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Skadden Discusses CFTC Charges That DeFi Developers Facilitated Off-Exchange Trading

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On September 7, 2023, the Commodity Futures Trading Commission (CFTC) issued three enforcement settlement orders against developers of decentralized finance (DeFi) protocols.1 The orders charge Opyn, Inc., Deridex, Inc., and ZeroEx, Inc. (0x) with illegally offering leveraged and margined …

Gibson Dunn Discusses Rise of State Laws Restricting Foreign Entities’ Property Acquisitions

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Geopolitical tensions and strategic competition between the United States and China have increasingly influenced the investment landscape in recent years, implicating established regulatory frameworks such as that of the Committee on Foreign Investment in the United States (“CFIUS”), as well …

Debevoise Discusses How EU’s Sustainability Reporting Directive Affects Private Equity

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The EU’s Corporate Sustainability Reporting Directive (“CSRD”) is a new framework that requires companies to include a large body of sustainability information in their annual reporting, in accordance with the detailed European Sustainability Reporting Standards (“ESRS”), combined with external “assurance” …

Wachtell Lipton Discusses Mounting Pressure on DEI Initiatives

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In the wake of the Supreme Court’s decision in SFFA v. Harvard (as discussed in our prior memos), diversity, equity and inclusion (DEI) programs have attracted increased scrutiny from longtime critics.  Many high-profile U.S. companies have already fielded letters …

Cleary Gottlieb Discusses DOJ, Commerce, and Treasury Advisory on Voluntary Self-Disclosure Policies

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On July 26, 2023, the U.S. Department of Justice’s National Security Division (“NSD”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued a Tri-Seal …

Wachtell Lipton Discusses Corporate DEI Initiatives After Harvard Affirmative Action Case

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It is no secret that American corporations face vigorous — and often conflicting — demands concerning diversity, equity and inclusion (DEI) initiatives.  Over the past year, DEI initiatives and commitments have come under pressure in the face of macroeconomic headwinds, …

Skadden Discusses DOJ’s Reliance on Traditional Statutes in Cryptoasset Fraud Cases

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Two recent indictments highlight the Department of Justice’s (DOJ’s) continuing use of the traditional wire fraud, money laundering and identity theft statutes to pursue fraud involving digital assets, indicating that law enforcement will look to prevent theft and scamming regardless …

Wachtell Lipton Discusses PCAOB Proposal to Expand Auditors’ Oversight Role

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The Public Company Accounting Oversight Board (PCAOB) has proposed changes to its auditing standards that would significantly expand auditors’ responsibilities and oversight of a company’s noncompliance with laws and regulations.  If adopted as proposed, the rules would require auditors to …

On Corporate Social Issues, U.S. Consumers Do Not Put Their Money Where Their Mouths Are

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Despite an increasing focus on corporations that profit from social injustices and misconduct, governments and international agencies have had limited success in addressing these issues. Advocates for change suggest that stakeholders, particularly retail consumers, could help, given that their purchasing …

Davis Polk Discusses Unsung Provisions of Bill to Hold Bank Executives Accountable

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The Recovering Executive Compensation Obtained from Unaccountable Practices (RECOUP) Act, designed to hold senior executives at banking organizations accountable, has broad and unusual bipartisan support, passing out of the Senate Banking Committee by a 21-2 bipartisan vote. As the bill …

What’s in Your Climate Score?

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An increasing number of consultancies, financial technology firms, data providers, and investment advisory groups offer information about localized physical climate risks like floods, hurricanes, and wildfires. In recent years, mainstream financial services companies have acquired many of the early climate-analytics …

Davis Polk Discusses Delaware Chancery Decision Denying Corwin Cleansing for Defensive Measure

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The recent In re Edgio, Inc. Stockholders Litigation decision highlighted concerns when a public company involved in a business combination adopts defensive measures that would continue for a significant period of time post-closing. The court declined to apply Corwin cleansing …

Mythical Adverse Effect

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The material adverse effect (“MAE”) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. It has nearly tripled in average length over the past two decades, as lawyers haggle over …