Expert Analysis

• Investment Adviser ESG Lessons From BNY Mellon Case

  

  With the U.S. Securities and Exchange Commission's recent $1.5 million settlement with BNY Mellon over environmental, social and governance disclosure violations, we appear to be at the dawn of a new era of enforcement — which means investment advisers should take new compliance steps, say attorneys at Saul Ewing.

• Crypto Litigation May Grow In Absence Of Regulatory Scheme

  

  Three recent cases in the digital asset space illustrate how regulatory uncertainty has created fertile ground for litigation and enforcement to grow, leaving cryptocurrency trading platforms and users to closely monitor guidance from applicable regulatory agencies, say attorneys at Choate.

• 5th Circ. Ruling Signals Judicial Shift On SEC Admin Process

  

  The Fifth Circuit’s decision in Jarkesy v. U.S. Securities and Exchange Commission signals a growing discomfort in the judiciary with the SEC's administrative process, and those dealing with enforcement actions should bring their constitutional challenges early and often, say Benjamin Daniels and Trevor Bradley at Robinson & Cole.

• Opinion

  Now's The Time To Address Archaic Law School Curricula

  

  With law school enrollments jumping significantly ahead of a potential recession and more students graduating than the market can absorb, law schools should turn to creative solutions to teach students how to negotiate, work with clients, specialize and use technology to practice their craft more efficiently, says University of Colorado adjunct professor Jason Mendelson.

• Determining Interest Rate Floors With Transition To SOFR

  Excerpt from Practical Guidance

  

  As commercial loans shift from Libor to Secured Overnight Financing Rate term rates, counsel should review existing credit agreements and any amendments, and pay close attention to whether any floors are transitioned or become applicable as a result of an agreement's transition, says Ann Dziuba at LexisNexis.

• Lessons From Lawyer Fee-Sharing Agreements Gone Wrong

  

  The recent fee-sharing dispute between Edelson and Girardi Keese is a reminder that lawyers who do not strictly follow the applicable rules may risk a disciplinary complaint, lose their share of the fee, or wind up in costly litigation with co-counsel, says David Grossbaum at Hinshaw.

• LeClairRyan Bankruptcy Highlights Pass-Through Tax Issue

  

  A Virginia bankruptcy court's recent ruling in the case of defunct law firm LeClairRyan shows there may be serious tax consequences for pass-through entity partners who give up their ownership interest without following operating agreement exit provisions and updating bankruptcy court filings, say Edward Schnitzer and Hannah Travaglini at Montgomery McCracken.

• SEC Crypto Unit Expansion Is A Warning To Industry

  

  The U.S. Securities and Exchange Commission’s recent decision to expand its Crypto Assets and Cyber Unit is a clear signal that federal regulators may increase enforcement against those violating securities laws in the digital asset space, say attorneys at BakerHostetler.

• 8 Steps To Creating A Legal Ops Technology Road Map

  

  Legal departments struggling to find and implement the right technologies for their operations should consider creating a road map that summarizes their approach to technology changes, provides clearly defined metrics for success, and serves as the single source of truth for stakeholders, says Melanie Shafer at SimpleLegal.

• 2 Years Since Liu, Disgorgement Case Law Is Favoring SEC

  

  In the two years since the U.S. Supreme Court’s decision in Liu v. the U.S. Securities and Exchange Commission, circuit courts have weighed in to answer the decision's open questions, and recent cases suggest that courts are unwilling to disrupt disgorgement orders, even where the awards would not survive Liu scrutiny, say attorneys at Ropes & Gray.

• Latest SPAC Trends Point To Risk Of Negative Outcomes

  

  Interest in initial public offerings of special purpose acquisition companies has reached its apex, and in the second half of this year we anticipate sustained levels of SPAC shareholder redemptions, increased liquidations for those unable to consummate an initial business combination and increased litigation risk, say attorneys at The Brattle Group.

• An Early Step Toward Regulation Of Carbon Offset Market

  

  A recent convening held by the Commodity Futures Trading Commission highlighted a need for greater transparency in voluntary carbon markets and for standardization of what constitutes a good or high-quality carbon offset, as well as the CFTC's potential role in regulating the market, say Levi McAllister and Pamela Tsang Wu at Morgan Lewis.

• The Importance Of Data And Data Analysis In Litigation

  

  Understanding, analyzing and effectively presenting large data sets is an increasingly important skill in litigation as it allows plaintiffs to dramatically scale up the scope of cases and is often critical to defeating motions to dismiss and motions for summary judgment, says David Burnett at Motley Rice.

• Senate Bill Could Be A Sea Change For Crypto Regulation

  

  The recently introduced Responsible Financial Innovation Act, if passed, would transform the digital asset landscape by replacing the U.S. Securities and Exchange Commission as cryptocurrency's default regulator, and by shifting oversight away from the current regulatory framework and legal standard for the space, say attorneys at Brownstein Hyatt.

• Steps Companies Can Take To Mitigate Privilege Labeling Risk

  

  Although Google prevailed on a recent privilege labeling sanctions motion, an important takeaway from the decision is that companies should assess their in-house procedures and employee training programs regarding privileged communications to mitigate risks of the potential appearance of bad faith privilege claims, say Gareth Evans at Redgrave and e-discovery attorney James Hertsch.