Practice Areas & Industries: Cadwalader, Wickersham & Taft LLP

 




Securitization & Asset Based Finance Return to Practice Areas & Industries

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"The attorneys at Cadwalader have really mastered the art of securitization" - Chambers USA

Since 1985, Cadwalader has facilitated the issuance of billions of dollars of asset-backed securities. This practice, which has grown beyond traditional asset classes, now encompasses the entire range of emerging and niche asset classes, including: 12b-1 fees; airplane loans; annuity contracts; cell phone towers commercial loans; dealer notes and floor plan financing; equipment and automobile leases; franchise receivables; government receivables; insurance-related assets; manufactured housing; music and publishing royalties; pharmacy and health care receivables; solar assets; student loans; tax liens; taxi medallions; and trade receivables.

With unparalleled experience in securitization, garnered from participation in an exceptional number of transactions and industry leadership, Cadwalader attorneys have not only the legal expertise and judgment required for complex securitization matters but the sophisticated business perspective necessary in today's constantly evolving economic environment. In recognition of Cadwalader's level of experience in capital markets financings, the firm is consistently ranked by independent commentators and in league tables as one of the top securitization and structured finance law firms in the nation.

Whether in their capacities as issuers, underwriters or in other roles, banks, insurance companies and other financial institutions call upon Cadwalader to help them develop new products and structure and to devise cross-border structures in Europe, Asia and Latin America. Similarly, leading industry reporters and commentators - including those from Asset Backed Alert, Commercial Mortgage Alert, The Daily Deal, Derivatives Week, the Financial Times, Global Finance, International Securitisation Report, Securitization News, and others - seek the insight and perspective of our lawyers on complex legal issues.

Securitization requires the close cooperation of attorneys of numerous disciplines. Cadwalader's securitization team integrates attorneys from other disciplines to advise clients concerning the issues that arise in the course of securitization transactions, including those with expertise in real estate, corporate, securities and commodities regulation, bankruptcy, tax, banking, pension plan regulation, and ERISA to name a few.


 
 
Articles Authored by Lawyers at this office:

Clarifying Amendments to the Nonprofit Revitalization Act Signed Into Law
Christina T. Holder,Pamela Landman,Paul W. Mourning, January 04, 2016
On December 11, 2015, Governor Cuomo signed into law Chapter 555 of the Laws of New York of 2015 (Assemb. Bill 8118-B/Sen. Bill 5868-A) making certain “clarifying amendments,”1 effective immediately,2 to provisions of the New York Not-for-Profit Corporation Law (“NPCL”),...

2016 Proxy Season - Quick Reference Guide
Christopher T. Cox,William P. Mills,Gillian Emmett Moldowan,Shane J. Stroud, December 30, 2015
The year is coming to an end and the 2016 proxy season is on the horizon. This quick reference guide identifies considerations based on themes from 2015, offers recommendations and resources for the upcoming season, and discusses expected future changes in disclosure rules that public companies...

CFTC Adopts Margin Requirements for Uncleared Swaps
Patrick A. Calves,Nihal S. Patel,Jeffrey L. Robins,Michael Sean Selig, December 30, 2015
Yesterday, the Commodity Futures Trading Commission (“CFTC”) held an open meeting at which it voted to adopt final rules (the “CFTC Margin Rules”)1 governing margin requirements for uncleared swaps (“Swaps”) entered into by swap dealers and major swap...

Update on the EU’s Proposed Regulation on Securitisation and its Potential Impact on US Market Participants
Robert Cannon,Stephen Day,Neil Macleod,Claire Suzanne Puddicombe,David Quirolo, December 30, 2015
We discussed the European Commission’s (the “Commission”) proposal for a regulation (the “Regulation”) intended to harmonise existing EU laws applying to securitisations, including EU risk retention rules, and to create a legal framework intended to encourage...

Contractual Recognition of Bail-In - Are You Ready? 
Assia Damianova,Nick Shiren, December 29, 2015
The aim of the EU Bank Recovery and Resolution Directive (the “BRRD”)1 is to establish a framework for the recovery and resolution of EU credit institutions and significant investment firms and to equip EU national authorities with harmonised powers and tools to tackle financial crises...

M&A Update: Delaware Supreme Court Upholds Rural Metro Decision, but Financial Advisors Can Breathe a Sigh of Relief
Joshua Apfelroth,Lindsey Kister,William P. Mills,Martin L. Seidel, December 29, 2015
In a November 30, 2015 decision, the Delaware Supreme Court upheld the Delaware Chancery Court’s $76 million damages award against RBC Capital in In re Rural/Metro Corp. S’holders Litig. The ruling, however, notably rejected the trial court’s characterization of financial advisors...

The “State of Play” of the European Financial Transaction Tax: European Council Meeting, 8 December 2015
Adam Blakemore,Catherine Richardson, December 29, 2015
On 3 December 2015 the Luxembourg President of the Council of the European Union released a “state of play” announcement on the progress made during the course of this year by the ten European Union participating member states (Austria, Belgium, France, Germany, Greece, Italy, Portugal,...

CFTC / CME Settle Misappropriation Case
Scott A. Cammarn,Douglas J. Donahue,Athena Yvonne Eastwood,Doron F. Ezickson,Steven Lofchie, December 28, 2015
On December 2, 2015, the U.S. Commodity Futures Trading Commission (“CFTC” or “Commission”) and the New York Mercantile Exchange (“NYMEX”) simultaneously announced settlements with Arya Motazedi, a gasoline trader, including for claims of insider trading under...

The End of the Implied Certification Theory?: The U.S. Supreme Court Grants Certiorari in Case That Could Substantially Limit the False Claims Act
Jonathan Bailyn,Keith M. Gerver,Adam S. Lurie,Brian T. McGovern,Anne M. Tompkins, December 28, 2015
On December 4, 2015, the United States Supreme Court granted certiorari in Universal Health Services, Inc. v. United States ex rel. Escobar. In Universal Health Services, Inc., the Supreme Court will decide the legal validity of the “implied certification” theory of False Claims Act...

2015 FERC Enforcement Report Confirms Increase in Enforcement and Audit Activity as FERC Faces Unprecedented Number of Litigated Enforcement Matters
Sohair A. Aguirre,George D. Billinson,Doron F. Ezickson,Mark R. Haskell,Christopher Hood, December 07, 2015
The Federal Energy Regulatory Commission’s (“FERC”) Office of Enforcement (“Enforcement”) issued its 2015 Report on Enforcement (“Report”) on November 19, 2015. The Report summarizes FERC’s enforcement efforts during the fiscal year 2015 in...

CFTC Extends No-Action Relief for Swaps Executed as Part of Certain Package Transactions
Athena Yvonne Eastwood,Andrew M. Greenberg,Neal E. Kumar,Michael Selig, December 07, 2015
On October 14, 2015, the Division of Market Oversight (“DMO”) for the U.S. Commodity Futures Trading Commission (“CFTC”) issued an additional extension of no-action relief for swaps executed as part of “package” transactions.1 This relief provides additional time...

What you need to know about Hong Kong Competition Law (Part 5) - Investigation and Enforcement
Simon H. Berry,Alec J. Burnside,Viola Jing,Michael Liu,Jane Ng, December 07, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on 14 December 2015 will mark the first time that Hong Kong has a general and cross-sector competition law.

What You Need to Know About Hong Kong Competition Law (Part 4) - The Merger Rule and the Telco Rule
Simon H. Berry,Alec J. Burnside,Viola Jing,Michael Liu,Jane Ng, December 02, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on 14 December 2015 will mark the first time that Hong Kong has had a general and cross-sector competition law.

What you need to know about Hong Kong Competition Law (Part 6) Practical Compliance with the Competition Ordinance
Simon H. Berry,Alec J. Burnside,Michael Liu,Jane Ng,Charles F. (Rick) Rule, December 01, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on14 December 2015 will mark the first time that Hong Kong has a general and cross-sector competition law.

UK Autumn Statement 2015 - Key Tax Measures
Adam Blakemore,Catherine Richardson, November 30, 2015
The Chancellor of the Exchequer delivered his budgetary Autumn Statement on 25 November 2015. In this Client and Friends Alert we have outlined the key tax measures that we expect to be of interest to Cadwalader’s clients and friends. Following the two UK Budgets held in March and September...

Albany County Supreme Court Upholds $199,000 “Hard Cap” on State Funded Executive Compensation, While Striking “Soft Cap” on Funding From All Sources
Christina T. Holder,Pamela Landman,Brian T. McGovern, November 30, 2015
On November 13, 2015, the New York State Supreme Court, Albany County issued a decision in LeadingAge et al. v. Shah,1 upholding in part and invalidating in part regulations issued by the Department of Health to implement Executive Order 38, limiting executive compensation and administrative...

CFTC Releases Swap Dealer De Minimis Report
Sohair A. Aguirre,Athena Yvonne Eastwood,Jonathan H. Flynn,Andrew M. Greenberg,Neal E. Kumar, November 30, 2015
CFTC Staff’s Preliminary Report on whether to modify the swap dealer de minimis threshold highlights the difficulty in identifying swap dealing activity and problems with swap data reporting

CFTC Unanimously Approves Notice of Proposed Rulemaking on Regulation of Automated Trading
Isabelle S. Corbett,Athena Yvonne Eastwood,Neal E. Kumar,Jorge Pesok,Michael Selig, November 30, 2015
On November 24, 2015, the Commodity Futures Trading Commission (“CFTC” or “Commission”) held an open meeting to propose the regulation of automated trading (“Regulation AT”). According to the CFTC, the purpose of Regulation AT is to minimize the potential for...

ISS Accepting Company-Selected Peer Group Submissions, including, for the first time, companies in the Russell MicroCap Index
Christopher T. Cox,William P. Mills,Gillian Emmett Moldowan, November 30, 2015
Companies in the Russell 3000 and Russell MicroCap Index with annual meetings scheduled between February 1, 2016 and September 15, 2016 may submit updates to their self-selected compensation benchmarking peer groups from 9:00 AM EST on Tuesday, November 24, 2015 through 8:00 PM EST on Friday,...

The Federal Circuit Reverses the ITC and Concludes It Does Not Have Jurisdiction Over Digital File Transmissions Under Section 337
Douglas A. Behrens,Alexander J. Hadjis,Kristin L. Yohannan, November 30, 2015
On November 10, 2015, a divided Federal Circuit panel issued a decision in ClearCorrect Operating, LLC v. International Trade Commission,1 concluding that the International Trade Commission (ITC or Commission) lacks jurisdiction over electronic transmissions of digital data. The majority’s...

Treasury Announces Second Anti-Inversion Notice
Christopher T. Cox,Richard M. Nugent,Linda Z. Swartz,Edward S. Wei, November 30, 2015
On November 19, 2015, Treasury issued Notice 2015-79 (the “Notice”), which announces Treasury’s intent to issue regulations reducing the tax benefits available to inverted groups and making it more difficult for some U.S. companies to invert. The Notice, which includes rules...

What You Need to Know About Hong Kong Competition Law (Part 3) - The Second Conduct Rule
Simon H. Berry,Alec J. Burnside,Michael Liu,Jane Ng,Charles F. (Rick) Rule, November 20, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on 14 December 2015 will mark the first time that Hong Kong has a general and crosssector competition law.

M&A Update: Chancery Court Finds Merger Price to be Most Persuasive Factor in Appraisal Action
Joshua Apfelroth,Gregory A. Markel,William P. Mills,Brittany Schulman,Martin L. Seidel, November 05, 2015
In a recent decision in an appraisal action, the Delaware Chancery Court reaffirmed the Court’s reluctance to substitute its own calculation of the “fair value” of a target company’s stock for the purchase price derived through arms-length negotiations, provided it resulted...

What You Need to Know About Hong Kong Competition Law (Part 2) The First Conduct Rule
Alec J. Burnside,Viola Jing,Michael Liu,Jane Ng,Charles F. (Rick) Rule, November 05, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on 14 December 2015 will mark the first time that Hong Kong has a general and cross-sector competition law.

Prudential Regulators Release Final Margin Rules for Swaps
Steven Lofchie,Nihal S. Patel,Jeffrey L. Robins, October 29, 2015
On October 22, 2015, the Federal Deposit Insurance Corporation held an open meeting at which it voted to adopt: (i) final rules governing margin and capital requirements for uncleared swaps1 and (ii) an interim final rule to implement statutory amendments excluding certain entities from the...

What you need to know about Hong Kong Competition Law (Part 1) - General Overview
Simon H. Berry,Alec J. Burnside,Viola Jing,Michael Liu,Charles F. (Rick) Rule, October 26, 2015
The implementation of the new Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Competition Ordinance) on 14 December 2015 will mark the first time that Hong Kong has a general and cross-sector competition law.

UK Financial Conduct Authority Issues Final Rules Concerning Whistleblowers
Bret A. Campbell,Joseph V. Moreno,Katherine Preston,Kenneth L. Wainstein, October 23, 2015
On October 6, 2015, the UK Financial Conduct Authority (“FCA”) issued final rules formalizing whistleblower procedures to be implemented by certain banks, building societies, credit unions, investment firms, and insurance and reinsurance companies.1 While the FCA’s final rules do...

Chancery Court Provides Lessons on Conflicts of Interest in a Sales Process - Holds Only Financial Advisor Open to Liability
Joshua Apfelroth,Gregory A. Markel,William P. Mills,Brittany Schulman,Martin L. Seidel, October 23, 2015
In an October 1st decision (In re Zale Corporation), the Delaware Chancery Court dismissed claims that Zale Corporation’s directors breached their fiduciary duties in connection with Zale’s agreement to merge with Signet. The Court, however, permitted a claim to proceed against Merrill...

Fully Informed Vote of Disinterested Stockholders Results in Business Judgment Rule Protection in Post-Closing Review of Merger
Gregory A. Markel,William P. Mills,Brittany Schulman,Martin L. Seidel, October 16, 2015
In an October 2, 2015 decision, Corwin, et al. v. KKR Financial Holdings LLC., et al., the Delaware Supreme Court clarified that once a merger closes, as long as it has been approved by a fully informed vote of the disinterested stockholders, the standard for reviewing the board’s conduct...

Securitisation: Keeping it Simple?
Bruce C. Bloomingdale,Robert Cannon,Merryn Craske,Stephen Day,Angus Duncan, October 13, 2015
On 30 September 2015, the European Commission (the “Commission”) published a proposal for a regulation (the “Proposed Regulation”)1 intended to harmonise existing EU laws applying to securitisations (including proposed changes to the EU risk retention rules) and to create a...

Hong Kong Competition Commission Consults on Draft Cartel Leniency Policy
Simon H. Berry,Alec J. Burnside,Viola Jing,Michael Liu,Jane Ng, October 08, 2015
On September 23, 2015, the Hong Kong Competition Commission (the Commission) released a draft leniency policy for undertakings engaged in cartel conduct (the Policy) for public consultation. Feedback is invited by the deadline of October 23, 2015.1

Delaware Court Leaves Ousted Executive on His Own for Legal Fees
Gregory A. Markel,William P. Mills,Brittany Schulman,Martin L. Seidel, September 23, 2015
In a September 11, 2015, decision, the Delaware Chancery Court denied a former officer and director advance reimbursement of legal fees in a dispute with his company, despite his insistence that multiple corporate documents and Delaware law entitled him to advancement. The opinion underscores the...

FCA and Ofgem Question Adequacy of Commodity Firms’ Compliance and Market Abuse Controls
Doron F. Ezickson,Adam Topping, September 14, 2015
In the most recent edition of its regular market conduct and transaction reporting-focused ‘Market Watch’ publication, the UK Financial Conduct Authority (“FCA”) provides a review of commodities firms’ compliance and governance structures, with particular regard to...

New DOJ Policy Regarding Individual Accountability for Corporate Wrongdoing
Jodi L. Avergun,Raymond Banoun,Bret A. Campbell,Peter B. Clark,Adam S. Lurie, September 14, 2015
On September 9, 2015, the U.S. Department of Justice announced a new policy regarding individual accountability for corporate misconduct. The policy, described in a memo authored by Deputy Attorney General Sally Yates1, posits that “one of the most effective ways to combat corporate...

Delaware Court Finds Dole Executives Personally Liable for Millions in Damages for Defrauding Stockholders in Buy-Out and Undermining Special Committee Process
Richard M. Brand,Gregory A. Markel,William P. Mills,Brittany Schulman,Martin L. Seidel, September 04, 2015
In its August 27th post-trial opinion, In re Dole Food Co., Inc. Stockholder Litigation, the Delaware Chancery Court held Dole executives David Murdock and Michael Carter personally liable for $148 million in damages for undermining and interfering with the special committee’s efforts to...

The Second Circuit Denies Midland’s Request For Rehearing On Its Decision That Upended Longstanding Principles of Lending Law
Nathan Bull,Scott A. Cammarn, August 26, 2015
On August 12, 2015, the United States Court of Appeals for the Second Circuit denied Midland Funding, LLC and Midland Credit Management (collectively, “Midland”)’s petition for panel rehearing, or, in the alternative, rehearing en banc, of the Second Circuit’s recent...

D.C. Circuit Upholds Attorney-Client Privilege Again in In re Kellogg Brown & Root, Inc.
Jodi L. Avergun,Bret A. Campbell,Adam S. Lurie,Katherine Preston, August 19, 2015
On August 11, 2015, the U.S. Court of Appeals for the D.C. Circuit granted a petition by Kellogg Brown & Root, Inc. (“KBR”) for a writ of mandamus in order to protect KBR’s assertion of attorney-client privilege over its prior internal investigation of alleged violations of...

Initial Decision Finds that BP Manipulated 2008 Natural Gas Market in Texas
Sohair A. Aguirre,Doron F. Ezickson,Paul J. Pantano,Mary Treanor, August 19, 2015
On August 13, 2015, a Federal Energy Regulatory Commission (“FERC” or “Commission”) Administrative Law Judge (“ALJ”) issued an initial decision in which she found that BP America Inc. et al. (“BP”) manipulated the natural gas market in Texas for over...

Pharmaceutical Manufacturer's Preemptive Suit Secures Preliminary First Amendment Protection for Script to Promote Off-Label Use
Aaron Buchman,Bret A. Campbell,Adam S. Lurie,Brian T. McGovern,Martin L. Seidel, August 19, 2015
On August 7, 2015, the U.S. District Court for the Southern District of New York invoked the First Amendment, granting Amarin Pharma, Inc. (Amarin) preliminary protection against federal criminal prosecution for misbranding and allowing Amarin to promote its drug, Vascepa, for off-label use through...

In Closely Watched Case, Federal Court Upholds the Government’s Position on Provider Mandate to Report and Return Medicare and Medicaid Overpayments in 60 Days
Jared Facher,Brian T. McGovern, August 11, 2015
The Patient Protection and Affordable Care Act (“PPACA”), signed into law on March 23, 2010, included a provision (the “Report and Refund Mandate”), broadly requiring health care providers, suppliers, Part D plans and managed care organizations that were overpaid by the...

SDNY Transfers Delaware Trust Company v. Wilmington Trust N.A. Intercreditor Dispute to Delaware Bankruptcy Court, Reaffirming Broad View of Bankruptcy Jurisdiction
Thomas J. Curtin,Mark C. Ellenberg,Ellen Halstead,Howard R. Hawkins,Ivan Loncar, August 11, 2015
On July 23, 2015, in an action arising from the huge TCEH chapter 11 bankruptcy, Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York issued an opinion in Delaware Trust Company v. Wilmington Trust N.A.[1] denying plaintiff’s motion to remand the case back...

Illinois Court Strikes Down Chicago Pension Reforms, Deepening City's Financial Crisis
Ingrid Bagby,Thomas J. Curtin,Mark C. Ellenberg,Daniel Gwen,Ellen Halstead, August 10, 2015
On July 24, 2015, Judge Rita M. Novak of the Circuit Court of Cook County, Illinois struck down recently enacted legislation designed to shore up two of the City of Chicago’s severely underfunded pension plans by, among other things, reducing benefits.1 Judge Novak viewed as controlling a...

CFTC Division of Market Oversight Holds Roundtable to Assess the Made Available to Trade Process
, July 31, 2015
On Wednesday, July 15, 2015, the Commodity Futures Trading Commission’s (“CFTC”) Division of Market Oversight (“DMO”) hosted a public roundtable to discuss the process to determine whether a swap must be executed on an exchange. The roundtable assessed industry...

Supreme Court Rejects EPA Mercury Emissions Rule
Athena Yvonne Eastwood,Douglas H. Fischer, July 23, 2015
On June 29, 2015, the Supreme Court cast serious doubt upon the future of the Mercury and Air Toxics Standards (“MATS”) by finding that the Environmental Protection Agency (“EPA”) failed to adequately consider the costs of the rule as part of its initial decision to issue...

Investing in the United States: CFIUS Concerns for Chinese Investors
Keith M. Gerver,Viola Jing,Michael Liu,Jane Ng, July 15, 2015
Michael Liu, Jane Ng, Viola Jing and Keith Gerver have authored a Clients & Friends Memo to discuss the latest trends in reviews conducted by the Committee on Foreign Investment in the United States (CFIUS) for Chinese investors contemplating possible investments in U.S. assets. The Memo...

Remit: The Road to Enforcement
Doron F. Ezickson,Adam Topping, July 14, 2015
Following a number of recent developments, described below, the rules and regulations enacted under the European Union (EU) Regulation on Wholesale Energy Markets Integrity and Transparency (REMIT) are now close to being fully-implemented. Market participants must ensure they are now prepared for...

Supreme Court Upholds Premium Subsidies in 34 States with Federally-Facilitated Marketplaces
Christina T. Holder,Pamela Landman,Stephanie Marcantonio,Paul W. Mourning, June 26, 2015
Today the U.S. Supreme Court handed down its much anticipated decision in King v. Burwell, a case challenging the legality of Federal subsidies provided to individuals in the 34 States that did not establish State-based American Health Benefit Exchanges (“State Exchanges”), and instead...

Second Circuit Holds Application of State Usury Laws to Third-Party Debt Purchasers Not Preempted by National Bank Act
Nathan Bull,Scott A. Cammarn,Michael S. Gambro,Stuart N. Goldstein,Jordan M. Schwartz, June 23, 2015
On May 22, 2015, in Madden v. Midland Funding, LLC1 (“Madden”), the United States Court of Appeals for the Second Circuit held that the application of state usury laws to third-party assignees is not preempted by the National Bank Act (the “NBA”) but rather such assignees...

Such A Fact Pattern Does Not A $5 Million Penalty Make.
Doron F. Ezickson,Thomas Reid Millar,Katherine Vorhis, June 18, 2015
Or so says one dissenting FERC Commissioner in the recent Maxim Power enforcement proceeding.1 On May 1, 2015, FERC issued an order assessing civil penalties (the “Order”) of $5 million against Maxim Power Corporation and its named subsidiaries (“Maxim”),2 as well as $50,000...

Tariff Compliance Is Not Enough: FERC Imposes Nearly Thirty-Five Million Dollars in Penalties and Disgorgement against Powhatan Energy Fund and Its Trading Associates
Doron F. Ezickson,Thomas Reid Millar,Mary Treanor, June 18, 2015
On May 29, 2015, the Federal Energy Regulatory Commission (“FERC”) issued an Order against Powhatan Energy Fund, LLC and its trading partners, Dr. Houlihan Chen, HEEP Fund, LLC and CU Fund, Inc. (together, “Powhatan”). FERC imposed civil monetary penalties of more than $29...

A Looming Crisis: Illinois Supreme Court Strikes Down Statute Reducing Benefits
Ingrid Bagby,Thomas J. Curtin,Mark C. Ellenberg,Daniel Gwen,Ellen Halstead, June 16, 2015
On May 8, 2015, the Supreme Court of the State of Illinois struck down recently enacted state public pension reform legislation on the grounds that the legislation violated the “pension protection clause” of the Illinois constitution. The legislation had sought to reduce...

CFTC Issues Proposed Order to Exempt Certain SPP Transactions from Regulation Under Most Provisions of the CEA and CFTC Rules
Sohair A. Aguirre,Paul J. Pantano,Lamiya Rahman, June 16, 2015
On May 19, 2015, the Commodity Futures Trading Commission (“CFTC” or “Commission”) issued an order in response to an application from Southwest Power Pool, Inc. (“SPP”) proposing to exempt three categories of SPP transactions (“Covered Transactions”)...

Supreme Court Holds That Orders Denying Plan Confirmation Are Not Final for Appellate Purposes
Ingrid Bagby,Mark C. Ellenberg,Casey John Servais,Christopher J. Updike, June 16, 2015
On May 4, 2015, a unanimous United States Supreme Court in Bullard v. Blue Hills, 135 S. Ct. 1686 (2015), resolved a long-standing circuit court split by holding that a bankruptcy court’s order denying confirmation of a debtor’s proposed bankruptcy plan is not a “final”...

IRS Mulls Change to Spinoff Rules
William P. Mills,Richard M. Nugent,Linda Z. Swartz, June 10, 2015
In a statement that would mark a stark change in approach, an IRS official recently indicated that the IRS may begin requiring that companies seeking to effect tax-free spinoffs conduct active businesses that represent a minimum percentage of the companies’ assets. The official noted that the...

Crowley Executive Acquittal in Price Fixing Trial Highlights Importance of Evaluating Legitimate Defenses and Avoiding Costly Plea Agreements
Joseph J. Bial,Daniel J. Howley,Anthony V. Nanni,Charles F. (Rick) Rule,Eric Sega, May 25, 2015
A federal jury’s recent acquittal of a shipping company executive charged with price fixing highlights the challenges and uncertainties the Antitrust Division of the Department of Justice (“DOJ”) faces when defendants force DOJ to prove its case at trial. It also highlights the...

M&A Update: Delaware Supreme Court Issues Important Ruling Protecting Independent Directors
William P. Mills,Brittany Schulman,Martin L. Seidel, May 25, 2015
On May 14, 2015, the Delaware Supreme Court ruled that claims against independent directors must be dismissed when a company charter provision shields directors from monetary liability for breach of the duty of care and the plaintiffs are unable to plead facts establishing that the directors...

Recent Court and Agency Actions Suggest Increased Antitrust Risk Over Disgorgement, Particularly in the Pharmaceutical Industry
Andrew J. Forman,Daniel J. Howley,Charles F. (Rick) Rule,Eric Sega, May 13, 2015
Recent court and agency rulings highlight important takeaways involving disgorgement in antitrust proceedings. Companies, especially those in the pharmaceutical industry, increasingly should ensure they properly calibrate the potential for disgorgement in their antitrust risk calculus.

Final Regulations on Section 162(m) Deduction Limit Exceptions
Shane J. Stroud,Linda Z. Swartz, May 06, 2015
New final regulations[1] (the “Final Regulations”) have been issued clarifying and altering the “qualified performance-based compensation” exception and the transitional “reliance period” exception for newly public companies to the $1 million limit on deductible...

SEC Proposes Title VII Regulatory Framework for Non-US Dealers Transacting in the United States
Steven Lofchie,Isaac Neill,Nihal S. Patel,Jeffrey L. Robins, May 06, 2015
The U.S. Securities and Exchange Commission (the “SEC”) reproposed rules addressing the application of certain requirements under Title VII of the Dodd-Frank Act (the “Reproposal”) to non-U.S. persons dealing in security-based swaps (“SBSs”), where the...

Supreme Court’s Holding in Oneok v. Learjet Could Lead to New Risks for Market Participants
Joseph J. Bial,Daniel J. Howley,Gregory K. Lawrence,Thomas Reid Millar,Natalie Mitchell, May 06, 2015
On April 21, 2015, the Supreme Court decided Oneok v. Learjet,1 holding that “Respondents’ state-law antitrust claims are not within the field of matters pre-empted by the Natural Gas Act”2 even though the claimed violations “affected . . . federally regulated wholesale...

What Did April Bring?: FERC Extends Out-of-Market Reliability Measures but Wants Market-Based Solutions
Gregory K. Lawrence,Thomas Reid Millar,Mary Treanor, May 06, 2015
The Federal Energy Regulatory Commission (“FERC”) recently published two orders that approved capacity and reliability measures for the Independent System Operator New England Inc. (“ISO-NE”) and the New York Independent System Operator (“NYISO”). In contrast to...

A Signal of Things to Come? New CME Rule 512 Reflects Modified Stance for Violations of Futures and Options Reporting Requirements
Athena Yvonne Eastwood,Jonathan H. Flynn,Neal E. Kumar,Gregory George Mocek,Mary Treanor, April 27, 2015
On March 24, 2015, the CME Group, Inc. (“CME”) announced a proposed amendment to Rule 512 indicating that it will impose a minimum fine of $1,000 for repeat violations of its exchanges’ reporting rules for futures and options. The amendment, which became effective on April 7, 2015...

CFTC Issues No-Action Relief for Amended Legacy Swaps between SDs and SPVs
Douglas J. Donahue,Ivan Loncar,Paul J. Pantano,Nihal S. Patel, April 17, 2015
On March 31, 2015, the Division of Swap Dealer and Intermediary Oversight (the “Division”) of the Commodity Futures Trading Commission (the “CFTC”) issued no-action relief regarding compliance with certain of its swap regulations, including, but not limited to, business...

Department of Justice Antitrust Division Charges Former E-Commerce Executive with Price-Fixing in First Ever Online Marketplace Prosecution
Joseph J. Bial,Anthony V. Nanni,Charles F. (Rick) Rule,Eric Sega, April 17, 2015
On April 6, 2015, the Department of Justice Antitrust Division announced that David Topkins, a former executive of an e-commerce seller of wall décor, had pled guilty to a one-count felony charge for conspiring to fix the prices of certain posters sold in the United States through Amazon...

Premium - In Whose Interest?
Tawnee Ebbs,Louisa Watt, April 17, 2015
The Loan Market Association (“LMA”) Standard Terms & Conditions for Par & Distressed Trade Transactions (Bank Debt/Claims) (the “Terms and Conditions”) are the recommended set of terms published by the LMA and commonly used for the trading of loans and claims in the...

Truthful . . . but Not Forthcoming? FERC Staff Takes Aggressive View of Material Omissions as Basis for Intent in Maxim Power
Gregory K. Lawrence,Thomas Reid Millar,Mary Treanor, April 17, 2015
Recent positions taken by FERC’s Enforcement Staff in the Maxim Power show cause proceeding add to the uncertainty regarding what information market participants must volunteer when communicating with the Commission, ISOs/RTOs, market monitors and others. We have recently written about Maxim...

FinCEN Assesses $1 Million Penalty and Seeks to Bar Former MoneyGram Executive from Financial Industry
Jodi L. Avergun,James A. Treanor, April 14, 2015
On December 18, 2014, the Financial Crimes Enforcement Network (“FinCEN”) assessed a $1 million civil monetary penalty against Thomas E. Haider, former Chief Compliance Officer at MoneyGram International Inc., for allegedly failing to ensure that his company complied with the anti-money...

UK Budget 2015 - Key Tax Measures
Adam Blakemore,Catherine Richardson, April 14, 2015
The Chancellor of the Exchequer’s final Budget of the current Parliament, given on 18 March 2015, was held in the shadow of the UK’s general election on 7 May 2015. With the backdrop of the UK’s GDP growth increasing, continued low interest rates, rising employment and a reducing...

China’s New Foreign Investment Law: Implications for Restricted Industry Investments in China
Rocky T. Lee, March 26, 2015
On January 19, 2015, the Ministry of Commerce (the “MOFCOM”) of the People’s Republic of China (the “PRC”) released a draft of a newly proposed Foreign Investment Law for public comment (the “New Law”). If the New Law is passed by the National...

Court Finds CFTC RTO/ISO Exemptive Order Bars CEA § 22 Private Right of Action, but More to Come from the CFTC
Gregory K. Lawrence,Christopher J. Polito,Lamiya Rahman, March 26, 2015
Can private litigants bring claims under the Commodity Exchange Act alleging manipulation in ERCOT’s energy markets? On February 3, the U.S. District Court for the Southern District of Texas answered “no,” granting defendants’ motion to dismiss in Aspire Commodities v. GDF...

Federal Appellate Court Ruling Sounds the Liability Alarm for Officers and Directors of Struggling Health Care Providers - Both Non-Profit and For-Profit
Ingrid Bagby,Erik Graham-Smith,Pamela Landman,Brian T. McGovern, March 26, 2015
Last month, the United States Court of Appeals for the Third Circuit issued an important, 28-page opinion that confirmed a jury verdict, holding former officers and directors of a not-for-profit health care provider in bankruptcy, jointly and severally liable to the facility’s creditors - in...

M&A Update: Market Pressures, Favorable Law Spur REIT Conversions and Spinoffs
William P. Mills,Richard M. Nugent, March 26, 2015
Urged on by activists and institutional shareholders, a large number of companies with real estate holdings pursued real estate investment trust (REIT) conversions or spinoffs in 2014. At least half a dozen companies completed REIT transactions last year, including cell tower company Crown Castle...

Takeaways from the Ninth Circuit’s Opinion Affirming the FTC’s Victory Against the St. Luke's/Saltzer Merger
Andrew J. Forman,Daniel J. Howley,Jonathan S. Kanter,Charles F. (Rick) Rule,Eric Sega, March 26, 2015
On February 10, 2015, the United States Court of Appeals for the Ninth Circuit affirmed a district court’s ruling that St. Luke’s Health System’s acquisition of the independent physician group Saltzer Medical Group violated the antitrust laws. This appellate victory is another in...

The Obama Administration’s Personal Data Notification & Protection Act: An Analysis
Peter Carey,Kenneth L. Wainstein, March 26, 2015
On January 12, 2015, President Obama proposed the Personal Data Notification & Protection Act, which would create a federal standard for data breach notification. The proposed bill is part of a more wide-ranging effort by the Obama administration to shore up the nation’s cybersecurity....

The Suprema Federal Circuit En Banc Hearing: The Full Court's Decision May Impact the ITC's Remedial Authority
Alexander J. Hadjis,Tihua Huang,Steven L. Rushing,Kristin L. Yohannan, March 26, 2015
On February 5, 2015, the Federal Circuit sat en banc and heard oral argument after vacating a panel decision in Suprema, Inc. v. Int’l Trade Comm’n, 742 F.3d 1350 (Fed. Cir. 2013). The panel decided that the ITC lacks statutory authority to enter an exclusion order to remedy the induced...

The Fate of Demand Response Hangs in the Balance
Sohair A. Aguirre,Gregory K. Lawrence,Natalie Mitchell,Lamiya Rahman, March 25, 2015
The Justices of the United States Supreme Court are not strangers to the retail versus wholesale distinction that often plagues FERC’s regulations. Indeed, on January 12, 2015 they heard arguments in Oneok v. Learjet regarding this very question. Three days later, on January 15, 2015, the...

FERC Issues Order to Show Cause to Maxim Power
Terence T. Healey,Gregory K. Lawrence,Thomas Reid Millar,Natalie Mitchell,Christopher J. Polito, March 25, 2015
On February 2, 2015, FERC issued an Order to Show Cause and Notice of Proposed Penalty to Maxim Power Corporation and its named subsidiaries (“Maxim”), jointly and severally, as well as executive, Kyle Mitton (the “Order”). The Commission ordered Maxim and Mitton (together,...

New Exchange Rules on Disruptive Trading Practices Summary Chart
Sohair A. Aguirre,Isabelle S. Corbett,Athena Yvonne Eastwood,Jonathan H. Flynn,Neal E. Kumar, March 25, 2015
On January 14, 2015, the Intercontinental Exchange (“ICE”) rule prohibiting disruptive trading practices (ICE Rule 4.02) became effective. The ICE Rule is substantively the same as Rule 575 passed by the Chicago Mercantile Exchange Inc., the Board of Trade of the City of Chicago, the...

SEC Issues Guidance for Shorter Debt Tender Offers
William P. Mills,Daniel F. Zimmerman, March 25, 2015
On January 23, 2015, the Staff of the U.S. Securities and Exchange Commission (the “SEC”) issued a no-action letter that allows certain tender offers for non-convertible debt securities to remain open for five business days, as opposed to the 20 business day period specified in Rule...

Unregistered CTA Summit Energy Services: Choose Your Words Wisely
Athena Yvonne Eastwood,Andrew M. Greenberg,Neal E. Kumar,Gregory K. Lawrence, March 25, 2015
A recent case highlights the importance of periodically reviewing an energy company's marketing materials and related activities (including statements made on websites) to ensure that the company is not holding itself out -- without CFTC registration -- as a CTA (commodity trading advisor). A...

Does the Natural Gas Act Preempt State-Law Antitrust Lawsuits? - Supreme Court Arguments
Terence T. Healey,Natalie Mitchell,Christopher J. Polito,Mary Treanor, March 12, 2015
On July 1, 2014, the U.S. Supreme Court granted a petition to hear an appeal by several companies contending that state-law antitrust claims were precluded by the federal Natural Gas Act and, therefore, fell under the exclusive jurisdiction of the federal government, including the Federal Energy...

New York Enacts Revisions to the UCC
Steven N. Cohen,Lech Kalembka,Bryon Mulligan, March 12, 2015
As many readers are aware, substantial revisions to Article 9 of the Uniform Commercial Code (the “UCC”) became effective in all 50 states and the District of Columbia in 2001 or shortly thereafter.

REMIT: The Countdown to Full Implementation Begins as Final Data Reporting Rules Are Published
Doron F. Ezickson,Adam Topping, March 12, 2015
The REMIT Implementing Acts on data reporting obligations entered into force on 7 January 2015. This document is the final guidance setting out the rules for reporting wholesale energy products and fundamental data in the EU as required pursuant to Articles 8(2) and 8(6) of the Regulation on...

The EBA Report On Securitisation Risk Retention, Due Diligence And Disclosure - More Of The Same For The CLO Market?
Robert Cannon,David Quirolo,Nick Shiren,Daniel Tobias, March 12, 2015
On 22 December 2014, the European Banking Authority (the “EBA”) published an opinion and a report (together, the “Report”) on securitisation retention, due diligence and disclosure requirements under Regulation (EU) No 575/2013 (the “Capital Requirements...

Second Circuit Denies Petition for En Banc Review of Fairfield Decision
Ingrid Bagby,Daniel Gwen,David E. Kronenberg, March 12, 2015
On January 13, 2015, the U.S. Court of Appeals for the Second Circuit denied a petition for en banc review of the Second Circuit’s September 2014 panel decision holding that bankruptcy courts are required to review the propriety of a Chapter 15 debtor’s transfers of property interests...