Capital Markets

Expert Analysis

• Opinion

  Time To Consider Percentage Rental Agreements For Lawyers

  

  It has long been the law that attorneys cannot use percentage rental agreements because doing so would constitute an impermissible sharing of fees with nonlawyers, but such arrangements can help lawyers match expenses with revenues in lean times like now, say Peter Jarvis and Trisha Thompson at Holland & Knight.

• 'Settle And Sue' Malpractice Cases Have New Clarity In Calif.

  

  A California state appellate court's recent decision in Masellis v. Law Office of Leslie F. Jensen provides a road map for proving causation and damages in settle-and-sue legal malpractice cases — an important issue of long-standing confusion, says Steven Berenson at Klinedinst.

• The Litigation Risks In Main Street Lending Program

  

  Lenders and borrowers in the COVID-19 Main Street Lending Program can steer clear of litigation roadblocks with proactive compliance measures, but the U.S. Department of Justice should also facilitate the program's objectives by issuing a policy statement limiting False Claims Act actions, say Robert Huffman and Caroline Wolverton at Akin Gump.

• Time To Comply With SEC Regulation Best Interest, Form CRS

  

  The compliance date has arrived for two rules adopted by the U.S. Securities and Exchange Commission last year — Regulation Best Interest and the Form CRS Relationship Summary — and there are many regulatory developments and legal questions that in-house counsel and compliance professionals should consider, say attorneys at Eversheds Sutherland.

• What You Say In Online Mediation May Be Discoverable

  

  Mediation conducted online with participants in different states makes it harder to determine where communications were made, increasing the risk that courts will apply laws of a state that does not protect mediation confidentiality, say mediators Jeff Kichaven and Teresa Frisbie and law student Tyler Codina.

• Defense Considerations For SEC Remote Interview Requests

  

  Without a pandemic resolution in sight, defense counsel will need to make adaptations when addressing remote testimony requests from the U.S. Securities and Exchange Commission, including negotiating for favorable interview conditions and mitigating the consequences of a refusal to testify, say attorneys at Richards Kibbe.

• Prepare For Antitrust Scrutiny Of PIPEs, Partial Acquisitions

  

  In light of the regulatory attention on private equity investment activity, as well as the recent decline in M&A activity and increase in private investments in public equity, the Federal Trade Commission or U.S. Department of Justice may decide to examine for the first time a PIPE transaction that raises competitive questions, say Peter McCormack and Laura Sullivan at Kirkland.

• 20 Years Later, E-Sign Act's Transformative Impact Continues

  

  The Electronic Signatures in Global and National Commerce Act — signed into law on June 30, 2000 — has been the legal foundation for the electronic execution of trusted, enforceable digital contracts, and has enabled the lending economy to thrive despite the COVID-19 pandemic, says Stephen Bisbee at eOriginal.

• 10 Tips For A Successful Remote Arbitration Hearing

  

  As I learned after completing a recent international arbitration remotely, with advance planning a video hearing can replicate the in-person experience surprisingly well, and may actually be superior in certain respects, says Kate Shih at Quinn Emanuel.

• High Court's SEC Enforcement Ruling Has Tax Consequences

  

  In light of the U.S. Supreme Court's recent decision in Liu v. Securities and Exchange Commission, taxpayers whose pre-Tax Cuts and Jobs Act disgorgement deductions were rejected should consider contesting the Internal Revenue Service's determination, say attorneys at Chamberlain Hrdlicka.

• Opinion

  To Achieve Diversity, Law Firms Must Reinvent Hiring Process

  

  If law firms are truly serious about making meaningful change in terms of diversity, they must adopt a demographically neutral, unbiased hiring equation that looks at personality traits with greater import than grades and class rank, says Thomas Latino at Florida State University College of Law.

• Virus, Regs Highlight Need For Model State Whistleblower Law

  

  The North American Securities Administrators Association's recently proposed model state whistleblower law could be a timely weapon against securities misconduct in light of the new and unique opportunities COVID-19 presents for fraudsters, and certain federal registration exemptions that may soon be relaxed, says attorney Patrick McCloskey.

• What Hong Kong Policy Shift Means For US Finance Cos.

  

  Now that the U.S. no longer considers Hong Kong autonomous from China, stateside financial services companies should monitor public company audit reporting, non-U.S. futures and swaps trading, and international capital reporting, say Matthew Kluchenek and Matthew Bisanz at Mayer Brown.

• Cybersecurity Steps For Law Firms Amid Heightened Risks

  

  With large swaths of the population indoors and primarily online, cybercriminals will be able to exploit law firms more easily now than ever before, but some basic precautions can help, says Joel Wallenstrom at Wickr.

• Madoff Recovery's Next Steps After Justices' Petition Pass

  

  The U.S. Supreme Court’s recent refusal to review a Second Circuit decision allowing recovery of funds Bernie Madoff transferred outside the U.S. leaves open the question of whether the clawback initiative’s claims will survive given the strict pleading and proof standards that have evolved over the last 12 years of litigation, say attorneys at Quarles & Brady.