| Posted by James J. Moloney Topic(s): EU Regulation; Securities Regulation
On October 11, 2010, the French Parliament adopted the French Banking and Financial Regulation Statute (loi de regulation bancaire et financière).
The 100 page long Statute contains provisions significantly amending existing laws and regulations regarding, inter alia, (i) the activities and liabilities of credit rating agencies, (ii) short selling and naked short sales, (iii) temporary holding of shares before shareholders’ meetings, and (iv) mandatory takeovers.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): India Regulation; Securities Regulation
On September 1, 2010, a division bench of the Bombay High Court held that consensual preemptive arrangements between shareholders in a public listed company do not violate the principle of free transferability of shares enshrined in section 111A of the Indian Companies Act, 1956 (“Companies Act“). In its 103-page opinion in the case of Messer Holdings Limited v. Shyam Ruia (Appeal No. 855 of 2003), the High Court overruled its previous decision in the case of Western Maharashtra Development Corporation v. Bajaj Auto [2010] 154 CompCas 593 (Bom) where it had taken a contrary view.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Corporate Governance
On October 8, 2010, the Court of Chancery of Delaware issued an important opinion, Airgas, Inc. v. Air Products & Chemicals, Inc. (Del. Ch. Oct. 8, 2010), with significant implications for public corporations with staggered boards. The decision arose out of the ongoing takeover battle by Air Products for control of Airgas, Inc. At Airgas’s 2010 annual meeting, held last September 15, Air Products successfully obtained all three board seats that were up for election on Airgas’s nine-member staggered board. In addition, holders of 45.8% of the shares entitled to vote at the annual meeting approved a bylaw amendment, proposed by Air Products, which would cause Airgas’s annual meeting to be held each year in the month of January as opposed to August, when Airgas’s annual meetings had historically been held. Adoption of the proposed bylaw means that Airgas’s 2011 annual meeting will take place barely four months after Airgas’s 2010 annual meeting was held, and Air Products will have the opportunity to replace a majority of Airgas’s staggered board in the space of four months. Airgas filed suit and moved to declare the bylaw amendment invalid.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Corporate Governance; Dodd Frank; Say on Pay
Orange County of counsel David C. Lee and associate Brian D. O’Neill are the authors of "Dodd-Frank’s ‘Say-on-Pay’ Provisions" [PDF] published in the October 2010 issue of Insights.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Securities Regulation
On September 29, 2010, the SEC amended Regulation FD to remove the express exemption for disclosures of material non-public information to credit rating agencies (former Rule 100(b)(2)(iii) of Regulation FD), as required under Section 939B of the Dodd-Frank Act. This amendment became effective upon its publication in the Federal Register on October 4, 2010.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Corporate Governance; Proxy Access
The following provides an update on the litigation challenging the “proxy access” rules adopted by the Securities and Exchange Commission (“SEC” or “Commission”), and also discusses steps companies should consider during the pendency of the litigation. Our client alert dated August 25, 2010, available here, provided an overview of the proxy access rules.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Corporate Governance
New York partner Eduardo Gallardo and associate Sharon I. Grysman are the authors of "Delaware Court of Chancery Issues Important Poison Pill Opinion" [PDF] published in the October 2010 issue of Insights.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Investment Act/Investment Advisors Act; Securities Regulation
Investment advisers have a duty to disclose material conflicts of interest to clients. The more difficult question is: "how much disclosure is enough?" In a recent settled enforcement action, the SEC suggests that disclosure of material facts alone may not be sufficient, and that more explicit disclosure is needed when investment advice may result in additional compensation to the adviser. The case is Matter of Valentine Capital Asset Management.
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): Securities Regulation
London partner Dorothee Fischer-Appelt is the author of "Prospectus Directive amendments – discussion of key changes" [PDF] published in the September 2010 issue of Law and Financial Markets Review (pp. 490-498).
| Posted by Gibson, Dunn & Crutcher LLP Topic(s): FCPA; UK Regulation
In anticipation of the April 2011 implementation of the new UK Bribery Act 2010 (the “Act”),[1] on September 14, 2010, the UK Ministry of Justice launched an eight-week consultation regarding the Government’s proposed guidance to commercial organisations on the prevention of bribery. The consultation features the publication of draft guidance on the “adequate procedures” defence under the Act.