Olshan Insights - February Issue
Firm News
Olshan Reveals Latest Shareholder Activism Trends in DMI’s Shareholder Activism Annual Review 2025
Diligent Market Intelligence issued its?Shareholder Activism Annual Review 2025 featuring Olshan's Shareholder Activism Practice as a key collaborator. The annual review includes a foreword authored by Andrew Freedman, Olshan Co-Managing Partner and Chair of the firm’s Shareholder Activism Practice, and Ryan Nebel, Vice Chair of the Shareholder Activism Practice, highlighting key trends in shareholder activism throughout 2024. They note that “several prominent engagements demonstrated that shareholder activism remains an effective tool for holding companies accountable and championing strategic and operational improvements to enhance shareholder value.” Andy and Ryan expressed optimism for the year ahead, stating, “2025 holds immense potential for impactful campaigns, as activism continues to strengthen, evolve strategically, and drive meaningful change.” The review also includes an in-depth Q&A interview with Ryan and Meagan Reda, a Partner in the Shareholder Activism Practice. In their discussion, Ryan and Meagan provide a forward-looking analysis of how activism is evolving in response to regulatory changes, governance practices, and shifting corporate strategies. Ryan noted that there will still be plenty of operational-focused activist campaigns, but anticipates a meaningful increase in M&A-related activism in 2025. Meagan highlighted that board diversity remains an important consideration for both companies and activists, particularly with the universal proxy card placing a greater focus on each nominee’s specific characteristics. She noted that despite the recent Nasdaq decision and the scaling back of DEI initiatives, “shareholders will continue to expect diverse boards as a means of ensuring broader viewpoints, skill sets and more creative decision-making in the boardroom.”
To read Diligent’s Shareholder Activism Annual Review 2025, please click here.
New York Court of Appeals Affirms Dismissal of Claims Against Olshan Client
On February 13, 2025, in a 4-3 Opinion, the New York Court of Appeals affirmed the dismissal of all claims against Olshan's client in a case involving significant issues of Delaware law relating to Delaware limited liability company agreements and the ability of a manager to amend the agreement to include new terms favorable to the manager. The Opinion affirmed a decision of the Appellate Division, First Department, which in turn upheld a New York State Supreme Court decision dismissing all claims against Olshan’s client in a lawsuit over an alleged oral agreement regarding Plaintiff-Appellant’s $3 million investment in Digipac, LLC (“Digipac”). Plaintiff-Appellant claimed Defendant-Respondent – Digipac’s manager – failed to honor an agreement allowing him to cash out within five years, but the trial court found this alleged oral agreement to be overridden by the terms of Digipac’s amended LLC Agreement, which included a merger clause, and deemed the oral agreement vague and indefinite. The Appellate Division affirmed this ruling, applying Delaware law. The New York Court of Appeals also affirmed, holding that the Plaintiff-Appellant was bound by the original and amended LLC Agreements without his signature, Defendant-Respondent was expressly entitled to amend Digipac’s original LLC Agreement based upon the terms of the original agreement, and that the terms of Digipac’s amended LLC Agreement, including the merger clause therein, barred Plaintiff-Appellant’s claims. The Court of Appeals further rejected Plaintiff-Appellant’s argument that the alleged oral agreement was entered by Defendant-Respondent solely in his personal capacity, where the alleged oral agreement clearly implicated Defendant-Respondent’s role as manager of Digipac. Olshan partner Kerrin Klein appeared before the New York Court of Appeals to argue on behalf of Defendant-Respondent. The Olshan team representing Defendant-Respondent was led by litigation partners Thomas Fleming and?Kerrin Klein.
Olshan Serves as Co-Counsel to Joint Venture of Tricap and RFR in Sale of W South Beach Hotel in Miami for $400M
Hotel Dive, CoStar, The Real Deal and Commercial Observer reported on Olshan serving as co-counsel to the joint venture of investment firms Tricap and RFR in the sale of the W South Beach Hotel in Miami to Switzerland-based private equity investment firm Reuben Brothers for $400 million. The Marriott International-branded luxury hotel and residences offers 348 managed hotel and condo units. Co-Chair of Olshan’s Real Estate Law Practice Eric Goldberg was co-counsel to the joint venture in this transaction.
Engaged Capital Reaches Agreement with Evolent Health for Board Representation
Olshan client Engaged Capital LLC reached an agreement with Evolent Health pursuant to which Brendan Springstubb, a former partner at Engaged Capital, was appointed to Evolent Health’s board and one incumbent director resigned from the board. As part of the agreement, Mr. Springstubb was also appointed to the Strategy Committee of the board. Evolent Health also announced plans to name a new Chair of the board and appoint an additional independent director at the upcoming annual meeting. Vice Chair of Olshan’s Shareholder Activism Practice Group Ryan Nebel, Ian Engoron and Joseph Ferrone represented Engaged Capital in connection with its investment in Evolent Health.
Olshan Represents Spectrum Group International in Acquisition by A-Mark Precious Metals
Yahoo Finance, Marketscreener.com and Seeking Alpha have reported on Olshan's representation of Spectrum Group International, Inc., which has agreed to be acquired by A-Mark Precious Metals, Inc (Nasdaq: AMRK) for a purchase price of $92 million, comprised of 50% cash and 50% A-Mark common stock.?Spectrum is the parent company of Stack's Bowers Galleries, one of the world’s largest rare coin and currency auction houses, and the majority owner of Spectrum Wine, a global auctioneer, retailer and storage provider of fine and rare wine. The Olshan team was led by corporate partner Michael Neidell and included corporate attorneys Richard Quatrano, Rachel Gold and Rahmel L. Robinson and tax partner K.C. Chiang.
Accolades
Olshan’s Shareholder Activism Practice was ranked as the Top Law Firm to Activist Investors in FactSet’s Flashwire Advisor Quarterly 4Q 2024 edition, based on FactSet’s newly adjusted ranking methodology.
Articles
Kenneth Silverman and Kerrin Klein Publish Article in Securities Regulation Law Journal on SEC Rulemaking and Significant Litigation for Q3 2024
Olshan corporate partner Ken Silverman and litigation partner Kerrin Klein published an article in Thomson Reuters' Securities Regulation Law Journal, Winter 2024 ed. entitled “Quarterly Survey of SEC Rulemaking and Major Court Decisions.” The article reviews the U.S. Securities and Exchange Commission’s rulemaking activities and other decisions relating to federal securities laws from July 1, 2024 through September 30, 2024. "This quarter," the authors write, "the SEC proposed one new rule and approved seven final rules. The final and proposed rules released this quarter continue the SEC’s trend of increasing the scope and transparency of information available to investors."
Andrew Lustigman, Mary Grieco and Morgan Spina Publish Article in Bloomberg Law on How the New FTC Chair Is Likely to Keep Up Enforcement on Auto-Renewals
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and associate Morgan Spina published an article in Bloomberg Law entitled “New FTC Chair Likely to Keep Up Enforcement on Auto-Renewals” In the article, Andy, Mary and Morgan offer predictions on the new regulatory landscape under the Trump administration as it relates to the Federal Trade Commission. They explain that businesses will need to navigate a matrix of state and federal laws concerning transparent pricing, subscription-based marketing and privacy concerns over the Trump years.?“Newly minted FTC Chair Andrew Ferguson has strongly advocated FTC enforcement against businesses. A prolific dissenter to actions under outgoing Chair Lina Kahn, Ferguson also made clear the FTC should stay in its lane and confine its actions to be consistent with its congressional mandates,” they write.
Thomas Kearns Publishes?Top 2024 Legal Developments Affecting New York’s CRE Industry in NYREJ
New York Real Estate Journal recently interviewed Co-Chair of Olshan's Real Estate Law practice Thomas D. Kearns in an article entitled “Top 2024 Legal Developments Affecting New York’s Commercial Real Estate Industry.” In the article, Tom discusses a few legislative and regulatory highlights of 2024 that will continue to affect New York’s commercial real estate industry, including: “City of Yes,” the city’s large and complex revision to local codes to promote construction of new housing; New York’s amended LLC transparency law, a copycat statute of the federal LLC transparency statute that continues to be litigated; the National Association of REALTORS?’ (NAR) settlement in Missouri, which will affect the New York market as many national brokerage companies have opted into the settlement; the Good Cause Eviction Law which now governs New York City and any other jurisdictions that opt in; and the two recent decisions—one in Delaware (Gurney-Goldman v Goldman) and one in New York (Weinstein v Wallace)—that have raised doubts about the longstanding “pick your partner” principle in LLCs.
Jeremy King Publishes Article in NYLJ on How Social Engineering Crimes Pose Significant Business Threats and Provides Insurance Coverage Insights for Digital Fraud
Chair of Olshan’s Insurance Coverage Practice Jeremy King's latest column has been published in the New York Law Journal! Jeremy discusses the increasingly sophisticated nature of AI-powered “social engineering” scams and how businesses need to proactively engage in cyber protections.?With fraud losses projected to hit $40B by 2027, deepfake audio, video, and other deceptive tactics are making it easier for cybercriminals to access funds and systems. To combat these risks, Jeremy emphasizes the need for robust cyber insurance and employee training to spot and prevent scams. Businesses must ensure their policies cover social engineering attacks, which can substantially interrupt a company's operations, especially when ransomware is involved. "As AI-powered social engineering scams become increasingly sophisticated and novel, a savvy company must grow equally vigilant in training employees to recognize suspicious online behavior and reviewing their cybercrime policy language to ensure that all possible areas of loss are covered,” Jeremy explains. “Having broad social engineering insurance coverage is increasingly essential for businesses of all sizes, as it provides financial support to recover and rebuild if the worst happens.”?
Andrew Lustigman Publishes Article in NYLJ on What Businesses Need to Know About Anticipated FTC Leadership Changes
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in New York Law Journal entitled “What Businesses Need to Know About Anticipated FTC Leadership Changes” In the article, Andy discusses the potential outlook for consumer protection policies in the second Trump administration. Under anticipated future Federal Trade Commission Chair Andrew N. Ferguson, the agency is likely to maintain a focus on strong consumer protection enforcement within the lanes established by Congress. “Despite anticipated changes in rulemaking authority and leadership, the core mission of safeguarding consumers is expected to persist,” Andy writes. “However, the path by which the FTC will carry out that mission under Trump’s second term will likely be different than during the past four years of the Biden administration.” Ferguson has consistently spoken out against practices that utilize both established and novel technologies to deceive consumers, such as AI. Moreover, in settlements involving companies such as Lyft and its “up to” earnings claims and Rytr’s AI-generated reviews, he emphasized a restrained interpretation of regulatory power, opposing overly expansive enforcement that could hinder innovation or misrepresent marketing terms. “While the exact path of the FTC’s consumer protection efforts remains uncertain, the agency will likely continue to challenge unfair or deceptive advertising and marketing practices,” Andy explains.
Client Alerts
2025 Changes for 401(k) Plans and IRAs Under the SECURE 2.0 Act
It is essential to follow new law changes that impact 401(k) Plans and IRAs to ensure continued compliance and the avoidance of penalties.?A number of such changes were enacted under the Setting Every Community Up for Retirement Enhancement 2.0 Act (“SECURE 2.0”) which require your attention.?This Olshan Client Alert, authored by Chair of Olshan's Employee Benefits Practice Stephen Ferszt, highlights a number of these changes that can affect a company’s retirement plan and an individual’s IRAs.
Seeking Insurance Recoveries in the Aftermath of the Los Angeles Wildfires
Maximizing insurance recovery after a loss requires a careful review of multiple potential avenues of recovery under standard property insurance policy language.?Chair of Olshan's Insurance Coverage Practice, Jeremy King, authored a client alert highlighting common insurance issues that may arise for policyholders impacted by the fires in Los Angeles and provides guidance to businesses going through the claims submission process.
Quoted
Nina Roket Quoted in Commercial Observer on Federal Reserve Pausing Rate Cuts and Continued CRE Deal Activity
Olshan Co-Managing Partner, Co-Chair of the firm’s Real Estate Law Practice and Chair of Commercial Leasing Practice Nina Michelle Roket was quoted in a Commercial Observer article addressing the Federal Reserve’s rate pause signaling a “higher for longer” borrowing environment in a move that was largely expected, and which should do little to disrupt commercial real estate transaction volume this year. Nina emphasized that expectations for higher interest rates have already been “baked into the market,” and many in the CRE industry have since come to grips with the new reality. She noted, “I think real estate professionals, although they were hoping for a more aggressive reduction in rates, already know that’s not happening and have accepted that. They’re transacting on that basis and understanding that the interest rates will probably continue to be steady.”
Speaking Engagements
Nina Roket Discussed the Future of Real Estate in Family Office Investments
Olshan's Co-Managing Partner, Co-Chair of the firm’s Real Estate Law Practice, and Chair of the Commercial Leasing Practice Nina Michelle Roket participated in a Milken Dialogues luncheon panel at The Bath Club in Miami, FL, on February 4, discussing how family offices, particularly next-generation members, are strategically incorporating real estate into their investment portfolios. This intimate and engaging event explored key trends and strategies for implementation.
Andrew Lustigman Spoke at ACI’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel entitled “A New Era of Endorsements, Testimonials, and Consumer Reviews: Navigating the Federal Trade Commission’s Final Rule and Emerging Areas of Risk for Enforcement and Penalties” as part of American Conference Institute’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation on February 6 at the New York City Bar Association in NYC.
Ryan Nebel to Speak at Diligent Market Intelligence Stewardship Series Conference
On February 25, 2025, Vice Chair of Olshan's Shareholder Activism Practice Group Ryan Nebel will speak at the Diligent Market Intelligence Stewardship Series Conference in New York. The Diligent Market Intelligence (DMI) Stewardship Series is an event that brings together investors, issuers and advisors to improve shareholder engagement through greater education and networking opportunities on issues of shareholder activism, corporate governance, proxy voting and ESG. Ryan will be featured on the “Shareholder Activism Annual Review 2025 Launch” panel.
Andrew Lustigman Speaking at Saint Louis University’s Gateway to Innovation: SLU Law IP, Entertainment, and Sports Law Conference
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel discussion at Saint Louis University’s Gateway to Innovation: SLU Law IP, Entertainment, and Sports Law Conference on March 1, 2025, at 2:00 P.M. The conference will explore the latest developments, strategies and challenges in IP law, providing a dynamic platform for learning, discussion and professional networking with the goal of enhancing understanding of IP law among future legal professionals and fostering discussions that will shape the future of IP practice. Additionally, the conference aims to fill in the gaps in education by covering nonconventional IP areas that are often underrepresented, such as social media law and fashion law.
Lori Marks-Esterman to Participate at Tulane University Law School’s 37th Annual Corporate Law Institute
Olshan Chair of Litigation Lori Marks-Esterman will be speaking at Tulane University Law School’s 37th Annual Corporate Law Institute. The Tulane Corporate Law Institute is recognized as one of the premier M&A, corporate and securities law conferences in the country and will take place on March 6-7, 2025, at the Roosevelt Hotel in New Orleans. Lori will participate on the panel?“Shareholder Activism and the Polarization of ESG and DEI” with five experts in different areas of shareholder activism.
The full agenda can be found?here.
Ryan Nebel to Participate in Harvard Law School Corporate Governance Roundtable 2025
Vice Chair of Olshan's Shareholder Activism Practice Group Ryan Nebel will participate in the Harvard Law School Corporate Governance Roundtable on March 19, 2025, in Cambridge, MA. The Harvard Corporate Governance Roundtable brings together prominent decision-makers with a wide range of perspectives – from institutional investors, issuers, boards of directors, advisers, public authorities and academia – for an off-the-record discussion.
Lori Marks-Esterman Speaking on Working with Shareholders and Board of Directors at Offshore Disputes Week in Grand Cayman
Olshan's Chair of Litigation Lori Marks-Esterman will participate in a panel discussion entitled “Working With Shareholders and Board of Directors” at Offshore Disputes Week Cayman conference on March 25 at the Hotel Indigo Grand Cayman. The conference brings together experts from the United States, United Kingdom, Europe, Latin America and Asia to debate and discuss the growth of disputes in key offshore jurisdictions. Attendees will benefit from the panelists’ expertise, analyze recent cases, and gain insights into ongoing regulatory developments affecting offshore disputes.
Webinar
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 will present a LawPracticeCLE webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape” on March 27 from 2:00 – 3:30 P.M. (EST). In this CLE webinar, Andy and Morgan will provide insights into the complexities of structuring and facilitating giveaways, sweepstakes, and contests. Andy and Morgan will discuss the legal frameworks that govern these promotions, including lottery laws, gambling laws, and privacy regulations. As part of the discussion, Andy and Morgan will cover best practices for drafting promotion official rules, as well as certain tax considerations that apply when awarding prizes. Andy and Morgan will talk about various considerations that are relevant when determining entrant and winner eligibility, winner selection processes, and prize fulfillment. Importantly, the webinar will highlight the importance of transparent and accurate advertising and marketing of any such promotions.
Blogs
White Collar & Government Investigations Blog
Immigration Enforcement – ICE Actions at the Workplace
The new White Collar & Government Investigations blog post authored by Robert Appleton "Immigration Enforcement – ICE Actions at the Workplace" discusses the new administration has recently shown an increased effort to beef up enforcement of existing laws. This recent increase in immigration enforcement activity provides a good opportunity to revisit the principles of the Fourth Amendment. Read the post here:
Read the entire White Collar & Government Investigations blog post authored by Partner Robert Appleton.
Advertising Law Blog
NAD Recommends Revolve Modify Influencer Social Media Guidelines to More Clearly Require Material Connection Disclosure
As part of its routine monitoring program, the National Advertising Division (NAD) of the Better Business Bureau (“NAD”) initiated an inquiry into the relationship between popular online clothing store Revolve Group, Inc. (“Revolve”), and certain influencers that tagged Revolve in their posts on social media, namely Georgia Hassarati and Alyssa Nicole Nelson. Specifically, NAD inquired regarding the influencers’ relationship to Revolve, and what measures were being undertaken by Revolve to ensure that the influencers it engages with comply with the Federal Trade Commission’s (“FTC”) Endorsement and Testimonial Guides (“Endorsement Guides”).
Read the entire Advertising, Marketing, and Promotions blog post authored by associate Morgan Spina
Consumer Financial Protection Bureau in Dire Straits
The administration of President Donald J. Trump, largely through Elon Musk’s Department of Government Efficiency, is moving rapidly to shut down the Consumer Financial Protection Bureau ("CFPB").
Read the entire Advertising, Marketing, and Promotions blog post authored by partner Scott Shaffer
Lead Generators Get Eleventh-Hour Reprieve From One-to-One Consent Rule
Lead generators and the companies that rely on them can breathe a sigh of relief. On Friday evening, less than three days before an onerous regulation was set to go into effect, the Federal Communications Commission (“FCC”) reversed itself, postponing the effective date by twelve months, to January 26, 2026. The regulation, known as the One-to-One Consent Rule, would have drastically hampered the lead generation business by requiring consumers to be advised, at the time of their initial consent, what companies would have the right to solicit them, even if the consumers wished to make an open-ended request to receive, for example, text messages from the lowest bidder.
Read the entire Advertising, Marketing, and Promotions blog post authored by partner Scott Shaffer.
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