A renowned retail foreign exchange dealer agreed to shut its doors as a result of enforcement actions taken by the Commodity Futures Trading Commission and the National Futures Association, while the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations provided a top five list of issues it has seen during investment adviser inspections. Although some of OCIE’s identified topics are likely of interest only to investment advisers, most of its observations regarding compliance procedures are relevant to all SEC and CFTC registrants and supporting practitioners. As a result, the following matters are covered in this week’s edition of Bridging the Week:Retail Foreign Exchange Dealer Agrees With CFTC and NFA to Cease Doing Business for Concealing Relationship With Closely Tied Market Maker;SEC OCIE Provides Top Five List of Most-Identified Compliance Topics During Investment Adviser Examinations (includes Legal Weeds and Compliance … [Read more...] about Bridging the Week: Feb 6 to 10, Feb 13, 2017 (Retail FX Dealer to Close; Top Five IA Compliance Topics; Disaggregation; CPO Delegation)
Closing a formal letter
Editor’s note: ACLU lawyers Michael German and Michelle Richardson and former FBI lawyers Valerie Caproni and Steven Siegel consider the pros and cons of national security letters. Their essays can be found in Patriots Debate: Contemporary Issues in National Security Law, a book published by the ABA Standing Committee on Law and National Security that was edited by Harvey Rishikof, Stewart Baker and Bernard Horowitz. The book can be ordered online. The ABA Journal’s Patriots Debate series has been publishing advance versions of the essays appearing in the committee’s book. INTRODUCTIONA national security letter is a type of administrative subpoena used in terrorism and espionage investigations to obtain subscriber and transactional information from communications providers, financial institutions and consumer credit agencies. Such information might include a suspect’s name, address, place of employment, telecommunications toll records, financial data and credit … [Read more...] about National Security Letters: Building Blocks for Investigations or Intrusive Tools?
In almost all corporate transactions, the first piece of written documentation the parties exchange and execute (after a non-disclosure agreement) is a letter of intent or term sheet (“LOI”), which is intended to summarize the main deal points. And as many corporate transactions involve entities organized in Delaware, these documents often select Delaware as the governing law. Typically, this same LOI documentation is clearly identified as “non-binding,” as it usually represents merely the initial, tentatively negotiated business points between the main players of each side of the deal. The task is then left to outside or in-house counsel to craft the definitive agreements to memorialize the business points reflected in the LOI. Unless a particular provision is clearly identified in the non-binding LOI as, in fact, “binding” (such as an exclusivity provision), most lawyers assume that there cannot be liability if the definitive agreement differs … [Read more...] about When Is a Non-Binding Term Sheet or Letter of Intent Enforced as a Binding Contract?
The 2012 proxy season revealed some significant trends and developments. These developments are instructive to public companies and their counsel as they approach and plan for future annual meetings and the proxy solicitation process in general. This article reviews a few of these broader trends and developments and discusses implications for public companies.1. Say on PayThis was the second year in which U.S. public companies were required, pursuant to Section 951 of the Dodd- Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and Exchange Act Rule 14a-21(a), to hold non-binding advisory votes to approve the compensation of named executive officers (“say-on-pay votes”). In its inaugural proxy season last year, the say-on-pay regulatory regime required all U.S. companies subject to the proxy rules to hold an advisory say-on-pay vote and also put before their shareholders the question of whether, going forward, subsequent say-on-pay votes … [Read more...] about The 2012 Proxy Season — A Review of Significant Trends and Developments
If you’ve been in the real estate business long enough, odds are you’ve found yourself in the following situation: You’ve signed a letter of intent (LOI) to buy or sell a property, which contains some combination of the basic deal terms (property description, price, due diligence period, closing date, earnest money, etc.) and contemplates the negotiation of a detailed, definitive purchase agreement. Then, before the agreement is actually signed, you decide not to pursue the deal—because you’ve changed your mind, market conditions have shifted or the negotiations have reached an impasse. If the other party still wants to proceed, can they force you to go through with the deal?The answer depends on the language in the LOI. In almost all cases, this preliminary document is not intended to be a binding agreement for the purchase and sale of the property; its purpose is to memorialize the terms that the parties have agreed to in principle and provide a … [Read more...] about Letters of Intent: Preliminary Negotiation or Binding Agreement?
Welcome to the New World IntroductionSocial media is a revolution in the way in which corporations communicate with consumers. This White Paper will help you to maximize the huge potential benefits of this revolution and protect against the inherent legal risks surrounding this phenomenon. In this document, you will find practical, action-oriented guidelines as to the state of law in the following areas: Advertising & Marketing; Commercial Litigation; Data Privacy & Security; Employment Practices; Government Contracts & Investigations; Insurance Recovery; Litigation, Evidence & Privilege; Product Liability; Securities; and Trademarks. Everyone has heard of Facebook, YouTube, and MySpace. These are just the tip of the iceberg. There are hundreds of social media sites with tens of millions of participants. And it’s not just individuals. Multinational companies and their CEOs are increasingly active in the social media space via blogs, Facebook fan pages, and … [Read more...] about Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon
On July 16, 2010, the Court of Federal Claims (“COFC”) determined that a Government Accountability Office (“GAO”) bid protest recommendation that an awardee, Turner Construction Co. (“Turner”), be disqualified on the basis of organizational conflicts of interest (“OCI”) under an Army Corps of Engineers (the “Army”) hospital renovation contract was irrational. See Turner Construction Co., Inc. v. United States, Fed. Cl., No. 10-195C, July 16, 2010. We previously discussed the implications of the GAO decision here. Factual BackgroundTo understand this case, one has to follow the bouncing ball a little bit to keep the players straight.The Army issued a two-phased RFP in June 2008. In Phase I, the Army evaluated offerors based upon performance and capability information and selected three offerors to move to Phase II:McCarthy/Hunt, JV (“McCarthy/Hunt”) B.L. Harbert-Brasfield & Gorrie, JV … [Read more...] about A Retreat From Hard Line OCI Decisions? The COFC Overturns a Controversial GAO Ruling
In an insurance contract, carriers typically require the insured company to provide collateral as a guaranteed source of funds, with three of the most commonly accepted forms being letters of credit (LOC), marketable securities and cash. Letters of credit are generally the most widely used and accepted form because they represent an irrevocable guarantee of payment in a specified amount. Market securities, by contrast, fluctuate in value over time with no guarantee of their future worth, and thus are typically undervalued as a cushion against the potential decline in their market value. And cash collateral, while the most straight forward, requires payment of the full amount up-front, tying up capital the company could better use for other purposes.For these reasons, many risk managers choose to obtain a letter of credit. And beginning the process is relatively simple. Insured companies typically look to a line of credit established with their bank and draw upon that line of … [Read more...] about Using Letters of Credit as Collateral For Insurance Contracts
Term sheets and commitment letters are documents frequently used by lenders to outline the terms of a potential financing. However, these two documents differ with respect to what is required of, and whether the terms are binding on, the parties.What is a term sheet?A term sheet is a summary of the main business terms and possible options for a prospective financing. Term sheets are provided by lenders to prospective borrowers prior to a full underwriting of and credit approval by the lender. The terms are intended to be a starting point under which the lender will consider providing financing to a prospective borrower. Generally, parties are under no financial or legal obligation to each other based on the provisions of the term sheet.What is a commitment letter?A commitment letter is a document that intends to establish specific deal terms regarding an extension of credit from the lender to the borrower. Commitment letters are provided by lenders after a full underwriting of and … [Read more...] about A Refresher on Term Sheets and Commitment Letters
The letter sent by the Tamil Nadu Government’s Chief Secretary to the Secretary, Union Ministry of Home Affairs on 2 March seeking the latter’s views on the release of seven convicts in the Rajiv Gandhi assassination case is considered a political masterstroke by the Tamil Nadu chief minister, J Jayalalithaa on the eve of the state assembly elections.Analysts point out that there were two options before the state Government, after the Supreme Court’s judgment in the Sriharan vs Union of India, delivered on 2 December last year. In this judgment, the Constitution bench of the court had held that the state Government cannot release convicts under Section 435 Cr.P.C., without consulting the Centre, if the crimes for which they were convicted and sentenced were investigated by a federal investigating agency, like the CBI.More important, it was also held in that judgment that consultation means concurrence of the Central Government, whose views will be binding on the state … [Read more...] about Tamil Nadu Govt’s letter to Centre on release of Rajiv Gandhi convicts, a political masterstroke