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In In re GGP Stockholder Litigation, 2022 WL 2815820 (Del. July 19, 2022), an M&A transaction split the merger consideration into two parts: an oversized pre-closing dividend totaling over $9 billion, followed by a nominal post-closing payment of about 31 cents a share. In this case, a majority of the Delaware Supreme Court concluded that divvying up merger consideration in this manner does not defeat a dissenting stockholder’s appraisal rights. The majority held that a pre-closing dividend (at least one dependent upon the consummation of the transaction) is part and parcel of the total “merger consideration,” and therefore will…
Continue Reading Delaware Supreme Court Holds Novel Pre-Closing Dividend Transaction Structure Does Not Thwart Appraisal Remedy

On July 7, 2022, the Cyberspace Administration of China (“CAC”) released the Security Assessment Measures of Cross-border Data Transfer ( the “Measures”) which will be effective from September 1, 2022. Previously on October 29, 2021, CAC has published a draft version of such Measures for public comments (which we covered in this blog post: here). In this blog post, we will present the major differences between this final version of the Measures and the prior draft version.
Continue Reading China Issues Security Assessment Measures of Data Cross-border Transfer

Recently, Colorado’s new $0.27 retail delivery fee went into effect. The fee targets all deliveries by a motor vehicle that have at least one item of taxable and tangible personal property. This new levy impacts both in-state and out-of-state retailers, requiring those entities to register with the Colorado Dept. of Revenue and remit funds to the State.
Continue Reading Colorado’s Retail Delivery Fee

A recent decision by the U.S. Court of Appeals for the Second Circuit has implications for whistleblowers under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “The Act”). In Hong v. SEC, No. 21-529 (2d Cir. July 21, 2022), the Court held that a person who provides the Securities and Exchange Commission (“SEC”) with information about potential securities laws violations is entitled to receive a whistleblower award under Section 21F of the Securities Exchange Act (15 U.S.C. § 78u-6)if the SEC itself brings a qualifying action, but not when the SEC shares the whistleblower’s information…
Continue Reading Second Circuit Limits Scope of SEC Whistleblower Incentives

On July 7, 2022, the Treasury Department laid out how it would work with its overseas counterparts and in international forums as the U.S. studies cryptocurrencies to set up a possible regulatory regime. This framework is the first executive agency response as mandated President Biden’s March executive order on crypto that we wrote about here.
Continue Reading Treasury Department Seeks to Coordinate Globally on Crypto Regulation

In SEC v. Rio Tinto PLC, No. 21-2042, 2022 U.S. App. LEXIS 19577 (2d Cir. July 15, 2022) (Jacobs, J.), the United States Court of Appeals for the Second Circuit declined to impose “scheme liability” under subsections (a) and (c) of the Securities & Exchange Commission Rule 10b-5 (17 C.F.R. § 240.10b-5) where the challenged conduct amounted solely to the making of a material misstatement or omission. The Rio Tinto decision is noteworthy because it limits the U.S. Supreme Court’s decision in Lorenzo v. SEC, 139 S. Ct. 1094 (2019) (blog article here), which potentially expanded “scheme liability”…
Continue Reading Second Circuit Declines to Allow SEC Rule 10b-5 Claim for “Scheme Liability” to Proceed Where the Alleged Misconduct Amounted Only to the Making of Material Misstatements or Omissions 

Federal agencies aggressively pursued enforcement actions in June. At the same time, state and federal regulators continued to recognize the importance of blockchain industry regulation by putting forth significant policy proposals, including proposals that impact cryptocurrency miners, 401k plans, and more.
Continue Reading June 2022 Crypto Enforcement Actions and Regulatory Guidance Roundup

The Department of Justice recently filed a complaint to prevent Booz Allen Hamilton’s $440 million acquisition of “agile and innovative” competitor EverWatch, Inc.[1] Among the notable aspects of the complaint is its definition of the relevant market as a single NSA contract and its assertion that the merger agreement itself constituted a violation of Section 1 of the Sherman Act.
Continue Reading DOJ Sues to Block Merger Between Booz Allen Hamilton and EverWatch Based on Antitrust Concerns Relating to Single-Contract Market

The Department of Justice recently filed a complaint to prevent Booz Allen Hamilton’s $440 million acquisition of “agile and innovative” competitor EverWatch, Inc.[1] Among the notable aspects of the complaint is its definition of the relevant market as a single NSA contract and its assertion that the merger agreement itself constituted a violation of Section 1 of the Sherman Act.
Continue Reading DOJ Sues to Block Merger Between Booz Allen Hamilton and EverWatch Based on Antitrust Concerns Relating to Single-Contract Market

So you’d like to build a new fabrication facility in China, or just add some capabilities to your existing plant? Well, the U.S. Government may want to have a look at that transaction—and may soon have the authority to stop that transaction.
Continue Reading Reverse CFIUS? S∩IℲƆ? New outbound investment review process becoming more likely

In Fowler v. Golden Pacific Bancorp, Inc., 2022 Cal. App. LEXIS 548 (Cal. App. June 23, 2022), the California Court of Appeal, Third Appellate District (Krause, J.), reinforced the near absolute right of directors of a California corporation to inspect their company’s books and records pursuant to Section 1602 of the California Corporations Code. The Court clarified that these rights hold even when the director has a conflict of interest or is involved in litigation with the corporation. Generally, directors may be denied access to books and records only in the most extreme cases, such as when evidence shows the director…
Continue Reading California Court of Appeal Reaffirms Broad Inspection Rights Accorded to Directors Under Section 1602 of the California Corporations Code

On 10 May 2022, the European Commission adopted new EU competition rules for vertical distribution agreements that entered into force on 1 June 2022, bringing important amendments to the current rules by partly narrowing the safe harbour but also allowing for more flexibility. Distribution agreements that are already in force on 31 May 2022 benefit from a one-year transitional period.
Continue Reading Updated EU Competition Rules for Vertical Agreements

U.S. state and federal lawmakers, as well as federal regulators, are increasingly focusing on the role of blockchain and distributed ledger technology in ongoing efforts to combat climate change and to facilitate the transition from carbon-based fossil fuels.

There have been several key developments in the recent weeks at the state and federal level, covering two broad categories:

(1) Initiatives targeting carbon emissions associated with data mining operations, including New York State legislation to temporarily halt certain carbon-powered cryptocurrency mining operations and a U.S. Senate bill calling on federal agencies to report on the impact of such mining operations on…
Continue Reading Lawmakers and Regulators Examine Role of Blockchain Technology in Energy Transitions

In a previous post, we blogged about certain proposed rules issued by China Securities Regulatory Commission (the “CSRC”) on December 24, 2021. The proposed rules consist of general management rules on offshore listings of onshore companies (the “Management Rules”), as well as implementation measures related to the filing of such offshore listings (the “Filing Measures”). Those proposed rules require onshore companies to file certain reports and information with the CSRC and other competent governmental authorities prior to seeking either direct or indirect offshore listings. By including “indirect” offshore listings in the proposed rules, CSRC intends to state that the filing…
Continue Reading China Securities Regulatory Commission issued Proposed Provisions Related to Offshore Listing

The U.S. photovoltaic (PV) industry, solar module suppliers, manufacturers, and renewable energy developers are facing new regulatory challenges with the implementation of new legislation which has a significant impact on such imports. Among the most significant is the Uyghur Forced Labor Prevention Act, Pub. L. No. 117-78, 135 Stat. 1525 (2021) (“UFLPA”), whose provisions became fully effective on June 21, 2022.
Continue Reading Is the U.S. solar industry ready to prove its panels aren’t made with Uyghur forced labor?

Some apparel, fabric and other goods just became more likely to get stuck at the border if U.S. Customs and Border Protection (“CBP”) suspects they contain cotton from Xinjiang or from companies on a recently published U.S. Government list, or otherwise involve forced labor — whether the brand is aware of it or not. …
Continue Reading Will U.S. Customs Seize Your Presumptively Illegal Apparel? Compliance with the Uyghur Forced Labor Prevention Act

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