Publications & Presentations
We encourage you to peruse this Publications & Presentations section for timely analysis and industry insights, including bylined articles, client alerts, white papers, practice and industry newsletters, audio and video broadcasts, featuring interviews with our lawyers, as well as case studies highlighting compelling legal challenges our clients have faced.
Also, please visit our Events page to learn more about upcoming seminars, CLE programs, and other presentations which may be of interest.
China Simplifies Its Legal Administration of Foreign Direct Investments
Understanding the New Filing for Recording System
Authors: David A. Livdahl, Jenny (Jia) Sheng, Amy Y. Liu
In order to implement the State Counsel’s decision issued on September 3, 2016 (State Counsel’s Decision), which simplifies the original substantive review and approval process (Approval System) to a new simple filing system (Filing System) for the establishment and any subsequent changes for eligible foreign invested enterprises (FIEs), the Ministry of Commerce (MOFCOM) issued the Interim Administrative Measures regarding Filings for the Incorporation and Changes of Foreign Invested Enterprises (Filing Measures) on October 8, 2016, after it published a draft version on September 3, 2016, for public comments. There are no substantial changes reflected in the final Filing Measures compared to the draft version.
Delaware Court of Chancery Applies Business Judgment Rule in a Controlling Stockholder Going-Private Transaction Despite Third Party’s Nearly 30% Higher Offer
Authors: Jonathan J. Russo, Justin D. Hovey, Nathaniel M. Cartmell III, Bruce A. Ericson, Naresh C. Lall
In Books-A-Million, the Delaware Court of Chancery dismissed a complaint challenging a controlling stockholder going-private transaction, holding that the transaction satisfied the standards of M&F Worldwide despite a third party’s 30% higher offer. The Court found no reasonable inference that the Special Committee acted in bad faith and compromised its independence because, among other things, (i) the Special Committee solicited third-party offers to better assess the value of the Company and the attractiveness of the controlling stockholder’s offer, and (ii) the merger consideration offered by the controlling stockholder for the minority of the Company’s shares fell within a rational range of a discount when compared to the third-party offer, which sought control.
Chinese Companies Use Publicly Listed Shares in Foreign M&A Transactions
Authors: Thomas M. Shoesmith, Julian Zou, Liang Tao
Overseas M&A activity by Chinese companies has skyrocketed in the last several years. Virtually all these acquisitions have been for cash, leading to a massive outflow of foreign exchange from China and financing issues for acquirers. Two recent deals suggest that PRC authorities for the first time are experimenting with allowing Chinese companies to use their highly valued public equity as consideration to buy US and other international companies.
PHH v. CFPB, Part I: President of Consumer Finance No More
CFPB’s Single-Director Structure Found to Be Unconstitutional
Authors: Mercedes K. Tunstall, Elizabeth Vella Moeller, Michael J. Halloran, Christine A. Scheuneman, Craig J. Saperstein, Andrew Caplan
In response to a challenge from mortgage servicer PHH Corp. regarding the constitutionality of the single director structure of the Consumer Financial Protection Bureau (the CFPB or Bureau), the United States Court of Appeals, District of Columbia Circuit (the DC Circuit) found that independent agencies, such as the CFPB, must be led by multi-member commissions in order to be constitutional.1 To cure this unconstitutional structure, the DC Circuit used the Dodd-Frank Act’s severability clause and effectively deleted the provision that the President may remove the CFPB director only for “inefficiency, neglect of duty or malfeasance of office.” The practical effect of removing this “removal for cause” clause is that the CFPB is now an executive agency which may have a single director (akin to the Department of Commerce or Environmental Protection Agency), and Director Cordray must follow the direction of the President of the United States.
Environmental Case Law Update
Author: Anthony B. Cavender
“Summer’s lease hath all too short a date.”—William Shakespeare
Many important environmental and administrative law decisions were reported by the federal and state courts over the past six months. The courts are dealing with very complicated and contentious matters, and, as always, they have tested the force and persuasiveness of the litigants’ arguments by the statutory and regulatory provisions at issue.
This ‘White Paper’ describes and discusses a number of these important and significant cases.