A fundamental component in the commercial mortgage-backed securities ("CMBS") market is the lender's reliance that the loan is made to a "bankruptcy remote" special-purpose entity ("SPE").
NY decision dents special-purpose entity shield
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Protecting Jane Doe's privacy: how far must employers go? (Hunton & Williams LLP)
A recent decision out of the Pennsylvania courts is a caution to employers who are required to produce employee personnel information in responding to court or agency proceedings.
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Quick tips for monitoring and enforcement of Web 2.0 content (Haynes and Boone LLP)
Determine your pain tolerance.
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Do you have an ESI strategy yet? Companies and in-house counsel sanctioned for poor oversight (Baker Donelson Bearman Caldwell & Berkowitz PC)
Although it has been more than three years since the Federal Rules of Civil Procedure were amended to codify parties' obligations to preserve and produce potentially relevant electronically stored information (ESI), a recent survey conducted by Kroll Ontrack reflects that only 46% of U.S. corporations possess an ESI readiness strategy.
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Employee endorsements can now lead to employer liability (Bond Schoeneck & King)
Under guidelines recently issued by the Federal Trade Commission (“FTC”)—Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255—an employer may now face liability for employee endorsements of its products and services, if the employment relationship is not disclosed.
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Best practice considerations when serving on the board of a nonprofit organization (Morris Manning & Martin LLP)
Under U.S. tax law, most tax-exempt organizations are required to file an annual tax return known as a Form 990.
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Tag it and bag it - what you must consider when drafting a digital document retention policy (Ungaretti & Harris)
Many companies are extremely concerned about retaining every single document in todays electronic age.
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Remember "Super Bowl", the "Olympics" and "March Madness" are trademarked terms - don't use them in advertising without permission (Davis Wright Tremaine LLP)
With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.
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Federal estate, GST and gift tax law: current status and possible retroactive legislation (Duane Morris LLP)
Despite legislation proposed by Congress in 2009, which we reported on in our prior Alerts, Congress has nevertheless been unable to prevent the repeal of the federal estate and generation-skipping transfer (GST) taxes.
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Recently released DOL budget makes worker misclassification and state paid leave priorities for the next fiscal year (Porter Wright Morris & Arthur LLP)
On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year.
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New York Jets coach fined for "off-duty" conduct (Porter Wright Morris & Arthur LLP)
While attending a Mixed Martial Arts event in Miami, New York Jets head coach, Rex Ryan, apparently made an obscene gesture at some Miami Dolphin fans who were taunting him.
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UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (Denton Wilde Sapte LLP)
On 1 July 2009, UNCITRAL adopted the Practice Guide on Cross-Border Insolvency Cooperation.
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Lehman bankruptcy decision has potentially broad reaching effects (Locke Lord Bissell & Liddell LLP)
Last week, the United States Bankruptcy Court for the Southern District of New York issued a decision in the Lehman Brothers bankruptcy proceedings holding invalid a subordination clause within a credit linked synthetic portfolio note transaction (the "Transaction") in connection with which one of the Lehman subsidiaries had entered into a swap agreement.
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Delaware Bankruptcy Court decisions highlight split on Rule 2019 disclosure (Schulte Roth & Zabel LLP)
In a Jan. 20, 2010, opinion, Judge Christopher S. Sontchi of the U.S. Bankruptcy Court for the District of Delaware held that a group of investors who had together proposed a plan of reorganization for the debtor did not have to comply with the disclosure requirements of Federal Rule of Bankruptcy Procedure 2019 (“Rule 2019”) In re Premier International Holdings, Inc., No. 09-12019 (Bankr. D. Del. Jan. 20, 2010) (Sontchi, J.) (“Six Flags”).
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Insolvent tenants: what sums can be recovered from administrators by landlords? (Shepherd & Wedderburn LLP)
In the current economic climate, landlords are having to deal more frequently with tenants who are in administration.
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Putting Jersey companies into English administration (Bedell Cristin)
A Jersey company or one of its creditors may wish the company to be placed into administration in England under Schedule B1 of the UK's Insolvency Act 1986 (the "Act").
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Anti-deprivation: what next for the UK structured debt market? (Clifford Chance LLP)
On 25 January, as part of the Lehman Chapter 11 cases, the US Bankruptcy Court concluded that a contractual alteration of swap payment priorities in a structured finance transaction, which occurred as a result of the Lehman bankruptcy, is not enforceable against Lehman Brothers Special Financing Inc. (“LBSF”) due to the operation of US Bankruptcy Code Sections 365 and 541.
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Government will legislate to reverse Sons of Gwalia (Blake Dawson)
The Minister for Financial Services, Chris Bowen, has announced that, as part of an insolvency reform package, the Government will amend the Corporations Act to reverse the effect of the High Court's decision in Sons of Gwalia v Margaretic which determined that, in a corporate winding up, certain compensation claims by shareholders against the company were not subordinated to the claims of other creditors.
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Directors’ and officers’ liabilities in an insolvency context (Ogilvy Renault LLP)
Directors and officers of corporations are often subject to potential personal liabilities as a result of their positions.
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Scales of justice rebalanced towards creditors over shareholders (Blake Dawson)
The Sons of Gwalia debate has been raging ever since the High Court confirmed in 2007 that shareholders who were misled by the company could seek to prove in its winding-up in competition with other unsecured creditors in respect of those claims.
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Lehman Brothers bankruptcy court strikes waterfall subordination provisions conditioned on bankruptcy (Schulte Roth & Zabel LLP)
On Jan. 25, 2010, the U.S. Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) held that a trust deed provision reversing a priority of payment waterfall upon the bankruptcy of a credit support provider under a swap agreement is unenforceable under the U.S. Bankruptcy Code (the “Bankruptcy Code”).
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Protecting Jane Doe's privacy: how far must employers go? (Hunton & Williams LLP)
A recent decision out of the Pennsylvania courts is a caution to employers who are required to produce employee personnel information in responding to court or agency proceedings.
-
Do you have an ESI strategy yet? Companies and in-house counsel sanctioned for poor oversight (Baker Donelson Bearman Caldwell & Berkowitz PC)
Although it has been more than three years since the Federal Rules of Civil Procedure were amended to codify parties' obligations to preserve and produce potentially relevant electronically stored information (ESI), a recent survey conducted by Kroll Ontrack reflects that only 46% of U.S. corporations possess an ESI readiness strategy.
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Tag it and bag it - what you must consider when drafting a digital document retention policy (Ungaretti & Harris)
Many companies are extremely concerned about retaining every single document in todays electronic age.
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Court of Appeal guidance on the contractual status of term sheets and letters of intent (Herbert Smith LLP)
In Maple Leaf Macro Volatility Master Fund v Rouvroy [2009] All ER (D) 199, the Court of Appeal considered the nature of term sheets.
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Slavenburg is dead ... long live Slavenberg? (Denton Wilde Sapte LLP)
Charlotte Curtis discusses whether the new rules for registration of security granted by overseas companies, which came into force last October, leave security holders in a more unsatisfactory position than they were in under the unpopular Slavenburg regime.
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Two significant Australian copyright decisions handed down (Minter Ellison)
The Federal Court handed down two significant copyright decisions yesterday.
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Lehman bankruptcy decision has potentially broad reaching effects (Locke Lord Bissell & Liddell LLP)
Last week, the United States Bankruptcy Court for the Southern District of New York issued a decision in the Lehman Brothers bankruptcy proceedings holding invalid a subordination clause within a credit linked synthetic portfolio note transaction (the "Transaction") in connection with which one of the Lehman subsidiaries had entered into a swap agreement.
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Without prejudice: extent of unambiguous impropriety exception clarified (Herbert Smith LLP)
In Williams v Hull [2009] EWHC 2844 (Ch) Arnold J upheld the 'without prejudice' status of a letter, deciding also that the 'unambiguous impropriety' exception did not apply notwithstanding a serious risk of perjury.
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U.S. Supreme Court state tax updates (Sutherland Asbill & Brennan LLP)
Textron, Inc., has filed a petition for certiorari seeking review by the U.S. Supreme Court of the First Circuit’s en banc decision in United States v. Textron, Inc.
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Recent developments in the enforcement of the prohibition on off-label promotion (Sidley Austin LLP)
In recent weeks, there have been two important judicial decisions and an important government filing in cases involving "off-label promotion" by drug and medical device manufacturers.
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Anti-deprivation: what next for the UK structured debt market? (Clifford Chance LLP)
On 25 January, as part of the Lehman Chapter 11 cases, the US Bankruptcy Court concluded that a contractual alteration of swap payment priorities in a structured finance transaction, which occurred as a result of the Lehman bankruptcy, is not enforceable against Lehman Brothers Special Financing Inc. (“LBSF”) due to the operation of US Bankruptcy Code Sections 365 and 541.
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Lehman Brothers bankruptcy court strikes waterfall subordination provisions conditioned on bankruptcy (Schulte Roth & Zabel LLP)
On Jan. 25, 2010, the U.S. Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) held that a trust deed provision reversing a priority of payment waterfall upon the bankruptcy of a credit support provider under a swap agreement is unenforceable under the U.S. Bankruptcy Code (the “Bankruptcy Code”).
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Lehman Bankruptcy Court holds that CDO provision subordinating swap termination payments to Lehman is unenforceable (Cleary Gottlieb Steen & Hamilton LLP)
Yesterday, Judge Peck of the U.S. Bankruptcy Court for the Southern District of New York decided an issue of major importance in the bankruptcy of Lehman Brothers Special Financing (“LBSF”) and its affiliates.
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Basel II and CRD changes to the securitisation framework – a discussion of the implications (Sidley Austin LLP)
This Update considers the impact on securitisation transactions of significant regulatory changes that will take effect from 1 January, 2011.
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S&P withdraws ratings from equity- and commodity-linked structured notes (Morrison & Foerster)
In December 2009, Standard & Poor's ("S&P") announced that, beginning March 31, 2010, it will begin withdrawing ratings from structured notes with variable principal payments linked to equity prices, commodity prices, or equity or commodity indices.
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Rating agencies dismissed from Section 11 mortgage-backed securities class action (Edwards Angell Palmer & Dodge)
In a significant ruling with potentially wide-reaching implications, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York dismissed the Securities Act of 1933 causes of action (Sections 11, 12, and 15) against McGraw Hill and Moody's (the "Rating Agencies") in In re: Lehman Brother Mortgage Backed Securities Litigation.
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Federal Reserve Bank of New York issues statement regarding reverse repurchase agreements (Alston & Bird LLP)
In an operating policy issued today, the Federal Reserve Bank of New York (FRBNY) announced that it will continue to test the use of reverse repurchase agreements, or reverse repo agreements, as a tool to normalize its monetary policies.
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New York Federal Reserve Bank issues statement on reverse repos (Winston & Strawn LLP)
On October 19th, the Federal Reserve Bank of New York announced that it has been working internally and with market participants on operational aspects of reverse repurchase agreements as a tool for reducing the money supply.
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Sigma Finance Corporation: substituting a commercial bargain through the guise of interpretation? (White & Case LLP)
The first appeal ruling from the newly formed UK Supreme Court concerned the construction of a clause setting out the distribution of assets in a collapsed structured investment vehicle ("SIV").
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Cincom Systems, Inc. v. Novelis Corp. (Loeb & Loeb LLP)
Sixth Circuit holds that an internal corporate restructuring that resulted in a software licensee becoming a newly formed entity constituted an unauthorized transfer of the license, which would had required that the licensee obtain prior written approval from the licensor before transferring any right or obligation under the license.
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Mezzanine debt: a primer for distressed asset buyers (McKenna Long & Aldridge)
Becoming involved with a distressed asset is like deciding to read War and Peace, but discovering that your copy of the book starts on page 400.
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The new Uniform Rules for Demand Guarantees – coming soon to a bank guarantee near you (Denton Wilde Sapte LLP)
If what you do involves issuing bank guarantees, relying on them as credit support or requesting their issue, 1 July 2010 is a date for your diary.
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Litigation over the reduction of home equity lines of credit: Hickman and beyond (Locke Lord Bissell & Liddell LLP)
Over the last several months, borrowers have filed a number of lawsuits challenging lenders' decisions to reduce the limits on their Home Equity Lines of Credit, or "HELOCs."
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More, more, more: a summary of the Basel proposals (Morrison & Foerster)
Released in 1976, the song "More, More, More" became a disco chart-topper.
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The dustbin of history? Second Circuit makes clear that champerty won’t impede the rights of secondary purchasers (Richards Kibbe & Orbe LLP)
In a case of great significance to the United States secondary loan market, on January 11, 2010, the U.S. Court of Appeals for the Second Circuit firmly established that the ancient doctrine of "champerty" – originally a prohibition on the transfer of litigation claims – has no further relevance to transactions in the loan market that are governed by New York law.
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Fourth Circuit confirms writings trump oral representations (Foley & Lardner LLP)
The Diazs owned a home in Fairfax County, Virginia which they financed through Bank of America.
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HUD issues another round of FAQs (Patton Boggs LLP)
The Department of Housing and Urban Development (HUD) on January 29, 2010 issued another version of its frequently asked questions (FAQs) regarding the new Real Estate Settlement Procedures Act (RESPA) rule.
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2011 budget greatly expands reporting requirements and penalties for holders of offshore bank accounts (Venable LLP)
Holders of offshore bank accounts, along with their accountants and tax advisors, should be aware of recent proposals which could significantly change their reporting obligations, increasing both the disclosed information and the penalties for non-compliance.
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Treasury reclassifies sukuk under new regime (Denton Wilde Sapte LLP)
Treasury has brought sukuk and similar instruments within the scope of UK financial regulation.
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Nationwide Mortgage Licensing System implements online criminal background checks (Patton Boggs LLP)
The Nationwide Mortgage Licensing System (NMLS) recently implemented its online criminal background check functionality.
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The study that never was - a lesson in comparative advertising (Reed Smith LLP)
On Jan. 19, 2010, Weight Watchers International Inc. of New York sued its rival, Jenny Craig, Inc., in the U.S. District Court for the Southern District of New York.
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Pennsylvania Human Relations Commission proposes Policy Guidance that would presume employers engage in disparate impact discrimination when they use criminal history information (Reed Smith LLP)
The Pennsylvania Human Relations Commission ("PHRC") has proposed "Policy Guidance" stating that it intends to treat an employer's rejection of an African-American or Hispanic applicant because of his or her criminal record as presumptive evidence that the employer is discriminating against the applicant in violation of the Pennsylvania Human Relations Act ("PHRA").
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Notes on the National Summit on Health Care Fraud (Reed Smith LLP)
Last week, in my capacity as president of the American Health Lawyers Association, I attended the first National Summit on Health Care Fraud, a joint undertaking by the U.S. Department of Health and Human Services and the U.S. Department of Justice.
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Finnair's eco ad has its wings clipped (Reed Smith LLP)
On January 6, 2010, the UK's advertising watchdog, the Advertising Standards Authority (the ASA), issued a decision upholding complaints it received against a poster that promoted the Finnish airline, Finnair.
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More from the Marcellus Shale: West Virginia's Department of Environmental Protection finalizes guidelines for fracking (Reed Smith LLP)
On January 8, 2010, West Virginia's Department of Environmental Protection (WVDEP) finalized its industry guidance for oil and gas drilling in the Marcellus Shale.
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New regulations expand mental health parity requirements for group health plans (Reed Smith LLP)
On January 29, 2010, the U.S. Departments of Labor ("DOL"), Health and Human Services ("HHS") and the Treasury jointly issued interim final regulations implementing the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 ("MHPAEA").
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Effect of TUPE on collective agreements (Reed Smith LLP)
In the case of Parkwood Leisure Ltd v Alemo-Herron and others, the Court of Appeal has examined the effect of regulations 5 and 6 of Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE 1981) in relation to collective agreements.
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National Practitioner Data Bank adverse action reporting final rule (Reed Smith LLP)
On January 28, 2010, the Health Resources and Services Administration (HRSA) published a final rule updating the regulations governing the National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners.
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Pennsylvania Department of Environmental Protection to hire 68 new oil and gas regulators (Reed Smith LLP)
In a move described as an "Aggressive Action to Protect Public, Environment as Marcellus Drilling Operations Expands," Pennsylvania's Governor Ed Rendell directed the Pennsylvania Department of Environmental Protection ("DEP") to hire 68 new staff members today to work on natural gas well inspections and related oil and gas regulation.
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Reed Smith files amicus brief in Textron (Reed Smith LLP)
Reed Smith filed an amicus brief yesterday afternoon with the U.S. Supreme Court, asking that the Court grant certiorari and review the First Circuit decision in Textron.
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