Securities

Expert Analysis

• Anti-Retaliation Refresher Following Facebook Whistleblower

  

  A former Facebook employee’s recent sharing of internal documents with government agencies and the press reminds that whistleblowers are shielded by strong anti-retaliation protections — with certain limitations, depending on the type and scope of material taken and the parties that receive it, says Alia Al-Khatib at Katz Marshall.

• 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.

• Upshots Of Del. Holding On Appraisal Rights Waivers In M&A

  

  The Delaware Supreme Court's recent Manti v. Authentix holding offers key takeaways clarifying the enforceability of the dual approach of appraisal waivers and drag-along rights, to keep common stockholders in check in a merger or stock sale, while also framing the contexts in which these waivers might not be enforceable, say attorneys at Troutman Pepper.

• Corporate Boards' Role In Workplace Vaccine Mandates

  

  Company boards may have a role to play in workplace COVID-19 vaccination mandates, given their duty to manage risks and the growing recognition of employees’ importance to the corporate mission — and effective oversight is key to ensuring a vaccine program doesn't introduce new issues, says Jen Rubin at Mintz.

• 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.

• Opinion

  Why Congress Should Pass Whistleblower Protection Law

  

  It’s crucial that lawmakers enact the Whistleblower Protection Reform Act — which remedies the Dodd-Frank Act’s weak safeguards for those who report federal securities law violations — to ensure courageous tipsters continue to step forward when they spot wrongdoing, say Jason Zuckerman and Matthew Stock at Zuckerman Law.

• 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.

• Arthrex Ruling Could Reshape Copyright Small Claims Court

  

  The U.S. Supreme Court's recent Arthrex ruling, that administrative patent law judges were unconstitutionally appointed, raises several questions about the constitutionality of the new Copyright Claims Board and about how courts might rewrite the small claims enforcement legislation, say Mary Ellen Roy and Andrew Coffman at Phelps Dunbar.

• A Primer On DOL Probes For ERISA Plan Service Providers

  

  As the U.S. Department of Labor shifts its enforcement resources from Employee Retirement Income Security Act plan sponsors to financial institutions that service such plans, nonfiduciary providers should know what to expect and how to respond to agency investigations, say attorneys at Groom Law Group.

• 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.

• Protecting Attorney-Client Privilege In Human Rights Audits

  

  As investors and customers increasingly demand corporate plans to address human rights concerns, multinational companies conducting audits and other due diligence should consider four practical steps to maximize the protections of attorney-client privilege while still fostering effective engagement with stakeholders, say Katherine Pappas and Virginia Newman at Miller & Chevalier.

• When Antitrust's Consumer Welfare Standard And ESG Collide

  

  The recent debate over antitrust law’s so-called consumer welfare standard means that — depending on how the principle is defined — company collaborations can be viewed as either pro- or anti-competitive, which is relevant for evaluating environmental, social and corporate governance agreements as climate issues take center stage in American and European policy, says Joshua Sherman at Charles River Associates.