Sullivan & Cromwell Discusses Treasury Amendments to CFIUS Procedures and Enforcement Authorities

On November 18, 2024, the U.S. Department of the Treasury (“Treasury”) issued a final rule (the “Final Rule”) that amends the regulations administered and enforced by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”).[1]

Cleary Gottlieb Discusses DOJ Guidance for Evaluating Antitrust Compliance Programs

On November 14, 2024, the U.S. Department of Justice (“DOJ”) Antitrust Division (the “Division”) released guidance for the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (the “Guidance”). The Guidance will be used by the Division in assessing the …

Simpson Thacher Discusses Updated Antitrust Compliance Guidance

On November 12, 2024, the U.S. Department of Justice (“DOJ”) published updated guidance on how the DOJ’s Antitrust Division will evaluate corporate compliance programs when making charging decisions and sentencing recommendations relating to criminal antitrust violations, such as bid-rigging, price-fixing, …

Sullivan & Cromwell Discusses Director and Creditor Liability in Distressed Companies Under Delaware Law

On November 15, 2024, the Delaware Court of Chancery found that certain of the directors of Bridge Street Worldwide, Inc. (“BSW”), a Delaware corporation, were liable for breaching their fiduciary duty of loyalty by entering into a forbearance agreement with …

Sidley Discusses Chancery Opinion Highlighting Importance of Clear Integration and Non-Reliance Provisions in M&A Agreements

Judge Medinilla’s recent opinion in Cytotheryx, Inc. v. Castle Creek Biosciences, Inc. is a reminder for practitioners to carefully consider whether an integration clause in a purchase agreement will be sufficient to bar extra-contractual misrepresentation claims. And although fraud claims …

Gibson Dunn Discusses New U.S. Outbound Investment Regulations

On October 28, 2024, the U.S. Department of the Treasury issued final regulations implementing an outbound investment control regime targeting AI, semiconductors, and quantum computing investments involving China that raise national security concerns. The regulations’ prohibitions and reporting requirements go …

Ropes & Gray Discusses SEC Settlements With Four Issuers in Cybersecurity-Disclosure Cases

On October 22, 2024, the Securities and Exchange Commission (“SEC”) filed settled enforcement orders involving four current and former public companies – Unisys Corp., Avaya Holdings Corp., Check Point Software Ltd, and Mimecast Limited. The settlements concern the issuers’ disclosures …

Davis Polk Offers Update on Investment Management and Funds Regulation

SEC Division of Examinations releases examination priorities for 2025

On October 21, 2024, the SEC’s Division of Examinations (Division) published its examination priorities for 2025 (Exam Priorities). The Exam Priorities fall into the following seven categories: (1) Investment Advisers, (2) …

Moving from Agency Costs and Private Benefits of Control to Principal Costs and Private Benefits of Influence ­

Corporate governance research has historically focused on agency costs (imposed by professional managers) or principal-principal expropriation (imposed by dominant shareholders). We seek to reverse this theoretical focus on private benefits of control, and its preoccupation with the principal/shareholder and agent/manager …

Davis Polk Discusses Commerce Department Guidance Expanding Export-Control Requirements for Financial Institutions

On October 9, 2024, the Commerce Department’s Bureau of Industry and Security (BIS) issued new guidance for financial institutions on best practices for compliance with export control laws and regulations (the Guidance).[1] The Guidance caps a series of notes …

Arnold & Porter Discusses Final FinCEN Rules for Investment Advisers Under Bank Secrecy Act

On August 28, 2024, the Financial Crimes Enforcement Network (FinCEN) issued a final rule to add “investment adviser” to the definition of “financial institution” under the regulations implementing the Bank Secrecy Act (BSA). The final rule defines the term “investment …

Business Judgment and ESG

New research provides evidence that legally nonbinding commitments from corporate managers to Environmental, Social, and Governance (ESG) principles may help predict subsequent corporate behavior. [1]  This study provides cautiously optimistic evidence that CEOs who claim to consider the ethical implications …

Sullivan & Cromwell Discusses Banking Agencies’ Request for Information About Bank Relationships with Fintechs

On July 25, 2024, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency (together, the “Agencies”) issued a request for information (the “RFI”)[1] regarding arrangements …

Paul Weiss Discusses Delaware Supreme Court Clarification of Tests for Advance Notice Bylaw Challenges

Recently in Kellner v. AIM ImmunoTech, Inc., the Delaware Supreme Court clarified the legal tests applicable when stockholders challenge advance notice bylaws. A key aspect of the Supreme Court’s ruling is the importance of distinguishing between a facial and …

Corporate Sustainable Finance

Sustainable debt financing—bonds issued to support projects that benefit the environment or social welfare—has skyrocketed over the past decade, rising from a niche market to a trillion-dollar business. Public finance has been an essential catalyst for the market for sustainable …