S&C Critical Insights

In this episode of S&C’s Critical Insights, Inosi Nyatta, Craig Jones and Sam Saunders discuss new and proposed regulations involving critical minerals in the United States and European Union. Critical minerals, referred to as critical raw materials in the EU, are generally defined to include, among others, cobalt, graphite, lithium, manganese, nickel and rare earth minerals and are key components to clean energy technologies (in particular batteries) and other high-tech products. In the United States, the Inflation Reduction Act (IRA), which was passed in August 2022, provides an estimated $369 billion in investments in energy security and climate change programs and also creates significant tax incentives for critical minerals to be extracted, processed and/or recycled in the United States or countries that are trade partners with the U.S. Proposed by the European Commission in March 2023, the Critical Raw Materials Act (CRMA), aims to secure the EU’s supply of critical raw materials and bolster Europe’s own extraction, processing, refining and recycling of strategic raw materials. The CRMA would create a European Critical Raw Materials Board, set EU-wide targets for annual consumption of strategic raw materials, and establish a streamlined permitting process for strategic projects. However, unlike the IRA, it does not provide any additional funding.

In this episode of S&C’s Critical Insights podcast series, Alex Willscher, Deputy Managing Partner of S&C’s Criminal Defense and Investigations Group, and Aisling O’Shea, co-head of the Firm’s FCPA and Anti-Corruption Group, discuss recent changes to the U.S. Department of Justice Criminal Division’s guidance on its evaluation of corporate compliance programs. Alex and Aisling identify key changes from the DOJ’s guidance this past April, unpack what the DOJ may be attempting to achieve with these changes, and explore considerations for corporate legal, compliance and other professionals in light of these updates.

In this episode of S&C’s Critical Insights, Annie Ostrager and Diane McGimsey, Co-Heads of S&C’s Labor & Employment Group, discuss two recent decisions from the U.S. Court of Appeals for the Second and Ninth Circuits involving preemption and Section 1 of the Federal Arbitration Act. They analyze how those courts interpreted two recent U.S. Supreme Court decisions addressing the FAA’s scope in the employment context: Viking River Cruises v. Moriana and Southwest Airlines v. Saxon. In Bissonnette v. LePage Bakeries Park St., the plaintiffs, who delivered baked goods to stores and restaurants, claimed they were transportation workers, which would exempt them from Section 1 of the FAA. The Second Circuit held that because the plaintiffs charged for the baked goods, the transportation was incidental and the plaintiffs were in the baked goods industry and therefore not excluded from the FAA. After the Supreme Court issued its Saxon ruling a month later, the Second Circuit panel reconsidered Bissonnette, but adhered to its original ruling, which affirmed the district court order compelling arbitration. In Chamber of Commerce v. Bonta, a divided Ninth Circuit panel examined a California law, A.B. 51, that broadly prohibits employers from requiring mandatory arbitration agreements. Reversing a district court, the majority held that the A.B. 51’s restrictions are valid but could not be enforced if an unlawful agreement was entered into. After the Supreme Court issued its ruling in Viking River Cruises, the Ninth Circuit panel reheard the case and came to the opposite conclusion, upholding the district court’s injunction against A.B. 51. Annie and Diane said that in light of the Chamber of Commerce ruling, they expect California employers who had temporarily gotten rid of their arbitration agreements to be revising those policies. The Saxon and Bissonnette decisions left things less clear, but clients may wish to reexamine arbitration agreements to ensure employees’ work is characterized properly.

In this episode of S&C’s Critical Insights, Isaac Wheeler and Davis Wang, Co-Heads of S&C’s Tax Group, discuss the IRS’s year-end guidance in areas including the scope of the stock buyback tax and the Foreign Investment in Real Property Tax Act (FIRPTA). Isaac and Davis start off by discussing Internal Revenue Code Section 4501, commonly referred to as the one percent buyback tax, which is intended to encourage corporations to reinvest excess cash in their operations rather than buy back stock. The IRS clarified that some transactions will not be considered buybacks, such as corporate liquidations for many SPACs, while redemptions of preferred stock do appear to be subject to the tax. On FIRPTA, they discussed guidance to determine in if an entity qualifies for an exemption from U.S. real property holding company status, including whether the IRS will look through partnerships and certain corporations.

In this episode of S&C’s Critical Insights, Michelle Chen, a partner in S&C’s Financial Services Group, and June Hu, an associate in the Firm’s General Practice Group, discuss key ESG considerations for U.S. financial institutions in 2023. Michelle and June recap recent ESG-related legal and regulatory developments in the banking, asset management and insurance sectors. The OCC, FDIC and the Federal Reserve proposed principles for climate-related financial risk management for large financial institutions, and the federal banking regulators plan to work together to issue consistent interagency guidance. State-level regulators, including the New York Department of Financial Services, are beginning to propose climate-related guidance which is intended to align with the work of federal and international banking regulators. A key development in 2022 was the SEC’s proposal of climate disclosure rules. Michelle and June discuss the impact that the proposed rules may have on financial institutions, as well as the impact of overlapping ESG-related requirements from lawmakers abroad, including in the United Kingdom and the European Union. Michelle and June also examine other ESG challenges that financial institutions may face, including “anti-ESG” scrutiny around climate targets and memberships in net-zero alliances, increased regulatory enforcement and litigation risk related to ESG and the potential impact of the Supreme Court’s decision last year in West Virginia v. EPA on U.S. federal agencies’ ability to regulate ESG activities.

In this episode of S&C’s Critical Insights, Annie Ostrager, a Co-Head of S&C’s Labor & Employment Group, and Kamil Shields, a member of the Firm’s Criminal Defense & Investigations Group, provide an update on recent developments in whistleblower enforcement in the United States under the False Claims Act (“FCA”). Annie and Kamil discuss recent Department of Justice enforcement activity involving whistleblowers under the FCA’s qui tam provision, which permits private citizens with knowledge of fraud to sue on behalf of the government. In particular, several of the matters involved the healthcare industry, underscoring that this an active area for qui tam litigation and enforcement actions. In addition, Annie and Kamil discuss several qui tam cases currently pending before the U.S. Supreme Court. One of those cases, United States, ex rel. Jesse Polansky v. Executive Health Resources, Inc., addresses the issue of whether the government has the authority to dismiss a FCA suit after declining to proceed with the action. The Supreme Court will also hear argument on two consolidated cases from the Seventh Circuit regarding the applicable standard for scienter under the FCA. The Supreme Court’s decisions in these cases will be of critical importance for FCA whistleblowers and entities contracting with the government more broadly.

In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, review recent private securities litigation trends. Steve, Jeff and Julia discuss numerical trends in private securities litigation. Although such litigation has slowed overall, certain types of lawsuits, including those with ESG and SPAC-related claims, have increased. The episode also explores recent court rulings from the Second Circuit, the Ninth Circuit and the California Court of Appeal with significant implications for securities litigation, as well as noteworthy developments in cryptocurrency-related filings. For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.

In this episode of S&C’s Critical Insights, Melissa Sawyer, Lauren Boehmke and Susan Lindsay analyze trends and developments in shareholder activism and activist settlement agreements over the past year. They also highlight a few factors that are likely to shape activism throughout 2023. Among the topics discussed, the group examined the record-breaking activist campaign activity in the first quarter of 2022, which persisted despite the continued market volatility and macroeconomic uncertainty that dampened activity levels in 2020 and 2021. Additionally, they explored how the nature of campaigns shifted in 2022, with a greater focus on corporate strategies and operations and a reduced focus on capital allocation and M&A. Companies have shown greater resistance to activist demands, they noted, by adopting shareholder rights plans and settling with activists more slowly. This led to decreased success in activists obtaining board seats compared to recent years. They explained that shareholder activism activity in 2023 is expected to be impacted by a variety of factors, including new and proposed policies for institutional investors, new universal proxy rules, the DOJ’s enhanced scrutiny of interlocking directorates under Section 8 of the Clayton Act, upcoming implementation of the Inflation Reduction Act and the potential adoption of the SEC’s proposed rules on share buybacks and amendments to Schedule 13D. For more information about this topic, read S&C’s review of 2022 U.S. Shareholder Activism and Activist Settlement Agreements.

In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss the priorities of the Securities and Exchange Commission’s Enforcement Division and enforcement trends. Steve, Jeff and Julia discuss the SEC’s enforcement and regulatory activity relating to ESG disclosures, digital assets and SPACs. They also highlight the SEC’s focus on insider trading, market manipulation and recordkeeping. The episode concludes with a review of court challenges to the SEC’s enforcement powers. For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.

In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer discuss major takeaways from M&A in 2022 and potential developments for 2023. Following a record-setting year in 2021, a numbers of factors at the beginning of 2022, including soaring inflation, rising interest rates and geopolitical events, such as Russia’s invasion of Ukraine and the deterioration of U.S.-China relations, led to some of the slowest quarters in M&A globally since the onset of the pandemic. The regulatory landscape for mergers has also shifted, both in the United States and globally, with the Federal Trade Commission and U.S. Department of Justice under the Biden administration taking a more aggressive approach to antitrust enforcement, especially in the labor, agriculture, healthcare and tech sectors. Despite the agencies’ willingness to bring enforcement actions and litigation against proposed mergers, judges have frequently relied upon existing precedent to rule in favor of merging companies. De-SPAC transactions have seen increased focus as well, both from regulators and litigants, resulting in the demise of SPACs throughout last year, which is expected to continue into 2023 and beyond. Despite a general slowdown, several factors may lead to an uptick in activity in the first quarter of 2023, such as the strength of the U.S. dollar, a continued push for M&A activity by activists in the United States and abroad, the death of potential antitrust bills in Congress and the shift to more realistic projections from potential target companies, which make it more likely for buyers to make attractive offers.

In this episode of S&C’s Critical Insights, Tax Group co-heads Isaac Wheeler and Davis Wang welcome the Firm’s Government Affairs Specialist, Tom Mullins, to discuss anticipated developments in U.S. tax policy following the midterm elections. With Democrats and Republicans narrowly controlling the Senate and House, respectively, it is unlikely that the United States will see significant standalone tax policy passed in the next two years. However, progress is possible on a few fronts, including the Extenders Bill, which would extend expiring deadlines for a range of tax legislation, and the Secure 2.0 Act, which will give part-time workers better access to retirement benefits and increase the age when required minimum distributions must start. Some tax legislation could also become law by being included in a must-pass bill, such as the National Defense Authorization Act. Most likely, changes to tax policy will occur at the Treasury- or IRS-level rather than through Congressional action, although political dynamics and other factors could slow policymaking in those arenas as well. They also discuss how the new balance of power in Congress could make it more difficult for the United States to align with global tax initiatives, such as the Organisation for Economic Co-operation and Development’s Pillar II proposals for a global minimum corporate tax.

In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by Carsten Berrar, the Managing Partner of the Firm’s Frankfurt office, and Olivier de Vilmorin, the Head of the Firm’s European M&A practice, to discuss cross-border M&A transactions in the current economic environment. Carsten and Olivier discuss some of the macro-economic trends impacting the European market, including the energy supply crisis, inflation, recession as well as transformational issues, such as the mobility car industry. Additionally, heightened Antitrust scrutiny and an increased relevance of Foreign Direct Investment (FDI) Screening add to deal complexity and have reduced the pace of M&A transactions significantly. Despite these factors, a significant number of deals have been struck in the energy, infrastructure and cybersecurity sectors in Europe. Cautiously optimistic, Carsten and Olivier expect a significant number of P2P, carve-out and distressed M&A transactions in the coming months. Moreover, China’s softening of pandemic restrictions and the slowdown of inflation in the United States have had a positive impact on the European markets and could provide a boost for M&A deals. Melissa provides a U.S. perspective of the market for cross-border transactions into Europe. She points out that this is a great time for U.S. acquirers to be thinking about making investments in Europe as the market is less competitive than in recent years.

In this episode of S&C’s Critical Insights, Litigation partners Brendan Cullen and Tony Lewis provide an update and some key takeaways for building and sustaining an effective compliance program in light of recent remarks from Department of Justice officials, including September comments by Deputy Attorney General Lisa Monaco. Brendan and Tony build on their previous podcasts from 2020 and 2021 and discuss the agency’s enforcement priorities and its newest compliance expectations. These developments come at a time when U.S. enforcement agencies appear to be increasingly focused on corporate compliance. Topics include the DOJ’s focus on data analytics in testing the effectiveness of a company’s compliance function and culture, using compensation systems to provide incentives or disciplinary measures to improve compliance, and on companies’ use of electronic messages on personal devices. For more information about compliance programs, read Brendan and Tony’s chapter in the Latin Lawyer Guide to Corporate Compliance, “Developing a Robust Compliance Programme in Latin America.”

In this episode of S&C’s Critical Insights, S&C Partners Rita-Anne O’Neill and Joe Matelis provide an overview of Section 8 of the Clayton Act and discuss how the Department of Justice’s recent enforcement actions may affect private equity firms.

In this episode of S&C’s Critical Insights, Julia Malkina, the co-lead of S&C’s Securities Litigation practice, is joined by Judd Littleton, the co-head of the Firm’s Supreme Court and Appellate practice, to discuss the upcoming Supreme Court oral argument in SEC v. Cochran and the case’s potential implications for SEC enforcement actions. In SEC v. Cochran, the Court will decide whether federal district courts have jurisdiction to consider structural constitutional claims that challenge ongoing SEC administrative proceedings. Julia and Judd discuss the background of SEC v. Cochran, the key issues and arguments before the Supreme Court, and how the Court’s decision may affect SEC enforcement actions going forward.

In this episode of S&C’s Critical Insights, Isaac Wheeler and Davis Wang, Co-Heads of S&C’s Tax Group, are joined by Morgan Ratner from the Firm’s Supreme Court and Appellate practice, to discuss In Re Grand Jury, a case in which the U.S. Supreme Court recently granted certiorari to address when “dual purpose” communications are afforded attorney-client privilege. In In re Grand Jury, an unnamed law firm that specializes in international tax issues was asked to turn over documents that the firm argued are protected by the attorney-client privilege. The dual purpose communications at issue were made with the purpose of obtaining legal advice, which is generally privileged, and discussing the preparation of the client’s tax returns, which is not generally protected. A federal district court held the firm in contempt for its failure to produce the documents, and the U.S. Court of Appeals for the Ninth Circuit upheld that ruling. Morgan, Davis and Isaac also explore hypothetical scenarios to showcase the challenges of distinguishing legal advice from what has been determined to be non-legal advice, especially in the tax field.

S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer conclude their discussion of shareholder proposal trends from the 2022 proxy season by discussing governance proposals. They note that nearly all of the increase in shareholder proposals over the past decade is due to environmental, social and political proposals, as opposed to governance proposals. Still, governance proposals raise important issues and their proponents have become sophisticated about how they submit these proposals. Proposals seeking to lower the threshold of ownership needed for shareholders to call a special meeting was the largest category of structural governance proposals this year. Marc and Melissa note that the companies that defeated these proposals mostly demonstrated that the requested threshold would essentially give too much power to a single shareholder or to a couple of large holders. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer continue their discussion of shareholder proposal trends from the 2022 proxy season. In this episode of S&C’s Critical Insights, they explore social and political proposals, including in increase in those from so-called “anti-ESG” proponents. This year saw big growth in social and political proposals, with an 81 percent increase in civil rights, human rights and racial equity impact-related proposals. Marc and Melissa explore the different categories of social and political proposals, including those calling for racial equity audits and civil rights audits and challenges to corporate political spending. In prior years, this category was largely taken up by DEI-related proposals. This year, proposals increasingly focused on workplace characteristics, harassment, inadequate paid sick leave, employee health and safety issues. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

In this episode of S&C’s Critical Insights, Sarah Payne, John Savva and Melissa Sawyer are joined by Kelly Sullivan, partner at communications firm Joele Frank, and Scott Winter, managing director at proxy solicitation firm Innisfree, to discuss the new universal proxies required by the Securities and Exchange Commission. They discuss how companies can prepare for these proxies, which must include all director nominees properly presented for election, and what to expect for the upcoming season. The group discussed how the new ballots will likely lead to more activism, especially from smaller investors, and how companies can respond. On a positive note, the new proxy process has spurred many companies to refresh their bylaws to better address this new process.

Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu continue their discussion of shareholder proposal trends from the 2022 proxy season, discussing trends in environmental proposals, as well as how to prepare for 2023. Environmental proposals have steadily increased over the past decade, with an explosion in 2021 and 2022. In 2021, these proposals rose 40 percent year-over-year and this year they jumped a further 38 percent. With proponents more reluctant to settle and the Securities and Exchange Commission less likely to grant no-action relief, 78 percent more environmental proposals reached a shareholder vote compared to 2021. One of the most notable trends was the increased granularity of these proposals. Correlated with this increasing granularity, however, the 2022 environmental proposals received lower levels of shareholder support. Looking forward, they expect that companies will have an even harder time negotiating a compromise or excluding environmental shareholder proposals, which may become even more granular in their demands. Learn more from S&C’s 2022 Proxy Season Review and watch our recent webinar.

Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu open a four-part series discussing prevalent shareholder proposal trends from the 2022 proxy season. They outline the significant impact of recent actions by the Securities and Exchange Commission on this proxy season and discuss how SEC rulemaking could affect the 2023 season. SEC Staff Legal Bulletin No. 14L—which reversed prior SEC guidance and altered the staff’s approach to the ordinary business and economic relevance exclusions—had a significant impact on the submission and voting trends this year. The SEC’s new approach correlated with a significant decrease in the likelihood of companies obtaining no-action relief, as the staff now assesses whether a proposal raises issues with a broad societal impact in determining whether a proposal is excludable. As a result, shareholder proposals made it to a vote much more frequently this proxy season. Yet the number of passing proposals decreased, as shareholder support for social, environmental and political proposals decreased after steadily rising throughout the last decade. Looking ahead, they expect ESG proponents to continue to submit more proscriptive and granular proposals to attract shareholder support. They also expect increased focus by the SEC on director qualifications, cyber security and human capital management disclosure. Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

: In this episode of S&C’s Critical Insights, Davis Wang and Isaac Wheeler, co-heads of S&C’s Tax Group, are joined by Lauren Boehmke, partner in the Firm’s M&A practice, to discuss the recently enacted Inflation Reduction Act and a few of its key impacts on companies and corporate transactions. They analyze three key changes introduced by the Act: the corporate minimum tax, the one percent buyback tax and clean energy initiatives.

In the fourth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partners Diane McGimsey and Annie Ostrager to discuss two employment arbitration cases from the past term and their implications for employers. In Viking River Cruises v. Moriana, the Supreme Court held that the Federal Arbitration Act preempts a California Supreme Court ruling insofar as it prohibits bringing certain state law claims to arbitration and reaffirmed that no party can be made to arbitrate a claim without expressly agreeing to do so. In Southwest Airlines Co. v. Saxon, the Court held that certain airline workers, baggage handlers and some of their supervisors, qualify for an exemption under Section 1 of the FAA for workers involved in interstate commerce or the transportation of goods or people.

In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by the Co-Heads of the Firm’s Antitrust group, Renata Hesse and Juan Rodriguez, to discuss recent developments surrounding the vertical merger of Illumina and GRAIL, which make DNA sequencing devices and blood-based tests for cancer screening, respectively. In the United States, an administrative law judge recently denied the Federal Trade Commission’s request to prohibit the transaction on competition grounds. In Europe, the European Commission opened a highly publicized suspensory investigation into the transaction, which is seen as a test case for the EC’s recently revised policy on reviewing mergers that do not require mandatory reporting to the EC. The partners discuss these developments and how they might impact M&A deals going forward, especially in the pharmaceutical and tech sectors.

In this episode of S&C’s Critical Insights, Paris partner Olivier de Vilmorin, London partner John Horsfield-Bradbury and London associate Sarah Mishkin discuss the unexpected ways that the European Union’s new ESG laws and regulations may affect U.S. and other non-EU companies. They discuss how the laws will apply to certain companies with EU-listed securities or whose operations in the EU meet certain thresholds. They also touch on how the new climate-related disclosure requirements proposed by the U.S. Securities and Exchange Commission compare to the new EU laws.

In this episode of S&C’s Critical Insights, Vanessa Blackmore, Kirsten Rodger and Sam Saunders take a look at recent developments in the regulation of ESG-labelled bonds and ESG data and rating services, focusing in particular on recent UK regulatory statements signaling that use of proceeds frameworks are likely to be subject to enhanced regulatory scrutiny. They also touch on ESG developments globally, noting that international businesses are likely to find themselves facing multiple, complex ESG reporting requirements, with the potential for increased regulatory scrutiny and liability for misstatements.

In the third episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partner Andrew Finn, the coordinator of S&C’s International Arbitration and Global Dispute Resolution Group, to discuss three arbitration cases that the Supreme Court decided last Term and the key takeaways from those decisions for businesses.

In the second episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by Sharon Cohen Levin, former head of the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York, to discuss the Supreme Court’s recent decision in Cassirer v. Thyssen-Bornemisza Collection Foundation. The decision addresses the correct choice-of-law rule in a dispute between the family of a German Jewish woman who surrendered a painting to the Nazi regime in 1939 to obtain an exit visa and the Spanish museum that currently displays it. Sharon brings unique insight to this area of law and explains the legal landscape for heirs seeking restitution of property looted as part of severe violations of international law. She also discusses the implications of the Court’s decision for the Foreign Sovereign Immunities Act more generally. S&C's Appellate Practice Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.

In this episode of S&C Critical Insights, Judd Littleton, Julia Malkina and Morgan Ratner introduce the third annual podcast series accompanying S&C’s Supreme Court Business Review. The Review summarizes the decisions from each Term that are most relevant to business leaders, and offers practical guidance on the implications of those decisions. Judd, Julia and Morgan preview upcoming episodes and discuss two closely watched administrative law decisions from this Term. The first is National Federation of Independent Business v. OSHA, in which the Court considered whether the Occupational Safety and Health Administration had the authority to implement a national COVID-19 vaccine mandate. The second is West Virginia v. EPA, in which the Court considered whether the Environmental Protection Agency had the authority to issue the Clean Power Plan, which established carbon dioxide emissions limits for coal power plants. They also briefly touch on the Court’s decision in American Hospital Association v. Becerra, in which the Court declined to address the continued viability of the Chevron doctrine in a case addressing how the Department of Health and Human Services sets drug reimbursement rates for hospitals treating Medicare patients. S&C's Supreme Court and Appellate Practice Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.

In this episode of S&C’s Critical Insights, Olivier de Vilmorin, Carsten Berrar, Ben Perry and Richard Pollack discuss recent de-SPAC transactions in Europe, highlighting the latest de-SPAC trends in Germany, France and the U.K. They also discussed some of the regulatory uncertainty affecting the SPAC market in the United States.

In this episode of S&C’s Critical Insights, Ryan Logan and Matt Rosenberg discuss recent developments in U.S. privacy law at the state level, including Connecticut’s Act Concerning Personal Data Privacy and Online Monitoring and the Utah Consumer Privacy Act. Ryan and Matt highlight some key distinctions in these laws, including their scope and applicability, the rights granted to individuals with respect to their personal information, and compliance obligations imposed on companies that collect personal information from individuals in these states. Finally, they discuss current trends in state privacy laws and possible future developments. Visit us at www.Sullcrom.com

In this episode of S&C’s Critical Insights, Sarah Payne and Cathy Clarkin discuss greenhouse gas emissions disclosures, an important component of the SEC’s highly anticipated climate-related rule proposals. Sarah and Cathy provide an overview of changes that would occur under the new rules, including the mandated disclosure of Scope 1 and 2 greenhouse gas emissions, even if the emissions are not material to the company, required disclosures on a gas by gas basis, and perhaps most significantly, the requirement that accelerated filers and large accelerated filers have their Scope 1 and 2 emissions data covered by an attestation report.

In this episode of S&C’s Critical Insights, Jay Clayton and Cathy Clarkin provide an overview of the SEC’s highly anticipated climate-related rule proposals. The newly announced rules would require an expansion to both the breadth and the specificity of climate-related disclosures for both U.S. public companies and foreign private issuers. Jay additionally provides his assessment of the proposed rules, which are a significant departure from the SEC’s traditional materiality-based framework of disclosure and represent a move toward a more prescriptive climate-related disclosure regime.

In this episode of S&C’s Critical Insights, Michelle Chen and June Hu discuss the SEC’s new climate disclosure proposal and its implications for financial institutions. On March 21, the SEC released a comprehensive proposal to mandate climate-related disclosures in SEC reporting companies’ annual reports and registration statements. Michelle and June discuss aspects of the proposed rules that will likely have particular implications for financial institutions, especially in light of the increasing focus from financial regulators on climate-related financial risks, as well as financial institutions’ other obligations that may affect their overall climate strategy. Click here to read S&C’s memo on the proposed rules and key implications for financial institutions. To watch S&C’s webinar on the SEC’s proposed rules and read additional S&C publications on this topic, click here. Visit us at www.sullcrom.com

On this episode of S&C’s Critical Insights, Stewart Robertson and Andrew Finn discuss the rapidly emerging expropriation and asset seizure risks to foreign companies operating in Russia and around the world. In response to Russia’s invasion of Ukraine, many multinational companies have announced plans to suspend or otherwise scale back their operations in Russia. Russia’s Parliament is currently considering laws that would allow its government to seize assets of those companies or put them under temporary government management. Stewart and Andrew explore the practical steps companies can take and consider in preparing for this type of possible action. Visit us at www.Sullcrom.com

In this episode of S&C’s Critical Insights, Katy McArthur and Tony Lewis discuss guidance from the U.S. Office of Foreign Assets Control (OFAC) on complying with U.S. sanctions in connection with virtual assets. The podcast explores the application of OFAC guidance for U.S. and non-U.S. companies and individuals who participate in the virtual currency industry, as well as recent commentary by other U.S. authorities regarding potential “red flags” for the use of virtual currency by those who may be affiliated with sanctioned Russian or Belarusian entities, especially when those entities or agents of those entities may be attempting to evade sanctions.

Mehdi Ansari, co-head of S&C’s Intellectual Property & Technology Transactions Group, introduces the core components of publicity rights, which have become a prominent element in the sports, media, entertainment and consumer products industries. To learn more about this topic, listen to Mehdi’s full webinar, “Emerging Trends in Publicity Rights.” Mehdi builds on his introduction with an in-depth discussion on topics including post-mortem publicity rights, morals clauses, bankruptcy considerations, international enforcement, and other issues that will affect the future of publicity rights.

In this episode of S&C’s Critical Insights, Steve Peikin, Jeff Scott and Julia Malkina discuss recent trends in private securities litigation. Steve is the head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Enforcement Division. Jeff and Julia are co-leads of the Firm’s Securities Litigation Practice. The podcast explores numerical trends in securities litigation filings during 2021, the Supreme Court’s decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, state court proceedings post-Cyan, and other developments.

In this episode of S&C’s Critical Insights, Steve Peikin, Jeff Scott and Julia Malkina discuss developments in the SEC’s enforcement priorities. Steve is the head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Division of Enforcement. Jeff and Julia are co-leads of the Firm’s Securities Litigation Practice. They offer practical guidance for handling of enforcement investigations in light of the new presidential administration and recent enforcement trends. Visit us at www.Sullcrom.com

In this episode of S&C’s Critical Insights, Ryan Logan and Daniel Stern discuss privacy considerations that arise when engaging vendors involved in preventing and responding to data breaches. Ryan and Daniel describe the life cycle of an incident, including pre-incident planning, following privacy principles during a breach response and addressing the return or destruction of data at the end of the engagement. Visit us at www.SullCrom.com

In this episode of S&C’s Critical Insights, Melissa Sawyer and Lauren Boehmke analyze trends in shareholder activism from the past year. They explore several key themes, including the increase in public activism during the 2021 proxy season, ESG as a primary activism campaign objective, a rise in settlement agreements, and recent regulatory developments. They also highlight a few trends that are likely to shape this area in 2022 and beyond. For more information about this topic, read S&C’s memo on the Review and Analysis of 2021 U.S. Shareholder Activism and Activist Settlement Agreements.

In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer look back on global M&A activity during 2021 and discuss deal making expectations in 2022. Frank and Melissa explore the factors that made 2021 a historic year for M&A deal making—including the SPAC phenomenon, the splitting of major conglomerates, the rise of ESG as a catalyst for deals and the recovery from the pandemic-induced downturn. They further examine how these trends will continue to develop in the new year. Visit us at www.Sullcrom.com

In this episode of S&C’s Critical Insights, John Savva and Sarah Payne discuss non-GAAP financial measures, numerical measures of a company’s financial performance, and financial position or cash flows that are not determined under GAAP. Sarah and John also explore the SEC’s requirements applicable to non-GAAP financial measures, some key areas to focus on in the presentation of these financial measures and the importance of complying with the various requirements that apply to non-GAAP financial measures.

In this episode of S&C’s Critical Insights, Andy Dietderich and Melissa Sawyer discuss how their disciplines of M&A, corporate governance and restructuring combine to protect public company directors during a liquidity crisis. They explore director duties in what used to be called the “Zone of Insolvency,” with a focus on current Delaware law. They also discuss hypothetical situations in which directors might find themselves while steering a distressed company through a storm.

In this episode of S&C’s Critical Insights, Vanessa Blackmore, Ben Perry and Kirsten Rodger discuss whether Brexit has changed thinking about which law should govern a contract, and which courts should have jurisdiction over disputes. They explore why English governing law remains just as valid a choice as it did before Brexit and why the English courts continue to be well placed to handle disputes that arise. Visit us at Sullcrom.com

In this episode of S&C’s Critical Insights, Sarah Payne and Cathy Clarkin discuss the latest developments relating to 10b5-1 trading plans. They explore several proposed reforms by the SEC, which include a cooling off period between entering a newly adopted or modified plan and making an initial trade, a prohibition on overlapping plans and mandatory disclosure requirements. They also discuss considerations relating to current plans given the prospect of these pending rules. Please visit us @ Sullcrom.com

In this episode of S&C’s Critical Insights, Sarah Payne, managing partner of S&C’s Palo Alto office, and M&A partner Matt Goodman are joined by Davis Wang, co-head of the Firm’s Tax Group, and Bachir Karam, a partner in the Firm’s Estates & Personal Group, to discuss proposed tax changes under the Build Back Better Act. The Build Back Better Act passed in the House on November 19 and is now before the Senate. The partners discuss how proposed tax changes in the bill might have significant impacts on founders, companies and venture capital firms in Silicon Valley. Visit us at SullCrom.com

In this episode of S&C’s Critical Insights, Sarah Payne and John Savva explore director onboarding, a process that may need to be refreshed in light of increased board turnover and expansion as companies seek to increase board diversity, as well as the increase in newly public companies. John and Sarah discuss four areas in particular that should be reviewed and updated: roles of directors, fiduciary duties, communications and risk oversight. Visit us at SullCrom.com

In this episode of S&C’s Critical Insights, Tony Lewis and Kamil Shields discuss two Department of Justice announcements—the launch of a Civil Cyber-Fraud Initiative and the creation of a National Cryptocurrency Enforcement Team. They also explore how these measures, alongside a series of recent high-profile cybercrime incidents and enforcement actions, fit into the DOJ’s comprehensive cyber strategy following the issuance of recent DOJ policy related to cryptocurrency enforcement and President Biden’s executive order to strengthen the nation’s cybersecurity infrastructure.

In this episode of S&C’s Critical Insights, John Savva and Sarah Payne discuss cheap stock, a significant factor in many initial public offerings. They explore how the issue arises in the context of an IPO, the types of cheap stock comments typically issued by the SEC, and how a company might navigate these comments. They also discuss steps to take to reduce the likelihood of a cheap stock issue. Visit us at Sullcrom.com