Tue, 14 May 2013 13:58:27 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert fafdf644-0ed6-4e0d-ba52-59952985af8b Tue, 14 May 2013 13:58:27 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Sustainability-Disclosure-Proxy-Exclusion-the-Impact-of-the-SECs-Decision-in-PNC-Financial 7341e58f-f79a-4b18-92e6-0dafd1d0db2a Wed, 10 Apr 2013 13:53:44 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Delaware-Chancery-Court-Rejects-Claim-That-Article-9-Sale-Was-Not-Conducted-in-a-Commercially-Reasonable-Manner a8d1ff44-0663-476d-a288-92ea54fd9d35 Wed, 03 Apr 2013 16:24:11 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Regulatory-Reform-of-the-UK-Financial-Services-Industry b552473a-c233-47ed-821e-d7611653190b Mon, 25 Mar 2013 14:49:57 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/UCC-Termination-Statements-Require-Authorization-To-Be-Effective 7fa05946-7d1f-4efe-a136-89f41dd59a1e Mon, 25 Mar 2013 17:13:11 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/SEC-Issues-Much-Needed-Guidance-on-Rule-15a-6-Regarding-Foreign-Broker-Dealers acd9e1e8-5c92-4f04-9ae1-aaf1733cd12e Fri, 15 Mar 2013 15:24:38 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/SEC-Sends-Message-to-Stop-Fundraising-by-Unregistered-Finders-comes-Down-Hard-on-Fund-Sponsor-and-Managing-Partner 9d44b203-41aa-4095-a857-0bd9638a2662 Fri, 08 Mar 2013 11:05:43 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/SEC-Issues-Risk-Alert-Regarding-Adviser-Examinations b047c5a0-4f01-4f5e-9800-3a7ddf6feefd Fri, 08 Feb 2013 17:44:04 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/DOL-Provides-ERISA-Fiduciary-Relief-to-FCMs-and-Clearing-Organizations-for-Certain-Swap-Transactions-with-ERISA-Plans ec82c3f3-6112-4b0b-a66b-565166db8611 Tue, 11 Dec 2012 09:09:34 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Absolute-Assignments-of-Rents-Are-Not-So-Absolute fe549dfc-6d37-41e0-801a-8cae2b9b2c7f Tue, 13 Nov 2012 16:43:22 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/MoneyGram-International-Inc-Settlement-of-Criminal-Charges-May-Have-Far-Reaching-Compliance-Implications-for-Anti-Money-Laundering-Violations e7d24549-e443-4ae0-88c7-e89d09c7c368 Thu, 08 Nov 2012 16:46:27 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Court-Invokes-FRE-502d-to-Permit-Intentional-Production-of-Privileged-Materials-Without-Waiver 87e10705-def3-4276-b2ad-64f1ca0a57e3 Wed, 12 Sep 2012 14:12:24 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Call-Premiums-in-Bankruptcy-Maturities-Finale-or-a-Case-of-Arrested-Development 397fc6db-6a49-4728-8c90-b061ad1a1ad4 Wed, 15 Aug 2012 10:38:56 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Criminal-Borrower-An-Innocent-Secured-Creditor-Need-Not-Worry-About-Losing-Its-Collateral-to-Government-Forfeiture fffc773a-9f16-4bdd-addf-0e0707db4939 Fri, 31 Aug 2012 15:54:10 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Ninth-Circuit-Limits-the-Use-of-Arbitration-Against-Debtors-in-Bankruptcy-Cases fdbe7bc6-45b6-46b9-8c16-319a396c2c44 Wed, 29 Aug 2012 09:32:57 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Sunbeam-Seventh-Circuit-Says-That-Rejection-in-Bankruptcy-Does-Not-Vaporize-a-Trademark-Licensees-Rights 0a331d28-d564-4c82-90f2-ef733af1b362 Fri, 08 Jun 2012 12:24:35 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Credit-Bid-Rights-of-Secured-Creditors-Protected-by-US-Supreme-Court 7e99d38d-6b85-4434-ba89-63d1739342e2 Wed, 25 Apr 2012 13:40:26 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Caution-Bankruptcy-Remote-Entities-Are-Not-Necessarily-Bankruptcy-Proof 0e3fd9d8-31eb-4a9e-8940-b4cd5a39735b Wed, 04 Apr 2012 10:57:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Proposed-Revisions-to-Interagency-Leveraged-Lending-Guidance 20ab11a0-9139-4fea-a05d-f50e5e64471f Wed, 14 Mar 2012 14:06:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/CFTC-Issues-Final-Rules-Regarding-Exemptions-Registration-and-Compliance-Obligations-for-CPOs-and-CTAs-of-Public-and-Private-Funds a823b1d2-209f-4ce6-ad9e-7b6f55b2c079 Thu, 08 Mar 2012 16:32:12 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Potential-for-Change-in-Anti-Money-Laundering-Laws-Regulations-New-FATF-Recommendations-FinCEN-Calls-for-Comments-on-Customer-Due-Diligence-Procedures 777c6dd8-d8cc-40ac-ac02-49d40c6bd8af Fri, 15 Jun 2012 11:13:39 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Second-Circuit-Weighs-in-Again-on-Class-Action-Waivers-in-Arbitration-Agreements 490b194b-ff05-4b02-ab67-f0075721f1d1 Tue, 27 Dec 2011 12:31:39 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Private-Plaintiffs-May-Assert-Common-Law-Claims-In-Securities-Related-Litigation-Under-New-York-Law f382b0b9-6fe2-49e7-960a-71206eafcf2c Wed, 28 Sep 2011 12:44:26 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Under-New-York-Law-A-Borrower-In-Distress-Is-Not-Necessarily-Under-Economic-Duress-1363541 3b32d482-2c99-42c8-b3c7-f77e904fcf2f Sun, 02 Oct 2011 23:06:04 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/New-SEC-Investment-Adviser-Regulations-What-Do-You-Need-To-Know 265fe287-fcbd-4399-8776-8a60f17f749e Wed, 15 Jun 2011 12:58:38 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Supreme-Court-Limits-the-Meaning-of-Making-a-Statement-Under-Rule-10b-5-of-the-Securities-Exchange-Act f764bf88-1d6c-42fe-85c6-6cc43cfaf3cd Sun, 02 Oct 2011 23:05:21 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/SEC-Proposes-Changes-to-the-Qualified-Client-Definition 64efbd2b-3959-4b8e-b290-f0cfc11f5e31 Wed, 18 May 2011 11:08:47 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Certificateholder-Does-Not-Have-Party-In-Interest-Standing-To-Be-Heard-On-Innkeepers-Bidding-Procedures-Motion 31b2beae-8be4-44a8-bfdb-4ff1ec98e0db Mon, 16 May 2011 13:27:58 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Second-Circuit-Declines-to-Impose-Securities-Act-Liability-Against-Rating-Agencies 6233a12e-abae-4803-bbe0-29cacc80a203 Tue, 12 Apr 2011 10:58:52 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Judge-Decides-Not-to-Pick-A-Fight-with-Pick-A-Payment 02e14f40-4419-45bc-b41c-ddd01c39dfae Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/UK-Financial-Services-Authority-decision-on-disclosure-of-future-contingent-consideration-by-listed-acquirors Market practice in acquisition announcements made by companies listed on the London Stock Exchange is that future contingent consideration obligations, and any cap that applies to them, are disclosed in the acquisition announcement. Estimates of liability pursuant to those obligations are sometimes disclosed – more often where the consideration relates to stock or other assets, and rarely where the consideration is an earn-out, to be calculated on the basis of future results of the target business. df93b97c-b5bd-4ddb-a80b-828dc7ab3a47 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/New-Expert-Discovery-Disclosure-Rules-Take-Effect-Dec-1-2010 190b8706-b7d5-4964-9769-7194a2c2c677 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/CFTC-and-SEC-Propose-New-Anti-Manipulation-Rules-for-Swaps-and-Security-Based-Swaps Title VII of the Dodd-Frank Act, known as the Wall Street Transparency and Accountability Act of 2010, amended the Commodity Exchange Act ("CEA") and the Securities Exchange Act of 1934 (the "Exchange Act") to create a new regulatory framework for swaps and security-based swaps. Under these revisions, Title VII expanded and clarified authority to prohibit manipulative behavior. To implement this authority, both the Commodity Futures Trading Commission ("CFTC") and the Securities Exchange Commission ("SEC") recently proposed new rules intended to proscribe and regulate fraud and manipulation for swaps and security-based swaps. 9d86eed8-915c-4758-999b-0f43c04c1ea2 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/In-Pari-Delicto-Continues-to-Curtail-Financial-Fraud-Suits-Against-Professional-Service-Firms-in-New-York New York's highest state court has ruled that the in pari delicto affirmative defense shielding accountants, lawyers, underwriters and other professional advisers from third party liability "remain[s] sound" and should be strictly applied. The Court made this ruling on October 21, 2010 in a sharply split decision, answering certified questions raised in two high profile financial fraud cases: Kirschner v. KPMG LLP ("Kirschner") and Teachers' Retirement System of Louisiana v. PricewaterhouseCoopers LLP ("Teachers"). The decision is at odds with recent rulings of the Supreme Courts of New Jersey and Pennsylvania that created additional exceptions to the defense. 32a94c62-bf66-44ed-adf0-7c8bacf29a5c Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Third-Circuit-Holds-Bankruptcy-Code-Overrides-Debtors-Contractual-Right-to-Unilaterally-Terminate-Retiree-Health-and-Benefit-Plans The United States Court of Appeals for the Third Circuit recently held that a chapter 11 debtor owing retiree health, life insurance, and other benefits must comply with the restrictions set out in section 1114 of the Bankruptcy Code before seeking to modify or terminate the retiree benefits during the bankruptcy case, even if the debtor had the unilateral right to terminate the benefits under the governing agreement. The decision in IUE-CWA v. Visteon Corporation (In re Visteon Corp.), No. 10-1944 (3d Cir. July 13, 2010), diverges from the majority of courts and creates a circuit split by disagreeing with the Second Circuit's holding in In re Chateaugay Corp., 945 F.2d 1205 (2d Cir. 1991), that the debtor's prepetition contractual rights trumped the section 1114 requirements. This landmark case may have significant ramifications to debtors with substantial retiree benefit obligations seeking to file for bankruptcy in the Third Circuit, ... 78ffdf57-9b33-45ed-a76f-97d94f791756 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Worldwide-Application-of-Automatic-Stay-in-Chapter-15-Is-Not-Necessarily-Automatic On August 23, 2010, the United States Bankruptcy Court for the Southern District of New York ruled on an issue of first impression under chapter 15 jurisprudence. The foreign representative of JSC BTA Bank ("BTA Bank") filed a motion for contempt and to stay arbitration proceedings against Banque International de Commerce - BRED Paris, succursale de Geneve, Switzerland ("BIC-BRED"). The motion sought to hold BIC-BRED in contempt for willful violation of the automatic stay that came into effect upon entry of the Court's order recognizing BTA Bank's reorganization proceedings in Kazakhstan. fafccd04-0aec-4c3c-97ab-2919347a3898 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/FINRA-Proposes-Registration-of-Operations-Personnel On May 26, 2010, FINRA proposed for comment new rules to require registration of certain "back-office" operations personnel, including examination and continuing education requirements.1 The rules would expand the universe of personnel requiring registration and impact firms in a number of significant ways. 92659b97-c5db-4b68-9d3a-715647fe71fb Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Third-Circuit-Affirms-Debtors-Right-To-Sell-Assets-Under-Plan-Without-Providing-Secured-Creditors-The-Right-To-Credit-Bid On March 22, 2010, the United States Court of Appeals for the Third Circuit held that a debtor is permitted to sell a secured lender's collateral free of its liens without allowing the lender to credit bid when the sale is pursuant to a chapter 11 plan of reorganization. In re Philadelphia Newspapers, LLC, 599 F.3d 298 (3d Cir. 2010). This decision undermines the settled expectations of secured lenders of their absolute right to credit bid their liens at a bankruptcy auction sale under a plan of reorganization. 8f7ea35e-690b-4a2e-a752-b70df452c315 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/New-York-Appellate-Court-Upholds-Noteholders-Right-to-Declare-a-Default-Based-Upon-Fall-in-Ratings-of-Financial-Guaranty-Insurance-Policy In a recent decision the Appellate Division, First Department upheld the right of a noteholder to declare a default under the applicable loan documents when the Moody's and S&P ratings of the issuers of certain financial guaranty insurance policies on underlying bonds representing security for the loan fell below the levels set forth in the loan documents. In Stonebridge Capital, LLC v. Nomura International PLC1, the court affirmed the lower court's decision dismissing the plaintiff's complaint for reformation and a declaratory judgment finding that the plaintiff's claims of scrivener's error and mutual mistake were unavailing since plaintiff failed to meet the heavy presumption that an executed document manifests the true intention of the parties. 9e4218c9-5ef2-4eec-b5e1-a6379f73e59a Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/New-York-Bankruptcy-Court-Expunges-Mortgage-After-Lender-is-Unable-to-Produce-Assignment A recent ruling by the United States Bankruptcy Court for the Southern District of New York underscores the importance of making sure that all of the t's are crossed and i's dotted when it comes to documenting the assignment of any mortgage. In In Re Paredes1, the Court took the drastic measure of expunging a lender's proof of claim after it was unable to prove that it owned the mortgage upon which its proof of claim was based. As demonstrated by the Court's ruling, failure to accurately and completely document an assignment of mortgage may have dire consequences for the assignee. f2a596f3-2937-45a4-a43c-af3db80d7712 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Ratings-Agencies-May-be-Held-Liable-for-Fraud-for-Misleading-Ratings In a recent decision, the United States District Court for the Southern District of New York, in Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., et al1 denied a motion to dismiss fraud claims brought by certain noteholders against Moody's and Standard & Poors ("Rating Agencies"), in connection with the defendants' ratings of certain mortgage and asset backed securities. Departing from the general rule, the Court rejected the Ratings Agencies assertion that liability based upon their ratings is prohibited under the First Amendment right to free speech. 7d34bff8-dd72-4dbb-b556-f137b7fc4b98 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Victory-For-The-Alternative-Energy-Industry Yesterday, the IRS issued a positive ruling for the wind energy industry that reverses a prior harsh position on alternative energy partnerships. a8c182ef-7bc9-4fa2-abe9-b2be69394b32 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Court-gives-New-Twist-to-Enforcement-of-Springing-Guaranty On August 11, 2009, the Appellate Division of the Superior Court of New Jersey affirmed the enforceability of a non-recourse carve-out provision relating to the lien of commercial real property by a second mortgage absent the first lender's prior written consent. CSFB 2001-CP-4 Princeton Park Corporate Center, LLC v. SB Rental I, LLC, Docket No. A-6307-07T2 (NJ App. Div. 2009). Note that the carve-out provision enforced by the Court rendered the subject loan full recourse to the borrower and guarantors and was not merely a claim, damage or loss carve-out. 34ccc03f-9194-4fa0-909b-c033932b528a Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/IRS-Guidance-on-Modifications-to-Commercial-Mortgage-Loans Treasury took final action to expand the types of permitted modifications allowed to be made to commercial loans held by a real estate mortgage investment conduit (REMIC) to include changes in collateral, guarantees, and credit enhancement of an obligation and changes to the recourse nature of an obligation. The final regulations incorporate comments submitted by the coalition in response to Notice 2007-17, in which the IRS and Treasury Department requested input on whether the present REMIC regulations should be amended to permit additional types of modifications incurred in connection with commercial mortgage loans. 9f9f92b0-e338-4ab5-9dd0-bbaba682afa7 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/The-Consumer-Financial-Protection-Agency The Department of Treasury has issued a White Paper detailing President Obama's "New Foundation" initiatives for regulatory reform in the financial services sector that proposes a new, independent regulatory agency known as the Consumer Financial Protection Agency ("CFPA"). The idea for a CFPA grows out of concerns about consumer financial losses in the credit card and mortgage industries but the proposal seeks "comprehensive reform" through heightened consumer protections and robust provider regulations for credit, savings, payment and other consumer financial products and services. The overall aim of the CFPA is to "instill a genuine culture of consumer protection" in the regulatory framework. 84416f83-b272-4b87-95e6-757bcad3832d Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/New-York-Courts-Compel-Third-Party-Garnishee-to-Bring-Debtor-s-Out-of-State-Assets-to-New-York-to-Satisfy-Judgment-Debt In a recent 4-3 decision, the New York State Court of Appeals (New York's highest court) issued an opinion that has the potential to significantly change the enforcement of judgments. In Koehler v. Bank of Bermuda Ltd.,1 the Court held that a New York court may order a foreign bank to deliver extraterritorial assets pledged by foreign judgment debtor as collateral for a loan, on the basis that the court has personal jurisdiction over the bank by virtue of the bank's New York branch. 2ca01fb5-94dc-4c25-befb-f1b03f7a5681 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Secured-Lenders-Beware-Overreaching-and-Predatory-Lending-Tactics-Can-Cause-Your-Claim-To-Be-Equitably-Subordinated-In-Bankruptcy A recent bankruptcy court decision highlights the risks of equitable subordination faced by lenders in bankruptcy. In Credit Suisse v. Official Comm. of Unsecured Creditors, et. al.,1 the Bankruptcy Court subordinated a $232 million secured claim, finding that Credit Suisse ("Lender") had engaged in a predatory lending practice by: (i) inducing a borrower to accept a loan that it did not need by allowing the borrower to disburse the majority of the loan proceeds for purposes unrelated to the borrower, and (ii) selling participations for loans where it had already earned its fees notwithstanding its failure to properly perform due diligence. 929dc798-03b8-4b44-b4bf-81f7aa539c72 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Federal-Court-Allows-Investor-s-Law-Suit-To-Proceed-Against-Hedge-Fund-For-Misrepresentations-Concerning-Redemption-Rights In a recent decision, a federal court has recognized the right of a hedge fund investor to proceed with a lawsuit in connection with misrepresentations made in writing by the fund's manager and president concerning the investor's right to redeem its investment in the fund. 06d8e3ef-2cef-420f-b652-4ea9bcb59a0e Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Proposed-Hedge-Fund-Legislation In two recent alerts, we summarized new legislation proposed in the Senate affecting hedge funds and and some of the concerns that have been raised. There is also hedge fund legislation that has been introduced in the House of Representatives. Specifically, on January 27, Representatives Michael Capuano, Democrat of Massachusetts and Michael Castle, Republican of Delaware sponsored H.R. 711, the Hedge Fund Adviser Registration Act of 2009 ("HFARA") "[t]o amend the Investment Advisers Act of 1940 to remove the registration exception for certain investment advisers with [fewer] than 15 clients." That same day, Representative Castle introduced a second bill, H.R. 713, the Hedge Fund Study Act ("HFSA") "[t]o require the President's Working Group on Financial Markets to conduct a study on the hedge fund industry." 11992a11-e136-4e03-ad2f-27765c158de4 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/UPDATE-Hedge-Fund-Transparency-Act-of-2009 On February 2, 2009, we issued a "Financial Services Alert" reporting on the Hedge Fund Transparency Act ("HFTA") introduced by Senators Grassley and Levin. As explained, the HFTA, if enacted, will require hedge funds and other private investment funds, such as private equity funds and venture capital funds, to register with the Securities and Exchange Commission as "investment companies" within the meaning of the Investment Company Act of 1940. d58a6aca-a0da-444c-97ea-1a632e448fef Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Hedge-Fund-Transparency-Act-of-2009 7a3c9cad-52ac-413c-8361-8f3838ca5526 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Don-t-Wait-for-the-Federal-Rescue-Program-or-Bailout-Auto-Suppliers-and-Servicers-Should-Take-Steps-Now-to-Shore-Up-Credit-Risks-and-Bankruptcy-Exposure Over the last few weeks, the halls of Congress have been flooded with representatives of GM, Chrysler, Ford, auto dealers, auto industry suppliers, and mayors from the nation's largest cities, all seeking part of the billions of dollars that Congress is likely to spend on the rescue package for the auto industry. Although Congress appears poised to enact a short-term, condition-laden bailout for the auto industry, companies doing business with the auto industry should not breathe a sigh of relief. Instead, industry participants should view any bailout as a window of opportunity in which to implement changes to help further mitigate credit and bankruptcy risks. 32fd4ff5-58ea-40a9-abd3-feb655cb5abd Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Managing-Your-Investment-Losses-in-a-Tax-Efficient-Way America is awash with investment losses this year. One way to alleviate the pain is to share the losses with the U.S. Treasury. The easiest method to accomplish this is by selling loss assets, and taking a tax loss. There are limitations on how much and what type of losses you can take, depending on whether you are an individual, or a corporation, and whether you are a dealer, a trader or an investor, amongst other things. But even once you have sorted out those questions, there is the (not insurmountable) hurdle of the wash sale rules. 7ffc2c24-631f-48dc-a5a2-2421b0091995 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Who-Will-Bailout-the-Bailoutters-An-Overview-of-the-Unique-Legal-Risks-Facing-Treasurys-New-Asset-Managers-and-their-Subcontractors On October 3, 2008, Congress passed and President Bush signed into law the Emergency Economic Stabilization Act of 2008 (EESA).1 Pursuant to the authority granted to it under the EESA, the Department of the Treasury (Treasury) is now in the early stages of implementing the sweeping Troubled Asset Relief Program (TARP).2 This authority includes the power to enter into agreements with private sector financial institutions to serve as asset managers for the portfolio of troubled assets that Treasury will purchase under the EESA. c6eea4c3-8abe-4ffd-b962-4b91300cf4d5 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Hedge-Fund-Deferred-Compensation-Targeted-in-Bailout-Bill The 700 billion dollar bailout bill, formally called "The Emergency Economic Stabilization Act of 2008,", signed into law last week contains a tax provision that will dramatically affect hedge fund fee deferral arrangements. Hedge fund managers often elect to defer performance and/or management fees earned from an offshore hedge fund for a set period of time, typically 5 or 10 years. During that time compensation earned is reinvested in the offshore fund on behalf of the fund manager. Under this type of arrangement, the compensation grows on a tax-deferred basis, with no taxes due until the amount is paid to the manager at the end of the term. dd27e656-d19c-49c1-a50c-b27615cc3ca1 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Notice-2008-91-The-Internal-Revenue-Service-Moves-to-Facilitate-Liquidity The unprecedented events of the past few weeks have resulted in numerous efforts to ease the credit crisis crippling the U.S. credit markets and the broader global economy. Domestically, the President, Congress, the Federal Reserve, banking officials, private industry and various regulators have all been involved in attempts to bolster the credit markets; as the crisis has spread, foreign counterparts have joined in the stabilization attempts as well. With its release of Notice 2008-91, the Internal Revenue Service (IRS) joins the ranks of those promoting liquidity in the credit markets. 87cba2ab-347b-4603-80b9-3090d21b5a74 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Tax-Notice-Drives-Wachovia-Takeover-Turmoil On September 29, in a deal orchestrated by federal regulators, Citigroup Inc. ("Citigroup") agreed to purchase ailing Wachovia for approximately 2 billion dollars. On October 3, Wells Fargo & Co. ("Wells Fargo") announced an agreement to acquire Wachovia for approximately 15 billion dollars. The substitution of Wells Fargo for Citibank after the original deal was announced, combined with the dramatic increase in acquisition price, stunned observers and has Citigroup scrambling to block the new agreement. 6cafb2f1-6f03-4f2e-95e8-e5b2a6d62a1e Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Lenders-and-Servicers-Beware-Court-Imposes-Duty-Upon-Lenders-and-Servicers-To-Accurately-Disclose-Status-With-Respect-To-Loan In today's financial markets, creditors purchase and sell notes and mortgages frequently with the documentation of the transfers often recorded, even executed, at a later time. A recent decision by the United States Bankruptcy Court for the District of Massachusetts imposes a duty upon a lender and servicer to know and properly disclose the status of its mortgage that it holds or services, or suffer the consequences. In Nosek v. Ameriquest Mortgage Co. (In re Nosek), 386 B.R. 374 (Bankr. D. Mass. 2008), the court entered an order to show cause why sanctions should not be imposed on the lender that originated the Chapter 13 debtor's mortgage loan, its attorneys and current holder of the loan, based on misrepresentations made by the original lender as to its status as holder of the note and mortgage. 883e552c-e132-4df5-80c1-a244a3e8e6a7 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Oil-Speculation-Tax-Proposal A discussion staff draft of an "Oil Speculation Tax Proposal" was introduced on July 31, 2008 by Senators Grassley (R-Iowa) and Wyden (D-Ore.) that will dramatically affect the taxation of oil, natural gas and related commodities. The Senators are currently soliciting comments on the draft proposal from third parties prior to its final introduction as a Senate bill. This far reaching bill defines oil, gas and related commodities very broadly and treats any gain or loss received upon their sale or exchange as short term capital gain or loss. It also taxes tax-exempt entities on their oil and natural gas commodity investments. Understanding the force behind this proposal is key to understanding the legislation itself. 081ab631-a357-4527-9b6f-f482896a0350 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Highlights-Of-Housing-Bailout-Bill In an effort to curtail the housing and sub-prime mortgage crisis sweeping the U.S., President Bush today signed into law the American Housing Rescue and Foreclosure Prevention Act of 2008 (H.R. 322) (the "Housing Bill"). The Housing Bill, which is widely regarded as the most significant housing legislation to pass in decades, would provide various forms of assistance to troubled homeowners and first time home buyers along with troubled mortgage companies Fannie Mae and Freddie Mac. 1e69cb82-5da5-4b0c-a911-a9013ec8e85e Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Supreme-Court-Decision-Ends-Practice-of-Applying-Section-1146as-Exemption-for-Stamp-and-Transfer-Taxes-to-Pre-Confirmation-Asset-Sales One of the "practical realities" of Chapter 11 proceedings is that asset sales often occur before the plan confirmation process begins. Many participants in the distressed debt market seek to capitalize on pre-confirmation asset sales. Although there are many factors driving value in such opportunities, one benefit has been that some courts (depending on the jurisdiction) find such sales exempt from stamp and similar transfer taxes pursuant to Section 1146(a) (which was Section 1146(c) before BAPCPA was enacted in 2005) of the Bankruptcy Code. ec40cc64-fc2d-48ab-8953-405c59436986 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Company-in-Financial-Trouble-Officers-Beware In these increasingly financially troubled times, it is important to remember that Bankruptcy Courts, trustees and creditors' committees may investigate the pre-bankruptcy acts and omissions of officers and directors. A recent decision by the U.S. Bankruptcy Court for the District of Delaware highlights the need for all corporate officers, including general counsel, to remain vigilant as to the conduct of their fellow officers. 18d5711b-a87f-45a0-b5dd-52cd8c514f27 Wed, 22 Aug 2012 16:12:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/IRS-Designates-Distressed-Asset-Trusts-as-Listed-Transactions The IRS has just published a Notice designating Distressed Asset Trust (DAT) transactions as "listed transactions" under the Federal income tax laws. The IRS only lists transactions that it considers to be abusive tax shelters. 8024b4c4-8892-475b-991f-5516d685f9b0 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Update-on-Unavailability-of-US-Bankruptcy-Relief-for-Some-Offshore-Hedge-Funds On January 16, 2008, two developments took place regarding the recognition of foreign insolvency proceedings in U.S. Bankruptcy Courts under Chapter 15. First, Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York heard oral argument in the appeal of Judge Burton R. Lifland’s Amended Decision and Order Denying Recognition of Foreign Proceeding in In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., et al., Bankr. Case Nos. 07-12383 and 07-12384, Dist. Case Nos. 1:07-cv-08730 and 1:07-cv-08746. 7ce438fa-d3aa-4a3f-8469-af02538c1cb3 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Entitlement-to-Attorneys-Fees-in-Bankruptcy-by-Unsecured-Creditors-Remains-Uncertain Earlier this year, the U.S. Supreme Court addressed the issue of the collection of attorneys’ fees in bankruptcy by unsecured creditors. In Travelers Cas. & Sur. Co. of America v. Pacific Gas & Elec., --- U.S. ---, 127 S.Ct. 1199 (2007), the Supreme Court struck down the so-called “Fobian Rule” of the Ninth Circuit and held that a creditor was not precluded from filing an unsecured claim for contractual attorneys’ fees merely by virtue of the fact that the fees sought had been incurred in litigating issues of federal bankruptcy law. Unfortunately, because the argument was not presented or considered below, the Supreme Court declined to resolve a split in authority over whether Section 506(b) of the Bankruptcy Court applied to prohibit all unsecured creditors with contractual rights to collect attorneys’ fees and costs. As a result, indenture trustees and other unsecured creditors with contractual rights to collect attorneys’ fees ... 541f79b5-a3f7-4582-8a76-b8c4cc76f1b5 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Ohio-Federal-Court-Fires-Warning-Shots-At-Mortgage-Pool-Investors-Who-Rush-To-Foreclose-Without-Adequate-Pre-Foreclosure-Legal-Due-Diligence Over the last several years, collateralized debt and loan obligations (CDOs and CLOs) and other structured investment vehicles (SIVs), such as REMICs, have re-emerged as the fastest growing sector of the asset-backed mortgage securities market. After closing, lenders pool their mortgages as part of a securitization in the secondary market, thereby transferring title to the mortgages to a trustee as the new holder of the loan documents. These structures can be quite complex if the note obligations secured by the mortgages are sliced into several tranches, which result in multiple certificate holders. cd52c3f8-14dd-4a71-ac3a-c9e5102c98a7 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Trouble-Averted-Seventh-Circuit-Court-Upholds-Yield-Maintenance-Provision The U.S. Court of Appeals for the Seventh Circuit restored the efficacy of a common lender protection when it determined that a yield maintenance prepayment clause was enforceable under Illinois law. The Seventh Circuit’s opinion, River East Plaza, L.L.C. v. The Variable Annuity Life Co., ___ F.3d ___, 2007 WL 2377383 (7th Cir. Aug. 22, 2007), reversed a decision made last fall by the U.S. District Court for the Northern District of Illinois, which struck a standard yield maintenance clause as an unenforceable penalty. SeeRiver East Plaza LLC v. The Variable Annuity Life Company, No. 03 C 4354, 2006 WL 2787482 (N.D. Ill. Sept. 22, 2006). 1ec0b070-d20b-4db5-b6f3-107acdf8627e Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/US-Bankruptcy-Relief-Blocked-For-Some-Offshore-Hedge-Funds Following the well-publicized subprime mortgage crisis, a few hedge funds were unable to satisfy margin calls flowing from the devaluation of their asset portfolios. As a result, these funds sought relief under foreign insolvency laws and then their liquidators filed Chapter 15 petitions for relief in U.S. Bankruptcy Courts. The relatively new criteria under Chapter 15 was enacted in 2005 and implemented the Model Law on Cross-Border Insolvency. Chapter 15 is the mechanism for recognizing foreign insolvency proceedings and is being tested in the cases of the collapsed hedge funds. 8483dd09-b246-4c3a-8586-a2a8ab27e586 Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Trouble-Ahead-Seventh-Circuit-Court-Reviewing-Yield-Maintenance-Provisions Earlier this year, the U.S. Court of Appeals for the Seventh Circuit heard argument on an appeal of a decision by the U.S. District Court for the Northern District of Illinois, which struck a standard yield maintenance clause as an unenforceable penalty. The pending case is a foreboding example of the litigation likely to arise during the next round of bankruptcies and restructurings. 517b7bbd-5381-4d5d-902a-82696412100e Fri, 08 Apr 2011 17:37:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/Financial-Services-Alert/Court-Tells-Agency-To-Address-Illicit-Advantage-In-Recompetition