Insights – September 2023

Skadden Insights – September 2023

Explore the scrutiny of corporate DEI programs, how to guard against a short attack, Pillar Two tax challenges and other developments in this edition of Skadden’s quarterly Insights.

Corporate DEI Policies Face Scrutiny Following SCOTUS Affirmative Action Decision
In the wake of the Supreme Court’s affirmative action decision, some diversity, equity and inclusion initiatives have come under fire. But companies can still implement well-drawn DEI policies.

How To Guard Against a Short Attack, and How To Respond if Faced With One 
Advanced preparation and a speedy substantive response are the best ways to defeat a short seller’s attack on a company. Boards should think twice before responding with buybacks or dividends, or running to court or regulators.

The Evolving Landscape of Administrative Law
Key U.S. Supreme Court decisions in recent years have significantly cabined the role of federal agencies and opened the door to new avenues for challenging government regulation. Even more changes may be on the horizon.

AI in Europe: Road Map for Navigating the IP, Data Protection and Regulatory Considerations
Businesses developing or using generative AI tools in Europe need to consider current and prospective laws governing the IP, data privacy and cybersecurity implications of AI.

The Rise of IPOs in the Gulf: Emerging Trends and Potential Future Directions
The health of the IPO market in the Gulf states contrasts with most other markets and reflects robust energy prices, business-friendly government policies and efforts to bring market regulations up to global standards.

First-Mover Disadvantage? Challenges to Being Tax Resident in an Early Pillar Two Jurisdiction
The disjointed international implementation of the OECD’s Pillar Two minimum corporate tax rules could result in anomalous tax outcomes for some multinationals and might justify short-term changes to some holding company structures.

Reducing the Risk of ‘Greenwashing’ Litigation and Defending Actions That Are Filed
Businesses can reduce the risk of greenwashing suits by ensuring they can support claims on the front label and that any caveats are prominent. Back-of-the-package caveats and disclaimers are disfavored by courts.

Investigations for Self-Disclosure Should Be Independent of DOJ To Avoid Fifth Amendment Issues
When interviewing employees about possible misconduct with an eye to corporate self-disclosure, companies should avoid taking substantial direction from the DOJ, as that could provide a Fifth Amendment defense to employees facing criminal charges.