BLT: December 2020

     

    Featured Articles

    Business & Corporate

    The Role of the Investment Banker Compared to the Independent Valuation Analyst in M&A Transactions and Litigation

    Samuel S. Nicholls

    Fairness opinions for M&A transactions may be provided by either an investment banker or an independent valuation analyst. When M&A transactions are disputed, an independent valuation analyst (“valuation analyst”) hired by counsel to plaintiffs (or respondents, in the case of appraisal rights) may discover certain analysis performed by the investment banker that is unsupported.

    Business & Corporate

    Bankruptcy Courts and the Constitution

    Samuel R. Henninger

    Constitutional authority begins with the Constitution itself. The Constitution vests the federal judicial power in Article III courts. Article III judges are distinguished by two characteristics: they hold their offices during good behavior and receive compensation that will not be diminished while in office. Bankruptcy judges are not Article III judges. The authority to establish bankruptcy courts is instead found in Article I of the Constitution, which gives Congress the power “[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.”

    Business & Corporate

    Racial Justice and Equality: Commit to Action

    Alan S. Gutterman

    A few weeks ago we called out the importance of companies needing to provide their stakeholders with a clear public statement on their values and overriding commitment to diversity, equity, and inclusion.[1] While speaking out is essential, words alone are not enough, and business leaders need to settle on the specific actions that the company will be taking to contribute to the cause. Planning for action begins with the internal and external engagement processes that the company should have used to craft its public position on racial justice reforms.

    Business & Corporate

    Paul Sarbanes’ Legacy: Landmark Reforms in Corporate Accountability

    Jeffrey Rubin

    The Business Law Section mourns with profound sadness the passing of former Senator Paul Sarbanes. As chairman of the Senate’s Committee on Banking, Housing and Urban Affairs, and the author, together with Representative Michael Oxley, of the landmark Sarbanes-Oxley Act of 2002, Senator Sarbanes was truly the investors’ friend. The Sarbanes-Oxley Act significantly reformed corporate accountability by enhancing the independence and responsibilities of public company audit committees, and by creating the Public Company Accounting Oversight Board (PCAOB), which was charged with the robust oversight of accounting firms that audit public company and broker-dealer financial statements.

    Business & Corporate

    Protecting Delaware Insureds: Recent Decisions Highlight Importance of State Law, D&O Policy Provisions Governing Coverage, Forum, and Applicable Law

    Geoffrey Fehling, Lawrence J. Bracken, II

    In three recent opinions, the Delaware Superior Court upheld the rights of companies and their officers and directors under directors and officers (D&O) liability policies in insurance claims involving a variety of disputed issues of state law. The disputed issues—ranging from jurisdiction over insurers under Delaware’s long-arm statute to the timing of declaratory judgment actions and indemnification of legal fees—highlight favorable principles under Delaware law and underscore the importance of choice-of-law and forum selection provisions in insurance policies.

    Business & Corporate

    Proposed Canadian Privacy Bill Introduces Fines and New Requirements for Private Organizations

    Lisa R. Lifshitz, Cameron McMaster

    The Canadian government’s long-awaited overhaul of existing federal private-sector privacy legislation finally arrived on November 17, 2020, with the first reading of Bill C-11 An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts, also known as the Digital Charter Implementation Act, 2020 (Bill C-11) Bill C-11 would enact the Consumer Privacy Protection Act (CPPA) and the Personal Information and Data Protection Tribunal Act (PIDPTA). Together, the CPPA and the PIDPTA have introduced bold new measures into Canada’s privacy law and have brought it into closer alignment with European data protection and privacy standards. This article provides some highlights of the proposed legislation.

    Business & Corporate

    Proposed Rules Will Increase HSR Deal Reporting Requirements

    Jennifer M. Oliver

    Companies that are planning mergers and acquisitions should be aware of proposed changes to the disclosures required by the Hart-Scott-Rodino Act (HSR), changes that could make more M&A transactions reportable, with more detail required in filings. The Federal Trade Commission published the proposed rule changes in the Federal Register on September 21, 2020, with the concurrence of the Antitrust Division of the U.S. Department of Justice.

    Month-In-Brief