Columbia Law School
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December 2023
Loopholes in Complex Contracts
Loophole seeking has become a standard tool in the world of distressed debt restructuring. The highest-profile example was the J. Crew restructuring in 2016. In that transaction, the company stripped $250 million in trademark collateral from the reach of its …
Goodwin Procter Discusses UK Draft Rules for Fintechs
On December 8, 2023, the Prudential Regulation Authority (PRA) and Financial Conduct Authority (FCA) published a joint consultation paper titled ”CP26/23 – Operational resilience: Critical third parties to the UK financial sector.” The consultation includes draft PRA and Bank of …
Do Hedge Funds Exploit Material Nonpublic Information from Bankrupt Companies?
Unsecured debt of distressed companies is a popular investment for certain hedge funds, not least because it often allows the funds to serve on a distressed company’s unsecured creditors’ committee (UCC) shortly after the firm files for Chapter 11 bankruptcy. …
Debevoise & Plimpton Discusses the EU Artificial Intelligence Act
On December 8, 2023, after months of negotiations, the European Commission, the European Parliament and the European Council reached political agreement on the terms of the European Union Artificial Intelligence Act (the “EU AI Act” or the “Act”). We previously …
After the “Partner Run”: The Dewey & LeBoeuf Diaspora
The nightmare for any law firm is a “partner run,” a domino-style collapse that can turn a temporary downturn into a liquidation in months. In a new paper, I use an empirical case study to find that unlike its namesake …
Cleary Gottlieb Discusses Proposed CFTC Guidance on Voluntary Carbon Credit Derivatives
On December 4, the Commodity Futures Trading Commission (the “CFTC”) proposed guidance for designated contract markets (“DCMs”) listing voluntary carbon credit (“VCC”) derivative contracts. The proposed guidance, published to coincide with COP 28, and the opportunity to provide comment will …
Dual-Class IPOs Offer Solution to Unicorn Governance Failure
Dual-class stock structures have proliferated in recent years. In 2017-2019, almost 30 percent of IPOs in the U.S. had a dual-class structure, and most of them were founder-controlled technology firms (Aggarwal, Eldar, Hochberg and Litov, 2020). Their increasing popularity has …
SEC Chair Gensler Supports Denial of Coinbase Petition for Crypto Rulemaking
Today [December 15], the Commission denied a Petition for Rulemaking[1] filed on behalf of Coinbase Global, Inc. I was pleased to support the Commission’s decision for three reasons. First, existing laws and regulations apply to the crypto securities markets. …
Two SEC Commissioners Oppose Denial of Coinbase Petition for Crypto Rulemaking
The Commission has denied the Petition for Rulemaking filed on behalf of Coinbase Global, Inc. (“Petitioner”) on July 21, 2022.[1] We disagree with the Commission’s decision.
How Litigation Finance Strengthens the Attorney-Client Relationship
When Bloomberg Law recently previewed its top six litigation issues for 2024, five were probably familiar: abortion, administrative law, antitrust enforcement, transgender rights, and opioids.
But the sixth might have surprised you: litigation finance.[1]
It’s a sign of how …
Morrison & Foerster Discusses Impact of New York Amendments to Cybersecurity Regulation
The New York Department of Financial Services (NYDFS) has finalized amendments (“Amended Regulation”) to its cybersecurity rule (“Cybersecurity Rule”) that applies to financial institutions licensed by the NYDFS. This comes after a series of proposed amendments (see our client …
How Board Diversity Compares in Private and Public Firms
In today’s rapidly evolving corporate landscape, the composition of boards is not just a matter of compliance or social responsibility; it’s a strategic imperative that shapes the future of firms. Amidst growing public scrutiny and socio-economic shifts, particularly following the …
Davis Polk Discusses Special FDIC Assessment to Recover SVB and Signature Bank Losses
The FDIC’s final special assessment is largely unchanged from the proposed rule:
- The assessment base is equal to the amount of an insured depository institution’s (IDI) uninsured deposits, as reported for the quarter ended December 31, 2022, minus up to
A Comparative Analysis of the SEC’s Climate Disclosure Proposal
In the global effort to protect the earth’s climate, the pace of regulation is rivaled only by the speed of technological innovation.
What seemed improbable just a few years ago – requiring large companies to measure and report annual greenhouse …
Skadden Discusses AI Training Case Brought by Thomson Reuters
In Thomson Reuters v. Ross Intelligence,[1] a district court largely denied the parties’ cross motions for summary judgment and held that a number of factual issues must be decided by a jury.
- The decision provides some insight into
Is It the End of Entire Fairness as We Know It?
Striving to better, oft we mar what’s well — William Shakespeare, King Lear (1606)
The Delaware Court of Chancery has, for more than a century, honed unparalleled expertise in a unique body of corporate law based on equity – and …
Cleary Gottlieb Discusses Roadblocks for Plaintiffs in Generative Artificial Intelligence Lawsuit
On October 30, 2023, U.S. District Judge William Orrick of the Northern District of California issued an Order[1]largely dismissing without prejudice the claims brought by artists Sarah Andersen, Kelly McKernan and Karla Ortiz in a proposed class action …
How Policymakers Respond to CEO Activism
CEOs are increasingly stepping into the limelight, not as business leaders but as activists. From advocating for LGBTQ+ rights to speaking out on gun control and police use-of-force, CEOs now engage on many polarizing social and political issues. Scholars have …
Boards’ Dilemma: The Compounding Problem Hidden in Share Buyback Execution Products
As a capital allocation decision, share buybacks intersect all three of the main corporate finance activities of investing, financing, and dividends[1]. Buybacks continue to be very divisive, evoking comments like “derangement syndrome” by Cliff Asness, “economic illiterates” by …