Anthony Paccione

Herrick's Restructuring & Finance Litigation co-chair, Sean O'Donnell, spoke with The Wall Street Journal - Pro Bankruptcy about a recent ruling by the Second Circuit which affirmed the dismissal of all claims in In re: Boston Generating, LLC—a matter that has been litigated for over a decade involving fraudulent conveyance claims arising from a $2 billion leveraged recapitalization. In so doing, the Second Circuit ruled that the Bankruptcy Code’s safe harbor provision for securities contracts payments, 11 U.S.C. § 546(e), applied to the leveraged buyout and pre-empted the plaintiff-appellant-trustee’s state-law fraudulent conveyance claims, which attempted to claw back approximately $708 million from the defendants-appellees. Herrick represented the largest ad hoc group of defendants-appellees in this matter. Read more here: https://lnkd.in/exHT3VVa. #HerrickDoesThat #Restructuring #Litigation

28

New FINRA data shows a dramatic drop in advisor expungement requests. Why? Their stricter policies are making the process way too expensive and stacked against advisors. But there's still hope. At AdvisorLaw, we've been pioneering alternative expungement forums for years.  We have a proven track record of success, and we're confident we can help you clear your name. Read more about the FINRA changes and our strategies in our latest industry insight ➡️ #FinancialAdvisor #Expungement #FINRA #AdvisorLaw #ClearYourName #FinancialServices

7

Law360 has reported on the Delaware Court of Chancery suit filed by Olshan Frome Wolosky LLP client Martin Siegel, a shareholder of global utility and power company The AES Corp., against eleven of the company’s current and former board members, alleging that the company has "weaponized" advance notice requirements in its bylaws to make it “unreasonably difficult, if not impossible,” for stockholders to nominate candidates for the company’s board. Among the amendments the company made in August 2023 to its bylaws, provisions include an “acting in concert” definition that requires any stockholder who nominates a slate of directors to identify a broad assortment of people in order to make the nomination valid and requiring a nominating stockholder to disclose commercially sensitive performance-related fees it could pay if the value of its company stock appreciates. According to the filing, AES Corp. has stated publicly that it amended its bylaws to address the SEC’s universal proxy card rule that went into effect September 2022, which was intended to make it easier for shareholders to nominate alternative director candidates to company boards but has often resulted in companies adopting onerous advance notice requirements that disenfranchise shareholders. The plaintiff’s motion to expedite asserts that if the Chancery Court does not declare the bylaw provisions invalid before the November 26 deadline to nominate directors for the company’s 2025 stockholders’ meeting, the stockholders' franchise rights will be violated and stockholders will be “permanently harmed.” Olshan Chair of Litigation Lori Marks-Esterman and counsel Jacqueline Ma represent the plaintiff in this matter. #OlshanLaw #Delaware #ChanceryCourt https://lnkd.in/exyWgvr7

15

You need this guide if you are raising US capital from outside the United States. The Latham FPI Guide covers all of the key topics for foreign private issuers accessing the US capital markets. https://lw.link/0YRILC

60

1 Comment

Interesting insights from my partner, Jason Waite, on the potential impacts of the U.S. Department of the Treasury's new outbound investment rule. The rule, which takes effect on January 2, 2025, will restrict outbound investment in Chinese companies in certain sensitive sectors and impose a variety of requirements on U.S. persons and entities.

6

Bankruptcy and Restructuring Partner Brya Keilson has been featured in a recent Debtwire article. The piece, titled "An Interest in Disinterestedness: Court Rejects Enviva Attempt to Hire Vinson & Elkins, Spotlighting Bankruptcy Retention Battles," delves into the scrutiny and challenges of retaining professional services in Chapter 11 cases. Read More: https://bit.ly/4d2GAnq #BankruptcyLaw #Chapter11 #Restructuring

23

When Overreach Meets Accountability: 🗽SEC's Dealer Rule Vacated on the Day Gensler Announces Resignation🫡 🔄In a poetic twist of fate, Gary Gensler's SEC tenure ends as the courts deliver a decisive critique of his regulatory overreach. On November 21, 2024, Judge Reed O'Connor of the Northern District of Texas vacated the SEC's controversial Dealer Rule, a decision that reverberates across crypto and financial industries. On the same day, Gensler announced he would step down as SEC Chair effective January 2025. 🛡The Dealer Rule: A Step Too Far The SEC’s Dealer Rule attempted to redefine “dealer” under the Exchange Act, targeting digital asset markets and traders who provided liquidity. The rule’s broad language threatened to sweep DeFi participants—those using liquidity pools, decentralized exchanges, and smart contracts—into the same category as traditional market dealers. But Judge O'Connor’s ruling was a stark rebuke. The Court noted: 🧐The rule erased a century-old distinction between “traders” and “dealers,” violating the Exchange Act’s intent. The SEC overstepped its statutory authority, with Judge O’Connor emphasizing, “The Rule as it currently stands de facto removes the distinction between ‘trader’ and ‘dealer’ as they have commonly been defined for nearly 100 years.” The Impact on DeFi and Innovation DeFi protocols operate without traditional intermediaries, enabling peer-to-peer liquidity through open-source software and smart contracts. The SEC’s attempt to regulate such automated systems as “dealers” was seen as a direct assault on innovation. 😴A Reflection on Gensler’s Leadership Gary Gensler’s tenure at the SEC has been marked by aggressive enforcement, particularly targeting crypto markets. While his policies aimed to increase investor protections, many argue they stifled innovation and lacked clarity. 🫥👮The SEC’s repeated losses in courts—Ripple, Grayscale, and now the Dealer Rule—underscore the growing judicial pushback against regulatory overreach. Gensler’s resignation opens the door for a leadership shift, with potential candidates like Dan Gallagher and Paul Atkins signaling a more industry-friendly regulatory approach. 🧭What’s Next? This ruling is not just a legal victory; it’s a pivotal moment for how regulation adapts to innovation. With Gensler’s departure, the SEC faces a choice: continue on a path of contentious enforcement or work towards a balanced framework that supports both investor protections and technological growth. 🤞🗿For the blockchain industry, this is a reminder that vigilance and advocacy are essential. The Court’s decision reinforces the importance of adhering to legislative intent, especially as regulators grapple with the challenges of emerging technologies. 📢As one of the plaintiffs stated: "This is just the first domino. Innovation must prevail over overreach." #CryptoRegulation #DeFi #SEC #GaryGensler #Blockchain #Innovation

8

📣 Dentons and Boies Schiller Flexner LLP have filed briefs urging a New York federal judge to dismiss a racketeering suit filed by their former client, Frank Corsini, who claims the firms schemed to generate fees based on an invalid contract. The law firms argue that the allegations lack coherence and merit, asserting that Corsini’s claims of fraud and unjust enrichment are unfounded and contradictory. Dentons contends that Corsini himself was “unjustly enriched,” while Boies Schiller maintains that Corsini “received first-class counsel without paying.” The firms dismiss the suit as a baseless narrative of “absurd allegations,” with Dentons planning to seek sanctions for the claims. Talking Points (especially for Litigators and their persuasive vocabulary lists): 1. “Literally incoherent” and “utterly implausible”: Highlighting the lack of coherent basis in the allegations. 2. “Plaintiffs themselves who have long been unjustly enriched”: Dentons argues Corsini benefited financially while owing significant legal fees. 3. “Received the benefit of first-class counsel without having to pay a dime”: Boies Schiller asserts the plaintiffs were well-represented without incurring fees due to the contingency arrangement. 4. “A laundry list of absurd allegations, all premised on conclusory buzzwords without foundation”: Dentons critiques the claims as unsupported by specific facts. 5. “Devoid of any particularized allegations of how they were supposedly defrauded”: Boies Schiller points to a lack of detailed facts supporting claims of fraud. 6. “Plaintiffs seek astronomical damages based on a prior arbitration claim they now allege never had merit in the first place”: The argument underlines a contradiction in seeking damages from an allegedly meritless claim. 7. “Ignoring controlling law and the rules of evidence”: Boies Schiller emphasizes the plaintiff’s disregard for legal standards. 8. “Fatal flaws” and “absurd narrative”: Dentons suggests the case fails foundationally, both legally and factually. 9. “Seeking sanctions in a future motion”: Dentons indicates plans to address perceived abuse of the legal process. These quotes emphasize themes of unjust enrichment, fairness, coherence, and evidentiary standards, making the arguments relevant for alternative dispute resolution and litigation contexts. #InterdisciplinaryMediation #ProfessionalToolkit #FamilyLawProfessionals #BuildingSkills #Mediation #Arbitration #Litigation #TheMeInMediation #TwoCoachApproach #QuantumADR AFCC | Association of Family and Conciliation Courts | American Bar Association American Arbitration Association ABA Section of Dispute Resolution American Academy of Matrimonial Lawyers Boston Bar Association Massachusetts Bar Association New York State Bar Association State Bar of California Pepperdine Caruso Law Cardozo School of Law Columbia Law School

9

2 Comments

Segal McCambridge Shareholder Michael Luchsinger and Associate Ashley White published a column in Law360 regarding a case in Massachusetts, Nunez v. Syncsort, Inc., which centered around whether a terminated employee's retention bonus constituted "wages" under the state's Wage Act. In their column, Michael and Ashley highlight the differences in how wages are defined across different states and under federal law. While the Massachusetts Wage Act has a stricter interpretation, the federal Fair Labor Standards Act (FLSA) has a broader definition. “Employers in any state should certainly be cognizant of what their policies require them to pay at the time of separation,” write Michael and Ashley. “In the case of Nunez, reasonable minds could certainly have disagreed on whether the second installment of the retention bonus was ‘guaranteed’ to the plaintiff as he was technically employed on February 18, 2021, and not terminated for cause. Likewise, these cases are also instructive in that terms such as ‘wages,’ ‘bonuses,’ and ‘discretionary’ should not be assumed to hold our colloquial definitions when it comes to litigation.” Read more: https://bit.ly/4hnaANk (subscriber-based). #law360 #SegalMcCambridge #laborandemployment #wagesandemployment #massachusettswageact #FLSA

15

The SEC today lost its initial battle to adopt its wide-ranging and extra-territorial Private Fund Adviser rule. The biggest surprise is that the Fifth Circuit vacated the entire rule-- certain parts of the rule (e.g., preferential treatment) were on shakier ground because the SEC relied on statutory authority that appeared directed towards retail investors. But no matter-- the rule as a whole is overturned. What comes next? The SEC will make noises about exploring its legal options, but I wouldn't be shocked to see portions of the rule re-proposed in a much more limited form and based on more sturdy statutory authority. But for now... it's safe to start planning autumn vacations again with the rule's deadlines no longer looming.

50

2 Comments

On April 23, 2024, the FTC issued a Final Rule that would prohibit the use of non-compete clauses with most American workers. The Final Rule is scheduled to go into effect 120 days following its publication in the Federal Register; however, substantial legal challenges may result in delay or invalidation of the Final Rule before the Effective Date. This is one to watch! #GoodwinLaw #LifeSciences

13

What do Greenberg Traurig, Holland & Knight, and Akerman have in common? They are the sole three Florida-born firms to land on the AmLaw 100. Greenberg Traurig leads the pack at #14. They had a 6% increase in revenue (exceeding $2.3 billion) and an 18.5% increase in non-equity compensation. Their compensation plan is a major draw for top lateral talent. Holland & Knight moved up two slots to land at #27. They had a whopping 20% increase in revenue thanks to their merger with Nashville-based Waller Lansden (surpassing $1.8 billion). And they are actively looking for more top lateral talent. Akerman had slower growth and dropped seven spots to #92. And despite a shrinking headcount, they reported an increase in profits per equity partner, indicating they are optimized for profitability. 𝗕𝗲 𝗨𝗻𝗰𝗼𝗺𝗺𝗼𝗻ᵀᴹ ---------------------------------- For insights into the legal industry, Florida legal market, and mindset, click the 🔔 or follow me at Brian M. Moskowitz #BeUncommon #LegalRecruiter #AmLawJobs

54

4 Comments

🛑 Do Not Make Rookie Mistakes Round II Deborah Read Does Not ❤️ NY In what seems like a frantic three-legged dash (reminiscent of Forrest Gump’s famous run), to escape New York, Deborah Read, with her Thompson Hine LLP equity partners in tow, is scrambling to delay filing an actual answer to the verified complaint. Her lawyers, in a dazzling display of legal acrobatics, threaten sanctions for the audacious act of telling the truth. It’s always rich when the guardians of "justice" try to penalize honesty. Masterclass in hypocrisy. Read, doing the ostrich act, ignoring the weight of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, attempting to impose more secret forced arbitration. Here are some litigation takeaways, not legal advice, but think before you hit file: 1.     The Double Jump: When citing legal authority, ensure ✅ you read both the cited case and the case(s) it references. The second case may ❎ contradict or derail the position offered in the first case. Rookie mistake. 2.     Don’t Ask the Court if you can ‘Cheat’: ❎Do not ask the Court to join another motion to avoid the Federal 25-page limit, ✅ ask for permission to enlarge the page limitation if unable to fit legal argument into the standard form – but note, if the argument cannot be said in 25 pages, no one is likely reading/listening after that anyway. 3.     Don’t Let Personal Feelings Drive Legal Strategy: The laws apply equally to all, do not ❎let clients who believe in their own arrogance and entitlement sway the legal strategy. ✅ Use governing decisional law to craft factually relevant and legally persuasive arguments. 4.     Lawyers: Clients who are lawyers, but not❎litigators, should be educated on the inherent rigorous demands of meaningful litigation. ✅ Advise them to get a helmet, or better yet, give them one of yours. 5.     Law School Lessons: If you learned the lesson in your first year of law school, ✅ for example, the International Shoe saga, ❎unlikely that Court will buy a newly minted effort to unwind decades of legal jurisdictional precedent because client is trying to dodge the Court’s jurisdictional reach. 6.     If Your Throw Shade, Expect a Tsunami: ✅ Zealous litigation is encouraged by all, ❎going off the rails to be vindictive and intentionally harmful to opposing counsel or their clients usually boomerangs. Opposing counsel has the same tools and might use them more effectively. 7.     The Climb: In the journey to success, remember that the people you stomp on today ❎are the same ones you'll encounter when you eventually fall from grace. Treating others with respect and integrity isn't just ethical; it's practical. The alliances and relationships you build on your way up are crucial, and those you harm can become obstacles when fortunes change. So, ✅ rise with grace and honor, because the higher you climb, the farther you have to fall.

3

Can AI create fund marketing material? Yes, but according to FINRA such material needs to be reviewed, supervised and filed in the same manner as if the material was human-generated. Check out this recent FAQ from FINRA. https://lnkd.in/eb7_RhVE #BDRegulatory #FINRAUpdate

16

Lowenstein partners Jeffrey Cohen, Zarema Jaramillo, and Brent Weisenberg will discuss antitrust, group conduct, and code of ethics during the RiemerPlus Credit Conference on September 25. For more information, please visit: https://bit.ly/3XqLx4l #bankruptcy #bankruptcylaw #bankruptcynews #restructuring #antitrust

5

On May 9, 2024, BLB&G partner James Harrod will serve as a panelist at the American Bar Association International Law Section Annual Conference. Jim will contribute to a discussion titled “Global Class Actions Primer: Comparative Review of Class Actions.” For more information and to register, click below. American Bar Association #ABAILSDC2024 #securitieslitigation #internationallaw

8

Looking for a recap on the history of SEC Rule 15c2-11 and the SEC’s recent No-Action Letter as it relates to fixed-income securities? Larry Bergmann and I take up these issues in this piece. It also gave me a good excuse to wonder what the “2-11” group at FINRA would have thought about all these No-Action Letters concerning fixed-income securities.

12