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The D.C. Circuit has dismissed for lack of jurisdiction the case brought by the American Petroleum Institute and others against the SEC rules requiring certain companies to disclose payments made to foreign governments relating to the commercial development of oil, natural gas or minerals.  The case will now be decided in the U.S. District Court for the District of Columbia, where the petitioners had also filed suit "out of an abundance of caution.” 
7 years 4 months ago
With over 50 S&P 500 meetings scheduled for this week, the proxy season begins in earnest.  Similar to last year, the Wells Fargo meeting on Tuesday appears to be one of the first targets of protestors. Reports indicate that while many proclaimed their grievances outside, the meeting was disrupted by dozens who had to be removed, in particular one individual who tried to make a citizen’s arrest of the CEO. The demonstrators complained about the bank’s consumer lending and mortgage practices.
7 years 4 months ago
The NYSE has removed its proposed rule filing to the SEC to eliminate its separate voting standard for matters requiring shareholder approval from its website, which we had previously discussed here. 
7 years 4 months ago
Here at Shenwick & Associates, we often get questions from clients if they may transfer a house or an apartment from one spouse to the other after being sued or prior to a bankruptcy filing. In In re Panepinto, Case No. 12-11230K (Bankr. W.D.N.Y., Feb. 25, 2013), an upstate Bankruptcy Court considered this question and held that such a transfer could be a fraudulent conveyance and set aside. In this case, in 2008 a judgment creditor was seeking to collect on a debt owed by Mrs. Panepinto, an insolvent who owned a house with no mortgages or other liens encumbering the property. So, to thwart her judgment creditor, she transferred the house to her husband with no consideration for the transfer. Last year, Mrs. Panepinto filed for Chapter 13 bankruptcy, and her judgment creditor sought to set aside the transfer as a fraudulent conveyance under New York Debtor and Creditor Law §273. The Bankruptcy Court sustained the judgment creditor's challenge to the transfer. The lesson is that before transferring ownership in property, a debtor should seek advice from an experienced bankruptcy attorney, such as Jim Shenwick.

Read More from: Shenwick & Associates

7 years 5 months ago
Perhaps owing to more controversy than expected, the SEC has filed a notice to solicit additional comments on Nasdaq's proposal to require that listed companies establish and maintain an internal audit function. The Commission had until April 22 to approve or disapprove the proposal, but has delayed that decision until June 6 in order to consider the 38 comments that were received and seek more comments.
7 years 5 months ago
Following up on our earlier report, yet another group is determined to require public companies to disclose sustainability issues in SEC filings. The Sustainability Accounting Standards Board (SASB) held a conference recently to discuss its standard-setting process.
7 years 5 months ago
Our colleagues in the Employment and Labor Practice Group at Thompson & Knight have launched a new blog called "Best Little Employment Blog in Texas: Employment-Law News and Views You Can Use."  As a follower of The Insolvency Blog, you may find this useful. The blog will feature timely news, advice, and tips for employers along with analysis of developments in employment law, with an emphasis on federal and Texas law. Plus, as the title of the blog suggests, there will be occasional offbeat or irreverent commentary on the amazing intersection of law and the workplace. Follow this link to view the blog and to sign up to receive updates by email.
7 years 5 months ago
Our colleagues in the Employment and Labor Practice Group at Thompson & Knight have launched a new blog called "Best Little Employment Blog in Texas: Employment-Law News and Views You Can Use."  As a follower of The Insolvency Blog, you may find this useful. The blog will feature timely news, advice, and tips for employers along with analysis of developments in employment law, with an emphasis on federal and Texas law. Plus, as the title of the blog suggests, there will be occasional offbeat or irreverent commentary on the amazing intersection of law and the workplace. Follow this link to view the blog and to sign up to receive updates by email.
7 years 5 months ago
Companies seeking approval of equity compensation plans as required under NYSE rules have often struggled to understand, and describe in proxy statements, the application of the NYSE voting standard alongside the state law provisions, for determining approval of the plan. The NYSE has now proposed to eliminate its own separate voting standard.
7 years 5 months ago
In some parts of the country, a recovering local economy means the special asset (or problem loan) groups are reducing staff, as loan production groups come back to life.  Leaving the special asset group under-staffed could be a mistake if the staff is not able to properly complete basic foreclosure tasks.  One basic task is inspecting the property prior to taking title to the property (whether through foreclosure or a deed in lieu of foreclosure [FAQ series for information on deeds in lieu]).  Here’s a decision tree that might help you in deciding if an inspection “really” is needed, and a recent example that should energize you to look before you leap (into ownership of the collateral).   Decision tree: verify that your mortgage loan documents give you the right to enter the property, then
  • Current Inspection Report: ask yourself this question: “when was the last time that someone looked at every part of the property?” If the answer is “more than a few months” then a current inspection should be a priority

Read More from: Tough Times for Lenders

7 years 5 months ago
Recent controversy surrounding Hewlett-Packard’s board elections have put the spotlight on referendums for directors, with the New York Times alone running three stories on the subject over two weeks. The first article complained about the difficulty of removing directors after HP’s board members all received majority support even in the face of several active and well-publicized “vote no” campaigns.
7 years 5 months ago
It happened again this week. The client comes into the consultation smiling broadly. He just needs help with a loan modification, he argues. He doesn't have any other debts. "Look," he says, pointing at his credit report, "it's been charged off!" Sorry, that's not what it means. A "charge off" is an accounting entry by the lender declaring that the debt is uncollectible, a determination that helps the lender deduct it as a loss against his taxes. The "charged-off" account is still a live debt of the borrower until such time as the statute of limitations runs out and that can vary from three to seven years and depends also on the type of debt. In this area -- Maryland, Virginia and the District of Columbia -- you will need to check the law in the jurisdiction in which you reside. So, remember, you are still "on the hook." In fact, many of these debts are sold to debt investors at a large discount, such as Portfolio Recovery Services, Midland Funding, Portfolio Recovery, or LVNV Funding who make it a business to recover on this stuff via lawsuits and other means. Also, it may be more harmful on your credit report as a "charge off" than actually eliminating all legal liability and having it read "discharged in bankruptcy."
7 years 5 months ago
It happened again this week. The client comes into the consultation smiling broadly. He just needs help with a loan modification, he argues. He doesn't have any other debts. "Look," he says, pointing at his credit report, "it's been charged off!" Sorry, that's not what it means. A "charge off" is an accounting entry by the lender declaring that the debt is uncollectible, a determination that helps the lender deduct it as a loss against his taxes. The "charged-off" account is still a live debt of the borrower until such time as the statute of limitations runs out and that can vary from three to seven years and depends also on the type of debt. In this area -- Maryland, Virginia and the District of Columbia -- you will need to check the law in the jurisdiction in which you reside. So, remember, you are still "on the hook." In fact, many of these debts are sold to debt investors at a large discount, such as Portfolio Recovery Services, Midland Funding, Portfolio Recovery, or LVNV Funding who make it a business to recover on this stuff via lawsuits and other means. Also, it may be more harmful on your credit report as a "charge off" than actually eliminating all legal liability and having it read "discharged in bankruptcy."
7 years 5 months ago
Directed by Ceres, the Investor Network on Climate Risk (INCR) has published a consultation paper (free registration required) with recommendations for integrating sustainability disclosure requirements into listing rules.
7 years 5 months ago
As companies prepare for annual meetings, they should consider in advance their preferred approach if the proponent or a designated representative does not attend the meeting to properly present the shareholder proposal that it submitted. 
7 years 5 months ago
Despite the image and stigma associated with bankruptcy, financial reorganization of failing businesses (and nonprofit organizations) through Chapter 11 bankruptcy is actually helping the economy by giving companies a chance to find new financing, reject onerous contracts, renegotiate leases, and expedite the sale of assets. Harvard Business School recently published an article reviewing comments made by Stuart C. Gilson, a Harvard business professor and advocate of Chapter 11 bankruptcies in his new book, "Creating Value Through Corporate Restructuring: Case Studies in Bankruptcies, Buyouts, and Breakups." Gilson believes that the first step is getting the public to realize that Chapter 11 is not about "dying companies," but about "reviving" them.
7 years 5 months ago
Despite the image and stigma associated with bankruptcy, financial reorganization of failing businesses (and nonprofit organizations) through Chapter 11 bankruptcy is actually helping the economy by giving companies a chance to find new financing, reject onerous contracts, renegotiate leases, and expedite the sale of assets. Harvard Business School recently published an article reviewing comments made by Stuart C. Gilson, a Harvard business professor and advocate of Chapter 11 bankruptcies in his new book, "Creating Value Through Corporate Restructuring: Case Studies in Bankruptcies, Buyouts, and Breakups." Gilson believes that the first step is getting the public to realize that Chapter 11 is not about "dying companies," but about "reviving" them.
7 years 5 months ago
When the SEC began an investigation of whether a Facebook post by the Netflix CEO violated Regulation FD, companies became alarmed that it represented the regulator's views that social media should not be used to disclose important information to the market.
7 years 5 months ago
Glass Lewis is often criticized for its lack of transparency, which is wanting even by the standards of proxy advisory firms. It does not provide companies with a free copy of its own voting report, which can lead companies to be completely unaware of Glass Lewis negative recommendations and confused about the cause of a downturn in votes, never mind giving draft copies in advance to the S&P 500 companies like their rival ISS.
7 years 5 months ago
Most commercial real estate loan documents give meaning to the phrase “real estate is old as dirt.”  Why? Because just as dirt doesn’t change, commercial mortgage loan documents largely ignore the impact of technology on the physical attributes, use and operations of the property.   Take another look at your mortgage loan forms with these questions in mind, and ask yourself if the forms are “as old as dirt.” My bet is that you won’t like the answers to the question.  (Yes, it’s even embarrassing.) Do your mortgage loan documents cover:
  • third party (or “cloud”) documents storage?
  • require lender consent to any use of electronic (eSign) documents with tenants and vendors?
  • address use or surrender of internet or social media tools (such as websites, Facebook, etc.) upon a loan default?
  • turnover of hardware and data used in the operation of the property?
  • due diligence (check list items) on technology contracts used in the operations, marketing or leasing of the property?
  • continuation of these contracts following foreclosure (or deed in lieu)?
  • what kind of new defaults and remedies are needed?
  • annual listing of technology contracts and third-party services?
  • using e-mail as a permitted method of giving “notice?”

Read More from: Tough Times for Lenders

7 years 5 months ago