Insights – April 2023

Skadden Insights – April 2023

This edition of Skadden’s quarterly Insights looks at the rising number of de-SPACed companies seeking Chapter 11 protection, the growth of a market designed to assume legacy liabilities, an effort to establish government-friendly case law in antitrust enforcement, and other important trends and developments.

As SPAC Boom Subsides, Some De-SPACed Companies Seek Chapter 11 Protection
A number of businesses that went public by merging with SPACs have had difficulty raising additional capital. Some have chosen to seek Chapter 11 protection to restructure their debt and preserve themselves as going concerns.

New Market Emerges for Legacy Liability Dispositions
A fast-growing market has emerged from the need by corporations to dispose of so-called legacy liabilities using mechanisms beyond the conventional insurance policy.

Monetizing Energy Tax Credits Is Clearly Tax-Free, Unless It’s Not
New provisions under the Inflation Reduction Act are designed to simplify the monetization of energy tax credits and expand the market of potential participants. But questions remain about the corresponding state tax treatment.

AI and Patent Law: Balancing Innovation and Inventorship
A Federal Circuit holding that patents can only be issued to human inventors complicates efforts to protect the intellectual property of the growing number of companies relying on artificial intelligence to create innovative products.

Are the FTC and DOJ Losing Antitrust Battles but Gaining Ground?
While the FTC and the DOJ Antitrust Division have lost a number of recent cases, they have developed government-friendly case law they can rely on to expand their enforcement reach in future cases.

Practical Implications of New DOJ Criminal Self-Disclosure Policies
New DOJ policies encouraging companies to disclose possible criminal wrongdoing do not guarantee how those companies will be treated and may require them to make quick decisions before they have gathered all the facts.

An Introduction to the Unique Issues in Bank Holding Company Bankruptcies
Bank holding company bankruptcies are subject to special rules, which can favor federal depository regulators over other creditors. Capital commitment and tax refund agreements between parent and bank are common subjects of litigation. 

The Informed Board – Winter 2023
The Informed Board is a periodic collection of articles providing broad insights about key issues directors face. In the Winter 2023 issue, we examine tax-free spin-offs as an option for companies in the current environment and how the new proxy rules will affect U.S. companies facing activist campaigns, among other topics.

Other Recent Developments
Highlights of some of our latest thought leadership articles on important legal topics and trends.