Capital Markets

Expert Analysis

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• Opinion

  Pending Changes Pose Threat To SEC Whistleblower Program

  

  If the U.S. Securities and Exchange Commission approves changes to the Dodd-Frank Act whistleblower rules on Wednesday, it will weaken protections for tipsters and radically undermine a regime that has returned $750 million to investors and collected over $2.5 billion in sanctions, says Stephen Kohn of Kohn Kohn & Colapinto.

• White House Due Process Memo Could Reform Enforcement

  

  A little-noticed memo recently issued by the Trump administration in response to the pandemic, directing federal agencies to provide greater due process to individuals and companies under regulatory investigation, represents a long-overdue sea change in the way justice is carried out in enforcement proceedings, say Joan Meyer and Norman Bloch at Thompson Hine.

• What Shifting FCPA Enforcement Means For Financial Cos.

  

  In this brief video, Tom Firestone and Daniela Fonseca Puggina at Baker McKenzie analyze how Foreign Corrupt Practices Act enforcement is placing greater emphasis on bribe recipients, and what this trend means for financial institutions and their know-your-customer policies and practices.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.

• Hurdles Ahead For Stock Exchange Direct Listings

  

  The U.S. Securities and Exchange Commission's recent approval of primary direct listings at the New York Stock Exchange suggests that companies wishing to bypass initial public offerings may soon have that option, but not without a fight over investor protection and liability concerns, say attorneys at Cleary.

• Opinion

  Lawyers Must Act To Preserve Democracy This Election

  

  COVID-19 concerns and glaring gaps in registration threaten to dampen voter turnout in the 2020 election, so attorneys should take on the problem by leveraging their knowledge and resources in seven ways, says Laura Brill at Kendall Brill.

• How To Effectively Defend Witnesses In Remote Depositions

  

  When a witness is isolated from the defending lawyer during a remote deposition, carefully planning the logistics and building witness confidence are critical to avoiding damaging admissions, say Jessica Staiger at Archer Daniels and Alec Solotorovsky at Eimer Stahl.

• How The Pandemic Is Changing Stock Volatility Calculations

  

  The COVID-19 pandemic is causing changes to beta measurement of stock sensitivity to market movements, and experts face the difficult question of whether to incorporate this changed beta into valuations in litigation, say Andrew Roper at Catalyst Economic Consulting and Clifford Ang at Compass Lexecon.

• Whether And How To Compel Remote Arbitration

  Excerpt from Practical Guidance

  

  As the pandemic delays in-person arbitration hearings, mediator and arbitrator Theodore Cheng provides arbitrators with a checklist to examine the rationale and authority for compelling parties to participate in remote hearings.

• The Unique Challenges Of Protecting A Law Firm Brand

  

  Recent law firm trademark disputes highlight how the tension between legal ethics rules and trademark law can make it difficult for firms to select brands that are distinctive and entitled to protection, say Kimberly Maynard and Tyler Maulsby at Frankfurt Kurnit.

• Lehman Ruling Continues Bankruptcy Safe Harbor Expansion

  

  The Second Circuit's recent rejection of Lehman Brothers' post-bankruptcy attempt to recover nearly $1 billion in noteholder payments continues the recent amplification and expansion of the Bankruptcy Code safe harbor provisions, providing clarity on the right to liquidate for parties to protected agreements, say attorneys at Cadwalader.

• Employment Concerns For Financial Cos. During COVID-19

  

  Susan Eandi and Paul Evans at Baker McKenzie discuss how financial services companies can mitigate risk for certain types of COVID-19 employment lawsuits, and recent pandemic-related guidance from the U.S. Securities and Exchange Commission concerning broker-dealer and investment adviser compliance.

• How To Calculate Securities Fraud Class Size With SEC Data

  

  With COVID-19 expected to spur a surge in lawsuits where shareholders claim they paid inflated prices for securities due to disclosure-related issuer fraud, analysts at the Griffing Group explore a methodology for calculating class sizes using investor filings with the U.S. Securities and Exchange Commission.