The Potential of Trust Law in Sovereign Debt Restructuring

By Charles Ho Wang Mak September 29, 2023 by renholding

The interplay between sovereign debt defaults and legal frameworks has long been a subject of scholarly discourse and practical concern. Navigating this labyrinthine arena necessitates a rigorous understanding of various legal paradigms, one of which is trust law. In a …

Skadden Discusses Corporate DEI Policies After SCOTUS Affirmative Action Decision

By Lara A. Flath, David E. Schwartz and Amy Van Gelder September 29, 2023 by renholding

The U.S. Supreme Court’s historic ruling on affirmative action is limited to college admissions and not directly applicable to private employers. But the June 29, 2023, decision has already emboldened those who are seeking to challenge private sector diversity, equity …

Redemption Mechanisms in Poison Pills: An Underappreciated Element of Takeover Defense

By Olivier Baum and Guhan Subramanian September 28, 2023 by renholding

Shareholder rights plans – or “poison pills” – have been used for close to 40 years to deter hostile takeovers by threatening the dilution of any (hostile) bidder that exceeds the ownership threshold set in such plans. This dilution upon …

Arnold & Porter Discusses 2023 Annual Reporting and Proxy Season

By Rob Azarow, Paul Nabhan, Christian Schultz, Teresa Johnson and Jane Norberg September 28, 2023 by renholding

During 2023, the U.S. Securities and Exchange Commission (the SEC) continued its trend from 2022, actively engaging in regulatory rulemaking, providing disclosure guidance, and undertaking enforcement actions related to public disclosures and disclosure controls.

This Advisory provides a summary of …

Taxing the Metaverse

By Young Ran (Christine) Kim September 27, 2023 by renholding

The metaverse has gained popularity following Facebook (Meta)’s announcement that it would bring the “Metaverse” to life and the excitement around cryptocurrency and NFTs. The metaverse acts as a social network where people participate in virtual activities, like purchasing digital …

Cleary Discusses Second Circuit Decision That Syndicated Loans Are Not Securities

By Duane McLaughlin, Jared Gerber, Sabrina Singer, Anirudh Sivaram and Allison Caramico September 27, 2023 by renholding

On August 24, 2023, the Second Circuit affirmed the dismissal of state-law securities claims in Kirschner v. JP Morgan Chase,[1] concluding that the plaintiff failed to adequately plead that the syndicated term loans at issue were securities. This …

Finfluencers and the Reasonable Retail Investor

By Sue S. Guan September 26, 2023 by renholding

Existing securities laws primarily target lies. However, financial influencers, or finfluencers – people or entities with outsized influence on investor decisions through social media – need not lie in order to influence their followers. This means that finfluencers can profit …

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

By Alexander C. Drylewski, Stuart D. Levi, David Meister, Daniel Michael, Chad E. Silverman and Peter A. Varlan September 26, 2023 by renholding

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 …

Why Short Attacks May Compel a Company to Sue

By Joshua Mitts September 25, 2023 by renholding

In a recent post on the Harvard Law School Forum on Corporate Governance, three partners at Skadden, Arps, Slate, Meagher & Flom LLP give practical advice to companies in preparing for and responding to a short attack. With respect …

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

By Adam M. Smith, Stephenie Gosnell Handler, David Wolber and Amanda Neely September 25, 2023 by renholding

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 …

The Perils of Reforming Corporate Law to Favor Stakeholders

By Matteo Gatti and Chrystin Ondersma September 22, 2023 by renholding

In corporate governance circles, the clash between the different philosophies of shareholder primacy and stakeholderism rages on. In a recent article in the Columbia Law Review, Professor Aneil Kovvali challenged what he calls the “stark choice hypothesis,” which suggests …

SEC Chair Gensler Speaks on Updates to the Names Rule

By Gary Gensler September 22, 2023 by renholding

Today [September 20], the Commission is considering final rules to update the Names Rule. I am pleased to support this rule adoption because it will help ensure that a fund’s portfolio matches a fund’s name. Such truth in advertising promotes

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How to Prevent Pretextual Books and Records Demands

By Lynn Bai and Sean Meyer September 21, 2023 by renholding

Delaware General Corporation Law § 220 permits shareholders to inspect a corporation’s books and records for a proper purpose, such as investigating managerial misconduct, valuing shares, or communicating with other shareholders. The Delaware case law interpreting this statute has created …

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

By Patricia Volhard, Jin-Hyuk Jang, John Young and Eike Björn Weidner September 21, 2023 by renholding

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” …

Does Common Ownership Constrain Rent Extraction by Managers?

By Shenglan Chen, Hui Ma, Qiang Wu and Hao Zhang September 20, 2023 by renholding

Over the past four decades, the share of U.S. public firms held by institutional investors who concurrently invest in other firms within the same industry – common ownership – has increased fivefold. While some argue that common ownership has anticompetitive …

Latham & Watkins Discusses the Proposed ESG Auditing Rule You Know Nothing About

By Sarah E. Fortt and Malorie R. Medellin September 20, 2023 by renholding

On June 6, 2023, the Public Company Accounting Oversight Board (PCAOB), the nonprofit corporation established by Congress to oversee the audit of public companies, proposed new auditing standards designed to further its “investor-protection mandate.”[1]These standards, if adopted, would …

Are Firms Sacrificing Flexibility for Diversity and Inclusion?

By Hoa Briscoe-Tran September 19, 2023 by renholding

Companies’ diversity and inclusion (D&I) practices have attracted widespread attention and support from investors, policymakers, and the public. Yet while they may advance social justice, these practices’ impact on a company’s operations remains unclear.

Conventional wisdom is that a diverse …

Understanding Corporate Law’s Quintet of Judicial Review

By Tomer Stein September 18, 2023 by renholding

When assessing the legality of actions by boards of directors, corporate officers, and shareholders, judges use five standards of review: the business judgment rule, Unocal, Revlon, the entire fairness standard, and, to some degree, Blasius.[1]

These …

Was the Exchange Act Redundant? The Questionable Legality of an SEC Commissioner’s Unicorn Reform Proposal

By Alexander I. Platt September 18, 2023 by renholding

The rise of private markets and the proliferation of “unicorns” (private startup companies valued at $1 billion or more) has diminished the SEC’s power and reach. Back in 2021, the agency signaled a plan to reassert itself by forcing unicorns …

The Dialogue Between Corporations and Institutional Investors

By Giovanni Strampelli and Luca Enriques September 15, 2023 by renholding

With (minority) shares now concentrated in the hands of a relatively small number of institutions, institutional investors are expected to play an ever-increasing role in the governance of listed companies worldwide. However, it is uncertain whether institutional investors can actually …

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The CLS Blue Sky Blog

Columbia Law School's Blog on Corporations and the Capital Markets

September 2023