NY Business Law Journal

2023 Vol. 27 No. 1

Published by: Business Law Section

Removing an Impediment to Franchising in New York

New York needs a more efficient franchise registration and renewal process. Before a franchisor can sell franchises in New York State, the franchise offering must be registered with the New York State Attorney General’s Office (the AG’s Office). Registration entails the review and approval of the franchise disclosure document (the FDD) by a franchise examiner … Continued

By Thomas M. Pitegoff

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Much Ado About Nothing: Flirting With Changing the World’s Oldest Privilege

William Shakespeare’s Much Ado About Nothing interweaves themes of infidelity, deception, mistaken identities, and (most importantly for this article) various plays on the words “noting” and “nothing.”1 Many of these same themes (especially the last one) swirled around a recent case that went up to the U.S. Supreme Court with great public hullabaloo. The case involved the appropriate … Continued

By C. Evan Stewart

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Landed a Cross-Border Transaction? Why You Should Include a New York Forum Selection Clause and Appoint New York Process Agents

Congratulations, you just closed a lucrative cross-border transaction! Are you ready to litigate? While the last thing your client wants to think about at a closing dinner is having to run to court to enforce its rights, as attorneys we know this is an unfortunate possibility. This is why every written agreement should contain not … Continued

By William F. Hennessey 2nd

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Key Litigation Risks and Mitigation Strategies for Non-U.S. Companies Listed in the U.S.

Becoming embroiled in civil litigation in the U.S. is a common concern of companies listed on U.S. markets but headquartered elsewhere. This concern is understandable. After all, statistics consistently show the U.S. has some of the highest volumes of litigation in the world, whether measured on an absolute or per capita basis. Many factors contribute … Continued

By David Rein, Eric Andrews

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Inside the Courts: An Update From Skadden Securities Litigators

Spotlight Circuits Split Over Whether Targeting Is Necessary for Seller Liability Key Points While courts have long held that solicitations must be tailored to a particular audience to precipitate statutory seller liability, recent decisions have declined to apply that requirement. In Wildes, the Eleventh Circuit reversed the dismissal of claims arising from the solicitation of unregistered … Continued

By Business Law Section

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HeadNotes

The dominant business news story of the first half of 2023 has been the failures of three large regional banks: Silicon Valley Bank, based in Palo Alto; Signature Bank, based in New York; and First Republic Bank, based in San Francisco. First Republic was taken over by JPMorganChase, with assistance from the Federal Deposit Insurance … Continued

By David L. Glass

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FAQ Re: Incentive-Based Compensation: Understanding the New Clawback Rules

In October 2022, the U.S. Securities and Exchange Commission (SEC) adopted rules implementing “clawback” provisions pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The rules directed national securities exchanges to establish listing standards that will require issuers to implement written clawback policies that satisfy related disclosure obligations. In January 2023, … Continued

By Guy Ben-Ami, Steven J. Glusband

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Committee Reports

The Business Law Section conducts most of its activities through individual committees that focus on various areas of business law. Membership in any committee is open to any Section member. While active participating is encouraged, there is no required time commitment. To join a committee, email [email protected]. For more information, visit https://NYSBA.ORG/BUSINESS. Banking Law Committee … Continued

By Business Law Section

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Message From the Chair

By the time this message is published, my term as chair of the NYSBA’s Business Law Section will have ended. On behalf of the Executive Committee and the section, I welcome Jessica Parker as our new chair. I have every confidence that Jessica will lead the section with excellent and timely educational programs, active committees … Continued

By Thomas M. Pitegoff

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CFPB Finalizes Landmark Small-Business Lending Data Collection Rule

CFPB Finalizes Landmark Small-Business Lending Data Collection Rule By the Lawyers at Debevoise & Plimpton On March 30, 2023, the Consumer Financial Protection Bureau (CFPB) published its long-anticipated final rule1 (the “Final Rule”) implementing the small business lending data collection requirements set forth in § 1071 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.2 Section … Continued

By the Lawyers at Debevoise & Plimpton

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Canada’s Fighting Against Forced Labour and Child Labour in Supply Chains Act: What Business Lawyers Should Know

I. Introduction: Regulations Against Forced Labor1 in the Supply Chain. Companies that are engaged in cross-border commerce increasingly are finding themselves subject to other countries’ laws regulating the use of forced labor and child labor in the supply chain. Thus, it is incumbent on lawyers who advise international companies to be up to speed on this … Continued

By Janelle M. Lewis

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Beware of the Tail Fee: Understanding and Avoiding the Common Pitfalls of Tail Fee Provisions in Investment Banking Agreements

Many businesses looking to raise capital are understandably eager to engage a good investment banker to assist them in what can be an exciting endeavor. In the process of engaging an investment banker, however, they might overlook a key provision of the agreement—the tail fee. The tail fee provision is intended to protect investment bankers … Continued

By Harry C. Beatty, Alex T. Paradiso

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Attorney-Client Privilege

Many people are aware of the concept that communications between clients and their attorneys are “privileged,” but the fine lines of that privilege are not often understood. It is important to be conscious of the limits of that privilege because the forced disclosure of a communication that the client or the attorney assumed would remain … Continued

By Stuart B. Newman

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