Capital Markets

Expert Analysis

• 4 Antitrust Risk Areas To Watch For Government Contractors

  

  To plan for the increased likelihood of detection and stiff penalties for antitrust violations following the anticipated passage of the Infrastructure Investment and Jobs Act, compliance efforts should focus on joint bidding, dual distribution, legal certifications, and hiring and compensation, say Andre Geverola and Lori Taubman at Arnold & Porter.

• Girardi Scandal Provides Important Ethics Lessons

  

  The litigation and media maelstrom following allegations that famed plaintiffs attorney Thomas Girardi and his law firm misappropriated clients' funds provides myriad ethics and professional responsibility lessons for practitioners, especially with regard to misconduct reporting and liability insurance, says Elizabeth Tuttle Newman at Frankfurt Kurnit.

• Practical Implications Of Delaware's New Demand-Futility Test

  

  In United Food and Commercial Workers Union v. Zuckerberg, the Delaware Supreme Court adopted a new universal test for assessing a board’s ability to independently assess a shareholder litigation demand, which may close off certain paths for plaintiffs who seek to plead demand futility, say Courtney Worcester and Roger Lane at Holland & Knight.

• Series

  Embracing ESG: Jabil GC Talks Compliance Preparation

  

  Tried-and-true compliance lessons from recent decades can be applied to companies’ environmental, social and governance efforts, especially with regard to employee training and consistent application of policies — two factors that can create a foundation for ESG criteria to flourish, says Robert Katz at Jabil.

• 3 Ways CLOs Can Drive ESG Efforts

  

  Chief legal officers are specially trained to see the legal industry's flaws, and they can leverage that perspective to push their companies toward effective environmental, social and governance engagement, says Mark Chandler at Stanford Law School.

• 10 Years On, SEC's Market Access Rule Still Lacks Clarity

  

  The U.S Securities and Exchange Commission adopted the market access rule to address the risks of algorithmic trading, but its failure over the past 10 years to articulate clear standards except through costly enforcement actions has left firms with an informal patchwork of guidance and moving targets for broker-dealers, say Ashley Bashur and Paul Eckert at WilmerHale.

• How Law Firms Can Rethink Offices In A Post-Pandemic World

  

  Based on their own firm's experiences, Kami Quinn and Adam Farra at Gilbert discuss strategies and unique legal industry considerations for law firms planning hybrid models of remote and in-office work in a post-COVID marketplace.

• Opinion

  Next Fed Supervision Vice Chair Must Restore Bank Oversight

  

  President Joe Biden's upcoming pick for vice chair of supervision at the Federal Reserve must undo deregulation of the banking industry carried out since 2017, and address emerging threats with an eye toward racial economic inequality, climate-related risks, fintech, liquidity requirements and more, says Phillip Basil at Better Markets.

• What To Expect From SEC's Equity Market Recommendations

  

  U.S. Securities and Exchange Commission Chair Gary Gensler’s recent comments offer clues as to how the agency's forthcoming report on equity market structure may address issues like payment for order flow, settlement cycle, market data and conflicts of interest, says Justin Chretien at Carlton Fields.

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  Embracing ESG: Baker Hughes CLO Talks Sustainability Team

  

  For businesses focused on addressing environmental, social and governance considerations, a legal team that can coordinate sustainability efforts across the company can help to manage risk and compliance issues, anticipate and prepare for change, and identify new opportunities, says Regina Jones at Baker Hughes.

• What Mainstreaming Of Litigation Finance Means For Industry

  

  The rush of new capital and investors into the litigation funding space is expected to bring heightened competition on price and other key deal terms, but litigants will need to be more in tune with individual financiers' proclivities, says William Weisman at Therium Capital Management.

• How Investors Can Avoid Falling Prey To Crypto Scams

  

  Mr. White Hat's recent theft, and surprising return, of $611 million in cryptocurrency from the Poly Network illustrates that crypto investors must conduct their own due diligence to avoid scams, including by closely scrutinizing coin founders, backers, white papers and token sales, and watching for red flags with respect to transparency, valuation and more, says Dorothy Siron at Zhong Lun.

• What 9th Circ. Privilege Test Means For Dual-Purpose Advice

  

  While the Ninth Circuit's recent ruling in In re: Grand Jury confirms that courts should use the primary-purpose test to determine whether communications with both legal and business purposes are shielded by the attorney-client privilege, questions on the application of the test remain, says Scott Tenley at Michelman & Robinson.

• Lifting The Veil On The Supreme Court's Shadow Docket

  

  Following headline-making U.S. Supreme Court emergency orders on Texas’ new abortion law, COVID-19 restrictions and more, Vetan Kapoor, counsel to Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, examines the court's so-called shadow docket and its decision-making procedures, including questions around transparency, timing and precedential effect.

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  Embracing ESG: United Natural Foods GC Talks Bottom Line

  

  In prioritizing environmental, social and governance initiatives as strategic value drivers, corporate general counsel can leverage meaningful ESG progress to benefit both the business's bottom line and the wider world, says Jill Sutton at United Natural Foods.