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Challenges to incumbent boards and managements by activist investors were common in 2014. With the announcement on January 8, 2015 that Trian Fund Management, L.P. (“Trian”) is nominating a short slate of four candidates for election to the board of directors of E. I. du Pont de Nemours and Company (“DuPont”)—a company with a current market capitalization in excess of $66 billion—this trend is likely to continue in 2015. Moreover, Trian’s proxy contest with DuPont illustrates that not just small- and mid-cap public companies that have underperformed their applicable index are vulnerable to aggressive shareholder activism; shareholder activists also target large-cap public companies that have outperformed the S&P 500 index.
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On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) was signed into law. While the sweeping legislation is primarily aimed at large financial institutions that are deemed to be systemically important, smaller financial institutions and nonfinancial institutions are also affected in significant ways, including, by way of example, the Dodd-Frank Act’s impact on private securities offerings. This article first discusses the new accredited investor standard that was mandated by the Dodd-Frank Act. Next, this article discusses the proposed Securities and Exchange Commission (“SEC”) rules that will, as required by the Dodd-Frank Act, disqualify certain “bad actors” from relying on the frequently used securities registration exemption provided by Rule 506 of Regulation D.
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This Article is intended to provide practitioners unfamiliar with bankruptcy preference claims a step-by-step guide to determine whether the elements of a preference claim have been met and what potential defenses are available.
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