Cleary Gottlieb – M&A-Telegram Germany Q3/2020
Please click here for the latest edition of the Cleary Gottlieb M&A Telegram for Germany.…
Cleary Gottlieb Steen & Hamilton LLP
Website:
https://www.clearygottlieb.com/
Cleary Gottlieb Steen & Hamilton LLP Blogs
Blog Authors
Latest from Cleary Gottlieb Steen & Hamilton LLP
CFTC Division of Enforcement Releases Guidance on Evaluating Compliance Programs
On September 10, 2020, the Division of Enforcement (“Division”) of the Commodity Futures Trading Commission (“CFTC”) released guidance (“CFTC Guidance”) outlining factors the Division will consider when evaluating compliance programs in connection with enforcement actions. The CFTC Guidance ties into guidance released by the Division in May directing staff to consider an entity’s compliance program when recommending a penalty or other resolution as part of an enforcement action.
Please click here to read the full alert…
Ransomware and Sanctions Compliance: Considerations for Responses to Attacks
Last month, reports surfaced that fitness technology company Garmin may have made a multimillion dollar payment in response to a ransomware attack with reported links to Evil Corp, a Russian hacking group subject to U.S. sanctions. This incident and other recent reports of ransomware attacks against large companies highlights that companies should consider potential civil and criminal liability under U.S. sanctions laws when responding to ransomware attacks.…
Ransomware and Sanctions Compliance: Considerations for Responses to Attacks
Last month, reports surfaced that fitness technology company Garmin may have made a multimillion dollar payment in response to a ransomware attack with reported links to Evil Corp, a Russian hacking group subject to U.S. sanctions. This incident and other recent reports of ransomware attacks against large companies highlights that companies should consider potential civil and criminal liability under U.S. sanctions laws when responding to ransomware attacks.…
Stockholder Claims Dismissed Even After Corwin Defense Fails
In a recent decision, the Delaware Court of Chancery found that the board omitted material information from its proxy statement recommending stockholders vote in favor of an all-cash acquisition of the company, and thus “Corwin cleansing”[1] did not apply. Nonetheless, the court dismissed all claims against the directors because the complaint failed to adequately allege that they acted in bad faith, as required by the company’s Section 102(b)(7) exculpation provision. See In re USG …
DOJ Antitrust Division Issues Revised Merger Remedies Manual, Reorganizes
On September 3, 2020, the Antitrust Division of the DOJ issued a revised Policy Guide to Merger Remedies, following shortly after it announced a reorganization of its civil enforcement to create an Office of Decree Enforcement and Compliance.
The Policy Guide to Merger Remedies largely codifies a trend towards strengthening of the Division’s preference for structural remedies—such as divestitures—over conduct remedies—such as firewalls. This revision now expressly states that “[s]tructural remedies are strongly preferred…
DOJ Antitrust Division Issues Revised Merger Remedies Manual, Reorganizes
On September 3, 2020, the Antitrust Division of the DOJ issued a revised Policy Guide to Merger Remedies, following shortly after it announced a reorganization of its civil enforcement to create an Office of Decree Enforcement and Compliance.
The Policy Guide to Merger Remedies largely codifies a trend towards strengthening of the Division’s preference for structural remedies—such as divestitures—over conduct remedies—such as firewalls. This revision now expressly states that “[s]tructural remedies are strongly preferred…
SEC’s Cautious Updates to Corporate Disclosure Requirements
On August 26, the SEC revised several disclosure requirements applicable to reporting companies. The amendments embrace a “principles-based” approach in the hope that it will elicit more focused and useful disclosures. They will also require issuers to focus on human capital disclosures and on the organization of risk factor disclosures, and some will have to do so quickly because the amendments will take effect 30 days after they appear in the Federal Register. Two dissenting…
UK Court of Appeal Says Risk of U.S. Secondary Sanctions is a “Mandatory Provision of Law” Excusing Non-Payment
The Court of Appeal confirmed[1] that a borrower under a Tier 2 facility agreement was excused from making payments because of the risk of U.S. secondary sanctions.
The court made it explicitly clear that whether or not non-performance may be excused will depend on the specific words of the affected contract and the wider context. However, whilst fact sensitive, the decision also makes clear that the English court is likely to consider U.S. secondary…
DOJ Charges Former Uber Executive for Alleged Role in Attempted Cover-Up of 2016 Data Breach
Background
On August 20, 2020, the Department of Justice (“DOJ”) announced that it had charged Joseph Sullivan, the former Chief Security Officer (“CSO”) of Uber Technologies Inc. (“Uber”), with obstruction of justice and misprision of a felony for allegedly attempting to cover up Uber’s 2016 data incident during the course of an investigation by the Federal Trade Commission (“FTC”). While the DOJ and federal law enforcement have generally treated corporate hacking targets as victims in…