Diversity Driven Derivative Suits: Culture Wars Come to the Boardroom
Traditionally deployed to protect a corporation from its board’s imprudent investment or financial decision-making, in recent years shareholders have taken to bringing derivative actions on a corporation’s behalf for its board’s alleged failure to pay more than lip service to the diversity, equity and inclusion (“DEI”) commitments the company publicly proclaims. Spurred in 2020 in…
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Court Rulings Demonstrate That Privilege Is Not Always a Right
Earlier this year, following oral argument and 16 amicus submissions, the Supreme Court dismissed as improvidently granted (“DIG”)[1] a writ of certiorari on the issue of whether communications involving both legal and non-legal advice are protected by the attorney-client privilege.[2] This red-hot issue was granted review following the decision styled In Re Grand Jury, in…
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Danger, Does Not Compute: SEC Takes Aim at Predictive Data Analytics Per Proposed Rules
On July 26, 2023, the Securities and Exchange Commission (“SEC”), in a 3-2 vote, issued a release (the “Release”) containing proposed rules to address conflicts of interest associated with broker dealers’ and investment advisers’ use of predictive data analytics (“PDA”) technologies, and PDA-like technologies, when interacting with investors.[1] The SEC’s proposed rules amend Rules 151-2,…
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Release Me? Supreme Court to Resolve Contentious Bankruptcy Issue
In March 2022, we discussed the decision by the Southern District of New York (the “District Court”) overturning the U.S. Bankruptcy Court for the Southern District of New York’s (the “Bankruptcy Court”) confirmation of drugmaker Purdue Pharma’s controversial Chapter 11 Bankruptcy Plan (the “Plan”).[i] The District Court determined that the Bankruptcy Code did not permit the…
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Key Questions When Determining Eligibility for State Historic Tax Credits
Real estate developers have long had ample reasons to take on projects involving historic buildings, courtesy of Section 47 of the Internal Revenue Code of 1986. As amended, Section 47 (the “Code”) provides for a rehabilitation tax credit, also commonly known as the historic tax credit (“HTC”) equal to 20% of qualified rehabilitation expenditures (“QREs”)…
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What SEC’s Transparency Rule Means for Investors, Advisers and Funds
Earlier this summer, we wrote about both new and amended rules proposed by the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940 (the “Advisers Act”) regarding private funds, their advisers, and transparency to investors (the “Proposed Rules”). On August 23, 2023, the SEC adopted the final rule (the “Rule”), which cut…
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Corporate Divorce Can Be Messy, But Not for Those Who Are Prepared
While no one enters a partnership expecting it to end in divorce, no one is immune to failure. In the world of business, partnerships can sometimes mirror the complexities of personal relationships. Often, it is the “we’ve known each other forever” handshake partnerships that explode the loudest. When business partners decide to separate their interests,…
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What IRS’s Low-Income Adder Guidance Means For Renewables Projects
The Inflation Reduction Act of 2022 (the “Act”) breathed new life into the tax scheme for renewable energy projects, creating a new base tax credit with a series of adders that can significantly increase viability of projects that otherwise would not be economically feasible. The IRS issued Revenue Procedure 2023-27 (“Rev. Proc. 23-27”) on August…
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Florida Business Climate Great for Pickleball, But Risks Are in Play
When discussing the ever-evolving landscape of Florida’s commercial real estate (CRE) market, one trend has begun to stand out — the rise of pickleball. This sport, once a leisurely pastime, has turned into a compelling investment opportunity, transforming the CRE sector and driving significant shifts in property acquisition and development strategies throughout Florida — but…
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How IRS Is Cracking Down on Employee Retention Tax Credit Fraud
The Internal Revenue Service (“IRS”) has recently devoted great attention to detecting, investigating, and prosecuting fraud, particularly as it relates to the Employee Retention Tax Credit (“ERC”) post-COVID. On a webinar broadcast on July 25, 2023, hosted by the IRS’s Office of Fraud Enforcement and National Fraud Counsel, the presenters noted that ERC claims top…
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