Insights Special Edition: Women’s History Month

Skadden Publication

Celebrating Women’s History Month, we present a special edition of our quarterly Insights publication, highlighting the talent and insights of women at Skadden.

The issue spotlights their authorship on such topics as the management of deal risks in today’s regulatory environment; the enduring appeal of private capital; ESG issues in U.S. boardrooms, Delaware courts, and the Hong Kong Stock Exchange; and the rise of AI.

Corporate Trends and Financing

Managing Deal Risks in a Challenging Regulatory Environment: Strategies and Deal Terms
With antitrust and other regulators scrutinizing mergers more closely, it is crucial for companies to negotiate terms to mitigate and allocate the risk that a deal is delayed or terminated. Well-established deal provisions can be utilized.

Private Capital Remains an Attractive Alternative for Many Companies
While broadly syndicated loans and traditional capital market financings are making a comeback after several years of uncertainty and volatility, private credit and other private capital options are likely to continue to play a vital role.

Broad Reforms to China’s Company Law Will Affect Most PRC Companies
Sweeping changes to China’s Company Law provide greater security to creditors and spell out the obligation of directors and management in more detail. Most PRC-incorporated entities will be affected in some way.

Hot Topics: AI and ESG

The US Government Is Using AI To Detect Potential Wrongdoing, and Companies Should Too
With agencies such as the SEC and DOJ using AI and other data analytics tools extensively to detect wrongdoing, companies should consider adopting the new technology to identify high-risk activities and spot possible misconduct.

The Meteoric Rise of Generative AI Has Regulators Gearing Up To Preserve Competition
U.S., U.K. and EC antitrust regulators are closely watching how the AI sector evolves, scrutinizing partnerships with large tech companies and other actions for signs they might restrict competition or further increase concentration.

Employers Offering DEI Training Need To Monitor Both Pro- and Anti-DEI Court Challenges and Legislative Proposals
A wave of court challenges to mandatory DEI training programs, together with new state laws — some restricting such initiatives — may signal the rise of new contested issues. Private employers should constantly reassess their DEI programs.

Corporate Boards Face ESG Pressure From Both the Left and Right
Both ESG advocates and opponents have tried to gain legal leverage via corporate boards, but courts have declined to second-guess directors’ decisions about ESG policies, saying boards have wide latitude under the business judgment rule.

HKEx Moves Forward With Diversity, Climate and Sustainability Initiatives
HKEx has introduced a range of ESG initiatives, including regarding board diversity, global standard climate reporting and the introduction of a paperless regime for shareholder communications.

Regulatory Developments

Antitrust Enforcers Are Increasingly Focused on Labor Markets, and Not Just in the Merger Context
With antitrust regulators focused on competition in labor markets, companies may want to revisit their noncompete agreements, consider alternative ways to protect critical information and factor in the impact on employees if they pursue mergers.

State of Play on US Tax Proposals
The first quarter of 2024 ushered in two key tax proposals: a House bill that would extend various business and individual tax benefits, and the Green Book, which would increase tax burdens on corporate and certain individual taxpayers.

Litigation and Enforcement

Three Unfolding Cases Could Shape Future Energy Litigation, and Perhaps Business Practices
In 2024, the energy industry will be watching Texas’ challenge to the EPA’s new methane emissions regulations and a Texas Supreme Court case interpreting a royalties clause by request of the Fifth Circuit, among other cases.

Rising Challenges in Arbitration: Post-Award Bias Allegations and the Evolving Standards of Conflict Disclosure
As post-award challenges to arbitrators proliferate, parties should consider setting standards for disclosures and ensure they are made early in the process to avoid giving parties a basis to undermine or delay adverse awards.

FTC’s Proposed ‘Junk Fees’ Rule Could Force Businesses To Rethink Their Marketing and Pricing
A sweeping proposed FTC rule targeting “junk fees” could make businesses reexamine how they market and price products and services. Likely enforcement targets include the lodging sector, event ticket sales, restaurants and transportation.