Corporate & Financial Weekly Digest : Corporate Finance Lawyers & Attorneys for Legal Developments in Business & Financial Services

Co-authored by Palash Pandya

On December 15, the Securities and Exchange Commission issued proposed rules implementing disclosure and reporting requirements regarding the use by issuers of conflict minerals from the Democratic Republic of the Congo and adjoining countries (DRC countries) added as Section 13(p) to the Securities Exchange Act of 1934 by Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1502(e)(4) of the Dodd-Frank Act defines “conflict mineral” as cassiterite, columbite-tantalite, gold, wolframite, or their derivatives, or any other minerals or their derivatives determined by the Secretary of State to be financing conflict in the DRC countries. The proposed rules are expected to apply to many more issuers than might have first been expected due to the various uses of conflict minerals and their derivatives and the SEC’s broad definition of “manufacture.”

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Co-authored by Kevin M. Foley and Vanessa L. Friedman

The Commodity Futures Trading Commission has published its seventh series of rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The latest round of CFTC rules and rule proposals relates to an “end user” exception from otherwise-mandatory swap clearing requirements; governance requirements for derivatives clearing organizations (DCOs), designated contract markets (DCMs) and swap execution facilities (SEFs); the reporting of swaps entered into after the enactment of Dodd-Frank but before the effectiveness of the CFTC’s swap recordkeeping rules; and business conduct standards for swap dealers (SDs) and major swap participants (MSPs).

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Co-authored by Gregory C. Johnson

A federal court in New York recently ruled that a start-up mineral water company had no recourse to the “wrongdoer rule,” which permits a complainant to recover damages in a breach of contract action even if the amount of damages is uncertain, because the company did not have sufficient proof that it suffered any damages at all.

Ho Myung Moolsan, Co. Ltd., a Korean-based seller of mineral water, sought $133 million in lost profits based on an alleged breach of contract by supplier Manitou Mineral Water, Inc.. Before trial, Manitou sought to exclude Moolsan’s expert’s report, on which Moolsan’s claim for lost profits was based, because the report was predicated on speculation regarding Moolsan’s future earnings and did not reference any actual sales data. Moolsan argued that experts are permitted to rely on assumptions when reaching their conclusions and that under New York’s “wrongdoer rule,” Manitou—as the alleged breaching party—had the burden of refuting Moolsan’s estimated losses.

The U.S. District Court for the Southern District of New York excluded the report, holding that the report did not meet the demanding evidentiary requirements for new ventures seeking to recover lost profits. The court also held that the burden-shifting provisions of the “wrongdoer rule” did not apply. As the court noted, the “wrongdoer rule” only comes into play when the plaintiff has established the existence of damages, but the specific amount of those damages is uncertain. The rule was not applicable in this case because Moolsan was not merely unable to quantify its damages, but had not established with a high level of certainty that it had suffered any damages at all. (Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc., 2010 WL 4892646 (S.D.N.Y. Dec. 2, 2010))

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Co-authored by Gregory C. Johnson

A federal court in Kentucky recently ruled that a former manager at a medical device manufacturer could be liable for breach of fiduciary duty for planning to start a rival business while working at the company despite not serving as either an officer or director of the firm.

FBK Partners, Inc., a manufacturer of medical tubing, changed ownership and saw two high-ranking employees depart to start a rival business. FBK sued the former employees for breach of fiduciary duty for, among other things, allegedly planning to launch their company while working at FBK and for recruiting other FBK employees.

One of the former employees, who had been a plant manager and machine operator at FBK, sought dismissal of the breach of fiduciary duty claim, arguing that he did not owe FBK any fiduciary duties because he was neither an officer nor director. The U.S. District Court of the Eastern District of Kentucky held that while officers and directors are presumed to owe their companies fiduciary duties, other employees can owe fiduciary obligations if sufficient trust or confidence with respect to the particular matter is placed in the employee. To determine if such trust or confidence has been placed in an employee, a court will look to the specific factual circumstances to determine if, for example, the employee had “oversight and control over office operations and access to confidential information” or “acted as a face for the company in public.” Because the specific nature of the former employee’s duties was not clearly established in the record, the court denied the employee’s motion for summary judgment dismissing the breach of fiduciary duty claim. (FBK Partners, Inc. v. Thomas, 2010 WL 4940056 (E.D. Ky. Nov. 30, 2010))

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On December 15, the federal bank and thrift regulatory agencies announced changes to Community Reinvestment Act (CRA) regulations to support stabilization of communities affected by high foreclosure levels. The CRA requires the federal banking and thrift regulatory agencies to assess the record of each insured depository institution in helping to meet the credit needs of its entire community, including low- and moderate-income neighborhoods, consistent with the safe and sound operation of the institution, and to take that record into account when the agency evaluates an application by the institution for a deposit facility.

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On December 15, the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) voted on a final rule to set the insurance fund’s designated reserve ratio (DRR) at 2% of estimated insured deposits. The Dodd-Frank Wall Street Reform and Consumer Protection Act set a minimum DRR of 1.35% and left unchanged the requirement that the FDIC Board set a DRR annually. The Board must set the DRR according to the following factors: risk of loss to the insurance fund, economic conditions affecting the banking industry, preventing sharp swings in the assessment rates, and any other factors it deems important.

FDIC Chairman Sheila Bair stated, “Given previous statutory limitations on the ability of the FDIC to build reserves in excess of 1.25%, our resources heading into the financial crisis were woefully inadequate. This new rule will allow us to better prepare for the future. It will also give the industry greater certainty around the premium structure. While the 2% designated reserve ratio established by the board is higher, the trade-off will be lower, more predictable premiums over time. By building higher reserves during the good times, we will significantly reduce the risk of pro-cyclical assessments when the inevitable next downturn occurs.”

However, the FDIC in the final rule made it clear that it “views the 2% DRR as a long-range, minimum target.”

Read more.

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On December 13, Hector Sants, Chief Executive of the UK Financial Services Authority (FSA), gave a speech setting out the progress made toward the bodies that will replace the FSA: the Prudential Regulation Authority (PRA) and the Consumer Protection and Markets Authority (CPMA).

Key points covered by the speech include:

• The PRA is to design a risk model to assist with financial stability damage control in the event that a firm fails.
• The CPMA will be given greater powers of intervention than those currently available to the FSA. This will allow the CPMA and the PRA to intervene earlier than the FSA does at present. 
• A review of FSA rules will take place, with a view to slimming down prudential rules. While CPMA rules will focus on guidance and principles, there will be a shift to prescriptive requirements. 
• The FSA’s approach to wholesale conduct will be reviewed, and regulation will be developed where market discipline has proved ineffective. 
• The FSA and Bank of England envisage that a high-level memorandum of understanding, with detailed annexes, will be essential to ensure effective coordination between the CPMA and the PRA. 
• In April 2011, the FSA will replace its current risk and supervision business units with a prudential business unit and a consumer business unit.

To read the speech in full, click here.

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On December 14, the UK Financial Services Authority (FSA) published two final notices imposing fines and prohibition orders on two former employees of Pacific Continental Securities (UK) Limited (PCS). The notices follow a decision by the FSA that William James Coppin and Perry John Bliss contravened Sections 118(3) (improper disclosure) and 123(1)(b) (encouraging another person to engage in behavior which, if engaged in by himself, would amount to market abuse) of the Financial Services and Markets Act 2000.

The two former stockbrokers had used inside information relating to the Alternative Investment Market company Provexis plc to encourage clients to buy its shares. The information, detailing a collaboration agreement made between Provexis and a major food company (which was not named) was emailed to them in the form of an unapproved sales script. Despite the PCS compliance team circulating notices warning against mentioning an agreement made by Provexis during sales calls, Mr. Coppin and Mr. Bliss continued to make such calls to clients. This amounted to market abuse. As a result of these calls, a number of agreements were made for clients of PCS to buy Provexis shares. Three days later, Provexis announced a collaboration with Unilever.

Mr. Coppin and Mr. Bliss were respectively fined £70,000 (approximately $109,300) and £30,000 (approximately $46,800) (reduced from £60,000 due to Mr. Bliss’s financial circumstances).

To read more, click here.

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Co-authored by Louis Froelich

New Financial Industry Regulatory Authority Rule 4160 will go into effect February 1 in an effort by FINRA to strengthen its ability to independently verify assets maintained by a FINRA member at a non-member financial institution. FINRA Rule 4160 will prohibit members from continuing to custody or retain record ownership of assets at non-member financial institutions that fail promptly to provide FINRA, upon FINRA’s written request, with written verification of the FINRA member’s assets maintained at such non-member financial institution. In the Regulatory Notice, FINRA encourages, although does not require, FINRA members to contract with non-member financial institutions maintaining the FINRA member’s assets (whether proprietary or customer assets) to require such non-member financial institutions to oblige with verification requests from FINRA.

Click here to read FINRA Regulatory Notice 10-61.

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Co-authored by Louis Froelich

Effective January 1, new legislation in California (Act) will prohibit an individual or entity from acting as a “placement agent” in connection with any potential investment made by a California state public retirement system unless that person is registered as a lobbyist with the California Secretary of State and is in compliance with the California Political Reform Act of 1974 (PRA). The Act is aimed at ensuring that investment decisions of any California state public pension or retirement system are made in an impartial manner, free from any potential bias caused by gifts, campaign contributions or the financial interests of placement agents, retirement system officials and third parties who have supported these officials.

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Co-authored by Kevin M. Foley and Joshua A. Penner

The Commodity Futures Trading Commission held a public meeting on December 1 to propose its sixth series of rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The CFTC has published notification of (and, in most cases, requested public comment on) the following five rule proposals.

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Co-authored by Kevin M. Foley and Joshua A. Penner

The Commodity Futures Trading Commission has requested public comments on an application for registration as a derivatives clearing organization (DCO) filed by CME Clearing Europe Limited (CMECE) on November 26.

CMECE, which will be principally located in London and which is an indirect subsidiary of CME Group Inc., is requesting approval from the CFTC to clear over-the-counter derivatives, such as swaps, forwards and options, on energy products.

The public documents included in CMECE’s DCO application can be found here.
Public comments regarding CMECE’s application can be directed to the CFTC here.

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Co-authored by Brian Schmidt

The U.S. Court of Appeals for the Second Circuit affirmed a bench trial verdict in a breach of contract case, holding that the district court properly “pierced the corporate veil” and imposed liability on a defendant corporation under an “alter ego” theory.

Plaintiffs sued two corporate defendants, Private Label Sourcing, LLC and Second Skin, LLC, for breach of garment contracts, arguing that the two entities were jointly and severally liable as alter egos of one another. The Second Circuit concluded that there was sufficient evidence in the record to support the district court’s conclusion that Second Skin dominated and controlled Private Label. In particular, the district court found that Christine Dente, a co-owner of Private Label and the sole owner of Second Skin, directed that plaintiffs pay commissions to Second Skin that should properly have been paid to Private Label. The court characterized this transfer of commissions as a “siphoning” of funds from Private Label to Second Skin and noted that defendants provided no commercially reasonable explanation. The improper transfer of funds exacerbated Private Label’s insolvency and left that corporation less able to pay damages.

In addition to the improper transfers, the district court concluded that Private Label and Second Skin (1) failed to adhere to corporate formalities, (2) had overlapping owners and other personnel, and (3) shared office space and equipment. The Second Circuit concluded that the totality of the circumstances adequately supported the district court’s imposition of joint and several liability based on corporate veil-piercing. (Alateks Foreign Trade, Ltd. et al., v. Private Label Sourcing, LLC & Second Skin, LLC, No. 09 Civ. 3146, 2010 WL 4923942 (2d. Cir. Dec. 6, 2010))

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Co-authored by Brian Schmidt

The U.S. District Court for the District of Columbia dismissed a claim for tortious interference with business relationships where the complaint accused the defendant of tortiously interfering with the very same contract the defendant was accused of breaching.

In early 2009, Geoplast S.p.A., an Italian plastics manufacturer, contracted with I Mark Marketing Services, LLC (IMARK), a U.S. marketing firm, to operate a U.S. Geoplast subsidiary and market Geoplast’s products. Among other things, the original contract granted IMARK exclusive marketing rights to Geoplast’s products in the United States.

In February 2010, Geoplast sent IMARK what IMARK characterized as a “new” contract to sign. IMARK refused to sign the “new” contract, Geoplast stopped paying under the original contract, and the subject litigation ensued.

In addition to breach of contract, IMARK alleged that Geoplast tortiously interfered with IMARK’s business relationships by: (1) soliciting sales from entities in the United States despite IMARK’s exclusive marketing rights, (2) contacting entities that IMARK had cultivated relationships with related to the sale and purchase of Geoplast’s goods, and (3) directly pursuing business opportunities identified by IMARK. The court found that these allegations duplicated IMARK’s claim for breach of contract, and that IMARK could not allege tortious interference with the very contract at issue in the case. Under District of Columbia law, only third parties to a contract may be liable for tortious interference. (I Mark Marketing Services LLC v. Geoplast, S.p.A., No. 10 Civ. 347, 2010 WL 4925293 (D. D.C. Dec. 6, 2010))

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On December 2, the federal financial regulatory agencies issued final supervisory guidance on sound practices by financial institutions for real estate appraisals and evaluations. The Interagency Appraisal and Evaluation Guidelines, which replace 1994 guidelines, explain the agencies’ minimum regulatory standards for appraisals. The guidelines incorporate the agencies’ recent supervisory issuances on appraisal practices, address advancements in information technology used in collateral valuation practices, and clarify standards for the industry’s appropriate use of analytical methods and technological tools in developing evaluations. The agencies recommend that financial institutions review their appraisal and evaluation programs to ensure they are consistent with the guidance, which discourages institutions from using automated valuation models in transactions requiring an appraisal.

The guidelines emphasize that financial institutions are responsible for selecting appraisers and people performing evaluations based on their competence, experience and knowledge of the market and type of property being valued. Under the guidelines, institutions should demonstrate the independence of their processes for obtaining property values, and adopt standards for appropriate communications and information-sharing with appraisers and people performing evaluations. In promoting sound credit decisions, the guidelines also emphasize the importance of institutions maintaining strong internal controls to ensure reliable appraisals and evaluations. Institutions also are responsible for monitoring and periodically updating valuations of collateral for existing real estate loans and for transactions, such as modifications and workouts.

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On December 9, the UK Financial Services Authority (FSA) announced that it had obtained winding-up orders in the High Court against two UK entities: Bio Partners Ltd and Zambia Alpha One LLP. Each was a firm that was not FSA authorized and was operating a collective investment scheme (CIS) in breach of the “general prohibition” of the UK Financial Services and Markets Act 2000.

The firms operated a CIS which invested in a bio-fuel crop grown in Africa. They had collected almost £1 million (approximately $1.6 million) from the UK. The FSA petitioned the High Court for winding-up orders in the interests of consumer protection.

Margaret Cole, the FSA’s managing director of enforcement and financial crime, said: “Operating a collective investment scheme is a serious business requiring FSA authorization. Without the proper authorization, neither Bio Partners or Zambia Alpha had any business running one of these schemes and put [sic] investors’ money at risk.”

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On December 9, the UK Government announced its intention to introduce a levy on UK banks and the UK branches and subsidiaries of foreign banks. The bank levy will be implemented for all accounting periods ending on or after January 1, and will be charged at an annual rate of 0.05% for 2011 and 0.075% from 2012 onwards. The levy will be charged on the bank’s equity and liabilities, subject to certain exceptions such as Tier 1 capital, segregated client money and customer deposits protected by a depositor protection or insurance scheme. The first £20 billion (approximately $32 billion) of liabilities will be exempt from the levy.

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On December 8, the European Commission published a public consultation on the review of the Markets in Financial Instruments Directive (2004/39/EC) (MiFID).

MiFID aims to create a single market in investment services and to increase investor protection. It came into force in November 2007. Developments in the financial markets since 2007 have highlighted areas where changes need to be made.

The consultation includes the following matters:

• Developments in market structures: This section discusses organized trading facilities, automated trading, proprietary trading, systematic internalizers, market surveillance and markets for small and medium sized enterprises (SMEs).
• Transaction reporting: Clarifications and extensions are suggested.
• Data consolidation: Potential improvements to market data consolidation, including raw trade data, post-trade data for investors and the introduction of a consolidated EU market tape.
• Commodity derivative markets: Requirements for commodity derivatives exchanges, review of MiFID exemptions for commodity firms and other issues.
• Investor protection and provision of investment services: Potential revisions relating to the scope of MiFID (including whether it should be expanded to cover proprietary traders), conduct of business obligations and authorization and organizational requirements.
• Further convergence of the regulatory framework and supervisory practices: Suggested changes aimed at narrowing or eliminating some member state options and discretion and increasing the effectiveness of supervision and enforcement.

The consultation is open until February 2. The Commission will use these responses as part of the preparation of a formal proposal for a new MiFID Directive, which is scheduled to be published in May 2011.

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On December 3, the Committee of European Securities Regulators (CESR) published a call for evidence seeking view on the “Level 2” implementing measures required under the Alternative Investment Fund Managers Directive (AIFMD). This input is designed to assist CESR and the European Securities and Markets Authority, which will replace CESR with effect from January 1, in the development of draft advice on the content of the AIFMD implementing measures, which will be published for consultation in 2011.

Responses to the call for evidence must be submitted by January 7.

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Co-authored by Jonathan D. Weiner

On November 19, Institutional Shareholder Services (ISS) published updated policies for determining its proxy voting recommendations for meetings to be held on or after February 1, 2011. ISS’s policy updates for 2011 include the following:

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On October 8, the Securities Investor Protection Corporation (SIPC) filed a proposed bylaw amendment with the Securities and Exchange Commission regarding the minimum annual assessments for SIPC members. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 amended the Securities Investor Protection Act of 1970 (SIPA) by changing the minimum assessments from $150 to 0.02% of a member’s gross revenues from securities business.

SIPC now proposes to amend its bylaws to be consistent with SIPA, as amended by the Dodd-Frank Act. SIPC, however, proposes to change the minimum assessments benchmark from gross revenues to net operating revenues. SIPC believes most securities firms no longer structure their business on a gross revenue basis and instead use a net operating revenue basis (i.e., exclude interest and dividend expenses in their revenue calculations). Since assessments based on net operating revenues will be less than assessments based on gross operating revenues, SIPC’s proposed rule change will still be consistent with SIPA, as amended by the Dodd-Frank Act.

On November 30, the Securities and Exchange Commission published a notice soliciting public comment on SIPC’s proposal.

To read the SEC release, click here.

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Co-authored by James D. Van De Graaff

On December 1, the Chicago Board Options Exchange and C2 Options Exchange (collectively, CBOE) and the International Securities Exchange (ISE) issued regulatory circulars providing guidance on the definition of “professional” under each Exchange’s rules. Under CBOE’s and ISE’s rules, a “professional” is any person or entity that (1) is not a broker-dealer in securities, and (2) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s).

CBOE and ISE clarified that for purposes of determining the average number of orders placed per day, a customer must aggregate all of its beneficial accounts. Thus, customers cannot avoid designation as a “professional” by spreading (or disaggregating) orders over numerous accounts.

Click here to read the Regulatory Circular.

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Co-authored by Vanessa L. Friedman

The Commodity Futures Trading Commission has requested comments on the following five rule proposals to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

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Co-authored by Vanessa L. Friedman

A number of the proposals approved by the Commodity Futures Trading Commission at its meeting on November 10 and reported in the November 19 edition of Corporate and Financial Weekly Digest were published for comment in the Federal Register.

The release requesting comment on the CFTC’s notice of proposed rulemaking regarding registration of foreign boards of trade is available here. The CFTC’s proposed rule requiring each futures commission merchant, swap dealer (SD), and major swap participant (MSP) to designate a chief compliance officer and file an annual report regarding its compliance activities is available here. Both of these releases were published November 19; the comment period for each ends January 18. Additionally, the release requesting comment on the CFTC’s proposed rules that would establish and govern the duties of SDs and MSPs is available here. The CFTC’s notice of proposed rulemaking regarding conflicts of interest requirements applicable to SDs and MSPs is available here. Finally, the CFTC’s proposed rules governing registration of SDs and MSPs is available here. All three of these releases were published November 23, and the comment period for each ends January 24.

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Co-authored by Vanessa L. Friedman

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Commodity Futures Trading Commission is charged with leading an interagency working group in (1) conducting a study regarding the oversight of existing and prospective carbon markets, and (2) making recommendations to Congress for the oversight of carbon markets to ensure their efficiency, transparency and security. The CFTC has requested public comment on the study, specifically with regard to the study’s regulatory objectives and the ultimate oversight of the carbon markets.

The comment period closes December 17. The CFTC’s notice and request for comment is available here.

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Co-authored by Jonathan Rotenberg

Investors filed a complaint in the U.S. District Court for the District of Arizona against the former president and CEO of a corporation that no longer had any assets, his wife, and the company’s former securities counsel. Defendants filed answers that included an affirmative defense of improper venue premised on the forum selection clauses in the agreements between the parties. Defendants also filed counterclaims, as well as a third-party complaint against the individual who sold the shares in the corporation to plaintiffs. The district court dismissed the complaint for improper venue based on the forum selection clauses.

On appeal, plaintiffs argued that by filing an answer with affirmative defenses and counterclaims, and a third-party complaint, defendants waived any improper venue defense. Affirming the district court’s decision, the U.S. Court of Appeals for the Ninth Circuit held that the mere assertion of a counterclaim will not waive a defense of improper venue that was explicitly asserted in an answer. The court also found that parties may argue alternative positions without waiver. (Hillis v. Heineman, No. 09-17040, 2010 WL 4673675 (9th Cir. Nov. 19, 2010))

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Co-authored by Jonathan Rotenberg

Plaintiffs brought claims against defendant, a satellite digital audio radio service provider (SDARS), alleging that the 2008 merger of defendant’s predecessors created a monopoly in the surviving company and violated federal antitrust laws and various state consumer protection laws, among other things.

The complaint alleges that defendant now controls 100% of the market for SDARS and that there is no economically viable alternative product that is interchangeable with that provided by defendant. The complaint further alleges that the merger was a willful attempt to exert monopolistic control over the SDARS market since the merged companies had been the only SDARS providers, and entry into the SDARS market is prohibitively costly. Plaintiffs assert that defendant’s allegedly monopolistic actions resulted in artificially inflated, noncompetitive prices, thereby harming plaintiffs, who are defendant’s subscribers, and all others similarly situated.

Defendant moved to dismiss the state consumer protection claims, asserting that plaintiffs do not have standing to bring claims under the consumer protection statutes of states in which no plaintiff resides. The court denied the motion, reasoning that the claims should be allowed to go forward until the pending motion on class certification is decided. The court further noted that plaintiffs in a proposed class action commonly bring claims under consumer protection laws of states where they do not reside in order to preserve those claims in anticipation of eventually being joined by class members who do reside in the states for which claims have been asserted. (Blessing v. Sirius XM Radio Inc., No. 09 Civ. 10035, 2010 WL 4642607 (S.D.N.Y. Nov. 17, 2010))

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The Office of the Comptroller of the Currency (OCC) and the Office of Thrift Supervision (OTS) are sponsoring a series of nationwide informational meetings detailing the OTS’s integration into the OCC. OTS- and OCC-regulated institutions are invited to the meetings, and representatives from both agencies will discuss, among other topics, what federally chartered savings associations can expect from the change.

The OCC/OTS sessions will run from 8:30 a.m. to 2:15 p.m. Federal Reserve representatives will host sessions beginning at 2:30 p.m. on the transition of savings and loan holding company supervision.

The list of dates is available here.

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