Corporate Defense and Disputes

Important developments in U.S. securities law, white collar criminal defense, regulatory enforcement and other emerging issues impacting financial services institutions, publicly traded companies and private investment funds

Rachel Wolkinson

Rachel Wolkinson

Associate

Rachel Wolkinson is an associate in the Litigation Department. She focuses on complex litigation matters, including securities litigation and investigations, shareholder derivative litigation and civil enforcement proceedings. She also has represented companies in anti-corruption investigations due diligence and has advised companies on the development of Foreign Corrupt Practices Act and Office of Foreign Assets Control compliance programs.

Rachel represents clients in many different industries, including financial institutions, and energy and technology companies.

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International Comity and Deference: A Foreign Government with Final Say When Interpreting its Own Laws

On Tuesday, the Second Circuit in In Re Vitamin C Antitrust Litigation vacated a $147 million award against two Chinese companies for engaging in anti-competitive behavior.  At issue was how a federal court should respond when a foreign government’s regulatory scheme conflicts with U.S. laws.  Because the Chinese companies could not simultaneously comply with Chinese law … Continue Reading

Second Circuit: Intent to Harm Is Not Required for Criminal Conviction Under Investment Advisers Act

The U.S. Court of Appeals for the Second Circuit yesterday affirmed the fraud conviction of a registered investment adviser and held that proof of intent to harm is not an element of a criminal conviction under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. §80b-6 (“IAA”).  The court’s decision in U.S. v. Tagliaferri, … Continue Reading

SEC Accepts DC Circuit’s Decision Vacating Retroactive Punishment

Following the D.C. Circuit’s July 14, 2015 decision in Koch et al. v. Securities and Exchange Commission, No. 14-1134 (D.C. Cir. July 14, 2015), which held that the SEC could not retroactively punish an investment advisor for conduct that occurred prior to the enactment of the statute authorizing the punishment, the SEC announced last week … Continue Reading

SEC Sanctions Hedge Fund Advisory Firm For Improper Valuations of Illiquid Securities

Returning to an enforcement priority repeatedly articulated over the years (for example, here,  here and here), the SEC recently imposed sanctions on a registered investment advisory firm and two principals arising out of an alleged scheme to inflate the valuations of illiquid mortgage-backed securities held by private investment funds managed by the adviser. The SEC … Continue Reading

Delaware Governor Signs Bill Prohibiting Bylaws on Fee-Shifting

Last week, Delaware Governor Jack Markell signed Senate Bill 75, which amends the Delaware General Corporation Law to prohibit Delaware stock corporations from adopting bylaws that force shareholders to pay legal fees if they do not prevail in lawsuits asserting internal corporate claims against Delaware corporations.  The legislation also allows Delaware corporations to designate Delaware … Continue Reading

SEC’s Data-Driven Analysis Identifies Allegedly Improper Trade Allocations by Investment Advisor

Relying on a data-driven statistical analysis conducted by the Division of Economic and Risk Analysis (DERA), the SEC recently commenced administrative proceedings against an investment advisor, Welhouse & Associates, Inc., and its principal, charging them with improperly allocating profitable options trades to the principal’s own accounts while allocating unprofitable trades to the firm’s clients. The … Continue Reading

Delaware House Passes Bill Prohibiting Bylaws on Fee-Shifting

Yesterday, the Delaware House of Representatives unanimously passed a bill prohibiting publicly traded corporations from adopting bylaws that force shareholders to pay legal fees if they do not prevail in lawsuits asserting internal corporate claims against Delaware corporations.  The bill would also allow Delaware corporations to designate Delaware – but not any other state – … Continue Reading

Delaware Senate Passes Bill Prohibiting Bylaws on Fee Shifting

Yesterday, the Delaware Senate passed legislation prohibiting publicly-traded corporations from adopting bylaws that force shareholders to pay legal fees if they bring internal corporate claims against the company in court and do not win. The legislation also allows Delaware corporations to designate Delaware – but not any other state – as the exclusive forum for … Continue Reading

Delaware Legislature to Consider New Fee-Shifting Legislation

On April 29, 2015, Senator Bryan Townsend introduced legislation that would amend the Delaware General Corporation Law (DGCL) to ban fee-shifting bylaws for Delaware stock corporations (non-stock corporations would continue to be able to adopt fee-shifting bylaws). The bill, Senate Bill No. 75, would also confirm the Court of Chancery’s decision in Boilermakers Local 154 … Continue Reading

State Bar Council Proposes New Legislation for Delaware Fee-Shifting Ban and Delaware Court of Chancery Considers Fee-Shifting Bylaw

In December, we reported on the Delaware Court of Chancery’s continued validation of board-adopted forum-selection bylaws in City of Providence v. First Citizens BancShares, Inc., 99 A.3d 229, 234 (Del. Ch. 2014), and the proposed amendment to the Delaware General Corporation Law (DGCL) that would eliminate the ability of Delaware stock corporations to impose liability for … Continue Reading

Proskauer Hedge Fund Seminar Recap: Fallout From the Second Circuit’s Insider-Trading Ruling

On Thursday, February 5, 2015, Ralph C . Ferrara, Robert J. Cleary and Jonathan E. Richman were invited to Proskauer’s Hedge Fund Breakfast Seminar to speak about the Second Circuit’s insider-trading ruling in Newman/Chaisson.  The litigators provided the group of hedge fund professionals with a helpful overview of insider-trading laws, followed by an interesting discussion … Continue Reading

Delaware Legislature to Resume Debate in January on Bylaws Imposing Liability on Shareholders

The D&O Diary featured a version of this post, entitled “New Debate in January on Delaware Bylaws re Shareholder Liability,” as a guest blog post. Many thanks to Kevin LaCroix of The D&O Diary for publishing our post. The ability of corporations to impose liability on shareholders through bylaws and charter provisions has been the subject of … Continue Reading

Kahn v. M&F Worldwide Corp.: Delaware Supreme Court Affirms Court of Chancery Ruling that Business Judgment Review Can Apply to Squeeze-Out Mergers

In Kahn v. M&F Worldwide Corp., the Delaware Supreme Court unanimously affirmed the Court of Chancery’s decision that the business judgment standard, rather than the entire fairness standard of review, applies to controller freeze-out mergers where the controller’s proposal is conditioned at the outset on both Special Committee approval and a favorable majority of the … Continue Reading
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