Lawrence Cunningham

🚨Client Alert: Larry Laubach and Beatrice Bottini offer an update on the #NYLTA, which represents a pivotal step in New York State’s regulatory landscape, aligning closely with the federal #CorporateTransparencyAct (CTA). Read here: https://lnkd.in/draYGb5e #regulatorycompliance #NYlaw #CTA #legalnews‍‍

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I was happy to talk with Bloomberg Law about the recent MA hashtag #wiretap decision. You can read the article here (note the paywall):

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🏛 A new article by Robert Ward provides insight on the recent DC Circuit Court and District Court rulings that greenlighted KalshiEx LLC to offer election prediction contracts, challenging the CFTC's broad interpretation of the word "gaming." The decision suggests the CFTC's proposed rule to broadly define gaming and categorically ban certain contracts might not hold up under judicial scrutiny. This could be a game-changer for prediction markets, licensed sportsbooks, and others who could benefit from the wider availability of event-based contracts. Read the full article here - https://lnkd.in/e4Qxjvug #IfrahoniGaming #CFTC #gaminglaw

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📗ECGI Working Paper Delisting in the United States: https://lnkd.in/gbU_hRqQ   👥Authors 💠Martin Gelter, Fordham University and European Corporate Governance Institute (ECGI) 💠Steven Thel, Fordham University The paper is notable for its detailed explanation of how market-based valuations have gained acceptance in Delaware courts and the complexities of deregistration under federal securities law, offering critical insights for corporate lawyers and scholars studying the implications of #delisting on corporate governance and minority shareholders. #ecgiwp SSRN #CorporateLaw #SecuritiesRegulation #FinancialMarkets

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I have a new blog post "Have the Delaware Courts Become Pro-Plaintiff and Anti-Business?" in which I discuss Jonathan Macey's new essay "Leaving Las Vegas?" I also pull in comments Anthony Rickey made on Jon's article. I conclude that Jon's essay is a very important contribution to the ongoing debate over the direction of Delaware law and the challenges to Delaware's historic dominance of the market for corporate charters. As Macey observes: Vice Chancellor Laster and Chancellor McCormick have expressed displeasure with Delaware statutes that they likely will be called upon to construe. A reasonable corporate planner thinking about how a statute will be interpreted and applied would expect that the judges’ disdain for a statute inevitably would affect these interpretations and applications." Despite these challenges, Macey remains cautiously optimistic. He notes that Delaware’s competitors face their own hurdles, and the state’s advantages—efficiency, legal expertise, and a comprehensive statutory framework—remain unmatched. As long as Delaware can maintain its reputation as marginally better than its alternatives, it will likely retain its position at the top. https://lnkd.in/g9bs3WyD

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This past week the great city of Boston hosted the International Bar Association 2024 conference, Global Challenges and Opportunities for the Asset Management Industry. It's worth scanning the agenda: https://lnkd.in/eKwi_NwG Lawyers in this space are highly encouraged to attend next year - tentatively scheduled for Boston again. As this year's agenda shows, current and forward-looking topics are addessed by industry leading experts and regulatory authorities. Geopolitical and macroeconomic considerations are put in context - this year with special emphasis on the daunting and fascinating challenge/opportunity of #artificialintelligence. For my part, I was honoured to present in the panel, "Fund operational issues: ‘looking under the bonnet’", the title of which may have confused some Americans. But things quickly came into focus as we rounded on important trends, especially fund liquidity and valuation challenges - not just in response to problems that have arisen in recent years but also to what feels like a threshold moment for us all as newer asset classes and technology beckon, including in the retail space. As the asset servicing spokesperson it was left to me to address the pace of change affecting custodians' support for asset management challenges and innovation, including the move to fund and asset #tokenisation and - of course - T+1 (#settlementacceleration). It was an honour to join my co-panelists, Chad Gazzillo, KPMG US, Emmanuel Genequand, PwC, Jeremy Soutter, Carne Group, and our fantastic moderator, Lora Froud, Macfarlanes. Congratulations to the Conference Co-Chairs, Michèle Eisenhuth, Arendt & Medernach, Luxembourg, and Jeremy Lam, Deacons, Hong Kong: you and the rest of the organising committee have provided a crucial service to the asset management legal community - there simply is no other conference like this. #assetmanagement #funds #shorteningsettlementcycle #securitiescustody #posttrade #InternationalBarAssociation

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My attached piece on the Structure of Merger Law will be in the Notre Dame L.Rev. It  includes some discussion of the Tapestry handbag merger. Comments welcome. https://lnkd.in/e2Dqqihz  

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These remarks about the #Cantero decision speak volumes. I for one would welcome a more level playing-field as between #nationalbanks and #statebanks. Ever since Julie Williams’ brilliant-but-calculated, seminal treatise on national bank powers, the national banks—encouraged by their charterer and prudential regulator, the Office of the Comptroller of the Currency (OCC)—have been pursuing a strategy of #federalpreemption from state law that ultimately undermines #federalism and places state-chartered banks at a competitive disadvantage, to say nothing of the #consumerprotection implications (given the oligopolistic #concentration ratios for #deposits and #consumercredit of the top national banks). Of course, from a history of the National Bank Act since its inception one might discern several attempts to put state charters out of business—a history we know well. I am always happy to see the pendulum swing back—even a little—if that is what is happening at the Supreme Court. Because from the seeming “squeeze-play” against community state-chartered banks from national banks, on the one hand, and the latitude being accorded credit unions, on the other hand (including their being allowed to “acquire” banks), you would think that federal policy really had it in for state-chartered banks. Congress could change this if (with my apology to a few stand-up members of the Senate and House) it were not so ineffectual (at the moment). #banking #bankingandfinance #communitybanking

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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

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MTO partner Elaine Goldenberg will speak at The Clearing House’s 2024 Annual Conference, which will be held on November 12 and 13 in New York City. Ms. Goldenberg will participate in a panel discussion titled “The Impact of the Supreme Court on the Banking Sector: A Look Back and a Look Ahead,” which will analyze the demise of the Chevron doctrine, other major developments in administrative law, and recent Supreme Court decisions and trends that specifically affect the banking industry. #MTO #TheClearingHouse #bankinglaw #administrativelaw

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Citing overreach in the SEC's regulatory authority, this unanimous ruling impacts key rules on preferential treatment, restricted activities and more. Read the full article for the court's reasoning and implications for the future of private fund regulation: https://bit.ly/4e9LiRv #Proskauer #PrivateCapital #PrivateEquity #Regulation

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New paper with Jonathan Chan on SSRN: 'Lost-Premium Damages in M&A: Delaware's New Legal Landscape' https://lnkd.in/gbK9Ycjy It discusses recent DGCL changes in light of Crispo v. Musk. Here's the abstract: In the event of a buyer's willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. While the Delaware Chancery Court in Crispo v. Musk held these provisions to be unenforceable under the anti-penalty doctrine, in this Article we argue that lost-premium provisions are doctrinally defensible, economically sensible, and supported by a host of policy considerations. Lost-premium provisions have become enforceable in Delaware effective from August 1, 2024, following amendments to the Delaware General Corporation Law, but the issue may well crop up again in other jurisdictions. Should this occur, this Article explains why courts in other states without similar statutory provisions still have a credible way of upholding lost-premium provisions and increasing transaction certainty.

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