capitalization Requirements
June 2009
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Fiduciary Duties of LLC Managers & Members Expanded, Delaware Legislature Rejects Chancery Court Denial of Advancement of Litigation Expenses, Senate Defeats Controversial "Cramdown" Provisions,  FINRA Seeking Additional Disclosures
May 2009
Irwin A. Kishner, Edward B. Stevenson

Repricing Underwater Stock Options
May 27, 2009
Stephen E. Fox
SEC Trends & Developments, the newsletter published by the accounting firm Eisner LLP.
Public companies with out-of-the-money stock options should consider repricing those underwater options, Stephen Fox writes in the accounting firm's newsletter in a new section called From The Bar. Repricing options so they are in the money is one way of compensating employees and aligning their interests with those of their employers.

Corporate Quick Hit: G-20 Announces Aim to Increase Oversight and Regulation of Hedge Funds; SEC Proposes Short-Selling Rules; Rules on Scope of Exculpation Clauses; Delaware Supreme Court Clarifies Applicability of Revlon Standard; SEC Issues Guidance on Competing Minority Slates of Director Nominees
April 2009
Irwin A. Kishner, Daniel A. Etna

Tax Developments Affecting Debt Repurchases; Deferral of COD Income; Deferral of OID; Acceleration of Deferred COD Income and OID Deductions
April 14, 2009
Michael H. Kessel, John A. Rogers Jr.
Tax Update

Term Asset-Backed Securities Loan Facility
March 2009
Irwin A. Kishner, John A. Rogers Jr.
TALF Update

Corporate Alert: Delaware Court Rules on Director Liability for Subprime Credit Crisis Losses; When Is an MOA Binding and When Is It Merely an Agreement to Agree?; When to Cash It In; FINRA Proposes New Registration for Investment Banking Professionals
March 2009
Irwin A. Kishner, Edward B. Stevenson

Corporate Quick Hit: Involuntary Insider, Fiduciary Duties, Oral Resignation, Merger Discussions, IRS Regulations, Failure of Closing Condition, Regulating Private Investment Funds, Compliance Period, “Penalty Pilot” Program
February 2009
Irwin A. Kishner, Daniel A. Etna

The SEC is Getting Tougher—What this Means to You
February 2009
Steven D. Feldman, Therese M. Doherty, Howard R. Elisofon
Securities Alert

Corporate Alert: Liability for Misinformation; Delaware Chancery Court Denied Indemnification Claim, Distinguishing Between a Promise and a Condition; Importance of Compliance in"Market Turmoil;" E-Proxy Rules Now Effective
January 2009
Irwin A. Kishner, Edward B. Stevenson

Madoff Victims Who Redeemed Face More Pain: Beware the Clawback
January 2009
Howard R. Elisofon, John Oleske
Herrick, Feinstein LLP
Herrick attorneys keep you updated on the latest news in the Madoff scandal.

Corporate Quick Hit: Bear Stearns Acquisition, Bond Default Claim, Adoption of International Financial Reporting Standards, Credit for Extraordinary Cooperation,  Rules on Credit-Rating Firms, Partnership Debt-for-Equity Exchanges
December 2008
Irwin A. Kishner, Daniel A. Etna

Financial Fraud is on the Rise. Are You Prepared?
December 2008
Richard M. Morris, Irwin A. Kishner
Herrick, Feinstein LLP
Herrick attorneys alert you to the latest news in financial fraud.

Is Your Company Troubled?  Deepening Insolvency is Down, But Not Out.
December 2008
Paul A. Rubin, Stephen B. Selbst
Lending & Restructuring Alert

Corporate Alert: Statute of Frauds; Expand Net Operating Loss Carry-Forward; FinCEN Withdraws Certain Anti-Money Laundering Rule Proposals; Tax Break to Banks
November 2008
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Material Adverse Effect Clause;  Offshore Fund Deferrals; Suspension of Continued Listing Requirements; SEC "Naked" Short Selling Antifraud Rule; Credit Default Swaps;  Policy Statement on Equity Investments
October 2008
Irwin A. Kishner, Daniel A. Etna

Rumor Has It That the Federal Enforcement Authorities Are Interested in What You Have to Say. When Do Rumors Become Criminal?
October 2008
Irwin M. Latner, Steven D. Feldman, Aismara J. Abreu
Securities Law & White Collar Alert

Treasury Announces Plan to Invest in Banks
October 15, 2008
Stephen B. Selbst
Credit Crisis Update

Compliance for Section 409A is December 31, 2008
October 2008
Irwin A. Kishner, Fred R. Green, Gary Young
Compensation Alert

What The Emergency Economic Stabilization Act of 2008 Can Mean To You
October 2008
Stephen B. Selbst
Credit Crisis Update

Insureds 2, Carriers 0 In Recent Significant Coverage Disputes Decided By The Supreme Court Of Texas
October 2008
Julius A. Rousseau, III, Elliott M. Kroll
Insurance Alert

Corporate Alert: NYSE and NASDAQ Modify Independent Director Tests; Guidance on the Use of Company Websites; "Roadmap" for Global Accounting Standards; Coca-Cola's $2.4 Billion Chinese Gamble
September 2008
Edward B. Stevenson, Irwin A. Kishner

The Watchmen Case: Buying Rights From a Middleman can be Risky Business
September 2008
Entertainment Alert

Proposed Treasury Bill to Purchase Troubled Assets - What it Says and What it Means to You
September 2008
Stephen B. Selbst
Credit Crisis Update

Corporate Quick Hit: Non-Competition Agreements; Corporate Scienter in Securities Fraud Cases; Limited Liability Company Agreements; Decision Effects Future Mergers; New Jersey Supreme Court Extends Law Against Discrimination
August 2008
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Analyzing LLC Interests as Securities; Restrictive Employee Stock Purchase Plan; SEC Issues New Guidance on Form 8-K and Forms 4 and 5; Proposed Reform of Credit Rating Agencies Regulation
July 2008
Edward B. Stevenson, Irwin A. Kishner

Fantasy Sports Game Operators: They’ve Got Game
June 2008
Irwin A. Kishner, Matthew Pace
Sports and Entertainment Alert

Corporate Quick Hit: Stealth Proxy Contest Tactics; Fantasy Baseball Leagues; Denied Advancement of Litigation Expenses; Refusal to Enjoin Merger Vote; Resolve Ambiguities in Advance; Disclosure of Beneficial Ownership
June 2008
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Registered Audit Firm Independence and Audit Committee Communication; Stock Option Grants Scrutinized; Retroactive S Corporation Elections; Wide Latitude in Parallel SEC and DOJ Proceedings
May 2008
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Modify Employment Agreement;  Derivative Claim Standing; Limits to Judicial Review of Arbitration Awards; IBM's Suspension; WARN Act; New Jersey Expands Discrimination Law; Proposed Listing Standards
April 2008
Irwin A. Kishner, Daniel A. Etna

Legal Considerations When a Professional Athlete Is Injured
March 28, 2008
Irwin A. Kishner
Sports Litigation Alert
Irwin Kishner writes on what to do when athletes are injured but disagree with their team on the proper course of medical treatment.

Corporate Alert: Significant Change to Compensation Deduction Under Section 16(m); Employer Liable for Overtime Wages Even If Not Authorized by Employer; U.S. Government Accountability Office Releases Hedge Fund Report
March 2008
Irwin A. Kishner, Edward B. Stevenson, Carol M. Goodman, Mara B. Levin

US Private Equity Firms Forced to Re-evaluate Strategies
March 2008
Irwin A. Kishner
Financier Worldwide
Irwin Kishner and Brooke Crescenti co-author the article "US Private Equity Firms Forced to Re-evaluate Strategies" on how US private equity firms will likely not play a large role in the 2008 M&A market.

Corporate Quick Hit: PIPE Transactions; LLC Derivate Suits; Stealth Proxy Contests; "Best Efforts" Clauses;  Foreign Investments in U.S. on the Rise; Hart-Scott-Rodino Thresholds; Investment Advisors must Post Full Details on Web
February 2008
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: New SEC Online Tool,  New Exemptions from Exchange Act Registration, "Forthright Negotiator Principle" of Contract Interpretation, Board Meeting Formalities Are Requisite
January 2008
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Commission salesmen, Internal controls, Material adverse effect clauses, Internal projections, Investors' directors,Attorney-client privilege, Foreign companies/U.S. accounting, Electronic shareholder forums, Mutual funds
December 2007
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: NASD Rule Governs Fairness Opinions, N.J. Helps Small and Mid-Sized Technology and Biotechnology Companies Raise Capital, SEC Simplifies Disclosure and Reporting Requirements, WARN Act
November 2007
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Fraudulent Inducement and Breach of Warranty, Stock Options in Cash Mergers, Valuing Employee Stock Options, Section 409A, Fair Value in Public Markets, Liability of Service Providers, Whistleblower Act, Transgender Discrimination, Nursing Mothers in the Workplace Act, FINRA
October 2007
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Forum Selection Provisions in Contracts, Online Contract Modification, Clock Ticking for Business Entities to Make "Pay-to-Play" Disclosures, Nonqualified Deferred Compensation Deadline Extended
September 2007
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: SEC Proposes Revisions to Regulation D and Rule 144, and Alternative Rules on "Proxy Access;" Standard of Legal Review Proposed for Merger Vote Postponements; Conditions on Advancement of Expenses; Antifraud Rule Protects Hedge Fund Investors
August 2007
Irwin A. Kishner, Daniel A. Etna

Magic Had to Weigh Public Relations Issue in Settling Donovan Matter
July 2007
Irwin A. Kishner
Legal Issues in Collegiate Athletics
Irwin Kishner authors an article that examines the legal -- and non-legal -- issues that the Orlando Magic faced in deciding how to handle the case of a coach who signed with the team and then reneged.

Corporate Alert: Amendments to General Corporation Law, Proposed Increased Tax on Carried Interests,  Manufacturers Dictate Retail Prices, New Rule on Accounting Standards
July 2007
Edward B. Stevenson, Irwin A. Kishner

IRS Issues Final 409A Regulations for Non-Qualified Deferred Compensation Arrangements
July 2007
Irwin A. Kishner, Fred R. Green
ERISA Alert

Directors, Officers and Mergers:  Why Indemnify?
June 25, 2007
Edward B. Stevenson, Natalia Cavaliere
New Jersey Lawyer
Ed Stevenson and Natalia Cavaliere's article argues that there is an increased need for corporations to indemnify their officers and directors, in the context of a merger or an acquisition, for pre-closing activities. 

Corporate Quick Hit: "Zone of Insolvency," LBO Structure, What's the Market Worth?, Regulation of Financial Services, Rights of Patent Holders, Underwriting Activity Immune From Antitrust Challenge, Music Downloads are not "Public Performances", Guidance on "Covered Employees"
June 2007
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Tortious Interference OR the Right to Solicit Business, Delaware Chancery Court Grants Jurisdiction Over Derivative Claims by LLC Members Seeking Damages, Good News for Creditors with Standing in New York
May 2007
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Breach of Duty in Seeking Private Equity Buyers, Exchange Act, Bonuses Subject to "Entire Fairness" Scrutiny, Rule Pertaining to Broker-Dealers is Vacated, Auditors Liable for Securities Law Violations, No D&O Coverage for Settlement Amounts Representing Misappropriated Funds
April 2007
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Shareholder Advisory Vote Bill, Standard for Director Liability in Oversight Cases, Debt of Cybersquatter Non-Dischargeable in Bankruptcy, MP3 Patent Infringement Case Could Have Industry-Wide Impact
March 2007
Edward B. Stevenson, Irwin A. Kishner

SEC Steps Back Up To The Plate of Hedge Fund Regulation
February 13, 2007
Patrick D. Sweeney
Complinet
Pat Sweeney’s Hedge Fund Regulation Corporate Quick Hit is republished on Complinet’s US Securities & Banking online news service.

Corporate Quick Hit: LLC Minority Investor Rights, Stock Option Backdating and "Spring-Loading," Drugmakers have Greater Right to Challenge Patents, Duty of Care of Independent Director Committees, Shareholder Derivative Lawsuits, Hart-Scott-Rodino Act
February 2007
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: SEC Amends Executive Compensation Disclosure Requirements, Delaware Asserts Spirit of Common Law Over Letter of SEC Regulations, Electronic Discovery
January 2007
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit - Special Edition: Hedge Fund Regulation and More: The SEC Tries Again
January 2007
Patrick D. Sweeney, Irwin A. Kishner, Irwin M. Latner

Corporate Quick Hit: SOX Requirements, Use of Options for Compensation Purposes, SEC Amends Tender Offer Best-Price Rules, Definition of "Accredited Investor",  Exchange Act, NASD Issues Guidance On Gift-Giving Rules
December 2006
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: New Jersey Corporate Business Tax Imposed on Out-of-State Company, Grasso Retirement Package Ruled Breach of Fiduciary Duty, SEC Broadens Category of "Eligible Portfolio Companies" that BDCs May Invest In, Dissention Not Enough for Judicial Dissolution of Partnership
November 2006
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Costly Comma, New York Publication Requirements, Stockholder Activist Tactic, Proxy Access Reform, Employee Benefit Plan, Hewlett Packard May Have Violated Disclosure Rules, Deferred Compensation Tax Rules, Union Membership
October 2006
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: New York Division of Tax Appeals affirms bulk sale purchaser's liability, International adoption of anti-bribery laws requires, Auditors in New Jersey face potential new exposure to negligence claims
September 2006
Edward B. Stevenson, Irwin A. Kishner

Corporate Alert - Special Edition: Major Pension Reform Becomes Law
September 2006
Fred R. Green, Irwin A. Kishner, Irwin M. Latner, Patrick D. Sweeney

Corporate Quick Hit: Expansion of Successor Liability for Purchasers in Asset Sales is Rejected, New Executive Compensation Disclosure Rules, Majority Voting Standard for Election of Directors, FederalCourt Strikes Down State Mandated Health Benefits Law
August 2006
Irwin A. Kishner, Daniel A. Etna

Corporate Alert: Hedge Fund Rule Struck Down by Court of Appeals
July 2006
Irwin M. Latner, Patrick D. Sweeney

Corporate Quick Hit - Special Edition: Modified Amendment of New York’s Publication Requirements for Limited Liability Companies and Limited Partnerships Goes into Effect
June 2006
Irwin A. Kishner, Patrick D. Sweeney, Irwin M. Latner, Benjamin F. Kursman

Corporate Quick Hit: Pre-2002 Retroactive Stock Option Strike Prices Attracting Regulatory Enforcement Attention
June 2006
Irwin A. Kishner

Corporate Alert: Consequences of Exerting Too Much Control Under the Hart-Scott-Rodino Act, Court Holds Purchase of Unknown Quantity of Shares Was Not Short-Swing Trading, Is Perfection by Filing Enough?
May 2006
Edward B. Stevenson, Irwin A. Kishner

Corporate Quick Hit: Termination of Certain Representations in Private M&A Deals, Long-Standing Antritrust Tying Rule Overturned, U.S. Supreme Court Affirms Long-Standing Joint Venture Pricing Presumption, BlackBerry Manufacturer Avoids Shutdown
April 2006
Irwin A. Kishner, Daniel A. Etna

The SEC's Hedge Fund Manager Registration Rule Becomes Effective
March 2006
Patrick D. Sweeney
Loan Syndication and Trading Association (LSTA) Annual Loan Market Review
Pat Sweeney's article "The SEC's Hedge Fund Manager Registration Rule Becomes Effective" appears in the Loan Syndication and Trading Association (LSTA) Annual Loan Market Review.

The New Masters of the Buyout Universe
November 2005
Irwin A. Kishner
New York Law Journal
Irwin Kishner's article appears in the New York Law Journal.

Current Regulatory Developments Concerning the Distribution of Mutual Fund Shares
May 2005
Patrick D. Sweeney
The Investment Lawyer
Pat Sweeney's article entitled "Current Regulatory Developments Concerning the Distribution of Mutual Fund Shares" appears in The Investment Lawyer.

If Omission is the Mission, Where is the Federal Trade Commission
Spring 2005
Journal of Law and Policy
This article by Brooke Crescenti explores the emerging practice of "undercover marketing" and the parameters of permissible marketing techniques, as established by the Federal Trade Commission. 

Mutual Fund Shares Distributions: the Changing Rules of the Game
February 2005
Patrick D. Sweeney
The Journal of Taxation and Regulation
Pat Sweeney authors this article on mutual fund shares distributions.

Acquisitions Without the Liabilities
August 25, 2003
Irwin A. Kishner
New York Law Journal
Irwin Kishner authors "Acquisitions Without the Liabilities" for the New York Law Journal.

Tech Company S.O.S.:  Now That The Tech Bubble Has Burst, A Legal Perspective on How to Prevent Your Tech Business from Going Bust
November 2002
Irwin A. Kishner
The Metropolitan Corporate Counsel
Irwin Kishner authors this article on the legal measures tech companies can take in restructuring efforts to improve chances of survival after the dot-com bubble burst. 

YES
May 2002
Irwin A. Kishner, Daniel A. Etna
The Metropolitan Corporate Counsel
Irwin Kishner and Dan Etna co-author this article on the formation of the YES television network.