S&c Critical Insights

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Sinopsis

Sharing insights that matter

Episodios

  • Enforcement Actions Related to Alleged Impairment of Whistleblower Activity and New Whistleblower Programs

    21/03/2024 Duración: 17min

    In this episode of S&C’s Critical Insights, Annie Ostrager, Co-Head of S&C’s Labor & Employment Group, and Kamil Shields, a partner in S&C’s Litigation Group, discussed recent developments in whistleblower enforcement investigations and new whistleblower programs. Annie and Kamil cover the increase in enforcement actions and investigations into employment and other agreements that the SEC and other regulators view as potentially impeding, preventing or discouraging whistleblower activity. They also discuss new programs aimed at further incentivizing whistleblower reporting to the government, such as the Whistleblower Pilot Program created by the United States Attorney’s Office for the Southern District of New York.

  • Major Developments in National Security Enforcement

    20/03/2024 Duración: 22min

    Ten years ago, international companies typically needed to monitor national security developments only if they were doing business with a U.S. government agency or operating in higher risk jurisdictions or sectors such as military or dual-use goods. Over the past decade, however, Western governments—led by the United States—have expanded the use of sanctions, export controls, import restrictions and investment laws to more jurisdictions and more sectors, requiring nearly every multinational company to be attuned to and anticipate developments in these laws and regulations, including those seeking to prevent espionage, theft of trade secrets, cyber attacks and other similar threats. In addition, the governments of nations such as Russia and China have enacted an array of sanctions, export and other control measures, which can subject multinational companies to highly challenging situations with conflicting sanctions regimes. In this environment, companies and financial institutions must address a range of nati

  • ESG Considerations for Financial Institutions in 2024

    05/02/2024 Duración: 26min

    In this episode of S&C’s Critical Insights, Michelle Chen, a partner in S&C’s Financial Services Group, and June Hu, special counsel in the Firm’s General Practice Group, provide key takeaways for financial institutions as they navigate environmental, social and governance considerations in 2024. Michelle and June review key ESG developments in 2023, noting a trend of growing divergence in ESG requirements and expectations at the international, federal and state level. This trend creates uncertainty and challenges for financial institutions. In light of the uncertainty and rapid developments in the ESG space, Michelle and June offer practical guidance for financial institutions, including the need to continue to closely monitor the changing ESG landscape and to adopt a coordinated approach to compliance in order to mitigate the risks of fragmented and reactive responses.

  • 2023 Headwinds in M&A and Outlook for 2024

    02/01/2024 Duración: 15min

    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 2023 and potential developments for 2024. While we avoided a recession in 2023, ongoing economic uncertainty, rising interest rates, regulatory headwinds and geopolitical tensions contributed to a second year of falling activity levels in global M&A following 2021’s record-breaking year. M&A deals continued to face scrutiny from antitrust and foreign investment regulators in the United States and globally. In 2023, the EU adopted its new Foreign Subsidies Regulation, and in the United States, the FTC and DOJ proposed changes to the HSR rules and issued Draft Merger Guidelines. Cross-border M&A activity remained significant at $707 billion during the first nine months of 2023, but was down 21 percent compared to a year ago. Geopolitics, sanctions and foreign investment and competition regulation explain some of the trends in cross-bord

  • Corporate Governance: What to Expect in 2024

    06/12/2023 Duración: 07min

    In this episode of S&C’s Critical Insights, Marc Treviño and Melissa Sawyer, Co-Heads of S&C’s Corporate Governance Practice, discuss corporate governance developments and what to expect in 2024. Marc and Melissa explore the ongoing trend of increased shareholder proposals focused on environmental, social and political topics and touch on ESG as it relates to the broader legislative and political climate. ESP-focused shareholder proposals and ESG issues are at the center of a growing web of legislation and government actions at multiple levels. They also note that companies may be looking to implement an officer exculpation provision in 2024.

  • Employment and Contracting Litigation After the Supreme Court’s Affirmative Action Decision

    06/09/2023 Duración: 22min

    In this episode of S&C’s Critical Insights, Julie Jordan, Tracy Richelle High and Annie Ostrager, Co-Heads of S&C’s Labor and Employment Group, discuss the Supreme Court’s decision in two consolidated cases against Harvard and the University of North Carolina. The Court held that the schools’ admissions programs—both of which used race as an explicit factor in admissions decisions—violated the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964, which prohibits discrimination in education.   Julie, Tracy and Annie examine pending employment and contracting cases that may be affected by the Court’s decision, cover related shareholder proposals and offer guidance for employers, including reviewing hiring and promotion processes and procedures to examine whether any decisions are expressly based on race, gender or other protected classes. 

  • The Australian-American Partnership to Address Climate Change

    30/08/2023 Duración: 18min

    In this episode of S&C’s Critical Insights, Connor Schillerstrom from our Sydney office, John Anselmi from our Melbourne office and Sam Saunders from our New York office discuss how Australia and the United States are working together to address climate change. Connor, John and Sam provide insight on how Australia might benefit from the Australia-United States Climate, Critical Minerals and Clean Energy Transformation Compact, which was formed this year to provide a framework for the countries to work together to reduce the cost of clean energy technologies and lay the foundation for the global clean energy economy. They also discuss the possible designation of Australia as a “domestic source” for purposes of the U.S. Defense Production Act, which would provide benefits to Australian companies operating under certain contracts with the U.S. government. Finally, they provide an overview of loans and tax credits under the U.S. Inflation Reduction Act that are available for Australian companies with critical

  • How the DOJ’s and FTC’s Draft Merger Guidelines May Affect M&A

    04/08/2023 Duración: 09min

    In this episode of S&C’s Critical Insights, Melissa Sawyer, Global Head of S&C’s M&A Group, and Joe Matelis, a partner in S&C’s Antitrust Group, discuss how the draft merger guidelines issued by the Department of Justice and Federal Trade Commission may affect M&A deals.   Joe, who helped develop the 2010 horizontal merger guidelines that would be replaced by the new guidelines, notes that the new guidelines would create more uncertainty about what kinds of mergers the government is going to choose to challenge. Joe expects that the government is most likely to focus on merger activity by so-called dominant firms that have more than a 30 percent market share, even though a much broader set of concerns is raised in the new guidelines. He also expects that going forward courts may not give as much credence to the new guidelines given their break from prevailing tradition, and thus paradoxically the new guidelines may make it harder for the government to prevail in court.   Melissa points out

  • Supreme Court’s Recent Polansky Decision on the False Claims Act

    19/07/2023 Duración: 17min

    In this episode of S&C’s Critical Insights, Annie Ostrager and Tracy Richelle High, Co-Heads of S&C’s Labor & Employment Group, discuss the Supreme Court’s June 16 decision in United States ex. rel. Polansky v. Executive Health Resources and implications for qui tam whistleblowers.   The False Claims Act (FCA) authorizes qui tam actions by private parties, called “relators,” who sue on behalf of the United States. The government may intervene and take over litigating the case during the “seal period”—the window at the outset of the action during which the case is sealed. If the government chooses not to intervene, the relator litigates the action. But the government has a right to intervene later for “good cause.” In Polansky, the government chose not to intervene during the seal period, but years later, moved to dismiss the case. The relator argued that the government could not do so because it had not intervened during the seal period. The government responded that it could move to dismiss witho

  • Recent Developments with SEC’s Whistleblowing Program

    14/07/2023 Duración: 17min

    In this episode of S&C’s Critical Insights, Annie Ostrager and Tracy Richelle High, Co-Heads of S&C’s Labor & Employment Group, discuss recent developments in the Securities and Exchange Commission’s whistleblowing program.  The Sarbanes-Oxley Act, as modified by the Dodd-Frank Act, provides protections and incentives for whistleblowers who report potential violations of the securities laws. Dodd-Frank also incentivizes potential informants to come forward by authorizing the SEC to grant awards to whistleblowers. Annie and Tracy discuss two recent amendments by the SEC to its whistleblower program that appear to reflect the agency’s readiness to grant more and larger awards. One authorizes the SEC to make awards for related, non-SEC actions, even if they may be more directly connected to other agencies. The second gives the SEC discretion to grant a larger award in appropriate circumstances. They also discuss two cases recently brought by whistleblowers against the SEC in the Third and Fifth Circu

  • Carve-Out Transactions in Europe: Key Considerations and Recent Experiences

    03/07/2023 Duración: 21min

    In this episode of S&C’s Critical Insights, associates from our London, Paris and Frankfurt offices—Costanza Posarelli, Matt Triggs, Alexis Madec and Stephan Rauch— discuss  key considerations for carve-out transactions for EU and U.K. businesses, and their recent experience assisting S&C clients with these complex transactions.  In the current economic climate,  many companies are evaluating whether they are deploying their assets in a way that maximizes value, and financial sponsors are open to more complex opportunities. Carve-out transactions, in either an M&A or a spin-off context, can be a particularly attractive option. In either context, there are several considerations to keep in mind, including tax aspects and impacts on financing arrangements for the parent company; the need for third-party consents; the relationship between the carved-out business and parent company going forward; and, if the company opts for a spin-off, the choice of listing venue and potential flowback risks.

  • Supreme Court’s Recent Slack Technologies Decision

    07/06/2023 Duración: 23min

    In this episode of S&C’s Critical Insights, Jeff Scott and Julia Malkina, Co-Leads of S&C’s Securities Litigation Practice, discuss the Supreme Court’s June 1 decision in Slack Technologies v. Pirani and the potential implications for securities litigation. Slack Technologies went public through a direct listing, which allows existing shareholders to sell their unregistered securities on the first day of public trading at the same time as the company’s registered shares are sold. Slack claimed that the plaintiff in this case lacked standing to sue because he could not trace the purchase of his Slack shares to the registration statement. The issue before the Court was whether Section 11 of the Securities Act of 1933 requires plaintiffs to plead and prove that they purchased securities registered under the registration statement they allege is materially false or misleading. In a win for defendants, the Supreme Court unanimously held that the plaintiffs must plead and prove these facts, reversing the U.

  • U.S. Clean Energy Tax Credits: Where We Are and Where We Are Going

    25/05/2023 Duración: 20min

    In this episode of S&C’s Critical Insights, Inosi Nyatta, Isaac Wheeler and Sam Saunders discuss the unanswered questions about requirements and qualifications for receiving tax credits for clean energy projects under the Inflation Reduction Act (IRA).   The IRA, which was passed in August 2022, is the largest investment in clean energy in U.S. history and  is expected to unleash a new wave of energy transition projects across the United States. It introduced new or enhanced credits for renewable energy, clean electricity investment and production, energy storage, clean hydrogen, electric vehicles, clean technology manufacturing, sustainable fuels and carbon capture.   While the IRA has opened up numerous opportunities for energy transition projects,  there are still a number of uncertainties, including final rules on direct pay and transferability, the potential impact of the OECD’s Pillar Two rules and how debt ceiling discussions may impact availability of IRA tax credits.

  • Pharmaceutical Deal Outlook: U.S. and European Perspectives

    25/05/2023 Duración: 28min

    In the webinar “Pharmaceutical Deal Outlook: U.S. and European Perspectives,” Frank Aquila, Matt Hurd, Carsten Berrar, Olivier de Vilmorin and Jeremy Kutner discuss the outlook for M&A deals in the sector. The group of partners, who came together from S&C’s New York, Frankfurt, Paris and London offices, focus in particular on outlining how patent law impacts the tenor of mergers and acquisitions, how the regulatory landscape in both the United States and Europe is affecting dealmaking, and the different considerations for acquirers as opposed to sellers.

  • Implications of EU Court of Justice Judgment in the Fiat Case for Future State Aid Investigations

    03/05/2023 Duración: 14min

    In this episode of S&C’s Critical Insights, Juan Rodriguez, Co-Head of S&C’s European Competition Group and the Firm’s Antitrust Group, and associate Marielena Doeding discuss the European Court of Justice’s ruling in the Fiat case and its implication for future state aid investigations. This landmark judgment—in which the Court of Justice annulled a General Court judgment and European Commission decision –clarified the parameters under which the Commission may investigate individual tax rulings under state aid rules. Although the judgment reaffirms that the Commission may investigate tax measures for compliance with state aid rules, in doing so, it cannot apply its own version of the arm’s length principle to tax measures; in particular, it cannot apply the arm’s length principle to tax measures in jurisdictions unless – and then only to the extent that – the law of the jurisdiction incorporates that principle. Instead, the Commission must carefully consider national tax rules to assess whether or no

  • The Impact of COVID-19 on Consumer and Retail M&A

    25/04/2023 Duración: 06min

    In this episode of S&C’s Critical Insights, partners Audra Cohen, Frank Aquila and Melissa Sawyer share important updates for dealmakers in the consumer and retail sector following the COVID-19 pandemic. Frank and Melissa discuss the impact of support legislation on various business models and explore how a continued shift in consumer priorities and product availability might change fundamental aspects of future M&A in these industries.

  • M&A and Deal-Making Implications of the FCPA Resource Guide, Second Edition

    24/04/2023 Duración: 10min

    In this episode of S&C’s Critical Insights series, Sergio Galvis, head of the Firm’s Latin America practice, outlines best practices for companies making cross-border acquisitions in view of updates to the FCPA Resource Guide issued by the U.S. Department of Justice and the Securities and Exchange Commission. With increased cooperation by regulators and law enforcement authorities across jurisdictions leading to more enforcement actions, acquirers should reevaluate their due diligence and compliance programs under these guidelines. Sergio addresses topics including: • designing and implementing an effective risk-based due diligence program for M&A, • the benefits of voluntary disclosure to the authorities of potential corruption issues, • the implementation of an effective compliance program, and • the importance of integration and remediation under the guidelines.

  • French Financial Authority Proposes New Measures for Shareholder Activism

    24/04/2023 Duración: 09min

    In this episode of S&C’s Critical Insights podcast series, Olivier de Vilmorin, head of the Firm’s European M&A practice, discusses the measures proposed by France’s securities regulator, the Autorité des marchés financiers (the “AMF”), concerning shareholder activism. Following a growing number of activist campaigns in France over the past several months, the AMF has clarified its position with pragmatic and constructive proposals to better control excessive behavior in shareholder activism campaigns, without preventing them. Olivier explores how these proposals will improve transparency and dialogue between shareholders and issuers and also strengthen AMF’s response capabilities during activist campaigns.

  • Fiduciary Duty Conversations During COVID-19: Ways to Save a Business

    24/04/2023 Duración: 05min

    S&C partners Jim Bromley and Andy Dietderich, the co-heads of our Global Restructuring practice, discuss strategies for boards confronting the “zone of insolvency” during the COVID-19 crisis.

  • European Capital Markets Activity During COVID-19

    24/04/2023 Duración: 06min

    S&C partners Carsten Berrar, Krystian Czerniecki and John Horsfield-Bradbury discuss the impact of the COVID-19 crisis on capital raising in Europe, and how issuers can adjust structures to address the current situation.

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