For years courts, prosecutors and SEC lawyers have twisted themselves into knots trying to figure out when those who leak insider information (“tippers”) benefit from the leak and thereby violate the securities laws based on the decision in Dirks v. S.E.C., 463 U.S. 646 (1983). Cases have run the gambit from insiders receiving bags of cash to cheating husbands getting the psychic benefit of knowing that their girlfriends were profiting on their tips. The Second Circuit has been one of the...

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by Theodore Edwards, Associate, Pepper Hamilton and Deborah Enea, Associate, Pepper Hamilton Executive Summary After 2021, the UK’s Financial Conduct Authority will no longer encourage or compel banks to provide quotes for LIBOR. LIBOR will likely change or be discontinued entirely. Parties should scrutinize existing financial contracts to determine what effect a change to, or discontinuation of, LIBOR will have. Parties to new financial contracts must build in flexibility to address changes to, or a discontinuation of, LIBOR. Introduction LIBOR has been referred to as “the...

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  On August 17, 2017, the U.S. Court of Appeals for the Second Circuit issued an important decision in a high-profile case against Uber Technologies that has broad implications for the enforceability of terms of use entered on mobile device apps. In Meyer v. Uber Technologies, Inc.,1 the Second Circuit, whose jurisdiction includes New York, applied California law and reached a decision that echoes previous rulings by the U.S. Court of Appeals for the Ninth Circuit, i.e., that users are...

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Though CFIUS already is shining a bright light on Chinese covered transactions, that light likely will only intensify and be brighter with the Trump administration. Twelve years have passed since publication of the article Uncle Sam Watches Nervously: Foreign Investment in U.S. Industries in 2004. That article discussed the review process under the Exon-Florio Amendment delegated to the Committee on Foreign Investment in the United States (CFIUS). The article highlighted several recent CFIUS reviews, and stressed that the evolving war...

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Is a single racial slur by an employee’s supervisor enough to create a hostile work environment under § 1981 of the Civil Rights Act of 1866?  The answer is yes according to the Third Circuit Court of Appeal’s decision in Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017). In Castleberry, two African American males were employed as general laborers.  They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “nr-rigged”...

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In the event of notifiable mass redundancies, the employer is obligated to consult the works council. The consultation procedure is a requirement that has to be satisfied so the termination notices issued in the context of mass redundancies become effective; it thus is of substantial practical significance. Consulting the works council includes notifying, informing and advising the works council and must be distinguished from the notification of collective redundancies subsequently submitted to the Labor Agency. Both procedures exist independently...

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Rulings of European Court of Justice (ECJ) In two recent landmark decisions, the ECJ expressed its opinion on the issue of whether employers may ban the wearing of an Islamic headscarf at work. First, the European judges established that an internal rule of a company that prohibits the wearing of any visible political, philosophical or religious sign at work does not constitute direct discrimination against employees who want to wear an Islamic headscarf based on their religion. The ECJ then ruled...

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The Court of Justice of the European Union (“CJEU”) has rejected a proposed deal between the EU and Canada for the sharing of passenger data, claiming that it violates data protection and privacy laws. The purpose of the proposed Passenger Name Records (PNR) Agreement is to combat terrorism and transnational crime. However, the CJEU found that the PNR Agreement went beyond what was necessary to address those threats. While the deal was initially agreed in 2014, it attracted a lot...

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In addition to spotlighting the critical importance of a CMS, the CPFB’s citing of CMS-related deficiencies begs the question of whether anyone is capable of meeting the CFPB’s expectations. The CFPB has generated acute awareness of the term “compliance management system” (CMS) through its highly publicized consent orders. Since it began issuing orders in 2011, the CFPB has invariably cited “significant weaknesses” in the subject party’s CMS along with violations of specific federal consumer financial laws. In addition to spotlighting...

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