Corporate / M&A

SEC Adopts Proxy Access Rules

Wed, 1 Sep 2010 10:29:23 -0400

New regime will impact public companies, shareholders and activist investors.

On August 25, 2010, the SEC adopted new rules that require companies to include the director nominees of significant, long-term shareholders in company proxy materials, alongside the nominees of management. These new "proxy access" rules will impact public companies, shareholders and activist investors. Qualified shareholders can now avail themselves of company proxy statements to nominate and elect directors, rather than having to launch expensive proxy fights in which they mail their own ballots.

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Massachusetts Allows Carry Forward of Losses for 20 Years and a Reduced Capital Gains Rate for Start-Ups

Tue, 17 Aug 2010 11:13:24 -0400

On August 5, 2010, Massachusetts Gov. Deval Patrick signed into law an economic development bill that provides favorable tax treatment under Massachusetts tax law. Specifically, the new law (1) allows corporations to carry forward losses for 20 years up from the current limit of 5 years and (2) reduces an investor's tax rate on capital gains earned on investments in start-up companies from 5.3 percent to 3 percent.

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New Rules Under Dodd-Frank Law to Impact Derivatives Trading & Market Participants

Tue, 17 Aug 2010 11:08:35 -0400

This Alert is the third in a series of Alerts that examine key aspects of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), which was signed into law by President Obama on July 21, 2010. The Act contains numerous provisions which attempt to regulate the over-the-counter derivatives market, both by establishing new requirements and removing exemptions that had been previously codified. This alert summarizes some key points likely to impact your business.

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The Dodd-Frank Wall Street Reform & Consumer Protection Act

Tue, 27 Jul 2010 11:38:37 -0400

This Alert-the second in a series of Alerts that examine key aspects of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), which was signed into law by President Obama on July 21, 2010-focuses on changes to the "accredited investor" definition under the Securities Exchange Act of 1933. The changes take effect immediately and potentially impact issuers currently engaging in private offerings.

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Financial Reform Legislation Approved by House-Senate Conference Committee

Fri, 2 Jul 2010 15:54:42 -0400

Dodd-Frank Act Brings Financial Reform Legislation Closer to Reality

Status: On June 25, 2010, the House-Senate conference committee concluded its reconciliation of separate financial reform bills previously approved by the House and Senate. The result of that reconciliation, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), was passed by the House (with some modifications) on June 30, 2010. It must now be approved by the Senate before being presented to the President for signature. The recent death of Senator Byrd impacts the Senate’s schedule and voting dynamics, and continued political wrangling leaves the Act’s passage in the Senate unclear. As of the time of this writing, the political landscape appears tilted towards passage, though a Senate vote will not occur before the week of July 12. We will continue to update you on material developments.

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The Thin Blue Line

Mark A. Dorff (mdorff@brownrudnick.com) — Thu, 27 May 2010 10:41:15 -0400

As companies once more consider cross-border acquisitions, Mark Dorff, Co-Chair of Brown Rudnick’s European Venture Capital and Emerging Technologies Group outlines the issues for those occurring across the Atlantic.

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SEC Approves Alternative Uptick Rule

Tue, 2 Mar 2010 15:29:59 -0500

On Wednesday, February 24, 2010, the Securities and Exchange Commission (SEC), voting 3-2 on party lines, adopted a new rule that restricts short selling when a stock is experiencing significant downward price pressure. This new alternative uptick rule imposes restrictions on short selling when the price of a stock drops 10 percent or more from the prior day’s closing price. Once the circuit breaker is triggered, the alternative uptick rule would apply to short sale orders in that security for the remainder of the day as well as the following day. Short selling would still be permitted if the price of the security is above the current national best bid.

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Let the 2010 Proxy Season Begin!

Tue, 2 Mar 2010 15:25:34 -0500

Last year was a busy year. The Securities and Exchange Commission (SEC) adopted comprehensive rule revisions intended to improve the disclosure provided to shareholders of public companies regarding compensation and corporate governance matters. It also approved the New York Stock Exchange’s amendment to NYSE Rule 452, "Giving Proxies by Member Organizations," which eliminated broker discretionary voting for all elections of directors, whether or not contested, except for companies registered under the Investment Company Act of 1940. These changes will dramatically impact this year’s proxy season.

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Change in After Hours Nasdaq Notification Requirement

Tue, 2 Mar 2010 15:20:58 -0500

Last week, the Securities and Exchange Commission issued a Release, which made immediately effective a rule change proposed by The Nasdaq Stock Market LLC to Nasdaq Rule 5250 and IM-5250-1, modifying the prior notification requirements for when Nasdaq listed companies release material information outside of Nasdaq market hours (7:00 a.m. to 8:00 pm. ET).

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SEC Staff Issues Revised Guidance on Non-GAAP Financial Measures

Tue, 2 Mar 2010 14:58:29 -0500

On January 11, 2010, the staff of the Securities and Exchange Commission (SEC) updated its Compliance and Disclosure Interpretations (C&DIs) regarding the disclosure of non-GAAP financial measures. The C&DIs supersede the SEC’s Frequently Asked Questions (FAQ) regarding the use of such measures published in 2003 but incorporate much of the SEC’s prior guidance.

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Supreme Court Hears Oral Arguments in Bilski v. Kappos

Fri, 13 Nov 2009 15:20:27 -0500

The Supreme Court agreed earlier this year to hear the Bilski case and address the question of whether the “machine-or-transformation” test enunciated last year by the Federal Circuit is appropriate for determining patent-eligible subject matter.

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State Regulator Files Final Massachusetts Data Security Regulations: Retains March 1, 2010 Effective Date

Fri, 13 Nov 2009 15:14:59 -0500

The Office of Consumer Affairs and Business Regulation (OCABR) filed final Data Security Regulations on November 4, 2009, retaining the March 1, 2010 effective date. As reported in prior Alerts, persons who have access to personal information regarding Massachusetts residents in connection with business or employment must have a written information security plan in place by the effective date. The requirements of the Regulations were summarized in the Alert we published on September 25, 2009.

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FTC Postpones Enforcement of Red Flags Rule: U.S. District Court Holds Rule Not Applicable to Lawyers

Mon, 9 Nov 2009 16:04:16 -0500

There have been two important developments recently regarding the Federal Trade Commission’s Red Flags Rule.
The Red Flags Rule requires financial institutions and creditors to develop and implement written identity theft prevention programs. These programs must provide for the identification, detection, and response to patterns, practices, or specific activities -- known as "red flags" -- that could indicate identity theft. Generally speaking, the Rule applies to all persons who regularly permit consumers to defer payment for goods and services purchased. An obvious example of a "creditor" that is subject to the Rule is an automobile dealer; a less obvious example is a lawn mowing service that provides the service and subsequently sends a bill.

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The U.S. Freedom of Information Act: Negative Emails About Competitor Need Not Be Produced

Tue, 14 Apr 2009 13:21:49 -0400

Government contractors sometimes pursue the disclosure of competitor information through requests under the U.S. Freedom of Information Act1 ("FOIA"). When a contractor is notified that the government may reveal confidential information in response to a FOIA request, that contractor has the right to assert that its confidential information be exempted from disclosure.

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Investor Directors of Distressed Companies: How Should They Act?

(James Shaw) jshaw@brownrudnick.com & (Louise Verrill) lverrill@brownrudnick.com — Tue, 14 Apr 2009 13:19:22 -0400

For most private equity and venture capital firms, it is an established industry practice to appoint their partner(s) to act as investor director(s) in their portfolio companies with a view to gaining more active supervision and management of the company. Few, if any, questions have been asked, and scant concerns have been raised about this standard practice during the recent golden era of finance. After all, most companies performed well, and in good times there is rare occasion to question the performance and prudence of the directors. However, the current financial turmoil is casting doubt on this standard practice. Irrespective of how or why a director holds office, he or she still has certain duties and responsibilities.

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Brown Rudnick Represents India Cleantech Company, The Acme Group, in 1,000 Mw Solar Energy Deal

Tue, 7 Apr 2009 14:57:36 -0400

Brown Rudnick, an international law firm, represented the ACME Group (“ACME”), a provider of energy, environmental, and telecommunications infrastructure solutions in India, in the company’s solar energy deal with eSolar. Under the agreement, eSolar signed an exclusive license agreement with ACME to build up to 1,000 MW of solar thermal power plants in India over the next ten years. The deal specifies that ACME will use eSolar's modular, scalable solar power technology for the project, and that ACME is open to work with other companies looking to build solar plants using eSolar's technology. Additionally, ACME will make a multi-million dollar equity investment in eSolar.

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