Recent Blog Posts

  • December in Brief (Bankruptcy and Finance) 2019 Bankruptcy Law Stipulating Away Your Appeal By Michael Enright Stipulations entered into by the parties heading into a trial can narrow the issues and expedite resolution. But they can also eliminate important rights the parties may retain in the absence of the stipulation. That risk of losing an important right was highlighted recently in In re Odyssey Contracting Corp., Case Nos. 19-1150 & 19-1151 (3d Cir. Dec. 12, 2019). The debtor was a subcontractor involved in painting the Queensboro Bridge, and claimed that it had... More
  • December in Brief (Securities Law) 2019  Securities Regulation SEC Issues New Staff Accounting Bulletin 119 to Update Credit Losses Guidance By Alan J. Wilson, WilmerHale  In connection with the impending effectiveness for many calendar-year companies of ASC Topic 326, Financial Instruments – Credit Losses, FASB’s new current expected credit losses (CECL) standard, the SEC staff issued Staff Accounting Bulletin 119 (SAB 119) on November 19, 2019 to update its current loan loss accounting guidance.  SAB 119 becomes effective for public business entities that are an SEC filer upon... More
  • December in Brief (Internet Law and Cybersecurity) 2019 Data Privacy Gaming App Operator Rolls the Dice on Arbitration and Loses By John Ottaviani A recent case from the Ninth Circuit addresses the question of under what circumstances does the download or a mobile application by a smartphone user establish constructive notice of the app’s terms and conditions.  In Wilson v. Huuuge, Inc., No. 18-36017, 2019 U.S. App. LEXIS 37952 (9th Cir. Dec. 20, 2019) (link: ), the Ninth Circuit affirmed the district court’s decision to deny Huuuge’s motion to compel... More
  • December in Brief (Business Regulation and Regulated Industry) 2019 Banking Law Banking Regulators Release Statement on Use of Alternative Data in Credit Underwriting By Eric Mogilnicki and Sam Adriance, Covington & Burling LLP On December 3, 2019, the Federal Reserve Board, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, and the National Credit Union Administration (collectively, the “Regulators”) released a joint statement on the use of alternative data in credit underwriting. The statement highlights the potential benefits of using alternative data in credit decisions, such... More
  • December in Brief (Business Litigation and Dispute Resolution) 2019 Dispute Resolution New York Federal Court Holds Arbitration Panel Was Not Functus Officio By Leslie A. Berkoff, Moritt Hock & Hamroff LLP In a recent decision by the Southern District of New York in the case of  Chicago Ins. Co. v. General Reins. Corp., 18-CV-10450 (JPO), 2019 U.S. Dist. LEXIS 182764 (S.D.N.Y. Oct. 22, 2019), the Court considered whether a dispute arising after an arbitration of a billing dispute between a cedent and a reinsurer was covered by a specific reservation of jurisdiction... More
  • December in Brief (Mergers and Acquisitions) 2019 M&A Law Stockholder Plaintiff Entitled to Documents Relied upon by Special Litigation Committee after Committee’s Determination that Plaintiff Should Proceed with Derivative Claims By Sara M. Kirkpatrick  On December 4, 2019, the Delaware Court of Chancery held that a lead plaintiff was entitled to the production of all documents and communications reviewed and relied upon by the Special Litigation Committee (the “SLC”) formed by Oracle Corporation (the “Company”) or its counsel, in connection with the SLC’s consideration of such plaintiff’s challenge to... More
  • November in Brief (Bankruptcy and Finance) 2019 First Circuit Rules That Parents’ Payment of Adult Child’s College Tuition is Subject to Claw Back By Edward M. Fitzgerald In individual bankruptcy cases where the debtor has made college tuition payments on behalf of an adult child, trustees will often attempt to recover those tuition payments from the college under the theory that they are constructively fraudulent transfers.  11 U.S.C. § 548(a)(1) allows trustees to avoid transfers made by insolvent debtors within two years preceding their bankruptcy filings if the debtors... More
  • November in Brief (Business Litigation and Dispute Resolution) 2019 Business Litigation Chancery Finds Stockholder’s Request for “Corrective Action” to be a Litigation Demand, Dismisses Stockholder Derivative Claims for Failure to Plead Wrongful Refusal By K. Tyler O’Connell Under the Delaware Supreme Court’s decision in Spiegel v. Buntrock, 571 A.2d 767 (Del. 1990), a stockholder-plaintiff who makes a pre-suit demand upon the board to address potential wrongdoing concedes that the board may properly decide whether to cause the corporation to bring suit.  That concession makes it more difficult to satisfy pleading standards in... More
  • November in Brief (Internet Law and Cybersecurity) 2019 International Law Austrian Post Fined €18m for Non-Compliance with Data Protection Laws By Melissa Hall, MacRoberts LLP  Last month, Austria’s supervisory authority (“Austrian DPA”) announced that it is imposing a fine of €18 million against Österreichische Post AG (“Austrian Post”) under the EU data protection laws. The Austrian DPA heard evidence that the Austrian Post had used its customers’ personal data (including data related to age, address and gender) to calculate assumed affiliations with political parties, and then sold its findings. The Austrian Post has indicated... More
  • November in Brief (Legal Opinions and Ethics) 2019 Professional Responsibility Eighth Circuit Ducks Constitutional Issues in Challenge to Integrated Bar By Keith R. Fisher A number of cases have been filed presenting the question whether state law may, consistent with the First Amendment, presume that a member of an integrated (or mandatory) bar has consented to subsidizing non-chargeable speech by the bar association that the member is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the member must affirmatively consent.  The best-known of these cases is... More