Sharks in the Water: Are Poison Pills Back in Vogue?
With stock prices so cheap, can companies withstand a feared rush of hostile M&A? A gleam in the eye during the frothy, high-priced days of yesteryear, hostile M&A is back, and so are the fears of it, in even bigger ways. To counter this, companies are rushing to acquire defensive-wear against these hostile attempts, including poison pills and staggered boards, among others. Read more

PE Funds on the hook: Are Funds at Risk Due to Troubled Holdings?
Are PE funds legally on the hook for portfolio companies they once coveted, bought and even guaranteed? This issue is coming before bankruptcy and other courts more frequently in the current environment.  It's likely to get even more “air time” before this round of recessionary activity is over.  Many suspect that we're only now seeing the tip of the iceberg on PE deals gone sour. Read more

Appeasing the Bankers: How Far Will Companies Go to Protect M&A Financing?
How far will LBO targets go to appease the banks funding their deals?  Quite far, to judging from the churn we’re seeing around several recent deals. Fear of bank withdrawal from funding commitments has led to surprising steps by all parties with inevitable conflicts with shareholder interests in the process.  While long term shareholder interest seems to require doing whatever it takes to get these deals done, issues swirl around the level of shareholder sacrifice in the interim. Read more

Trendspotting: Tough Times, Proxies, and Other Top Trends
Automakers at the Brink: Disclosures Reflect Magnitude of Problems
Sign of the Times: Pepsi Announces Restructuring Initiative
Sign of the Times: KLA-Tenecor Announces Job Eliminations
Anticipating Proxy Season: Companies Revise Rules for Shareholder Proposals
Avoiding a Leadership Void: Symantec Moves Quickly to Replace CEO Read more

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Counterparty Risk, No More: Regulating Credit Default Swaps
Is stifling regulation about to hit the Credit Default Swap (CDS) market? Stifling may be in the eye of the stifled, as any amount of structure and regulation might be considered overwhelming for a market that has gotten away with none for too long. Laser focus is now being applied to the systemic dangers presented by this market, due to the counterparty risk in its very fabric. Read more

Legal Lens on the Auto Crisis: Preparing for Pres. Obama
Might GM be the next Lehman Brothers, with the massive legal and bankruptcy issues that implies? Auto industry executives are now facing a crisis that must make them almost envy the financial institutions (and there aren’t many companies that would say that). Interestingly, they are confronted with a structural crisis that’s as much regulatory as it is financial, mandating solutions on both these sides as well. Read more

Litigating Mark-to-Market: $350 Million tiff, Sumitomo-Lehman
Does Mark to Market valuation hold up under litigation? Perhaps not, says the US Bankruptcy Court for the Southern District of New York. In a bold move relating to a $350 million contract with Lehman Brothers, Sumitomo Mitsui Banking Corporation (SMBC) got its hand slapped by the court when it attempted to seize the collateral of its now-bankrupt counterparty. The court affirmed that even in today’s era of unprecedented markets, the bankruptcy automatic stay remains in effect to protect the bankrupt’s estate. Read more

Significant Events Briefing: For the In-the-Know Lawyer
Tumultuous market conditions and unprecedented events have continued to unfold since our last deals briefing. The following represents the most piquant and pressing of the deals emerging in the economy. Further insight to each deal is provided by the links to recent disclosures and filings in the Related Resources Bar. Read more

Life and Debt: Manulife Unfreezes Credit in Canada
Are Canadian credit conditions in a thaw? Fast moving credit markets had impacted Canadian financial service firms, hampering them in parallel with their U.S. counterparts. However, Canadian public and private sector officials have not remained inactive. While much of the world’s attention is focused on Washington and Wall Street, there’s been significant movement in Ottawa and on Bay Street, as well. Read more

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Saving the Big Banks: Amex, Goldman and Bank Holdco Conversions
Is the stampeding herd running toward bank holding company status escaping danger, or simply running headlong into its next set of problems? Pardon our mixing of metaphors, but otherwise stated, is being a Bank Holding Company (BHC) the cure-all it’s positioned as? Bank holding company (BHC) status does promise greater access to funding, better capitalization and tighter regulation. Read more

Trendspotting: Shareholders, Governance and Other Top Trends
Shareholder Access Changes: Host Hotels leads a Host of Companies
DIPping into Finance: Circuit City Accesses Funds
Government Funding, Redux: GE Accesses New Government Guarantees
Corporate Governance Advanced: Boeing Director Ejects
Executive Compensation: Easton Bell Exercises its Rights to New Hires Read more

Credit Crisis, Round 2: Student Finance Debacle
Is the next wave of the Credit Crisis about to roll in, around student loan finance? We wouldn't state things that strongly, but this form of lending suffers from many of the ills of the mortgage industry. Among them: predatory practices, conflict-ridden relationships and dubious marketing techniques, all topped, until recently, with a healthy dollop of securitization as a primary financing route. A mini-mortgage mess in the waiting? Read more

Shrinking the SEC?:  Departing Leaders, Disappearing Jurisdiction
Is the SEC as we know it about to disappear? There are two layers to this question. The SEC is about to go through the sort of leadership switch characteristic of a change of administration. The recently announced departure of John White (Director of Corporate Finance) and the inevitable departure of Chairman Chris Cox are emblematic. More fundamentally, though, is the SEC at the end of its glory days? Read more

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Lemonade out of Lemons: Law Firms helping TARP
With Treasury now intent on spending our way out of the financial crisis, law firms stand at the ready to help. Several prominent law firms have already signed on. Their goal: assisting the financial community out of its morass and into a better-funded future. Treasury’s program has an application deadline of Nov. 14th (for public banks) and an as-yet unannounced deadline for private banks. Read more

Litigation Risk: Impacts of Mark to Market
In an environment rife with concern over litigation, does mark-to-market accounting work? This question matters greatly to the “credit crisis,” as financial pictures based on mark-to-market standards drive much of the turmoil (as well as M&A and equity investments) currently underway. Further, complex mark-to-market accounting has oft-hidden impacts. Read more

Preparing for Pres.Obama: Your Climate Change Primer
The Obama campaign promised to focus on many issues that matter to your deals and/or disclosures. We at Westlaw Business see it as our job to focus on these along with you. Thus, we are launching a series of weekly Presidential Preparation briefings, each focused on current trends around an issue of concern. This week: Climate Change. Read more

Disclose your Eroding I.P.: Process Patents No More?
Is I.P. uncertainty ramping up, just as credit market uncertainty is abating? For the many companies with proprietary business methods, the answer may be “Yes”. If the patent community chatter is any indication, a recent decision regarding “Business Method” patents (aka Process Patents), seems set to impact a wide range of industries. This likely requires adjustments to core business strategy…and timely disclosure. Read more

Significant Events Briefing: Lawyers in the Know
Tumultuous market conditions and unprecedented events have continued to unfold since our last deals briefing. The following represents the most piquant and pressing of the deals emerging in the economy. Further insight to each deal is provided by the links to recent disclosures and filings in the Related Resources Bar. Read more

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Funding Risk: Making Bank Commitments Stick
How ironclad are bank funding commitment letters, and what may a bank do (or assert) to get out of them? These issues lay at the heart of a series of attempted “do-overs” by banks of deals they had committed to during the go-go days of early 2007. These, too, have been affected by the credit freeze, as banks in capital conservation mode look to end commitments still sitting in queue. Implications stretch far beyond private equity-led LBOs and mandate careful attention to closing conditions and contractual “outs” in whatever financings are arranged today. Read more

Out Clauses: M&A Going Defunct
Are contractual “out clauses” being used…or abused? The level of terminated M&A activity may provide some clue. There have been approximately 134 mergers withdrawn in October alone, some with merger agreements actually signed. In many cases, the deal never got that far and was terminated mid-negotiation (or mid-hostile process). The withdrawals seem due to terrible market conditions. However, with “market outs” and “credit outs” not to be found in every agreement, these conditions are not always the stated reason for the termination. Read more

Trendspotting: Post-Election, Top 5 Disclosures
With the recent election of President-Elect Barack Obama and a strengthened Democratic presence in Congress along with that, we at Westlaw Business expect to see certain trends manifest. In fact, these are not completely new. Several of them are an acceleration of trends already underway, as seen from recent disclosures. Read more

Layoffs and Retention: Downmarket Employment
How do you deal with tough employment issues during an economic downturn? Recent disclosures provide a clue. Some companies are positioning themselves for the downturn by insulating their operations, restructuring, and entering into mergers, each typically accompanied by agreements with employee retention plans and renegotiated employment agreements with key executives and officers. Read more

In case you missed it…
The November 4th edition of Westlaw Business Currents Extra covered important industry issues such as pricing risk, market standards, credit rating reform and customer bankruptcy. In case you missed any of these articles, simply click on the title below.

Pricing Risk in Contracts: Credit Default Swamps…More Central?
Market Standards for Recapitalizations?: U.S. Banks get Funded
Credit Rating Reform: Is Reliance Ending in North America?
Key Customer Bankruptcy: Vendors Pursue Lehman Brothers
Significant Deals Briefing: Lawyers In the Know

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Pricing Risk in Contracts: Credit Default Swamps…More Central?
Are credit default swaps (CDS) about to move to center stage for corporations? This issue is not a theoretical one, as use of CDS and related pricing has spread to unforeseen corners, even in seemingly “vanilla” contracts. This emerging trend has seen CDSs used both for risk pricing (e.g., interest rates) and its better-known cousin, risk mitigation (aka hedging). Its use could even spread to other contracts as the markets thaw. Read more

Market Standards for Recapitalizations?: U.S. Banks get Funded
What terms and conditions should a $130 billion recapitalization (and counting) get? As the nation’s leading financial institutions take in unprecedented financing from the U.S. Treasury, this seems a narrow question, limited to the financial service sector…but it’s not. These agreements matter to the economy overall, both in terms of those things included in the agreements and those explicitly not included. Read more

Credit Rating Reform: Is Reliance Ending in North America?
Is reliance on credit ratings due to become one of the casualties of the financial market crisis? That is a stretch. However, it’s no longer unthinkable, given the central role played by Credit Ratings Agencies during recent frothy markets. These agencies had a central role, not well publicized, in the creation and marketing of many of the most controversial instruments and entities. Read more

Key Customer Bankruptcy: Vendors Pursue Lehman Brothers
What do you do when a big customer goes bankrupt? It’s a question much on the mind of businesses these days. While they themselves may not be at risk, many a company does worry as to whether they must face bankruptcy-related problems from their customers. Lehman Brothers may serve as the archetype of bankrupt customer, but they are far from the only company whose vendors have begun to worry. Read more

Significant Deals Briefing: Lawyers In the Know
Barclays/Sovereign Investments
CPP Participants
PNC Financial Services/ National City
Embarq Corp/ Centurytel, Inc. Read more

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Westlaw Business Currents Extra is publishing this Special Report to provide insight into the recent disclosure of the Securities Purchase Agreements entered into between the United States Treasury Department and nine of the largest financial institutions.

Market Standards for Recapitalizations?: U.S. Banks get Funded
What terms and conditions should a $130 billion recapitalization (and counting) get? As the nation’s leading financial institutions take in unprecedented financing from the U.S. Treasury, this seems a narrow question, limited to the financial service sector…but it’s not. These agreements matter to the economy overall, both in terms of those things included in the agreements and those explicitly not included. Read more

In case you missed it…
The October 30th edition of Westlaw Business Currents Extra covered such hot issues as hedge funds, shareholder lawsuits, big M&A and executive compensation, as well as the crisis scorecard and the top 5 timely disclosures. In case you missed any of these articles, simply click on the title below.

Up-ending Big M&A: Shareholder Risk to Wachovia and Merrill Deals
Fraudulent Misrepresentation: Hedge Funds Beware
Self-Dealing during the Crisis: On the Fly Changes Cause Regulator Scramble
Activist Shareholders: You Have Friends in North Dakota
Trendspotting: Top 5 Timely Disclosures
October Scorecard: Credit Crisis Updates

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Up-ending Big M&A: Shareholder Risk to Wachovia and Merrill Deals
It’s often said that it isn’t wise to second-guess a decision that you’ve already made. Tell that to the shareholders of Wachovia and Merrill Lynch who may be questioning the wisdom of the planned mergers with Wells Fargo and Bank of America. Shareholder questions percolate around both transactions, with 2 common themes: (a) was the Board’s fiduciary duty fulfilled? and (b) are these deals good for shareholders in light of the government’s bailout financing plans, a subsequent event of not small consequence? Given that, in deals of this type, shareholders can always take a “belt and suspenders” approach to these questions – shareholder litigation and shareholder approval, aka sue and vote –both routes need to be considered. Read more

Fraudulent Misrepresentation: Hedge Funds Beware
Are hedge funds really unregulated or do they just think they are? The SEC certainly doesn’t think they’re above the law, especially when it comes to the fundraising (and investor retention) efforts that are the fundamental of all funds. The importance of this question has only grown. Read more

Self-Dealing during the Crisis: On the Fly Changes Cause Regulator Scramble
In the rush to unfreeze credit markets, are the Federal Reserve and Treasury Department creating the institutional and legal battles of the future? The federal regulatory agencies reacting to market turmoil, sometimes issue regulations counter to existing regulations at other agencies. Some companies, finding themselves caught at the intersection of these contradictory regulations, must seek exemptive relief. In other cases, the regulators must issue temporary regulations in rushed conditions. Read more

Activist Shareholders: You Have Friends in North Dakota
Is North Dakota the new Delaware? A particularly shareholder-friendly environment has bloomed amidst the plains of North Dakota. While Delaware takes a characteristically business-friendly approach, thus encouraging incorporations within its jurisdiction, North Dakota has gone to another extreme. The state is looking to woo shareholders (activist and otherwise) to set up or move their portfolio businesses to the shareholder-friendly environs of the Midwest. Read more

Trendspotting: Top 5 Timely Disclosures
Credit and Commodity Crises: Steel Polished or Rusted?
Executive Compensation Structure: Aligning Company Interests
Dour Times: Luxury Retailers Not Immune
Capital Purchase Program: Reviving the Banks
Commercial Paper Unfreeze: Alternative Energy gets a jolt Read more

October Scorecard: Credit Crisis Updates
   •  Tax experts speculate that PNC stands to gain billions in tax relief from their
      merger with National City due to a September tax benefit ruling by the IRS.
      (October 30)
   •  Financial data shows the US economy shrank at a rate of 0.3% during the third
      quarter. (October 30) Read more

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Credit Default Swaps and Risk: Cracking the CDS Market
Congressional hearings are now underway on Capital Hill and finger-pointing has become the sport of the week. In the midst of these games, one of the hotly debated questions is the financial market’s need for reform, particularly that of the credit default swap (CDS). This market is often described as “unregulated” and implied to be a wild west. However, was the CDS market, with its inherent counterparty risk, really as unknown and its impact as unpredictable as all the public denials might indicate? Read more

Financing Advice: Can the Fed Unfreeze Commercial Paper?
Unfreezing iced-over credit conditions has led the government to step into many corners of once-sacred private sector credit markets. As is well-known, while financial service businesses were the earliest to suffer from the credit freeze, they were soon joined by non-financial businesses as well. Perhaps less well-known is that, with those same financial companies the early beneficiaries of government largesse, other, non-financial companies couldn’t be far behind. Apparently not, as one of the newest areas of government involvement is the commercial paper (CP) market. Read more

Events of Default: Is the Bankruptcy Provision Gutted?
What are bankruptcy-related Event of Default provisions (and related remedies) worth? Not much these days, to judge from the non-protection of multiple counterparties to Lehman Brothers entities in the aftermath of the Lehman bankruptcy. Looking at the unfolding of these events, it becomes clear that a counterparty may have to do an awful lot to get the benefit of provisions that are meant to address bankruptcy-related events of default. Read more

Significant Deals Briefing: Required Reading for the In-the-Know…
Revised M&A Deal: Lehman Sale of Neuberger Berman
Revised Equity Deal: Morgan Stanley/Mitsubishi UFJ Group
Investment Deal: GE/Berkshire Hathaway
Investment Deal: Bunco Santander/Sovereign Read more

SEC-CFTC Merger?
SEC Chairman Christopher Cox recently disclosed his strong support for merging the SEC and the Commodity Futures Trading Commission (CFTC). The CFTC is an independent agency that regulates US futures and options markets. Chairman Cox declared his support for regulatory consolidation at the October 23, 2008 hearing, “The Financial Crisis and the Role of Federal Regulators” held by the Congressional Committee on Oversight and Government Reform. Read more

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Counterparty Risk: Securities Lending Transactions
Like so many other lines of business, Securities Lending should no longer be seen as the innocent money-maker it was once seen as. Thanks to the Lehman bankruptcy and asset sale to Barclays for clarifying that. As of a recent filing with the Bankruptcy courts, a set of issues now ripples through the legal world focused on counterparty risk at the heart of securities lending. Read more

Ultimate Information Rights: The Investor’s Batphone
Warren Buffett’s Berkshire Hathaway seems to have lined up the ultimate information right in his recent investments into each of GE and Goldman Sachs. In particular, obscured by the euphoria around the mere fact of his investments, is what we might call Berkshire’s “batphone provision”. Read more

Trendspotting: Top 5 Timely Disclosures
Federal investigators have recently become quite busy investigating potential malfeasance during the recent financial boomtimes…but you wouldn’t necessarily know it from company disclosures. While the investigations were widely-reported, few filers have disclosed federal investigations related to their recent and sudden collapses. Read more

October Scorecard: Credit Crisis Updates

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Material Adverse Effect: How Material Adversity causes Material Changes in M&A
A set of plagues, almost Biblical in proportion, seems to have descended all at once: Market-level shocks, persistent fears of war and terrorism, industry slowdowns, frozen credit conditions, changing financial reporting standards… to name but a few. Read more

Duty to Disclose: How to talk about Risk without Spooking investors
Disclosure decisions are the purview of a Company’s Board of Directors, assisted by their executives. These decisions are often complex exercises of judgment, as directors walk a tightrope between alerting investors to risks, without spooking them right out of their shareholdings. Read more

Operating Companies and the Credit Crisis: Navigating the Cold, Dark Waters
The effects of the Credit Crisis on operating companies continue to manifest themselves in unexpected ways. Credit problems, once thought to afflict only banks and insurers, now leech into the “real economy.” Companies have implemented various coping strategies, including renegotiating terms on existing credit facilities and drawing down pre-existing revolvers. Read more

Disclosing the Perfect Storm in Commodities: Credit and Commodity Crises in Canada
Material Change has hit natural resource companies, at least if Canadian public company disclosures are any guide. A steady stream of Press Releases, recently filed under the SEDAR electronic filing system by Canadian mining and natural resources companies, portray trouble on two fronts: contracting credit markets and slumping commodities prices. Read more

Westlaw Business Currents Extra Reader Survey
In an effort to better ascertain what type of news is most valuable to you during the course of your business day, we have compiled a very brief survey focusing on Westlaw Business Currents Extra – The legal angle of the credit crisis. The survey is less than ten questions and should take no more than five minutes to complete. Participation in this survey will give you the unique opportunity to inform the future of this publication and its content. Read more

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Legal Risk in Banking Consolidation: Is Wells Fargo a Hero?
Wells Fargo is double dipping…and in so doing is driving up its risk profile. While its takeover of Wachovia is getting all the attention, it actually concurrently released news of 2 bank acquisitions: Wachovia and a small regional Texas bank, Century Bankshares. Both merger agreements were filed on October 10th. The mind reels at how busy all these legal teams have been…The common filing date invites comparison. Read more

A Bird-in-Hand: Morgan Stanley takes Mitsubishi’s Money
Morgan Stanley clearly subscribes to the bird-in-hand school of thought. Its financing from MUFG has gotten markedly more expensive in the longer term…but at least it’s still there. This has been the source of great relief to a market that had begun to fear the worst. MS is moving forward with this more expensive MUFG financing, even though the U.S. government has announced plans to invest $10 billion in Morgan Stanley (as part of its broader banking sector recapitalization), apparently at less expensive terms. Read more

October Scorecard: Credit Crisis Updates
•  EU and US leaders agree to meet over the weekend to begin planning for a global    summit to grapple with the financial crisis. (October 16)
•  Southeast Asian governments, with the support of $10 billion from the World Bank, agreed to help rescue struggling banks in the region. (October 15)
   Read More

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Counter-Party Risk: Paying the Price for Bank Failure
Derivatives transactions are at the heart of the current credit crisis – when banks fail, their counterparties are often left holding the bag. To examine this issue more finely, we at Westlaw Business have begun monitoring litigation trends, initially those involving Lehman Brothers. Read more

The SEC’s Big New Disclosure Initiative: The Beat of a Different Drum?
Place yourself in the shoes of the SEC and Chairman Cox. If you had an opportunity to assemble a group of leading lights on re-inventing disclosure today, would your focus be how disclosure connects to: (a) systemic risk and the derivatives market, (b) the credit crisis and financial regulatory reform or… (c) extensions to the data-tagging regime known as XBRL? Read more

De-regulating Legal Opinions: Are NYSEs Rules Meant to be Broken?
In an era dominated by cries for added regulation, it’s interesting to see the venerable New York Stock Exchange swinging the regulation needle ever so slightly in the other direction. Its impact is clear: it’s proposing making things somewhat easier to issue securities on the NYSE. Read more

Canada, Not as Distressed as the US.: Financing Markets Still Open
With Canada and the U.S. so close geographically and linked economically, one would expect their credit and M&A markets to move in close correlation. Surprisingly, the evidence of that is mixed. In particular, there are still signs of life in the Canadian M&A market and even in the related market for acquisition financing. Read more

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The Devil’s Due: The Government’s Equity Cut in the Bailout
It may be coming to a theatre near you. A modern adaptation of Devil and Daniel Webster; a dynamic legal team assists a besieged financial executive who made a deal with the Government. In the opening scene, the executive moans, “who will take my troubled assets?” The Government appears and whispers “I will, but I’ll want a bit of equity.” Read more

Credit Crisis Scorecard: 7th Inning Stretch or Bottom of the First?
The unprecedented cooperation of the central banks and regulatory intervention in response to the financial crisis unfolding across global markets demonstrates just how intertwined and complex this has become. Westlaw Business will continue to provide this updated re-cap of the major market events that are unfolding. Read more

Bailout 101: From the RTC to TARP
The Emergency Economic Stabilization Act of 2008 (EESA) moved through Congress in near record time. To celebrate, the legislative branch, similar to Ferris Bueller, is taking the rest of the year off, leaving the Treasury to make the bailout work. While we wait for the Treasury to fully establish the institutions and contracts needed to spend $700 billion, a historical review of the Resolution Trust Corporation (RTC) and its activities may provide some insight regarding what to expect. Read more

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Beware Securitization: the RTC’s role in today’s troubles
The Treasury is now racing to establish the institutions, infrastructure and contractor relationships needed to effect the bailout under the Emergency Economic Stabilization Act of 2008 (EESA). As it’s doing that, what bears reminder is the long-forgotten, or perhaps never widely known, role that the Resolution Trust Corporation (RTC) played in promoting the growth and function of the mortgage securitization market. Read more

Northern Exposure? Canadian Filers Mostly Mum on Lehman Issues
Canadian public companies seem remarkably unflappable (or at least, thus far, unflapped) despite the unprecedented turmoil playing out to their south. Judging from their public disclosures in securities filings, even the calamitous events surrounding the collapse of Lehman Brothers don’t seem to have raised great concerns or needs to disclose, other than where true exposure exists. Read more

Big Equity Offerings: Down but Not Out
Talk of calamity and complete shutdowns of capital markets is rampant. However, a close look at the last two weeks shows that the U.S. equity markets are actually witnessing a significant revival. In addition to once-unimaginable M&A transactions conducted at hyper-speed, we’re actually witnessing a series of very large equity offerings. Read more

Merrill Lynch Fiduciary Duty: Was the Thundering Herd too Quiet?
It was inevitable that there would be disgruntled shareholders around a shotgun wedding of the size and speed of the Merrill Lynch – Bank of America merger. No surprise, the September announcement that Merrill Lynch would be merging with Bank of America left some Merrill shareholders claiming that the firm’s shares were grossly undervalued. Read more

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TGIF: The Late Friday Afternoon Filing Rush
The expression TGIF may have taken on new meaning in the midst of the Wall Street earthquake underway. No more is it simply an allusion to the respite of the upcoming weekend. Instead, it may reflect gratitude for the “cover” of a late Friday, when submission of a key filing has become a seemingly common occurrence. Read more

Lehman Bankruptcy and B of A: Give us our $500 Million Back…
Lehman Brothers was (and id) rife with complexity. It is sure to help set new law as the bankruptcy unfolds…and Bank of America may be doing its part to help. This is the first in an occasional series on the litigations resulting from the Credit Crisis. Read more

Will Sunshine Burn the Banks: How Much Sunshine is too Much?
Do mark-to-market accounting and U.S.-style democratic openness play nicely together? We are about to find out. The Emergency Economic Stabilization Act (EESA) passed by Congress in early October was passed in days of financial gloom, and seeks to overcome that with two elements in short supply previously: cash and sunshine. Read more

Bailout Plan has Limited Say on Pay
Moral outrage over the then-proposed bailout boiled over around issues of executive compensation. The notion of paying executives large sums while taxpayers were funding bailouts of these same risk-taking organizations was too much for some to stomach. So, with the passage of the Emergency Economic Stabilization Act (EESA) came new limits on executive compensation for those organizations benefiting from the bailout. Read more

Asset Managers, Get Ready: New Treasury Rules for the Bailout
There will be two separate groups of asset managers, one for securities and the other for mortgage whole loans. The asset managers will be considered financial agents of the U.S. and not contractors. A public notice will be posted on the Treasury website soliciting prospective financial agents and set out the asset management services being sought. Read more

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Deleveraging Main Street: New Market Standards for Covenants and Loan Prices
The reach of the Credit Crisis extends much farther than Wall Street. Even before the most recent, most serious turn of the Crisis, our Westlaw Business analysts saw clear signs of the tightening of the market. This stands to get even worse, hampering the conduct of business far outside the financial services sector. Read more

Is Fair Value Accounting Really Fair? FAS 157 and Mark-To-Market
Recently the subject of consternation and, in some circles, even vilification, Financial Accounting Standard 157 was created in sunnier days to shine a bright light on a somewhat murky corner of the financial markets. Murkiness, in particular, hung over certain classes of financial instruments for which up-to-date pricing data was not regularly available. Read more

And You Thought the Bailout Was Expensive…
What It Took to Pass the Senate Bill
With many political conversations turned to moose in place of pork, it was easy to forget how things get done in Washington, even for something as fundamental as the financial market bailout. The bill the Senate passed was a sharp reminder of what “ways and means” are sometimes required. Read more

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The Buck Stops (Here, Again): Congress (Still) Wants the Ultimate Say on Pay
Congress and the White House are still working on the details of a $700 billion plan know as the Economic Stabilization Act of 2008 (“EESA”) which has been described as having dual goals of rescuing Wall Street and protecting Main Street. While the House of Representatives rejected a version of the bill earlier this week, the Senate plans to vote on their version of the bill this evening. Read more

Tracking the Financial Crisis: Today’s Scorecard
With all of the recent chaos surrounding solving the financial crisis, we at Westlaw Business figured it might be a good time for a brief re-cap of the events unfolding. If you’re as busy as we are, a short update might be appreciated. As of press time, here is a brief rundown of major market, regulatory, and legislative events: Read more

Breaking WaMu: What JP Morgan didn’t Take
Given the unprecedented events taking place in the market this week, we’ve decided to take a quick step back to review details from a relative blip that some may have missed: Washington Mutual’s (WaMu’s) bankruptcy filing. The nation’s largest thrift filed for Chapter 11 bankruptcy protection September 26 in the U.S. Bankruptcy Court for the District of Delaware. Read more

In With the New: PORTAL Database to Revolutionize Resale Market
The Nasdaq Stock Market LLC filed a proposed rule change with the SEC September 16 to establish an electronic PORTAL Reference Database. The NASD created the PORTAL market in 1990 (concurrently with the SEC adoption of Rule 144a) as a new trading platform “for the purpose of quoting, trading and reporting trades in securities deemed eligible for resale by Qualified Institutional Buyers under Rule 144a.” Read more

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Show Me the Money: TARP, RTC & How Their Mechanics Drive Profits
As is well known by the time of publication, lawmakers are attempting to put through a bailout plan, intended to save the U.S. financial markets. Titled the Emergency Economic Stabilization Act of 2008 (EESA), its creation has led to a series of cautious cheers emanating from Washington. These are not undeserved, given the depth of uncertainty and gloom otherwise pervading. Read more

Seized or Squeezed? Is TARP an Option for Auto, Student and Credit Card Finance?
While the proposed bailout plan is now stalled, its focus was primarily on the exposure of the financial services world to mortgage related securities and related losses, lurking just beneath that surface is another set of credit-related woes affecting the asset-backed securities industry. Read more

Disclosure Déjà vu: RTC Offered Golden Ticket to Some, Panic to Others
The government's now-delayed bailout law, EESA, has at its core a program for the acquisition and disposition of troubled assets, termed TARP, for the Troubled Assets Relief Program. TARP is modeled in the minds of many after the Resolution Trust Corporation (RTC). The government created the RTC in 1989 as a vehicle to bailout the U.S. financial system after incurring massive financial failures related to the Savings & Loan crisis. The RTC was later disbanded in 1995. Read more

The Day After: SEC Readies for Post-Crisis Markets
Evidencing optimism that the U.S. financial system will emerge from its current funk, the Securities and Exchange Commission (SEC) has continued to move forward with two new rulemaking projects. As all eyes are fastened to the bailout initiative wending its ways through Washington, these initiatives may have escaped the radar screens of practitioners. Read more

Disclosure Trends: Do You Have WaMu Exposure?
Certain companies are attempting to protect themselves from being dragged deeper into the credit crisis, particularly the events surrounding Washington Mutual (WaMu). To remind our crisis-weary readership, the last several days have witnessed WaMu’s forced seizure, asset sale and bankruptcy filing, marking the largest bank failure of a United States in history. Read more

Big Picture Scorecard: Tracing the Latest Market Madness
With all of the recent chaos surrounding solving the financial crisis, we at Westlaw Business figured it might be a good time for a brief re-cap of the events unfolding. If you’re as busy as we are, a short update might be appreciated. Read more

Will Private Equity Save the Banking Industry? WaMu’s FDIC Seizure
WaMu’s seizure and resale marks yet another wrinkle in a head-spinning week’s worth of events. It gives pause for many reasons, not least of which are the lessons to be learned about Private Equity funds’ roles in bank recapitalizations. Read more

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Breaking Levies: Bank Holding Companies, the Fed Courting Private Equity Infusion
The Federal Reserve relaxed ownership requirements for Federal Bank Holding Companies this week allowing private equity firms and hedge funds to dramatically increase their investment and participation levels in BHCs without subjecting themselves to regulation under the Bank Holding Company Act of 1956. Read more >

Credit Crunch Lawsuits Trickle In: Class Actions to Clog Court Dockets?
While Congress and the White House hammer out the details supporting Treasury Secretary Hank Paulson’s proposed $700 billion Wall Street bail out, third parties have already begun escalating their grievances to the Judicial Branch. Read more >

The Reserve Fund: Breaking the Buck
On the heels of quick responses by both the Treasury Department and Securities and Exchange Commission in attempts to cure market failures to calm investor panic, net asset values of several money market funds with substantial holdings in failing financial firms like Lehman Brothers Holdings Inc. plummeted to zero. Read more >

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GSI, a division of West, is located at 1100 Thirteenth St. NW, Suite 200, Washington, DC 20005, and has been in the business of providing information services to legal and financial professionals since 1988.

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Monumental Shareholder Vote Could Unwind Merrill’s Deal
Could a shareholder vote quash Merrill Lynch & Co.’s deal to be acquired by Bank of America? A close reading of Merrill’s merger agreement suggests that shareholders indeed could block the transaction pursuant to the agreement’s “force-the-vote” clause. Read more >

Lehman Bankruptcy: Dancing on the Head of a Pin
Lehman Brothers’ bankruptcy and asset sales show the firm to be the beneficiary of some very clever legal advice. The particulars of the bankruptcy filing and asset liquidation show just how much. This is the second installment of a series on Lehman and its strategies. Read more >

No Blank Check: Congress Wants the Ultimate Say on Pay
Congress is calling for a compromise with the White House on the proposed Wall Street bailout plan. In exchange for the $700 Billion from taxpayers, leaders from both the House and Senate are demanding tighter restrictions on executive compensation for those firms involved in the bailout. Read more >

Morgan Stanley: Capital Ideas
In an effort to avoid the perils of Bear Stearns, Lehman Brothers, and Merrill Lynch & Co., Morgan Stanley made 2 moves this week to strengthen its capital position. First, it opted to swap easier access to cheap capital for increased government oversight. Second, it announced a planned investment by Mitsubishi UFJ Financial Group, Inc. Both are discussed below. Read more >

Lehman Liquidation, Barclays Protection: The Good, the Bankrupt and the Toxic
Lehman Brothers’ failure to attract an appropriate suitor left the investment bank with only one real option: file for bankruptcy and liquidate remaining valuable assets. This is one of a 2-part series on Lehman and its strategies. Read more >

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GSI, a division of West, is located at 1100 Thirteenth St. NW, Suite 200, Washington, DC 20005, and has been in the business of providing information services to legal and financial professionals since 1988.

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Currents Exclusive: Lehman Brothers Capital Structure
Investment bank Lehman Brothers filing for Chapter 11 bankruptcy protection set the pace for one of the most turbulent weeks in Wall Street’s history. Lehman’s bankruptcy filings disclosed that it held $639 billion in assets and $613 in outstanding debt, making Lehman’s filing the largest bankruptcy in US history (by assets held). Read more >

Through the Looking Glass…Steagall: Banking Regulation of Securities Firms
The Glass Steagall Act, enacted in the aftermath of the Crash of 1929, was designed to avoid commercial banks engaging in overly risky financial markets. One could be forgiven for a sense of déjà vu, pre Glass Steagall– given the events of the last few days. Read more >

Do you have Lehman Exposure?: Disclosure Trends
In the aftermath of Lehman Brothers Chapter 11 filing, companies have been eager to protect their own businesses by disclosing the extent to which they have a relationship with the failing investment bank. Read more >

Swirling Currents: Financial Crisis Creates Swift Regulatory Reaction
The recent events on Wall Street have caused the SEC, Treasury and Federal Reserve to act in concert to address the turmoil and attempt to calm the markets. They have also worked with the Financial Services Authority of the United Kingdom because of the global reach of these events. Read more >

Old News/New News: Lehman’s Bankruptcy Filings…Redux
The big news this week around Lehman’s filings was, of course, its filing for bankruptcy. Little noticed among these filings was the twist in Lehman’s approach to filing with the SEC about its bankruptcy. Monday brought Lehman’s announcement that Lehman Brother Holdings Inc. had filed for bankruptcy. Read more >

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A hectic summer for regulators culminated in the Federal Reserve’s decision to relax lending rules this week rather than rescuing additional financial institutions, as it did with mortgage financing giants Fannie Mae and Freddie Mac. While some issuers, like Merrill Lynch & Co., have found solace in finding last minute white knight buyers like Bank of America, others like Lehman Brothers Holdings Inc. have not taken advantage of similar opportunities and are now seeking Chapter 11 bankruptcy protection, hoping to sell off some of their operations.

During these market shifts, whether you are a practitioner bracing for reform or proactively seeking restructuring opportunities for your clients, Westlaw Business’ new Restructuring Center will streamline your growing workflow needs. The Restructuring Center offers targeted content and functionality to help you spot issues, perform due diligence, find precedent agreements, and draft the documents you need to build a solid restructuring deal. For more information on how the Restructuring Center can advance your practice, click here.

Listed below are search strings to help you with your next restructuring deal. In addition, there are several SEC Currents feature articles analyzing pressing legal issues amidst recent financial setbacks.

  • Restructuring Precedent Language - Tax Matters - Divestitures
  • Restructuring Transactions - Asset Sales
  • Restructuring Transactions - Business Division Sale
  • Restructuring Transactions - Substantially All Assets
  • Triggering Event - Default on Obligations
  • Tracking Stock - Disclosure & Considerations
  • Restructuring Activity - Carve-Outs
  • Price to Earnings (P/E) - Disclosure Considerations
  • Total Return to Shareholders (TRS) - Disclosure & Considerations
  • UCC Financing Statement - Disclosure & Considerations
  • Restructuring Precedent Language - Compromise or Settlement Agreements
  • Special Purpose Acquisition Corp (SPAC) - Disclosure & Considerations
  • Substantial Doubt of a Going Concern
  • Bankruptcy Announcements
  • Restructuring Transactions - Letter of Intent

Financial Institutions Battling Addictions, Regulators Strike
Risky positions in the subprime mortgage industry, controversial marketing strategies of auction-rate securities, and the resulting credit crisis continue to strike blows to U.S. financial institutions -- promising bleak hopes of quick correction. Big banks are taking hits even a year into the ongoing credit crunch, and many industry experts are calling for mass consolidation to weather the storm. Read more >

Quick Change: Inside the Mortgage Financing Bailout
The United States government has opted to rescue the nation's largest government-sponsored mortgage finance companies in an effort to temporarily cure the growing credit crunch, and boost investor confidence in an increasingly downtrodden market. The cost: $25 billion to taxpayers. During the deliberation, one of the largest government sponsored entities filed and received special clearance from the Securities and Exchange Commission to sell new shares to the public in hopes of raising much needed capital perhaps the beginnings of a growing trend amidst tough financial times. Read more >

Behind The Credit Crunch: 'Repo' Loans Sabotage U.S. Financial System
Creative deal-making will come highly rewarded in coming years, as unprecedented gridlock in the debt markets has forced many hedge funds and private equity groups to restructure their organizations -- mainly by firing hordes of traders in response to massive losses and banks' reluctance to lend money. The recent fire-sale of Bear Stearns Co. to J.P. Morgan Chase & Co. for the bargain price of $10 per share compounds exactly what the market feared: irreparable financial institutional failure. While the Board of Governors of the Federal Reserve System is attempting to cure this, what once seemed like smart money is now suffering potentially irrecoverable devastation. Read more >

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The SEC continues to ask issuers for additional disclosures with relation to their Compensation Discussion and Analysis (CD&A) sections on their Forms 10-K and proxy statements. Results of recent Westlaw Business research efforts underscores both the weight and the importance that issuers now face in the rectifying, and in some cases re-filing, their executive compensation disclosure filings.

More than 350 public companies received letters from the SEC Division of Corporation Finance just over a year ago seeking additional information in their CD&A disclosures based on this season's initial proxy statement filings. The inquiry came just over a year after the Commission issued new executive compensation and related party rules (SEC Release No. 338732). An extensive review of these letters indicates several areas of reporting that the SEC is targeting in their reviews -- specifically executive compensation and corporate governance. Issuers now must prepare for yet another proxy season under a relatively new compliance lens with the second installment of the Commission's daunting executive compensation standards. The findings of the SEC Currents Staff's most recent study suggest that it may be a long road ahead before public filers will meet the Commission's stringent reporting requirements.

Listed below are two in-depth SEC Currents feature articles regarding the rising trends in CD&A disclosures. In addition, GSI has compiled a list of related searches to ease your research efforts.

  • CD&A Discussion - '33 Act Registration Statement
  • Performance Measures - CD&A Discussions & Considerations
  • CD&A - Compensation Committee Report - Proxy Statement
  • CD&A Reporting - Form 10-K
  • "Say On Pay" Discussion
  • Proxy Disclosure Related to CD&A and Sample Summary Compensation Tables
  • Compensation Discussion & Analysis - Narrative Discussions and Considerations
  • CD&A Discussion - Issuers with Single Executive Officer
  • CD&A Reporting Errors Addressed By Issuer
  • Sample Summary Compensation Tables – Proxy Statements

Stock Option Backdating Remains a Top Priority at SEC
More than two years after launching investigations, the Securities and Exchange Commission continues to conduct thorough reviews of public companies and associated individuals for their participation in fraudulent backdating schemes with sustained vigor. To date, the SEC Staff has secured many lucrative settlement arrangements from various issuers and persons caught in the backdating crossfire. Many investigations remain in the midst of ongoing litigation. While the pace of proceedings has been noticeably slow, the Commission continues to flex its regulatory muscle, encouraging SEC filers to pursue full compliance with the SEC's revamped compliance agenda. Read more >

Politicizing Executive Compensation: Say-On-Pay Initiative Gains Recognition
Recent corporate governance initiatives closely tied to the Securities and Exchange Commission's campaign to tighten controls on excessive executive pay continue to rise in shareholder popularity and disclosure documents. Despite rising shareholder activism, results remain mixed as many proposals -- even if passed -- are simply advisory, and not binding in any manner. The issue has also become a heated point of political debate as top Presidential candidates continue to solidify their positions. Recognition, irrespective of its source, marks positive momentum for corporate governance advocates when compared to recent years. Read more >

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A striking trend in securities filings signals a remarkable compromise between big business and big green. Issuers in the energy industry are enhancing their environmental disclosures and reporting significant efforts to comply with emerging environmental regulations in light of advancing debate and rule making regarding climate change and gas emissions. These increased efforts to address pressing environmental issues reflect a substantial departure form the previous norm of stonewalling the cries of activists. Improved green disclosures signify activists' strident ability to interfere and block continuing development efforts. As issuers come to realize the mounting power of these organizations, environmental disclosures appear to be expanding in kind.

SEC Currents' Staff has analyzed a range of environmental disclosures and uncovered new language reflecting a marked increase in issuers' environmental compliance efforts. These disclosures suggest a significant struggle between environmental awareness and business development, considered against the backdrop of the embroiling debate over global warming, its causes, and potential solutions. The political and regulatory climate appears to be calling particular attention to businesses heavily involved in energy manufacturing and production. According to SEC Currents, "As issuers come to realize the mounting power of these organizations, environmental awareness disclosures appear to be expanding -- even though the Securities and Exchange Commission remains mum on what must be required."

Listed below is an in-depth SEC Currents examination regarding the rising trends in environmental disclosures. In addition, GSI has compiled a list of related search statements to ease your research efforts.

  • Environmental Liabilities or Risk Factors (Form 10-K)
  • Environmental Related Loss Contingencies
  • Environmental Related Remediation Disclosure
  • Entry Into Material Agreement Involving Purchase of Wind Turbines
  • Registration Statements (S-1) by Issuer in the Alternative Energy Industry
  • Renewable Energy Credits (REC) Discussed by Issuer
  • Carbon Footprint & Investor Concerns
  • Offshore Drilling - Issuer Disclosure In Regulatory Filings

Going Green: Environmental Disclosures on the Rise