In a recent case before the Delaware Supreme Court, SIGA Technologies, Inc. v. PharmAthene, Inc., Del. Supr., No. 314, 2012 (May 24, 2013), the court upheld a Delaware Chancery Court’s ruling that an express agreement between parties to negotiate in good faith, even if the subject of the negotiation is embodied in a non-binding term sheet, is enforceable.  In 2005, SIGA Technologies, Inc. and PharmAthene, Inc. started by negotiating the terms of a...

Too frequently when faced with an intellectual property dispute, business executives and attorneys fail to consider the unique attributes and potential advantages of alternative dispute resolution ("ADR").  Following the traditional path of litigation, parties may miss an opportunity to craft their own outcome, control the process, and preserve valuable resources, even though federal legislation and court decisions have provided parties more reliable outcomes through ADR.  ADR offers many...

On April 10, 2013, the Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission (the “CFTC”) jointly adopted Identity Theft Red Flags Rules, which are rules and guidelines requiring certain financial institutions to adopt comprehensive data security programs to detect red flags and prevent identity theft.  In 2003, Congress amended the...

As I was talking to a client this morning, I realized he had been the fifth person in less than six months who had come to ask me questions about buying a restaurant in the United States.  With this long lasting economic crisis it seems that a lot of people are trying to change their career, move abroad to find another job, or do both.  Opening a restaurant in the United States appears to be on the mind of a lot of people, especially Europeans.  Therefore I thought it could be a good idea to simply highlight a few...

On April 2, 2013, the Securities and Exchange Commission (the “SEC”) issued a report clarifying existing guidance to confirm that public companies may use social media outlets, such as Facebook and Twitter, to announce key information in compliance with Regulation FD of the Securities Exchange Act of 1934, so long as investors have been alerted in advance about which social media outlets will...

In an effort to create jobs and help grow the economy, President Obama signed into law the Jump Start Our Business Act (the “JOBS Act”) on April 5, 2012.  The JOBS Act was designed to make it easier for small companies to raise equity capital.  But, over a year later, the regulations, due on January 5, 2013, have not yet...

Speaking on January 23, 2013, to the Private Equity International Conference, Bruce Karpati, Chief of the Securities Exchange Commission (the “Commission“) Enforcement Division Asset Management Unit, addressed concerns that are likely to lead to an increase in the number of enforcement cases against private equity funds.  In 2010, the...

The FinTech industry is booming.  Just recently, two major acquisitions comforted analysts’ opinion that the financial services technology world remains an active market for mergers and acquisitions – FIS acquiring the remaining 78% interest in mobile banking and payment solutions provider mFoundry, and payments systems provider ACI buying competitor Online Resources Inc. for...

Several articles recently pointed-out an interesting trend: corporations are stowing away vast amounts of cash.  This trend has accelerated over the past decade, with holdings rising from around 6 percent of GDP in 1990 to around 11 percent of GDP in the mid-2000s.  The build up over the past two years seems broadly in line with this trend, essentially reversing a dip that occurred during...

The world has gone mobile.  With nearly a million mobile applications (“Apps“) available today, we use our smartphones to read books, play games, listen to music, take photos and videos, but also to monitor our heart rate, start the car remotely, find a restaurant, pay for purchases on-the-spot and monitor our bank accounts.  It is therefore undeniable that with their expanding functionality, mobile devices are...

Wegelin & Company, a private bank based in St. Gallen, Switzerland, shut down this month after admitting it had helped wealthy Americans evade taxes by hiding more than $1.2 billion in secret accounts.  Wegelin had agreed to pay $74 million in fines, restitution and forfeiture proceeds to the United States government.  The bank, founded in 1741, was the...

On 12 December 2012, the European Commission (the “Commission”) submitted a proposal to amend the EU regulation on insolvency proceedings (the “Proposal”).  The economic crisis has led to an increase in the number of failing businesses.  From 2009 to 2011, an average of 200,000 firms went bankrupt per year in...

On December 1, a new benefit corporation statute went into effect in Massachusetts, making the state one of twelve that have enacted legislation allowing for the formation of this new form of corporate entity.  Benefit corporations are...

On November 19^th, Moody’s, stripped France of its Triple A sovereign credit-rating.  This decision came after the agency had put France on negative outlook for a few months after Standard & Poor’s downgraded France from the top rating.  Moody’s based its...

Considering the number of different parties that contract or interact with a hedge fund, it is evident that each of them might pursue a personal commercial interest.  Therefore, conflicts of interest are to be expected.  Simply put, a conflict of interest arises when the considerations of one party is to the detriment of another.  While it is...

On March 27, 2012, the House of Representatives passed the Jumpstart Our Business Startups Act (the “JOBS Act”), in the same form passed by the Senate on March 22, 2012. The JOBS Act, which was signed into law by President Obama, includes significant reforms intended to facilitate capital raising by small businesses and has profound ramifications for private companies, broker-dealers, private investment funds, the...

Yesterday I came across an interesting article about cybersecurity.  Since I might have bored some of you over the last few weeks with securities regulation, I figured it was only fair to talk about something different this week.  As we...

Over the last couple of days, the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) gave some interesting information regarding the implementation and application of the Jumpstart... 

On March 27, 2012, the House of Representatives passed the Jumpstart Our Business Startups Act (the “JOBS Act”), in the same form passed by the Senate on March 22, 2012.  The JOBS Act will now go to President Obama for his...

On October 13, 2011, the Federal Trade Commission, the Department of Justice's Antitrust Division, and the European Commission (the “Commission”) published revised best practices for cases where the Commission and a US agency are reviewing the...

The regulators of France, Belgium, Italy and Spain announced yesterday a 15-day ban on the short-selling of certain financial stocks and derivatives linked to them, in response to particularly sharp falls in banking shares this week.  As a...

Nanotechnology has been at the forefront of commercial innovation across several industries over the past decade, from personal care products to pharmaceuticals.  Although not...

As of February 1, 2011, a new permanent regime for disclosing net short positions in shares is applicable in France in anticipation of the regime to be implemented pursuant to the future European Regulation due to...

On December 14, 2010, the European Commission (hereafter, the “Commission”) has revised its rules for the assessment of cooperation agreements between competitors (hereafter, “Horizontal Cooperation Agreements”).  As it is often vital for companies to...

According to various recent articles, start-ups are regaining some momentum and could play an important role in the economic recovery.  The Economist for example...

On November 19, three days after two airline pilots and The Rutherford Institute filed a federal lawsuit against the U.S. Department of Homeland Security and the Transportation Security Agency (the "TSA"), alleging that...

On November 3, 2010, the Securities and Exchange Commission (the “SEC”) held an open meeting on the implementation of the whistleblower provisions contained in the Dodd-Frank Wall Street Reform and...

On Tuesday, October 19^th, the European finance ministers reached a breakthrough agreement which aims to open the European Union’s (EU) market to foreign hedge funds.  In return for complying with common rules which will be set by the incoming European Securities and Markets Authority (ESMA) to...