On February 19, 2020 the European Data Protection Board (“EDPB”) published its second statement on privacy in the context of corporate transactions.

The statement, the full text of which can be read here, highlights the existence of concerns related to the combination and accumulation of sensitive personal data and the possibility that such combinations could result in a high level of risk to the fundamental rights to privacy and the protection of personal data. Continue Reading EDPB Publishes Statement on Privacy Implications of M&A Transactions

On January 30, 2020, the Federal Reserve issued a highly-anticipated final rule amending its regulations governing when one company will be deemed to control another. The final rule will provide greater certainty and transparency by codifying and clarifying a number of principles for analyzing control that have never before been set out in a comprehensive fashion or in formal regulation.

The final rule will have significant implications for banking organizations as well as those structuring investments by or into banking organizations.

Please click here to read the full alert memorandum.

On February 18, 2020, the ECOFIN group included the Cayman Islands in the EU’s list of non-cooperative third country jurisdictions (the “EU Blacklist”). This action may (i) affect the tax treatment of income streams sourced in or flowing to the Cayman Islands; as well as (ii) trigger ad hoc reporting obligations.

In addition, because of the implications of the Cayman Islands’ demotion to the EU Blacklist in the various EU Member States and, in any event, given the expected reputational impact, it is possible that the Cayman Islands’ blacklisting may dissuade the use of Cayman Islands entities. If the Cayman Islands do not take measures to put an end to the blacklisting, the blacklisting may also encourage established businesses having material interactions with the European Union to assess the potential consequences of such blacklisting and to eventually consider moving to non-blacklisted jurisdictions. If the Cayman Islands take all the necessary measures to put an end to the blacklisting, they could be removed from the EU Blacklist in the next update which is expected in October 2020.

This note provides some background on the EU Blacklist, discusses the implication of the EU Blacklist inclusion and then takes a more in-depth look at the impact on some of the European major economies (France, Germany, Italy and the United Kingdom).

Please click here to read the full alert memorandum.

In recent years there has been a material reduction in the number of companies seeking admission to the Premium Segment of the London Stock Exchange. In addition, a number of market participants believe that high-growth tech companies are materially under-represented on the Premium Segment. In an article published in late 2019, the Financial Times indicated that, against this backdrop, the UK Government had recently consulted with the investment industry over potential changes to the UK Listing Rules designed to encourage high-growth companies to list on the Premium Segment. Most notably, this article indicated that the UK Government was considering the introduction of a regime to cater for the listing on the Premium Segment of companies with dual-class structures.

Please click here to read the full alert memorandum.

Last week the Securities and Exchange Commission Chair Clayton and Commissioners Lee and Peirce each issued statements on climate-related disclosures in SEC filings. The statements were prompted by the concurrent SEC’s proposal to amend the MD&A rules and evidence some debate within the SEC on this topic, which has attracted considerable recent attention among investors, companies and regulators. The outcome for companies is generally the status quo, as the SEC chose not to include specific requirements on climate change or other environmental, social and governance (ESG) disclosure in the amendments to MD&A it proposed last week.

To read the full alert memorandum, please click here.

Yesterday the Securities and Exchange Commission took two significant actions relating to the MD&A disclosures in annual and quarterly reports of public companies.

First, it proposed amendments to MD&A requirements that would, if adopted, make significant and long-overdue improvements to a central disclosure requirement of the U.S. securities laws. Second, it issued guidance on the presentation of performance metrics in MD&A, which will take effect immediately upon publication in the Federal Register.

For our memo on the proposed MD&A amendments, click here.

For our memo on the performance metrics guidance, click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2020”.

In 2020, businesses operating in the UK will need to grapple with the continued uncertainty caused by Brexit and will need to closely monitor a number of important corporate governance and reporting developments expected in the coming year.

To read the full post, please click here.

For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2020”.

The international tax system is continuing to experience a period of significant change, as taxing authorities across the globe are continuing to adopt and implement new rules and procedures to respond to the new economy and perceptions that taxpayers are arbitraging differences among jurisdictions.

We have seen increased enforcement, widespread changes in substantive laws and an increased focus on how to tax companies engaging in digital transactions, and we expect to see more of the same over 2020 and the next few years. While many of the new rules are intended to prevent deductions from being claimed in more than one jurisdiction and income from escaping taxation entirely, they may inadvertently result in taxpayers being subject to double taxation or whipsaw, particularly as the new rules are being adopted and implemented simultaneously and without coordination. Taxpayers will need to be vigilant, thorough and proactive to minimize their risks.

To read the full post, please click here.

For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2020”.

Antitrust in the United States

Antitrust attracted significant popular and political attention in 2019: State and federal enforcers launched investigations into “Big Tech” platforms; some enforcers and 2020 Democratic presidential candidates expressed increasingly aggressive visions for enforcement; and a federal judge subjected a US Department of Justice merger settlement to unprecedented scrutiny.

To read the full post, please click here.

For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2020”.

Corporate Purpose

On August 19, 2019, the Business Roundtable released its latest Statement on the Purpose of a Corporation, emphasizing commitment to all stakeholders.[1] The Statement received a lot of attention in the press and focused attention on a simmering, somewhat academic, debate regarding “shareholder primacy”—i.e., the idea that the most important purpose of a corporation is to increase shareholder value, which should supersede other considerations cited in the Statement such as “supporting the communities in which we work” or “investing in our employees.”

Since Milton Friedman’s advocacy of the idea in the early 1970s, it has been an article of faith in most of the business community that, as he put it, “there is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits.” Notably, there is reason to believe that many companies whose executives signed the Business Roundtable Statement did not do so on the basis of prior discussions with their boards.

To read the full post, please click here.

For a PDF of the full memorandum, please click here.