March 08, 2022

Post-employment Restrictive Covenants: Market Trends 2017-2021

By: The Practical Guidance Employee Benefits and Executive Compensation Team This Market Trends review provides an overview of restrictive covenant obligations contained in executive employment agreements and discusses recent market trends in publicly filed executive employment agreements from 2017 to the first half of 2021. Specifically, it discusses non-competition clauses and employee non-solicitation and client...

March 07, 2022

Determining Spread Adjustments for SOFR Loans

By: The Practical Guidance Finance Team This article discusses credit spread adjustments related to the differential in rates between the London Interbank Offered Rate (LIBOR) and the Secured Overnight Financing Rate (SOFR). While LIBOR and SOFR historically trend together, LIBOR is generally higher than SOFR. Due to the difference in these rates, the Alternative Reference Rates Committee (ARRC) has recommended that...

March 06, 2022

Disclosure Related to Climate Change: Market Trends 2021

By: Anna T. Pinedo , Gonzalo Go , Felix Zhang , and James Alford MAYER BROWN LLP This article discusses market trends in 2021 relating to disclosures of climate change risks and mitigation by public companies, which are intertwined with environmental, social, and governance (ESG) issues. It also provides illustrative disclosures by public companies regarding how climate change has affected or may affect their operations...

March 06, 2022

Market Trends: De-SPAC Transactions

By: Jamie Payne, LEXIS PRACTICAL GUIDANCE This article discusses recent market trends in de-SPAC transactions (acquisitions involving Special Purpose Acquisition Companies (SPACs)) in 2021, covering notable transactions, deal structure and process, and other key market trends. SPACs and De-SPAC Transactions A SPAC is a public shell company that raises funds through an initial public offering (IPO) and uses the proceeds...

March 06, 2022

Using Mediation to Resolve Construction Disputes and Adjusting for Pandemic Impacts

By: Leonard M. Kessler, CONSTRUCTION ATTORNEY, ARBITRATOR, AND MEDIATOR 1. What is mediation and how does it differ from litigation and arbitration? Mediation is a private dispute resolution process in which the disputing parties work with a mediator to negotiate a settlement to their dispute. The mediator is a neutral party who has no vested interest in the outcome and is trained to facilitate a settlement between...

March 06, 2022

Secured Overnight Financing Rate (SOFR) Benchmark Succession Clauses

By: The Practical Guidance Finance Team This article discusses trends in benchmark succession clauses in recent credit agreements using benchmark rates other than the London Interbank Offered Rate (LIBOR). Credit agreements typically provide for replacing the benchmark interest rate used in the agreement under certain circumstances. Credit agreements originated at the end of 2021 and into 2022 are using benchmark...

March 06, 2022

Employer's Guide to Employee Vaccination Data Privacy and Protection

By: Karen Mandelbaum , RyAnn M. Hooper & Susan Gross Sholinsky EPSTEIN BECKER GREEN, P.C. This article will explore the privacy concerns created when implementing a mandatory vaccine policy and collecting vaccination status information from employees and others. Introduction The return-to-work race is well underway. While many employees grapple with their level of tolerance for a hybrid or full in-person workplace...

October 27, 2021

Green Buildings and Sustainable Technology Design and Construction

By: Jed E. Ruccio, MIRRIONE SHAUGHNESSY & UITTI, LLC This article explains the concept of green building, both as a description of a type of building constructed and operated by employing sustainable technology, and as a reference to the design and construction techniques used to construct that building. THIS ARTICLE ALSO DESCRIBES HOW YOU MAY OBTAIN a green building designation upon construction of a new building...

October 27, 2021

The International Climate Finance Plan

By: Kevin L. Turner and Amy L. Edwards , HOLLAND & KNIGHT LLP In this article, the authors discuss the five broad areas of focus of the International Climate Finance Plan that impact international private sector development. IN THE BIDEN ADMINISTRATION’S EXECUTIVE ORDER 14008 , “Tackling the Climate Crisis at Home and Abroad,” on January 27, 2021, President Joseph Biden called for a climate finance...

October 27, 2021

Corporate Social Responsibility and the Supply Chain

By: Timothy Murray, MURRAY, HOGUE & LANNIS Corporate social responsibility (CSR) is an amorphous concept that defies simple explanation. At its heart, CSR is a philosophy that a business entity has certain societal obligations beyond the bottom line of its owners—obligations to be a good citizen. IT IS AN ACKNOWLEDGEMENT THAT THERE ARE stakeholders aside from the business entity’s owners, including...

October 27, 2021

Infrastructure Greenification Opportunities for the U.S. Energy Grid

By: Michael Bonsignore and Eli Keene , Clifford Chance In this article, the authors explain that as the Biden Administration lays out its vision for a clean energy future, a confluence of economic and policy factors is providing a unique opportunity to greenify the power grid’s physical infrastructure by leveraging the economic opportunity in retired fossil power plants. THE UNITED STATES IS ON THE PRECIPICE...

October 27, 2021

Keepers of the Green Gate: Duties of ESG Professionals

By: Sarah E. Fortt , VINSON & ELKINS LLP The market for Environmental, Social, and Governance (ESG) professionals is hot. As companies, consulting firms, financial institutions, law firms and government agencies race to build out their sustainability and ESG teams, qualified ESG professionals are in high demand. THIS DEMAND IS ALSO CREATING A PUSH FOR INDIVIDUALS with more traditional professional backgrounds...

August 18, 2021

NEW – LIBOR Floor Provisions: Market Trends 2020/2021

This practice note discusses LIBOR floor provisions, including current market trends in publicly filed credit agreements and commitment letters from the second half of 2020 and first half of 2021. Lenders tended to increase LIBOR floor percentages in 2020 during the height of COVID-19 in response to the dropping LIBOR benchmark rate. With a stabilizing market in 2021 and the end of LIBOR as a benchmark rate in sight,...

June 11, 2021

Best Practices for Prevention and Defense of Negligent Hiring, Retention and Supervision Claims

By: Darryl G. McCallum, Shawe Rosenthal, LLP This article addresses the potential for negligence liability that employers face when they hire and/or retain employees who end up causing injury to third parties or other employees. UNDER MOST STATES’ LAWS, AN EMPLOYER HAS AN obligation to use reasonable care in selecting and retaining employees. An employer violates this duty when it hires or retains an employee...

June 11, 2021

U.S. Supreme Court Securities Litigation Decisions

By: Susan L. Saltzstein, Mollie Kornreich, and Kyle J. Schwartz Skadden, Arps, Slate, Meagher & Flom LLP This article highlights a selection of U.S. Supreme Court decisions that touch on key aspects of the securities laws, including (1) liability for statements of opinion and belief; (2) the scope of liability under the Securities Exchange Act of 1934, as amended (Exchange Act); (3) disgorgement in Securities and...

June 11, 2021

Subchapter V Bankruptcy Cases: Recent Developments

By: Mark Haut, Practical Guidance This article provides an update on several developments that have occurred since the Small Business Reorganization Act of 2019 (SBRA) became effective on February 19, 2020. The SBRA created a new bankruptcy option under Chapter 11, known as Subchapter V, which allows small business debtors to address their outstanding liabilities in a fast and efficient, modified Chapter 11 proceeding...

June 10, 2021

The Courts Have Spoken: Lessons of the Covid-19 Force Majeure Cases

By: Timothy Murray, Murray, Hogue and Lannis The majestic New York State Supreme Court Building in Lower Manhattan has stood in regal watch over the tumult of the past century, a silent witness to every shade of humanity—from the disgraced movie mogul Harvey Weinstein, who was convicted there in 2020, to the revered jurist Benjamin Cardozo, who attended its dedication in 1927. IT HAS BEEN A CRITICAL PLAYER IN...

June 10, 2021

Cannabis Legalization and the Insurance Industry

By: Christy Thiems , American Property Casualty Insurance Association This article discusses the impact of cannabis legalization on the insurance industry. Disparate state laws on both medical and recreational use, federal issues such as classification/scheduling of cannabis and the evolving nature of federal enforcement of drug laws, and the conflicting interplay between state and federal cannabis laws are discussed...

June 10, 2021

Receivership in Real Estate Transactions

By: Richard P. Ormond, Buchalter PC This article provides an overview of receivership in real estate transactions. It discusses the legal basis for receivership, the role and powers of a receiver, the process of appointing a receiver, and the benefits of receivership over potential alternatives. It also includes guidance for lenders and secured creditors when seeking the appointment of a receiver and reviewing an appointment...

June 10, 2021

Cannabidiol (CBD) Regulatory Landscape and Enforcement Risks

By: Cori Annapolen Goldberg , Adam Brownrout , and Sung Park , Reed Smith LLP This article provides an overview of the federal and state agencies regulating hemp and cannabidiol (CBD) products, as well as an overview of current federal and state regulations and requirements for the marketing and sale of CBD products. Federal Legalization of Industrial Hemp and CBD Prior to 2018, industrial hemp and industrial hemp...

June 09, 2021

Third Circuit Scuttles Triangular Setoff in Bankruptcy

By: Charles M. Oellermann and Mark G. Douglas , Jones Day This article discusses a recent decision in the U.S. Court of Appeals for the Third Circuit addressing whether triangular setoff is permissible in bankruptcy. THE ABILITY OF A CREDITOR TO EXERCISE ITS CONTRACTUAL , common-law, or statutory rights under non-bankruptcy law to set off amounts owed to a debtor in bankruptcy against the debtor’s obligations...

June 09, 2021

FCA Announcement May Trigger LIBOR Cessation Benchmark

By: The Practical Guidance Finance Team The UK Financial Conduct Authority (FCA) has formally set the dates by which panel banks will no longer report on tenors of the London Interbank Offered Rate (LIBOR). These are the final dates the FCA will regulate LIBOR and the ICE Benchmark Administration (IBA) will publish LIBOR. If these dates remain unchanged, then all 35 tenors of LIBOR will cease after June 30, 2023. This...

June 08, 2021

Energy Policies Lead to Texas Power Crisis

By: Cameron Kinvig , Practical Guidance Extreme winter weather and poor statewide energy policies recently caused an enormous public health and safety crisis in Texas. This article analyzes what went wrong with Texas' energy infrastructure during Winter Storm Uri, including failures in natural gas generation, production, transportation, and storage; the failure of power producers to properly winterize natural gas...

February 26, 2021

Takeaway From One of the “Biggest Blunders in Banking History”: Get Payment Notices in Order

By: H. Gregory Baker and Rachel Maimin , Lowenstein Sandler LLP Often–at least in the legal field–a good-faith mistake can be reversed. A privileged document is inadvertently produced in discovery; it can be clawed back. An email to the team is accidentally sent to opposing counsel; professional courtesy generally means that the recipient will destroy the email without reading it. Evidently, not so under...

February 25, 2021

The "New and Improved" Paycheck Protection Program

By: Steven J. Dickinson, Robert K. Magovern, and James F. Van Orden , Cozen O’Connor The omnibus budget act signed by President Trump on December 27 reinstituted the Paycheck Protection Program (PPP), with significant changes. The act allows new borrowers to receive PPP loans and some existing borrowers to receive additional PPP funding. It also restores the tax deduction for expenses paid with PPP loan proceeds...