Corporate Update

  • New York Law Journal | Analysis

    Fifth Circuit Disallows Payment of Make-Whole Amounts as Unmatured Interest

    By Corinne Ball | February 27, 2019

    In her Distress Mergers and Acquisitions column, Corinne Ball discusses the decision in 'Ultra Petroleum', in which the U.S. Court of Appeals for the Fifth Circuit held that contractual make-whole damages claims arising out of a bankruptcy filing should be characterized as claims for “unmatured interest” within the meaning of §502(b)(2) of the Bankruptcy Code and therefore disallowed.

  • New York Law Journal | Analysis

    Value of Franchise Rights Under BIG Tax: 'H R B-Delaware v. Commissioner'

    By Elliot Pisem and David E. Kahen | February 20, 2019

    In their Taxation column, Elliot Pisem and David E. Kahen discuss a recent order of the Tax Court addressing a motion for partial summary judgment in 'H R B-Delaware v. Commissioner'. The analysis in the decision underscores steps that are important to the evaluation of built-in gains (BIG) tax exposure, and may also inform analysis in non-BIG tax contexts regarding the existence of goodwill or going concern value.

  • New York Law Journal | Analysis

    'Varjabedian v. Emulex': Supreme Court Set to Decide Whether §14(e) of the Exchange Act Requires Scienter

    By Joseph M. McLaughlin and Shannon K. McGovern | February 13, 2019

    In their Corporate Litigation column, Joseph M. McLaughlin and Shannon K. McGovern write: Last year, the Ninth Circuit diverged from a nearly 50-year consensus, holding in 'Varjabedian v. Emulex Corp.' that mere negligence is enough to plead and prove a claim for a material misstatement or omission under Exchange Act §14(e). The Supreme Court recently granted certiorari to resolve the resulting Circuit split, the resolution of which will surely affect the number of federal securities lawsuits challenging mergers consummated through tender offers.

  • New York Law Journal | Analysis

    The Woodbridge Case: Assignability of Promissory Notes (Or How UCC §§9-406 and 9-408 Continue to Confound Judges)

    By Barbara M. Goodstein | February 6, 2019

    In her Secured Transactions column, Barbara M. Goodstein discusses 'In re Woodbridge Group of Companies, LLC et al.', which upheld a provision in a promissory note prohibiting transfers. In so doing, it not only unsettled the robust bankruptcy claims trading market, but was roundly criticized by commentators for its analysis of UCC §§9-406 and 9-408, admittedly among the most complex and inscrutable provisions in UCC Article 9.

  • New York Law Journal | Analysis

    The Importance of Disinterestedness: PROMESA and McKinsey & Co.

    By Carlos J. Cuevas | January 30, 2019

    McKinsey's participation is consequential because the Puerto Rico bankruptcy case is the largest municipal bankruptcy case ever filed.

  • New York Law Journal | Analysis

    SEC Scrutiny of Non-GAAP Financial Measures

    By David A. Katz and Laura A. McIntosh | January 23, 2019

    In their Corporate Governance Update, David A. Katz and Laura A. McIntosh write: In light of continued SEC scrutiny and possibly increasing enforcement activity, companies should ensure that they follow the relevant reporting requirements. In order for non-GAAP financial statements to provide high-quality information that is useful to investors, they should be accurate, complete, consistent, and in compliance with applicable regulations.

  • New York Law Journal

    Securities Litigation in 2019: Predictions and Speculations

    By John C. Coffee Jr. | January 16, 2019

    In his Corporate Securities column, John C. Coffee Jr. writes: The results are now in for 2018, and, in terms of securities class actions, it was another near-record year with a bumper crop of lawsuits.

  • New York Law Journal

    Advising Banks: the CSI Peril

    By Philip M. Berkowitz | January 9, 2019

    In his Employment Issues column, Philip M. Berkowitz writes: What are the risks of misusing confidential supervisory information? A recent matter involving a former Federal Reserve Bank of New York examiner and a Goldman Sachs banker is instructive.

  • New York Law Journal | Analysis

    Prison Gerrymandering

    By Steven Witzel and Amanda Giglio | January 2, 2019

    In this Corporate Crime column, Steven Witzel and Amanda Giglio discuss the practice colloquially known as “prison gerrymandering” through which incarcerated people are counted as residents of the towns where they are imprisoned (rather than where they lived before they were incarcerated) for purposes of drawing parameters for legislative districts.

  • New York Law Journal | Analysis

    Adoption and Change of Accounting Method: 'Thrasys v. Commissioner'

    By David E. Kahen and Elliot Pisem | December 19, 2018

    In their Taxation column, David E. Kahen and Elliot Pisem discuss a recent decision that offers guidance as to when a taxpayer will be considered to have adopted, or changed, an accounting method, which can be an issue in many contexts other than that of accounting for advance payments

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