NEW ACTIVIST TACTIC
In the past year, more than 50 publicly traded companies have amended their bylaws to address the potential for a so-called “placeholder slate” of directors. The amendments began to appear in response to a tactic used last year to end-run typical advance notice bylaws for director nominations.
In France, companies and entrepreneurs have expressed optimism that changes in government leadership may result in the easing of regulations that they believe constrain the French economy. In the European Union, companies should be mindful of the active enforcement of EU state aid violations, which has wide-ranging implications for multinationals with investments in the EU.
ONE BELT, ONE ROAD
Companies are taking on projects under China’s infrastructure initiative, but such projects pose compliance risks. Hong Kong appears poised to continue aggressively pursuing enforcement actions against companies for alleged market misconduct, especially as the initiative ramps up and more companies tap Hong Kong's capital markets.
PATENT LITIGATION TRENDS
In the months since the U.S. Supreme Court's decision in TC Heartland v. Kraft Foods, patent lawsuits appear to be on a downward trend. Companies potentially facing patent litigation should keep a close watch on several key issues as courts and litigants continue to define the bounds of the decision.
The U.S. Supreme Court's dismissal of PEM Entities LLC v. Levin surprised those who had expected the Court to resolve the circuit split on whether federal or state law governs debt recharacterization in bankruptcy. Meanwhile, despite court criticism, the equitable mootness doctrine persists in some form within every circuit that has jurisdiction over bankruptcy appeals.
Global growth in demand and supply for liquefied natural gas has resulted in significant recent investment in U.S. liquefaction facilities. Developers and investors, alike, are seeking to maximize the opportunities presented by the current market.
Private Antitrust Litigation: United States
Second Circuit Upholds Prosecutorial Discretion in Deferred Prosecution Agreements
In July 2017, the U.S. Court of Appeals for the Second Circuit provided critical guidance concerning the role of federal district courts in overseeing deferred prosecution agreements. By protecting monitor reports from disclosure, the Second Circuit's ruling in U.S. v. HSBC Bank USA increased the divide between the U.S. and European approaches to judicial supervision of criminal settlements: In the U.S., corporate defendants can be more confident that DPAs entered into with the DOJ will not be second-guessed by district courts; in France and the U.K., defendants entering into DPAs should expect to engage in dialogue not only with prosecutors, but also with the judiciary.
Equitable Mootness Doctrine Persists in Bankruptcy Appeals
Despite court criticism of equitable mootness, the doctrine persists in some form within every circuit that has jurisdiction over bankruptcy appeals. Plan proponents and objectors alike must be aware of its implications on contested plan confirmations.