US Supreme Court 2020 Term Preview
In Arthrex, Supreme Court To Review Constitutionality of Patent Board’s Structure
The U.S. Supreme Court has agreed to hear a case that could affect the viability of the Patent Trial and Appeal Board as well as countless PTAB patentability decisions. The case will be closely watched, as the Federal Circuit vacated more than 100 PTAB decisions and remanded those decisions back to the PTAB for proceedings before newly designated administrative patent judge panels.
Supreme Court Mulls Scope of Alien Tort Statute in Nestle, Cargill
The U.S. Supreme Court has stepped in several times to narrow the applicability of the Alien Tort Statute. It is doing so again this term, in the consolidated cases Nestle and Cargill. The Court’s determination about an ATS plaintiff’s threshold pleading and proof burdens as to domestic defendants would address an issue that arises in a substantial portion of ATS cases. However, a clear-cut decision on the question whether U.S. corporations are subject to ATS-based claims at all may prove elusive.
Supreme Court Review of FTC Monetary Relief Authority Threatens Long-Standing Agency Practice
The U.S. Supreme Court case AMG Capital Management could substantially curtail the primary authority the Federal Trade Commission relies on to seek monetary relief from defendants in federal court. While the agency historically has pursued and obtained this type of relief, the Court’s certiorari grant has cast doubt on the FTC’s authority to do so.
Supreme Court To Revisit Delegation of Arbitrability in Henry Schein II
For the second time in two years, the U.S. Supreme Court will hear a case where the central issue is whether a court (or an arbitrator) should decide whether a dispute belongs in the courts or in arbitration. However the Court rules, Henry Schein II is a cautionary tale, as it illustrates the perils of unclear drafting in contractual dispute resolution clauses.
Topics Panel Section
This issue covers important, developing areas of Delaware corporation law and deal litigation, including an increased focus on officer-related actions in merger litigation, the treatment of Caremark claims after Marchand and Clovis, fiduciary duty actions against executive directors following transactions approved by a disinterested and independent board, and recent guidance regarding when the deferential business judgment standard of review may apply to controlling stockholder “squeeze-out” mergers.
The Supreme Court has announced that it will once again weigh in on the contours of class certification in the securities class action context. The Court will consider the extent to which defendants can present evidence at the class certification stage showing that the alleged misstatements had no impact on the price of the security to rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson. As class certification is an important battleground, the ultimate decision by the Court may have a significant impact on the ability to defeat or limit securities class actions.
The 2021 annual general meeting season represents a challenging time for remuneration committees. The difficult trading environment caused by the pandemic, the short-term impact of support measures on which companies may have relied, and the increasing focus on environmental, social and governance issues are likely to result in greater scrutiny than ever before of pay levels, reward structures, and the widening gap between workforce and management pay. Investors and the public will be looking closely at how companies are reflecting the pandemic's impact on their businesses and the wider workforce, as well as ESG concerns, in decisions about executive pay.
In this issue, we provide a summary retrospective of regulatory, litigation and industry developments impacting the investment management sector during the second half of 2020, including SEC guidance and exemptive orders relating to the COVID-19 pandemic, updates on closed-end fund activism, and new rules and amendments relating to securities offerings, fund valuation, use of derivatives and fund of fund arrangements.