Expert Analysis

• What To Expect From The SEC's New SOX Group

  

  In a potential shift away from Public Company Accounting Oversight Board enforcement, the U.S. Securities and Exchange Commission's formation of a new group to investigate and litigate potential violations of the Sarbanes-Oxley Act brings both risks and benefits for auditors, say attorneys at King & Spalding.

• Contract Language Reigned Supreme In Bancorp Dismissal

  

  A Minnesota federal court's recent dismissal of claims over U.S. Bancorp's cash sweep program underscores that clear contractual disclosures hold weight in class actions, demonstrating the power of contract language that plainly indicates terms, fiduciary limits and institutional benefits to customers, says Quin Seiler at Winthrop & Weinstine.

• Why Justices Seem Skeptical Of Curbing SEC Disgorgement

  

  Sripetch v. U.S. Securities and Exchange Commission presents an opportunity for the U.S. Supreme Court to clarify the disgorgement limits it set six years ago in Liu v. SEC, with recent oral arguments suggesting the court sees disgorgement as an equitable remedy akin to unjust enrichment, say attorneys at Hueston Hennigan.

• GHG Endangerment Finding Repeal Brings New Legal Risks

  

  The U.S. Environmental Protection Agency's 2009 determination that greenhouse gases endanger public health and welfare anchored a matrix of regulation across multiple sectors — and the recent repeal of that finding has fundamentally destabilized the legal landscape governing industrial emissions, corporate liability and climate-related risk management, says Tanya Nesbitt at Thompson Hine.

• 2 New SEC Proposals Represent Welcome Relief For Funds

  

  The U.S. Securities and Exchange Commission's recent proposals to alter requirements under the names rule and Form N-PORT are favorable developments for registered funds due to lessened reporting burdens and added flexibility, and are illustrative of the market-facilitative regulatory posture under Chairman Paul Atkins' leadership, say attorneys at Debevoise.

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  Officiating Football Makes Me A Better Lawyer

  

  Though they may seem to have little in common, officiating football has sharpened many of the same skills that define effective lawyering in management-side labor and employment: preparation, judgment, composure, credibility and ability to make difficult decisions in real time, says Josh Nadreau at Fisher Phillips.

• Prediction Market Platform Probes Merit Strategic Responses

  

  As the battle over the regulation of prediction markets is being waged between states and the federal government, investigations into insider trading allegations are increasingly originating from inside the exchanges themselves, creating obvious risks for market participants — as well as opportunities, say attorneys at Kobre & Kim.

• Shifts At DOJ Alter Corporate Self-Disclosure Calculus

  

  Though the Justice Department's new criminal enforcement policy clarifies the benefits of corporate self-disclosure, recent changes to prosecutorial priorities and resources mean that companies should reassess whether cooperation incentives still outweigh the risks of nondisclosure, says Hui Chen at CDE Advisors.

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  Law School's Missed Lessons: How To Draft Pleadings

  

  Most law school graduates step into their first jobs without ever having drafted a complaint, answer, motion or other type of pleading, but that gap can be closed by understanding the strategy embedded in every filing, writing with clarity and purpose, and seeking feedback at every step, says Eric Yakaitis at Haug Barron.

• Tokenized Securities Have Capital Parity, But Details Matter

  

  Recent guidance from the federal banking agencies clarifies that the use of distributed ledger technologies to issue and transact in securities will not affect the capital treatment of those instruments, but banks looking to apply parity treatment to tokenized securities should be prepared to document their qualification processes, say attorneys at Davis Polk.

• Crypto Trading App Statement Advances SEC's New Direction

  

  While the U.S. Securities and Exchange Commission's staff statement from last week carving out an exemption from broker-dealer registration for crypto-trading apps isn't a formal or permanent rule, it's the clearest signal yet of a quickly emerging coherent regulatory framework for digital assets, says Stephen Aschettino at Fox Rothschild.

• E-Discovery Quarterly: Recent Rulings On ESI Control

  

  Several recent federal court decisions have perpetuated a split over what constitutes “control” of electronically stored information — with judges divided on whether the standard should turn on a party's legal right or practical ability to obtain the information, say attorneys at Sidley.

• Record Penalty Sets Stage For FinCEN Whistleblower Awards

  

  The Financial Crimes Enforcement Network’s record $80 million penalty against Canaccord, together with the agency's recently proposed rule on whistleblower awards, signals an increasingly aggressive enforcement posture and illustrates the significant financial stakes associated with reporting violations, says Marlene Koury at Constantine Cannon.

• Del. Ruling Shows Power Of Postclose Governance Provisions

  

  After the Delaware Court of Chancery reinstated a target company's CEO as part of the equitable remedy in Fortis Advisors v. Krafton, deal parties should emphasize the importance of postclosing governance provisions to earnout economics, knowing that they will have to live with these provisions for the duration of the earnout period, say attorneys at Sidley.

• 2nd Circ. Ruling Reinforces Securities Act Limits Post-Slack

  

  The Second Circuit's recent decision to limit treatment of mandatory reverse splits as actionable sales in Knapp v. Barclays is narrow but important, offering issuers a stronger basis to challenge expansive Securities Act theories and reinforcing the post-Slack v. Pirani discipline of tracing, says Elisha Kobre at Sheppard.