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Articles by Jennifer Windom
Securities Risk Disclosure Lessons for Life Sciences Companies
A new FDA policy gives investors independent insight into companies’ regulatory posture, making carefully calibrated securities disclosures even more critical. Jennifer Windom, Elizabeth Jungman and Bolton Smith of Hogan Lovells examine how life sciences companies face liability when they frame risks as hypothetical while regulatory developments suggest those risks have already materialized.
Securities Risk Disclosure Lessons for Life Sciences Companies
The threshold for securities disclosure is very different from the “statistically significant” standard used by most scientists and researchers Read full article here. This article is published by Corporate Compliance Insights. Authored by Jennifer Windom, Elizabeth Jungman, and Bolton Smith. Register now to receive personalized content and more!
SEC Announces Two Charges For Anti-Money-Laundering Violations
Last week, the Securities and Exchange Commission (SEC) announced two enforcement actions related to the failed implementation of anti-money-laundering (AML) procedures. These charges reflect the SEC's continued focus on financial institutions' compliance with AML program requirements under the Bank Secrecy Act (BSA), as well as other institutions' voluntary implementation of AML procedures. On Jan.
Delaware Supreme Court Affirms Breach of Fiduciary Duty Judgment Against CEO but Reverses Bidder’s Aiding and Abetting Liability | JD Supra
In a recent decision by the Delaware Supreme Court sitting en banc in In re Mindbody, Inc., Stockholder Litigation,[1] the court affirmed the Court of Chancery’s determination that Mindbody’s CEO had breached his duties of loyalty and disclosure in connection with the firm’s sale, but reversed the Court of Chancery’s holding that the successful bidder was liable for aiding and abetting the CEO’s disclosure breaches.
Corporate Governance: 2024 Midyear Review
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In this midyear update, we cover a number of significant corporate governance developments that have taken place over the first half of the year and since our Corporate Governance 2023 Year-End Review.
By Christopher Auguste, Mathilde Carle, Roy Englert, Reid Feldman, Robert Holtzman, Shari Kahn Krouner, Yasho Lahiri, Kerri Ann Law, Todd Lenson, Gary P.Naftalis, Andrew Otis, Jordan M. Rosenbaum, Harry Rubin, George Silfen, Jonathan Wagner, Robert Weiss, Jennifer Windom, Daniel Zimmerman, Darina F. Delappe, Alan Friedman Verified, Thomas Molner, Jeffrey Taub, Austin Manes, Jonaki Singh, Hannah Sosland, David Yanvarashvili
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Supreme Court Grants Certiorari To Determine Scope Of Required Corporate Risk Disclosures
On June 10, 2024, the Supreme Court granted certiorari in Facebook, Inc. v. Amalgamated Bank1 to review a decision by the Ninth Circuit Court of Appeals holding that Facebook could be held liable under Section 10(b) and Rule 10b-5 for failing to disclose risks that had materialized in the past but that presented no known risk of ongoing or future business harm.
Supreme Court Grants Certiorari To Determine Scope of Required Corporate Risk Disclosures
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On June 10, 2024, the Supreme Court granted certiorari in Facebook, Inc. v. Amalgamated Bank[1] to review a decision by the Ninth Circuit Court of Appeals holding that Facebook could be held liable under Section 10(b) and Rule 10b-5 for failing to disclose risks that had materialized in the past but that presented no known risk of ongoing or future business harm.
By Kerri Ann Law, Gary P.Naftalis, Jonathan Wagner, Jennifer Windom, Alan Friedman Verified, Jonaki Singh
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SEC Secures Jury Verdict in Shadow Insider Trading Trial
On April 5, 2024, a federal jury in San Francisco returned a verdict in favor of the Securities and Exchange Commission (SEC) in Securities and Exchange Commission v. Panuwat.[1]The jury found that a corporate executive had engaged in insider trading when he learned about an impending acquisition of his employer and then traded securities of an unrelated company in the same industry.
Key Lessons After A Rare R&W Insurance Ruling
ADVERTISEMENT Don't want ads? Subscribe or login now. By Jennifer Windom, Arthur Aufses and Jack Herman (February 22, 2024, 5:23 PM EST) -- A recent summary judgment in Novolex Holdings LLC v. Illinois Union Insurance Co. is noteworthy as one of the rare judicial opinions arising in the context of representations and warranties insurance.... A Law360 subscription puts you at the center of fast-moving legal issues, trends and developments so you can act with speed and confidence.
Case Alert: Novolex v. Illinois Union Insurance, Et Al.
A recent summary judgment decision is noteworthy as one of the rare judicial opinions arising in the context of representations-and-warranties (R&W) insurance. On Jan. 12, 2024, in Novolex Holdings, LLC v.
Case Alert: Novolex v. Illinois Union Insurance, et al. | JD Supra
February 8, 2024 Arthur Aufses III, Jack Herman, Jennifer S. Windom Kramer Levin Naftalis & Frankel LLP + Follow x Following x Following - Unfollow Contact To embed, copy and paste the code into your website or blog: A recent summary judgment decision is noteworthy as one of the rare judicial opinions arising in the context of representations-and-warranties (R&W) insurance. On Jan. 12, 2024, in Novolex Holdings, LLC v.
Subrogation Rights In R&W Insurance Policies
The volume and size of insurer payments under R&W insurance policies are increasing. According to a May 2023 Aon study, the average R&W insurance claim payment to Aon clients in 2022 was $9 million, "significantly higher than the average claim payment in each of the previous two years." Aon, 2023 Transaction Solutions Global Claims Study, at 22. In addition, according to Aon, the frequency of claims on deals worth more than $100 million increased from prior years. Id. at 8, 29.
Subrogation Rights in R&W Insurance Policies | JD Supra
The volume and size of insurer payments under R&W insurance policies are increasing. According to a May 2023 Aon study, the average R&W insurance claim payment to Aon clients in 2022 was $9 million, “significantly higher than the average claim payment in each of the previous two years.” Aon, 2023 Transaction Solutions Global Claims Study, at 22. In addition, according to Aon, the frequency of claims on deals worth more than $100 million increased from prior years. Id. at 8, 29.
Subrogation Rights in R&W Insurance Policies
The volume and size of insurer payments under R&W insurance policies are increasing. According to a May 2023 Aon study, the average R&W insurance claim payment to Aon clients in 2022 was $9 million, “significantly higher than the average claim payment in each of the previous two years.” Aon, 2023 Transaction Solutions Global Claims Study, at 22. In addition, according to Aon, the frequency of claims on deals worth more than $100 million increased from prior years. Id. at 8, 29.
Diversity in the Boardroom: Fifth Circuit Rejects Challenge to the SEC Nasdaq Board Diversity Rules; En Banc Petition Quickly Filed
The U.S. Court of Appeals for the Fifth Circuit (Court) recently rejected challenges to Nasdaq’s “Board Diversity” framework. Those rules require Nasdaq-listed companies to report that they have, or explain why they do not have, diverse directors on their boards. In an Oct. 18 unanimous opinion, the court held that the Securities and Exchange Commission (SEC) acted within its authority to approve the rules. The three judges who heard the case were all appointed by Democratic presidents. On Oct.
DOJ Announces New Mergers and Acquisitions Safe Harbor Policy for Voluntary Self-Disclosures
On Oct. 4, 2023, in remarks delivered to the Society of Corporate Compliance and Ethics’ 22nd Annual Compliance & Ethics Institute, Deputy Attorney General (AG) Lisa Monaco announced the Department of Justice’s (DOJ) new Mergers & Acquisitions Safe Harbor Policy.
Ghostbusters: In a New Win for Providers, No Surprises Act Rules Struck for Allowing Ghost Rates
Last week, the federal government met its fourth loss in a challenge brought by health care and air ambulance providers against No Surprises Act (NSA) regulations. We wrote about the previous victories by out-of-network providers and other NSA litigation in a recent client alert.
No Surprises Here: Providers Score Third Victory In No Surprises Act Litigation, Other Challenges To The NSA Continue
Congress enacted the No Surprises Act (NSA) in 2020 to reduce surprise medical bills and to provide a simple and fast procedure for out-of-network health care providers to obtain payment from insurers. The U.S. Department of Health and Human Services (HHS), with other agencies, promulgated regulations to govern this payment process, but did so in a way that many perceive stacked the deck against providers and in favor of insurers.
No Surprises Here: Providers Score Third Victory in No Surprises Act Litigation, Other Challenges to the NSA Continue
Congress enacted the No Surprises Act (NSA) in 2020 to reduce surprise medical bills and to provide a simple and fast procedure for out-of-network health care providers to obtain payment from insurers. The U.S. Department of Health and Human Services (HHS), with other agencies, promulgated regulations to govern this payment process, but did so in a way that many perceive stacked the deck against providers and in favor of insurers.
Recent DOJ Settlement With NextGen Highlights Continued Enforcement Focus On Electronic Health Records Technology Vendors
On July 13, NextGen Healthcare Inc.
DOJ’s Recent Settlement With NextGen
On July 13, NextGen Healthcare Inc.
Senate Committee Questions Insurers on Climate
Property-casualty insurers should take note of letters sent by the U.S. Senate Budget Committee on June 9 to prominent insurers seeking information on climate-related matters. The letters are available here and seek production of information regarding these companies’ practices that bear on climate change. The letters implicate both insurance-underwriting activities and investing activities of these insurers.
Supreme Court Unanimously Narrows Scope Of Liability Under Section 11(a) Of Securities Act Of 1933
In Slack Technologies, LLC v. Pirani,1 the Supreme Court on June 1, 2023, unanimously held that even in a case involving direct listing of both registered and unregistered securities, to state a claim under Section 11(a) of the Securities Act of 1933, a plaintiff must allege that he or she purchased securities issued pursuant to and traceable to the allegedly misleading registration statement. Justice Neil Gorsuch wrote the opinion for a unanimous Court.
Supreme Court Unanimously Narrows Scope of Liability Under Section 11(a) of Securities Act of 1933
In Slack Technologies, LLC v. Pirani,1 the Supreme Court on June 1, 2023, unanimously held that even in a case involving direct listing of both registered and unregistered securities, to state a claim under Section 11(a) of the Securities Act of 1933, a plaintiff must allege that he or she purchased securities issued pursuant to and traceable to the allegedly misleading registration statement. Justice Neil Gorsuch wrote the opinion for a unanimous Court.
AluminumSource, LLC V. LLFlex, LLC
A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on claimed breaches of representations and warranties to solve real-world problems with the business that they purchase.
Drafting Effective RWI Coverage Exclusions
Coverage exclusions are a key risk management tool for transactional liability insurers. But they can also be traps for the unwary. In the event of a claims dispute, the insurer will likely bear the burden of proving that an exclusion applies, and a judge or arbitrator may (depending on the circumstances) be tasked with interpreting the exclusion based solely on its terms, without external evidence of what the underwriter intended.
Case Alert: AluminumSource, LLC v. LLFlex, LLC
A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on claimed breaches of representations and warranties to solve real-world problems with the business that they purchase.
SCOTUS Unanimously Holds That Respondents in FTC and SEC Administrative Law Proceedings May Challenge the Constitutionality of Such Proceedings in Federal District Court Without First Submitting to a Final Agency Order
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On April 14, 2023, the Supreme Court issued a unanimous decision in two related cases, Axon Enterprise, Inc. v. FTC (No. 21-86) and SEC v. Cochran (No. 21-1239), holding that respondents may challenge the constitutionality of the agency’s authority in federal court before receiving a final agency order.
By Roy Englert, Alan Friedman, Dani James Verified, Michael Martinez, Gary P.Naftalis, Jennifer Windom, Daniela C. Manzi
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Wells Fargo Fined $97.8 Million for Failing to Identify Sanctions Violations From a Legacy Wachovia Business
On March 30, federal regulators announced that Wells Fargo Bank had entered into settlements in which it agreed to pay $97.8 million in fines for enabling sanctions violations between 2010 and 2015.[1] In two separate enforcement decisions, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Reserve’s Board of Governors found that Wells Fargo provided a financial software platform called Eximbills to an unnamed European bank (Bank A), which then used the...
DOJ Reinforces Its Focus on Affirmative Corporate Accountability at the ABA’s 38th Annual White Collar Conference
Earlier this month, at the American Bar Association’s (ABA) 38th National Institute on White Collar Crime, Deputy Attorney General Lisa O. Monaco and Assistant Attorney General Kenneth A. Polite, Jr. highlighted the Department of Justice’s (DOJ) recent policy changes and expanded initiatives in corporate criminal enforcement, emphasizing once again the importance of affirmative corporate compliance and DOJ’s commitment to individual accountability.
R&W Case Alert: Fraud-Based Claims Against Private Equity Firms
In recent years, private equity (PE) firms have bought and sold more businesses, at higher prices, than ever before. This growth has raised the stakes for all parties. For sellers, in particular, bigger deals mean the claims buyers may bring after closing pose greater risk. Sellers have worked hard to manage this risk.
Investors Beware: Private Equity Firms Continue to Face Potential Liability Under the False Claims Act for Their Portfolio Companies’ Conduct
Two years ago, the U.S. Department of Justice announced a focus on enforcing the False Claims Act against private equity firms based on their portfolio companies’ conduct.[1] That government focus remains strong: Private equity firms, and particularly those invested in health care and pharmaceutical businesses, continue to face exposure simply for knowing about — or recklessly disregarding — their portfolio company’s potential False Claims Act violations.
Updates From ACI's Advanced Forum On False Claims And Qui Tam Enforcement, June 22-23 In New York
Government, industry and outside counsel convened in New York June 22-23 at ACI's Advanced Forum on False Claims and Qui Tam Enforcement to discuss recent trends in False Claims Act (FCA) case law and enforcement priorities. The panels addressed several developments of potential interest to health care providers, contractors that certify compliance with government cybersecurity requirements, and private equity firms that invest in and manage government contractors.
Crossing the Omicron Rubicon: Making the Most of Remote Depositions
Witnesses If you are preparing to take a deposition, confirm in advance with the deponent or the deponent’s counsel that the deposition will take place in an appropriate setting and on an appropriate device with a stable internet connection. Computers and large tablets are preferable to smartphones. Witnesses should be able to open and review full documents through the web-based deposition platform.
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