Expert Analysis

• SEC Report Puts Climate Investor Coalitions On Notice

  

  The U.S. Securities and Exchange Commission's recent report on its investigation of Climate Action 100+ members' conduct in connection with the 2021 ExxonMobil proxy contest sends a clear warning that coordinated engagement by investors, even through an intermediary, could create a reportable group that jeopardizes passive investor status, say attorneys at Cleary.

• Opinion

  NY Must Limit Interlocutory Appeals

  

  The New York Legislature should act to reduce the Appellate Division's outsize caseload of interlocutory civil appeals in order to develop a faster, less expensive, fairer and more coherent civil justice system, says New York Supreme Court Justice Gerald Lebovits.

• Opinion

  Large Meta Penalties Shouldn't Shape State AG Playbook

  

  Meta Platforms' $17.1 billion settlement in California federal court and two New Mexico verdicts against the company resulting in large penalties are drawing renewed attention to the question of how state attorneys general should calculate civil penalties, but regulators and companies should treat the decisions as outliers, not a template, say attorneys at Troutman.

• SEC's History Undercuts Its 'Back To Basics' Rationale

  

  The current U.S. Securities and Exchange Commission's enforcement recalibration prioritizing fraud over technical violations has led to a drastic decline in enforcement activity, but the philosophy deviates from decades of enforcement that has always promoted compliance with its prophylactic requirements, says Gerald Hodgkins at Covington.

• DOJ's Deloitte, Lockheed DEI Deals Stress Whistleblower Role

  

  The U.S. Department of Justice's recent settlements with Deloitte and Lockheed Martin over their diversity, equity and inclusion practices, launched by private whistleblowers, demonstrate to government contractors that federal enforcement can start from within, say attorneys at Hinckley Allen.

• What The 11th Circ.'s Qui Tam Ruling Left Unanswered

  

  Although the Eleventh Circuit’s recent ruling in Zafirov v. Florida Medical Associates upheld the False Claims Act’s qui tam provisions under the appointments clause, its narrow reasoning leaves unresolved questions about presidential control over relator litigation that could sustain further constitutional challenges, says Taylor Chenery at Bass Berry.

• Planning Personal Phone Collections Before Discovery Begins

  

  For counsel planning a personal phone collection as part of the litigation discovery process, it's important to take early steps to ensure that necessary information will be obtained without exposing unrelated information or running into access issues, says Jeremy Horowitz at MARA Forensics.

• Del. Dispatch: No Safe Harbor For Another Conflicted Deal

  

  The Delaware Court of Chancery's recent decision preliminarily enjoining a planned recapitalization of Cloudflare that would preserve the control of the company by its founder-controlling stockholders highlights that Delaware's new safe harbor statute for conflicted transactions doesn't protect founders or independent directors from liability, say attorneys at Fried Frank.

• Meta, TikTok Cases Show How AGs May Redefine Governance

  The Meta Platforms settlement and TikTok lawsuit addressing social media harms to minors highlight that state attorneys general are not merely extracting payments, but are also using litigation and settlements to impose durable product, institutional and policy change, say attorneys at Snell & Wilmer.

• How Feds' Shifting Guidance Hits Bank-Fintech Partnerships

  

  A slew of recent Federal Deposit Insurance Corp. and Office of the Comptroller of the Currency reforms will ultimately give banks and fintechs more flexibility in third-party oversight and supervisory information sharing, but institutions still must document risk-based decisions and engage proactively with regulators, say attorneys at Husch Blackwell.

• 2 Del. Rulings Show Postclosing Earnout Arrangement Risks

  

  Two recent Delaware Court of Chancery decisions illustrate the contractual and fiduciary duty risks associated with earnout provisions in M&A transactions, offering lessons on allocating postclosing control, drafting enforceable earnout covenants and managing executives whose pay depends on the outcome, says Chris Brown at Taft.

• Opinion

  Judges Must Turn To Merits Earlier To Fix Civil Justice System

  

  The U.S. justice system is long overdue for a cultural shift that encourages judges to engage with the merits of a case from the outset, which would help to cut through procedural complexities and deliver high-quality justice efficiently and at lower cost, says Steven Kayman at Rottenberg Lipman.

• Justices' Intel Ruling Could Aid 401(k) Alternative Asset Push

  

  Following the U.S. Supreme Court's recent oral arguments in Anderson v. Intel, a decision favoring Intel over a prudence claim against fiduciaries based on underperformance by comparing two funds that aren't meaningfully similar would undercut the most common litigation theory against including alternative investments in 401(k) plans, say attorneys at Simpson Thacher.

• How Cos. Should Prepare For Democratic Oversight

  

  Companies should begin preparing now for a new, Democratic-majority Congress — understanding how the oversight landscape has changed in recent years and monitoring leadership elections, new rules and potential select committees, say attorneys at Wiley.

• What 3 Cases Reveal About Solar Co. Financial Disclosures

  

  Three recent securities suits involving Nextracker, SolarEdge and Enphase illustrate the challenges of evaluating financial representations in the solar industry, raising a common issue: Financial projections cannot be fully understood without examining the operating information and assumptions supporting them, says Rand Manasse at Green Lane Partners.