SECURITIES DISMISSALS IN LIFE SCIENCES SECTOR
Following the recent Ninth Circuit decision in Khoja, plaintiffs alleging securities fraud against companies in the pharmaceutical and life sciences sector are increasingly opposing the introduction of extrinsic documents by defendants in motions to dismiss under the PSLRA. Life sciences companies should expect more vigorous opposition to attempts to introduce FDA or other contextual documents as part of their strategy to dismiss cases brought under the federal securities laws.
LIABILITY RISKS UNDER HELMS-BURTON ACT
The Trump administration announced that it would activate a dormant provision in the Helms-Burton Act that provides a private cause of action allowing U.S. nationals to sue persons and entities engaged in "trafficking" in property expropriated by the Cuban government. The activation of this law, which had been suspended by every administration since it was enacted in 1996, creates new liability risks for companies, individuals and governments with business ties to Cuba.
SEC GUIDANCE AND PROXY SEASON
Guidance and no-action decisions from the staff of the SEC's Division of Corporation Finance during the 2019 proxy season provide important guideposts, but the path forward on many shareholder proposals remains murky.
HKEX REFORMS, ONE YEAR IN
The reforms implemented by the Stock Exchange of Hong Kong Limited to encourage the listing of high-tech and biotech companies appear to be achieving their goal.
US M&A ACTIVITY
Coming into 2019, dealmakers were cautiously optimistic about U.S. M&A activity despite apprehension over mounting headwinds. Almost six months into the year, that viewpoint seems justified, with activity levels relatively strong on a historical basis. At the same time, a sense of uneasiness has continued to creep into the M&A market as a result of concerns over trade tensions, market volatility, regulatory uncertainty and other factors.
We examine two recent Bankruptcy Court decisions, one in New York regarding enforcement of prepayment premiums and another in Delaware about whether and when derivative claims on behalf of Delaware alternative entities may be asserted in bankruptcy.
ANONYMOUS ONLINE SPEECH
In today’s world — where social media has become a source of news for many — companies and individuals often find themselves the subject of negative and anonymous online comments. These comments can give rise to legal claims, but unmasking an anonymous critic and holding them responsible is no small challenge. Conversely, companies and individuals may choose to speak anonymously for a variety of reasons. Anonymous speech is protected by the First Amendment, but these protections are not boundless.
US Supreme Court Strikes Down Ban of ‘Scandalous’ Trademarks
On June 24, 2019, the U.S. Supreme Court ruled in Iancu v. Brunetti that Section 2(a) of the Lanham Act’s ban on the registration of “immoral” or “scandalous” trademarks violates the First Amendment. The court’s decision was largely anticipated by commentators following the 2017 Tam decision and may, in the short term, result in an influx of new trademark applications containing obscene and vulgar terms.
Supreme Court Declines to Further Define Morrison’s Domestic Transaction Requirement
The U.S. Supreme Court today denied the petition for certiorari in Toshiba Corp. v. Automotive Industries Pension Trust Fund, leaving open the question of the appropriate scope of the “domestic transaction” requirement of the Securities Exchange Act that the Court established in Morrison.
Director Independence and Oversight Obligation in Marchand v. Barnhill
On June 18, 2019, the Delaware Supreme Court issued a decision in Marchand v. Barnhill, et al. reversing the lower court's dismissal of a derivative suit alleging Caremark claims. The decision highlights the importance of ensuring that a company implements effective board-level monitoring and compliance procedures as well as documents those efforts in its board records.