SEC Proposes Rule Amendments For Proxy Advisers and Shareholder Voting
On November 5, 2019, the SEC voted to propose amendments to its rules governing proxy solicitations. The proposed amendments would establish stringent requirement that proxy advisory firms will have to comply with before providing voting recommendations. For example, one requirement would force the proxy advisers to present recommendations ...
House Passes Bill Requiring Public Companies to Publish Diversity Data
On November 19, 2019, the House passed the Improving Corporate Governance Through Diversity Act of 2019, H.R. 5084 (the "Diversity Act"), a bill requiring publicly traded companies to disclose, in their annual proxy statements filed with the SEC, the racial, ethnic and gender composition of their boards of directors, director nominees and ...
The Supreme Court Will Weigh In On SEC’s Ability To Obtain Disgorgement
The Securities and Exchange Commission (the "SEC") has for many years relied on a virtually unfettered ability to seek the disgorgement of billions of dollars of funds found to have been obtained unlawfully by defendants. The SEC has done this even though there is no express statutory authority sanctioning disgorgement. Federal court authority ...
Commodity Futures Trading Commission Chairman Thinks the U.S. Should Lead In the Digital Asset and Blockchain Space
At a recent conference, Heath Tarbert, the Chairman of the U.S. Commodity Futures Trading Commission ("CFTC") reportedly stated that he thinks the U.S. should take the lead in the digital asset and blockchain space. According to Law360, Tarbert noted that digital assets and blockchain "could have a fundamental transformational change to the ...
New Jersey State Auditors Take Aim at Uber for Driver Misclassification
The New Jersey Department of Labor and Workforce Development recently issued an issued assessment to rideshare company Uber for over $650 million. The assessment – which comprises about $523 million in unpaid unemployment and disability taxes, along with $119 million in interest and penalties – stems from Uber's alleged misclassification ...
U.S. Supreme Court agrees to hear Intellectual Property dispute between Oracle And Google impacting smartphones
On November 15, 2019, the U.S. Supreme Court agreed to hear a copyright battle between Oracle and Google over smartphone software. The justices granted certiorari nearly a decade after Oracle first sued Google for using copyrighted pieces of Java software when it built its Android smartphone platform. In its lawsuit against Google, Oracle ...
New Audit Rule Forces Companies to Evaluate Internal Controls and Procedures
A new rule adopted by the Public Company Accounting Oversight Board ("PCAOB") became effective for certain public filers, which requires an independent auditor to disclose in its audit report, certain challenges it faced, referred to as "critical audit matters", while reviewing and auditing the financial statements of public companies. Despite ...
FBI Smells Something Fishy in the Tuna Market
The San Francisco offices of the U.S. Attorney and FBI have cast a wide net around the canned tuna market. Assistant Attorney General Makan Delrahim of the Justice Department's Antitrust Division is not loving "Yum yum Bumblebee, Bumblebee tuna." His department has already secured guilty pleas against Bumble Bee, Chicken of the Sea and Star ...
Largest Antitrust Settlement in U.S. History Lurches Toward Resolution
In July 2014, the parties in In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 12-4671 (E.D.N.Y.) announced what was widely reported to be the largest antitrust settlement in U.S. history. Two years later, the Second Circuit sent the parties back to the drawing board. See In re Payment Card Interchange Fee & Merch. ...
Ex-New York Congressman Pleads Guilty To Insider Trading Charges
Ex-New York Congressman Christopher Collins ("Collins") pleaded guilty this past month to insider trading charges. In pleading guilty, Collins admitted that—while serving on the Board of Directors of Innate Immunotherapeutics Limited (the "Company")—he illegally tipped off his son about the failed results of the Company's drug trial. Immediately ...
Ninth Circuit Rejects Facebook’s Petition For En Banc Rehearing In Biometric Suit
On October 18, the Ninth Circuit rejected Facebook's petition for an en banc rehearing of the Circuit's August 8 panel decision in Patel v. Facebook (the "Decision"). The Patel litigation centers on whether Facebook's use of facial recognition technology for its "Tag Suggestions" feature, which the plaintiffs allege occurred without users' ...
Caremark Duties Include Duty Not Only to Establish Oversight Processes but Also to Monitor Them
In Marchand v. Barnhill, 212 A.2d 805 (Del. 2019) the Delaware Supreme Court held that boards that fail to implement oversight procedures for their company's mission critical functions can be held liable for breach of their fiduciary duty, reversing and remanding the Delaware Chancery Court's dismissal of the case. See Marchand v. Barnhill, ...
Supreme Court to Clarify LGBTQ Workers’ Rights Under Title VII
The United States Supreme Court recently heard oral arguments on three related cases from New York, Georgia, and Michigan, respectively, that will determine whether Title VII of the Civil Rights Act's prohibition against "sex" discrimination in the workplace extends to discrimination on the basis of sexual orientation and gender identity. ...
FTC Taking Mulligans With The Tech Sector
You'll never see Tiger Woods ask for a do-over, also known in golfing circles as a "mulligan." The rules of golf prohibit mulligans. In the eyes of the U.S. Federal Trade Commission, however, the rules of antitrust do not. According to Bruce Hoffman, Director of the FTC's Bureau of Competition, it may take some mulligans as the Bureau revisits ...
Namenda Antitrust Litigation Settles For $750 Million
On October 28, 2019, the direct purchaser plaintiffs and Forest Laboratories (now Allergan) reached a settlement to end the "pay for delay" and "product hopping" antitrust case known as the In Re Namenda Direct Purchaser Antitrust Litigation, set to begin trial that same day. The case resulted in a proposed settlement amounting to $750 million ...
SEC Issues Tips To Help Mainstreet Investors Avoid Scams
On October 10, 2019, the Securities and Exchange Commission's ("SEC") Office of Investor Education and Advocacy and Retail Strategy Task Force issued an investor alert and bulletin ("Investor Bulletin") titled, "Don't Fall for an Investment Scam – Investor Alert." The SEC issued several tips including the following: (1) avoid get rich quick ...
Congresswoman introduces draft bill that would classify Stablecoins as Securities
In advance of Mark Zuckerberg's highly anticipated testimony before the House Financial Services Committee regarding Facebook's stablecoin cryptocurrency called Libra, Texas Congresswoman Sylvia Garcia introduced a draft bill entitled the "Stablecoins are Securities Act of 2019." The bill would amend the definition of the term "security" in ...
Monopolization Claims Move Forward in Actos Litigation
In a pair of recent decisions, United States District Judge Ronnie Abrams held that classes of purchaser plaintiffs stated monopolization claims for overcharge damages by plausibly alleging that Takeda misrepresented its patents to the FDA to delay generic entry. The cases are In re Actos Direct Purchaser Antitrust Litigation, No. 1:15-cv-03278, ...
The Dangers of Credential Stuffing
As hackers grow more sophisticated, consumers should be aware of the evolving techniques used to steal and exploit their sensitive, personal data. One method hackers are using at an increasing rate is called 'credential stuffing,' a type of cyberattack where a user's stolen account login credentials are used to gain unauthorized access to ...
Congress Seeks to Expand Scope of Financial Whistleblower Protections to Employees Who Choose to Report Internally
On September 23, 2019, Senators Chuck Grassley, Tammy Baldwin, Joni Ernst and Dick Durbin introduced the Whistleblowers Programs Improvement Act (the "Whistleblower Improvement Act") in an effort to expand certain protections provided to whistleblowers under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), ...