S&C Critical Insights

A Discussion of Recent Internal Revenue Service Guidance

In this episode of S&C’s Critical Insights, Isaac Wheeler and Davis Wang, Co-Heads of S&C’s Tax Group, discuss the IRS’s year-end guidance in areas including the scope of the stock buyback tax and the Foreign Investment in Real Property Tax Act (FIRPTA). 

Isaac and Davis start off by discussing Internal Revenue Code Section 4501, commonly referred to as the one percent buyback tax, which is intended to encourage corporations to reinvest excess cash in their operations rather than buy back stock.  The IRS clarified that some transactions will not be considered buybacks, such as corporate liquidations for many SPACs, while redemptions of preferred stock do appear to be subject to the tax.

On FIRPTA, they discussed guidance to determine in if an entity qualifies for an exemption from U.S. real property holding company status, including whether the IRS will look through partnerships and certain corporations.

ESG Considerations for Financial Institutions

In this episode of S&C’s Critical Insights, Michelle Chen, a partner in S&C’s Financial Services Group, and June Hu, an associate in the Firm’s General Practice Group, discuss key ESG considerations for U.S. financial institutions in 2023.

Michelle and June recap recent ESG-related legal and regulatory developments in the banking, asset management and insurance sectors. The OCC, FDIC and the Federal Reserve proposed principles for climate-related financial risk management for large financial institutions, and the federal banking regulators plan to work together to issue consistent interagency guidance. State-level regulators, including the New York Department of Financial Services, are beginning to propose climate-related guidance which is intended to align with the work of federal and international banking regulators.

A key development in 2022 was the SEC’s proposal of climate disclosure rules. Michelle and June discuss the impact that the proposed rules may have on financial institutions, as well as the impact of overlapping ESG-related requirements from lawmakers abroad, including in the United Kingdom and the European Union.

Michelle and June also examine other ESG challenges that financial institutions may face, including “anti-ESG” scrutiny around climate targets and memberships in net-zero alliances, increased regulatory enforcement and litigation risk related to ESG and the potential impact of the Supreme Court’s decision last year in West Virginia v. EPA on U.S. federal agencies’ ability to regulate ESG activities.

Update on Recent Whistleblower Enforcement in the U.S.

In this episode of S&C’s Critical Insights, Annie Ostrager, a Co-Head of S&C’s Labor & Employment Group, and Kamil Shields, a member of the Firm’s Criminal Defense & Investigations Group, provide an update on recent developments in whistleblower enforcement in the United States under the False Claims Act (“FCA”).

Annie and Kamil discuss recent Department of Justice enforcement activity involving whistleblowers under the FCA’s qui tam provision, which permits private citizens with knowledge of fraud to sue on behalf of the government. In particular, several of the matters involved the healthcare industry, underscoring that this an active area for qui tam litigation and enforcement actions.

In addition, Annie and Kamil discuss several qui tam cases currently pending before the U.S. Supreme Court. One of those cases, United States, ex rel. Jesse Polansky v. Executive Health Resources, Inc., addresses the issue of whether the government has the authority to dismiss a FCA suit after declining to proceed with the action. The Supreme Court will also hear argument on two consolidated cases from the Seventh Circuit regarding the applicable standard for scienter under the FCA.  The Supreme Court’s decisions in these cases will be of critical importance for FCA whistleblowers and entities contracting with the government more broadly.

Recent Developments in Private Securities Litigation

In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, review recent private securities litigation trends.

Steve, Jeff and Julia discuss numerical trends in private securities litigation. Although such litigation has slowed overall, certain types of lawsuits, including those with ESG and SPAC-related claims, have increased. The episode also explores recent court rulings from the Second Circuit, the Ninth Circuit and the California Court of Appeal with significant implications for securities litigation, as well as noteworthy developments in cryptocurrency-related filings.

For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.

Review of 2022 U.S. Shareholder Activism and a Look Ahead

In this episode of S&C’s Critical Insights, Melissa Sawyer, Lauren Boehmke and Susan Lindsay analyze trends and developments in shareholder activism and activist settlement agreements over the past year. They also highlight a few factors that are likely to shape activism throughout 2023.

 

Among the topics discussed, the group examined the record-breaking activist campaign activity in the first quarter of 2022, which persisted despite the continued market volatility and macroeconomic uncertainty that dampened activity levels in 2020 and 2021. Additionally, they explored how the nature of campaigns shifted in 2022, with a greater focus on corporate strategies and operations and a reduced focus on capital allocation and M&A.

 

Companies have shown greater resistance to activist demands, they noted, by adopting shareholder rights plans and settling with activists more slowly. This led to decreased success in activists obtaining board seats compared to recent years.

 

They explained that shareholder activism activity in 2023 is expected to be impacted by a variety of factors, including new and proposed policies for institutional investors, new universal proxy rules, the DOJ’s enhanced scrutiny of interlocking directorates under Section 8 of the Clayton Act, upcoming implementation of the Inflation Reduction Act and the potential adoption of the SEC’s proposed rules on share buybacks and amendments to Schedule 13D.

For more information about this topic, read S&C’s review of 2022 U.S. Shareholder Activism and Activist Settlement Agreements.

Recent Developments in SEC Enforcement

In this episode of S&C’s Critical Insights, Steve Peikin, who leads S&C’s Securities & Commodities Investigations Practice, and Jeff Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss the priorities of the Securities and Exchange Commission’s Enforcement Division and enforcement trends.

 

Steve, Jeff and Julia discuss the SEC’s enforcement and regulatory activity relating to ESG disclosures, digital assets and SPACs. They also highlight the SEC’s focus on insider trading, market manipulation and recordkeeping. The episode concludes with a review of court challenges to the SEC’s enforcement powers.

 

For an in-depth discussion of these topics, read S&C’s Securities Enforcement and Litigation Update.

2022 Headwinds in M&A and Outlook for 2023

In this episode of S&C’s Critical Insights, Senior M&A Partner Frank Aquila and Global Head of M&A Melissa Sawyer discuss major takeaways from M&A in 2022 and potential developments for 2023.

 

Following a record-setting year in 2021, a numbers of factors at the beginning of 2022, including soaring inflation, rising interest rates and geopolitical events, such as Russia’s invasion of Ukraine and the deterioration of U.S.-China relations, led to some of the slowest quarters in M&A globally since the onset of the pandemic.

 

The regulatory landscape for mergers has also shifted, both in the United States and globally, with the Federal Trade Commission and U.S. Department of Justice under the Biden administration taking a more aggressive approach to antitrust enforcement, especially in the labor, agriculture, healthcare and tech sectors. Despite the agencies’ willingness to bring enforcement actions and litigation against proposed mergers, judges have frequently relied upon existing precedent to rule in favor of merging companies.

 

De-SPAC transactions have seen increased focus as well, both from regulators and litigants, resulting in the demise of SPACs throughout last year, which is expected to continue into 2023 and beyond.

 

Despite a general slowdown, several factors may lead to an uptick in activity in the first quarter of 2023, such as the strength of the U.S. dollar, a continued push for M&A activity by activists in the United States and abroad, the death of potential antitrust bills in Congress and the shift to more realistic projections from potential target companies, which make it more likely for buyers to make attractive offers.

U.S. Tax Outlook Post-Midterms

In this episode of S&C’s Critical Insights, Tax Group co-heads Isaac Wheeler and Davis Wang welcome the Firm’s Government Affairs Specialist, Tom Mullins, to discuss anticipated developments in U.S. tax policy following the midterm elections.

 

With Democrats and Republicans narrowly controlling the Senate and House, respectively, it is unlikely that the United States will see significant standalone tax policy passed in the next two years. However, progress is possible on a few fronts, including the Extenders Bill, which would extend expiring deadlines for a range of tax legislation, and the Secure 2.0 Act, which will give part-time workers better access to retirement benefits and increase the age when required minimum distributions must start. Some tax legislation could also become law by being included in a must-pass bill, such as the National Defense Authorization Act.

 

Most likely, changes to tax policy will occur at the Treasury- or IRS-level rather than through Congressional action, although political dynamics and other factors could slow policymaking in those arenas as well.

 

They also discuss how the new balance of power in Congress could make it more difficult for the United States to align with global tax initiatives, such as the Organisation for Economic Co-operation and Development’s Pillar II proposals for a global minimum corporate tax.

Impact of Macro-Economic Environment on Cross-Border M&A

In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by Carsten Berrar, the Managing Partner of the Firm’s Frankfurt office, and Olivier de Vilmorin, the Head of the Firm’s European M&A practice, to discuss cross-border M&A transactions in the current economic environment.

 

Carsten and Olivier discuss some of the macro-economic trends impacting the European market, including the energy supply crisis, inflation, recession as well as transformational issues, such as the mobility car industry. Additionally, heightened Antitrust scrutiny and an increased relevance of Foreign Direct Investment (FDI) Screening add to deal complexity and have reduced the pace of M&A transactions significantly. Despite these factors, a significant number of deals have been struck in the energy, infrastructure and cybersecurity sectors in Europe.  Cautiously optimistic, Carsten and Olivier expect a significant number of P2P, carve-out and distressed M&A transactions in the coming months. Moreover, China’s softening of pandemic restrictions and the slowdown of inflation in the United States have had a positive impact on the European markets and could provide a boost for M&A deals.

 

Melissa provides a U.S. perspective of the market for cross-border transactions into Europe. She points out that this is a great time for U.S. acquirers to be thinking about making investments in Europe as the market is less competitive than in recent years.

Developing a Robust Multi-National Compliance Program

In this episode of S&C’s Critical Insights, Litigation partners Brendan Cullen and Tony Lewis provide an update and some key takeaways for building and sustaining an effective compliance program in light of recent remarks from Department of Justice officials, including September comments by Deputy Attorney General Lisa Monaco.

 

Brendan and Tony build on their previous podcasts from 2020 and 2021 and discuss the agency’s enforcement priorities and its newest compliance expectations. These developments come at a time when U.S. enforcement agencies appear to be increasingly focused on corporate compliance. 

 

Topics include the DOJ’s focus on data analytics in testing the effectiveness of a company’s compliance function and culture, using compensation systems to provide incentives or disciplinary measures to improve compliance, and on companies’ use of electronic messages on personal devices.

 

For more information about compliance programs, read Brendan and Tony’s chapter in the Latin Lawyer Guide to Corporate Compliance, “Developing a Robust Compliance Programme in Latin America.”