Olshan Insights - December Issue
Firm News
Law360 Reports on Amicus Brief to Protect DGCL and Shareholder Rights
Law360 has reported on the Amicus Brief filed by fourteen law professors who have urged Delaware’s Supreme Court to reject an effort to use an appeal from a Chancery Court ruling to “enact a sweeping transformation of the way that Delaware’s corporate law gets made.” Olshan Chair of Litigation Lori Marks-Esterman and counsel Jacqueline Ma represent the Amici Curiae in support of the Plaintiff/Appellee in this matter.
Starboard Value LP Reaches Agreement with Healthcare Realty Trust Incorporated for Board Changes
Olshan client Starboard Value LP reached an agreement with Healthcare Realty Trust Incorporated (NYSE: HR) pursuant to which three new independent directors with deep industry and leadership experience were appointed to the HR Board - David Henry, Glenn Rufrano and Don Wood. Mr. Henry and Mr. Rufrano were also appointed to the Board committee overseeing the previously announced CEO search, with Mr. Rufrano serving as Chair of the committee. Olshan Co-Managing Partner and Chair of the firm’s Shareholder Activism Practice Andrew Freedman, Shareholder Activism partner Meagan Reda, and associates Mark Kiley and Joseph Del Vicario represented Starboard Value LP in this matter.
Olshan Client Murchinson Ltd. Achieves Victory at Nano Dimension Ltd.’s 2024 Annual General Meeting
Olshan client Murchinson Ltd. has announced that Nano Dimension shareholders have supported the election of its two director nominees, Ofir Baharav and Robert (Bob) Pons, to the Nano Board at the Company’s 2024 Annual General Meeting of Shareholders, replacing two incumbent Nano directors. Murchinson’s victory at the 2024 AGM follows years of pushing for change and a long-awaited Israeli court decision validating the results of the Nano special meeting called by Murchinson in March 2023, at which Nano shareholders approved the removal of four incumbent Nano directors and the appointment of Murchinson’s two independent nominees - Kenneth Traub and Dr. Joshua Rosensweig. Olshan Shareholder Activism partner Meagan Reda and associate Mark Kiley represented Murchinson in this matter.
Olshan Client Stilwell Announces Stockholder Approval of Its Rule 14a-8 Proposal Requesting Sale of IF Bancorp, Inc.
Olshan client Stilwell Activist Investments LP, (together with its affiliates, “Stilwell”) has announced that stockholders of IF Bancorp, Inc. (“IROQ” or the “Company”)(Nasdaq: IROQ) approved Stilwell’s Rule 14a-8 proposal requesting a sale of IROQ at the Company’s 2024 annual meeting of stockholders held on November 25, 2024. If the stockholder-approved proposal does not lead to the Company's prompt sale, Stilwell intends to seek board representation at IROQ’s 2025 annual meeting of stockholders. Olshan Shareholder Activism partner Meagan Reda and associate Nikoleta Holevas represented Stilwell in this matter.
CO2 Energy Transition Completes $60M SPAC IPO Underwritten by Client Kingswood Capital
Olshan acted as counsel to Kingswood Capital Partners LLC, the sole underwriter, in the $60 million initial public offering and listing on Nasdaq for CO2 Energy Transition Corp., a new special purpose acquisition company (SPAC). The offering consisted of 6,000,000 units at an offering price of $10.00 per unit. Each unit consists of one share of common stock, one redeemable warrant to purchase one share of common stock at $11.50 per share, and one right to one-eighth of one share of common stock upon completion of an initial business combination. Kingswood Capital also exercised its over-allotment option in full to purchase 900,000 additional units at $10.00 per unit. The units are traded on The Nasdaq Global Market under the ticker symbol “NOEMU.” Once the securities comprising the units begin separate trading, the common stock, the warrants and the rights are also expected to be traded on Nasdaq. CO2 Energy intends to initially pursue targets in the carbon capture, utilization and storage industry. The Olshan team was led by corporate partner?Spencer Feldman?and corporate associate?Dakota Forsyth.
Accolades
Lori Marks-Esterman, Nina Roket and Andrew Freedman Recognized as 2024 “New York Business’ Notable Leaders in Accounting, Consulting & Law” by Crain’s New York Business
Crain’s New York Business has recognized Chair of Olshan's Litigation Practice Lori Marks-Esterman; Co-Managing Partner, Co-Chair of the firm's Real Estate Law Practice and Chair of the firm’s Commercial Leasing Practice Nina M. Roket?and Co-Managing Partner and Chair of the firm’s Shareholder Activism Practice Andrew Freedman as 2024 “New York Business’ Notable Leaders in Accounting, Consulting & Law.” This special editorial report recognizes top leaders in accounting, consulting and law in the New York metro area who possess the financial, strategic and legal expertise to drive significant commercial activity in the region, shaping New York City’s business landscape and fostering enterprise growth.
Nina Roket Featured in New York Business Journal’s 2024 Women of Influence Spotlight
Olshan Co-Managing Partner, Co-Chair of Real Estate Law Practice and Chair of Commercial Leasing Group, Nina Roket has been selected as one of New York Business Journal's Women of Influence. The publication posted a story about the 2024 honorees, noting that just 10 women were selected. All come from varying industries and professions but share the common theme of influence.
Nina Roket Wins Connect CRE’s New York & Tri-State 2024 Women in Real Estate Award
Olshan Co-Managing Partner, Co-Chair of Real Estate Law Practice and Chair of Commercial Leasing Group, Nina Roket?has been named a winner of?Connect CRE’s New York & Tri-State 2024 Women in Real Estate Award. This award honors the achievements and inspirational stories of women who have reached respected leadership positions and taken on mentorship roles.
?Articles
Thomas Kearns and Kenneth Silverman Publish Article in Law360 on Preparing For Film Facility M&A
Co-Chair of Olshan's Real Estate Law practice Thomas Kearns and Corporate partner Ken Silverman authored an article in Law360 entitled “Lights, Camera, Real Estate: Preparing For Film Facility M&A.” In the article, Tom and Ken discuss the unique aspects of buying and selling film and TV production facilities. They write that while the financing of movie and TV studios may follow a traditional real estate development track, typically secured by a mortgage on the real property, there are some key differences in the sale or acquisition of a production facility. While typical commercial property sales are accomplished as asset sales, operating businesses such as studios are often structured as mergers. “Mergers do bring some complications,” they write. “For example, all liabilities of the existing business bind the buyer. A merger agreement can, however, provide extensive representations about the operations of the business, its financial conditions and statements and known or potential liabilities.” Obtaining representation and warranty insurance (RWI) “can significantly reduce friction between the buyer and the seller….” Production facility transactions often require due diligence regarding local economic development and tax credit regulations because municipalities generally treat film production facilities as local generators of wages and other income resulting in a net gain over the cost of the economic development program or tax credits.
Edward Taibi Publishes Article in NYLJ on the Resurgence of Family Office Enterprises
Olshan corporate partner Edward Taibi published a New York Law Journal article entitled “‘Modern Family’: The Resurgence of Family Office Enterprises” about how family offices—private investment organizations managing wealth for high-net-worth families—have seen a significant resurgence in the past 10 to 15 years and how they now rival traditional private equity, venture capital and hedge funds. Their importance has only continued due to unprecedented wealth accumulation and diversification, Ed writes, and these offices have since moved toward direct investing, reducing reliance on external funds and associated fees while gaining control over investments. “Family offices offer ‘patient’ capital, meaning they are not beholden to contractually defined holding-period models of private equity firms,” he explains. “Employing a long-term view diminishes the reliance on debt-focused financing structures, which allows family offices to invest in opportunities when debt markets are inaccessible to shorter-term investment funds.” Ed adds that family offices interested in growing direct and controlled investing pursuits must engage with experienced outside counsel for advice on transactional and financing matters, and also to help assemble the best-suited team to evaluate and execute on investments pre- and post-transaction. Furthermore, legal counsel should also advise on regulatory and compliance matters relating to direct investment efforts to better ensure preservation of family integrity and good standing.
Thomas Fleming and Jacqueline Ma Publish Article in Legal Dive on Strategies for Shareholders to Compel Annual Meetings in Jurisdictions Outside of Delaware
Olshan litigation partner Thomas Fleming and counsel Jacqueline Ma have published an op-ed in Legal Dive regarding the critical role annual meetings play in empowering shareholders to elect corporate directors and maintain oversight. In Delaware, where corporate law is deeply developed, shareholders have well-defined legal pathways to compel annual meetings if corporations delay or refuse to hold them. However, outside Delaware, many states lack explicit precedents or statutes detailing procedural mechanisms to enforce shareholders’ rights. “In considering how to compel such a meeting outside Delaware, attorneys should carefully evaluate the procedural vehicles available in their jurisdiction, the ripeness of the case, and the scope of judicial relief available,” they write. “When a company refuses to hold an annual meeting, a request for judicial relief should be made with careful planning.”
Thomas Kearns Publishes Article in NYREJ on Risks to Lenders and Their Servicers When They Delay Negotiations Over Defaulted Loans
New York Real Estate Journal?recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice?Thomas Kearns?entitled “Borrower Permitted to Prove Delays and Bad Faith by Lender and Servicer.” In the article, Tom uses a series of decisions in New York County Supreme Court (Newage Garden Grove LLC v. Wells Fargo Bank, N.A.) involving a California hotel to highlight the risks to lenders and their servicers when they delay negotiations over defaulted loans. “The borrower still has a long road ahead to prove the claims, and the extent of the damages if the claims are proven,” he writes, “but the case underscores the litigation risks lenders face when they delay or obstruct negotiations with borrowers.”
Client Alerts
Corporate Transparency Act Compliance in Light of Nationwide Preliminary Injunction
On December 3, 2024, a federal district court judge in the Eastern District of Texas granted a preliminary injunction that temporarily blocks the Corporate Transparency Act reporting obligation and the January 1, 2025 reporting deadline for reporting companies that were in existence prior to January 1, 2024. The U.S. Department of Justice subsequently appealed the district court’s ruling to the U.S. Court of Appeals for the Fifth Circuit. This Olshan client alert, authored by partners Ken Silverman, Robert Appleton and Jason Saltsberg and associate Brian Roe, provides recommended action subject companies should take while this litigation is pending.
Significant Changes to United States Patent and Trademark Office Fees for Trademark Filings in 2025
The United States Patent and Trademark Office (“USPTO”) has announced fee increases as well as new fees to be charged for trademark filings that will take effect on January 18, 2025. Most trademark filing fees have increased by $50 to $100 per class, and the USPTO also introduced some new fees for certain trademark applications. The most significant changes are outlined in this Olshan Client Alert, authored by Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco.
IRS Announces 2025 Retirement Plan And Other Benefit Limitations
The Internal Revenue Service recently announced the new inflation adjusted dollar limitations for retirement plan contributions and benefits beginning January 1, 2025. Many of the limits have gone up, which will enhance the value of many employee benefit plans. The adjusted limits are listed in this Olshan Client Alert, authored by Chair of the Employee Benefits Practice Stephen Ferszt and associate Alexander Sánchez Figueroa.
Speaking Engagements
领英推荐
Kenneth Mantel Speaks at Bloomberg Activism Forum 2024
Olshan Shareholder Activism partner Kenneth Mantel spoke on a panel discussion entitled “Activism in 2025: Emerging Trends” at the Bloomberg Activism Forum 2024 today from 4:30 – 5:00 P.M. at the Bloomberg New York Headquarters. The Forum features conversations with key players in the shareholder activism market as they review the year ahead in the activism business.
Ryan Nebel Spoke at Columbia Law School’s Conference on M&A and Corporate Governance
Vice Chair of Olshan’s Shareholder Activism Practice Group?Ryan Nebel?spoke at?Columbia Law School’s Conference on M&A and Corporate Governance?on November 22. Ryan participated in a panel on “Activism and M&A.” The conference gathered speakers from academia, the judiciary, and the legal and finance industries to explore relevant issues in M&A and corporate governance, including implications of the US election for M&A. Topics of conversation included the state of shareholder activism, legislative and regulatory developments affecting dealmaking, and Delaware law regarding controlling shareholders.
?Webinar
Andrew Lustigman and Morgan Spina Present CLE Webinar on Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape
Andrew Lustigman, Chair of Olshan’s Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate?Morgan Spina?presented a?myLawCLE?webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape” on December 3. Andy and Morgan provided legal professionals with essential insights into the complexities of organizing promotional events such as giveaways, sweepstakes and contests. Participants explored the legal frameworks that govern these promotions, including state-specific lottery and gambling laws and privacy regulations. The session covered the best practices for crafting effective promotional rules, ensuring compliance with tax obligations and navigating social media guidelines.
Quoted
Jeremy King Quoted in Law360 on How Meta’s MDL Suit May Be a Preview of Social Media Companies’ Fortunes
Chair of Olshan’s Insurance Coverage Practice?Jeremy King?was quoted in a?Law360?article (subscription required) on the Delaware suit by Meta's insurers to free them from defending numerous lawsuits alleging the company deliberately designed addicting platforms.
Hartford Casualty Insurance Co. and Sentinel Insurance Co. Ltd. challenge their obligation to defend Meta against claims from state attorneys general and school districts, contending that their policies do not cover increased expenditures like mental and behavioral health services and educational resources. ?Jeremy noted that, if the court applies California law, where Meta is headquartered, it may rely upon a body of law dealing with coverage for environmental property damage, which has precedent that parallels the insurers' claim that Meta “expected or intended injury” in its business.?“You frequently hear, particularly from the insurance industry, that there's no coverage for intentional acts, and that itself is not really a fair characterization of the law,” he said. “The true test applied by the court is whether or not you intended the harm or the damage that resulted, not whether you intended the act in the first place.” Jeremy further explained that other intent behind the implementation of allegedly harmful features in Meta’s product could trigger the duty to defend. Jeremy noted that the case was distinct and worth paying attention to because of emerging and developing understandings of the injuries alleged. It is not a “cookie-cutter of an injury, asbestos-type case.”
Podcasts
Edward Taibi Interviewed on Family Office on Structuring HoldCo’s and Buying Private Companies
Olshan corporate partner?Edward Taibi?was interviewed on an episode of Family Office entitled “Structuring HoldCo’s and Buying Private Companies: Insights from a Master Allocator.” In the interview with host Angelo Robles, Ed discusses the intricacies of structuring HoldCo’s and acquiring private companies. Family Office is the premier YouTube channel of geopolitics, economics and investing for family offices and high net worth investors.
You can watch the entire episode?here.
Katherine Mateo Speaks on HR Works’ “A Seat at the Table” Podcast on Fostering Belonging and Diversity in Law (Part III)
Olshan Litigation Counsel?Katherine Mateo?appeared on an episode of “A Seat at the Table” podcast entitled “Fostering Belonging and Diversity in Law (Part III)” (listen to Part I?here?and Part II?here). In the episode, Kat dives into the critical role of Diversity, Equity, Inclusion and Belonging (DEIB) in the legal industry. She shares insights into Olshan’s DEI efforts, the challenges and the opportunities that come with fostering an inclusive environment in law, as well as her advice for individuals from underrepresented backgrounds who are aspiring to enter the legal profession. This conversation is a must-listen for any legal professional, HR professional or anyone interested in the industry's future.
Listen to the entire podcast episode?here.
Blogs
Advertising Law Blog
What to Expect in the Next Trump Term for Consumer Protection
As the world awaits the next term of Donald Trump, marketers and advertisers are contemplating the potential changes in consumer protection regulations. While certain aspects of federal regulation and enforcement may have been relaxed during Trump’s first term, the Federal Trade Commission’s (“FTC”) consumer protection enforcement mandate is expected to remain a significant priority, although the pathways may differ significantly from the Kahn Commission.
Read the entire blog post authored by Chair of Olshan’s Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman
New and Updated State Laws and FTC's Final Rule on Automatic Renewals Go Into Effect in 2025
2024 has been another huge year for automatic renewal laws and rules, both on the state and federal levels. A number of states, including Utah, Virginia, South Carolina, Tennessee, Minnesota, Illinois, and California, have introduced new laws or updated existing ones to include a range of different requirements, including those related to automatic renewal enrollment and cancellation pathways. These new and updated states laws, some of which go into effect in 2025, have added to the ever-evolving web of state laws that govern automatic renewals for residents of those specific states. In addition, the FTC finalized its Rule Concerning Recurring Subscriptions and Other Negative Option Programs (the “Final Rule”). Many of the provisions contained within the Final Rule are consistent with or similar to existing obligations that apply on certain state-wide bases. The Final Rule applies broadly, including in both business-to-consumer and business-to-business transactions, and including requirements regarding disclosures, consent, and cancellation. The Final Rule’s expansive prohibition against misrepresenting any material fact made while marketing using a negative option feature will go into effect on January 14, 2025, with the remaining substantive requirements poised to go into effective on May 14, 2025.
Read the entire Advertising, Marketing, and Promotions blog post authored by associate Morgan Spina
More States Enact Privacy Laws
Following the lead of California, which passed the first comprehensive privacy legislation in the United States in 2018, many states have now enacted their own laws governing the collection and use of personal data. In addition to California, a comprehensive privacy law is effective in the following states as of 2024: Colorado, Connecticut, Montana, Oregon, Texas, Utah, and Virginia. New laws go into effect in 2025 in Delaware, Iowa, Maryland, Minnesota, Nebraska, New Hampshire, New Jersey, and Tennessee. Indiana, Kentucky, and Rhode Island have also passed comprehensive privacy laws that go into effect in 2026. There are active bills in the legislatures of Michigan, Ohio, and Pennsylvania. The laws apply to businesses that collect personal information from consumers in those states regardless of where the business is located.
Read the entire Advertising, Marketing, and Promotions blog post authored by Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco
More Fees and Requirements for Filing Trademark Applications in the USPTO?
With an increase in both the number of trademark applications and fraudulent trademark applications over the last several years, the USPTO has recently instituted several additional filing requirements, increased most filing fees, and added new fee categories.
Read the entire Advertising, Marketing, and Promotions blog post authored by Branding Paralegal Supervisor Elizabeth Nunn
FCC Implements New TCPA Requirement for Prior Express Written Consent on a "One-to-One" Basis
On January 27, 2025, there will be a significant legal change that will fundamentally affect the operations of all lead generators and those who rely on them. Many businesses are aware that the Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express written consent in order to send auto-dialed calls, pre-recorded "robocalls" or mass promotional SMS texts. The TCPA also applies to AI-generated calls. But 27 days into the new year, the Federal Communications Commission will implement a new requirement that prior express written consent must be obtained on a "one-to-one" basis. This means that consent cannot be validly acquired for groups of message senders such as "our marketing partners" or "other companies that you may be interested in hearing from." Instead, consent will be required for each individual marketer that wishes to contact consumers.
Read the entire Advertising, Marketing, and Promotions blog post authored by partner Scott Shaffer.
Cracking Down on Review Manipulation
Given consumers' increasing reliance on customer reviews for online purchases combined with the increasing use of AI, we can expect more regulatory (and likely plaintiff’s attorney) enforcement combating false or manipulated consumer reviews. Recognizing these trends, the FTC’s recently-effective Final Rule on the Use of Consumer Reviews and Testimonials focuses heavily on fake reviews and negative review suppression. Indeed, the Final Rule explicitly bans publishing reviews and testimonials from someone who does not exist, such as AI-generated reviews, fictional people and those with no actual experience with a business’s products or services. The rule also bars businesses from suppressing negative reviews or misrepresenting that the reviews represent all or most of the reviews submitted if negative reviews have been suppressed. The announcement of the Final Rule was quickly followed up with an enforcement action against Sitejabber, which focused on point-of-purchase reviews, while promoting the responses (satisfaction with the transaction) as evidence of overall satisfaction with a consumer’s purchase.?? Expect increasing enforcement in the year ahead, especially at companies that offer AI-generated reviews and those that promote manipulated reviews.
Read the entire blog post authored by Chair of Olshan’s Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman
FTC Publishes Final Revised Negative Option Rule in the Federal Register Triggering Effective Dates
On November 15, 2024, the Federal Trade Commission (“FTC”) published its amendments to its Negative Option Rule, retitled as the Rule Concerning Recurring Subscriptions and Other Negative Option Programs (the “Final Rule”) in the Federal Register.
Read the entire blog post authored by Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman and associate Morgan Spina