Olshan Insights - January Issue
Firm News
Olshan Announces Partner and Counsel Elevations
Olshan is pleased to announce the elevations of Dorothy M. Sluszka to partner in the firm’s Shareholder Activism Practice and Dan Stone to counsel in the firm’s Litigation Practice. These well-deserved promotions were earned through responsive, results-driven work and exceptional client service. The new positions are effective as of January 1, 2025.
Olshan Represents JEMB Realty in Securing $300 Million Refinancing at Herald Center
Crain's New York Business reported on the financing secured by long standing Olshan Frome Wolosky LLP client, JEMB Realty Corporation on Herald Center, a mixed use, trophy asset that houses H&M’s largest flagship store in New York and will house a campus for Yeshiva University. A complex, multi-faceted $300 million financing, the closing included refinancing existing debt and an equity commitment. Co-Managing Partner, Co-Chair of the firm's Real Estate Law Practice and Chair of the firm’s Commercial Leasing Practice Nina Michelle Roket, real estate partner Jessica Stanton and associates Yael Mandel, Melody Shenassa Schor and Sari Kreutzer represented JEMB in this transaction.
Olshan Represents Williams Equities in Purchase of Historic Midtown South Boutique Office Building for $147.5M
New York Post reported on the purchase by Olshan client Williams Equities of a Midtown South boutique office building for $147.5 million. The historic 300,000 square-foot property at 470 Park Avenue South occupies the entire west blockfront between East 31st and 32nd streets and consists of two interconnected structures of 12 and 18 stories. SJP Properties and PGIM Real Estate previously purchased the building for $245 million in 2018. Co-Managing Partner, Co-Chair of the firm's Real Estate Law Practice and Chair of the firm’s Commercial Leasing Practice Nina Michelle Roket led the Olshan team that represented Williams Equities in the acquisition, which also included real estate associate Melody Shenassa Schor.
Olshan Partner Kerrin Klein Argues Before New York Court of Appeals
On January 7, 2024, Olshan partner Kerrin Klein appeared before the New York Court of Appeals in a case involving important issues of Delaware law relating to Delaware limited liability company agreements. The appeal followed a March 2024 decision in which the Appellate Division, First Department, 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. Plaintiff-Appellant claimed Defendant-Respondent – Digipac LLC’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 LLC Agreement, which included a merger clause, and deemed the oral agreement vague and indefinite. The Appellate Division affirmed, applying Delaware law, holding that the Plaintiff-Appellant was bound by the LLC Agreement’s terms even without his signature, and dismissing arguments against the agreement’s "unilateral" amendment by Defendant-Respondent. Two justices dissented giving the Plaintiff-Appellant the right to appeal to the Court of Appeals. The Olshan team representing Defendant-Respondent was led by litigation partners Thomas Fleming and Kerrin Klein.
Firm Client Aegis Capital Corp. Completes Youxin Technology Initial Public Offering
Olshan acted as counsel to Aegis Capital Corp., as sole book-running manager, in Youxin Technology Ltd’s $10,350,000?initial public offering?of Class A ordinary shares. Youxin is?a holding company incorporated in the Cayman Islands, operating through its subsidiary in the People’s Republic of China, which provides a cloud-based software as a service (SaaS) product and a platform as a service (PaaS) committed to helping retail enterprises in Mainland China digitally transform their businesses. Youxin intends to use the net proceeds from this offering primarily for research and product development, and investment in its sales and marketing. Youxin’s shares now trade on The Nasdaq Capital Market under the symbol YAAS. The team was led by corporate partner Spencer Feldman and associate Dakota Forsyth, with assistance from corporate partner Kenneth Schlesinger.
Oaktree Capital Management L.P. Reaches Agreement with Indivior PLC for Board Representation
Bloomberg Law?reported on Olshan client Oaktree Capital Management L.P.’s entry into a relationship agreement with Indivior PLC (Nasdaq/LSE: INDV), pursuant to which the company agreed to appoint two new independent non-executive directors, Robert Schriesheim and Joe Ciaffoni, and to make certain other changes to the Board and its committees. Shareholder Activism partner?Kenneth Mantel?led the Olshan team that represented Oaktree Capital Management L.P., which included Chair Emeritus of the firm’s Shareholder Activism Practice?Steve Wolosky?and associate?Andrew Astore.
Accolades
Olshan's Shareholder Activism Practice Ranked #1 law firm by Diligent, 13D Monitor, and Bloomberg in shareholder activism
Diligent Market Intelligence has ranked Olshan's Shareholder Activism Practice as the #1 law firm in shareholder activism in its 2024 Advisor Awards, a position Olshan has held since the inception of the awards for ten consecutive years. Diligent cited Olshan as having advised on 109 activist campaigns for 2024, a 13% increase from the previous year. Olshan Co-Managing Partner and Chair of the firm’s Shareholder Activism Practice Andrew Freedman shared his predictions for 2025. Andy expects the markets to warm back up to M&A and that activism will adapt to a changing environment: “M&A will likely become front and center in many activism campaigns. Since the latter months of 2024, our practice has been seeing a big uptick in campaign activity or at least the initial stages of campaign activity. So that tells me that it’s going to be a very busy 2025 proxy season ahead.”
Olshan’s Shareholder Activism Practice has been named as the top law firm for activist representation in 13D Monitor’s Qualitative League Tables. To compile the rankings, 13D Monitor anonymously surveyed its vast network of industry participants and received hundreds of responses to identify the most respected activist advisors.
Olshan's Shareholder Activism Practice has once again been named the top legal adviser to activist investors globally, according to the Bloomberg Activism Advisory League Tables for FY 2024. This recognition reinforces Olshan's continued dominance in shareholder activism since the league tables' inception. Per Bloomberg, Olshan advised on 136 activist engagements in 2024, maintaining a commanding lead with nearly twice as many engagements as the second-ranked law firm and six times as many as the third-ranked firm. Furthermore, Olshan earned the #1 ranking by dollar value of activist stakes and by the aggregate market capitalization of activist targets.
Quoted
Lori Marks-Esterman Interviewed in Delaware Business Court Insider on What Corporate Litigators Expect Delaware Courts to Address in 2025
Olshan's Chair of Litigation Lori Marks-Esterman was interviewed in a Delaware Business Court Insider (ALM) article about what issues corporate litigators will be monitoring in 2025 as Delaware's legal landscape evolves. One area of keen interest is the Delaware Court of Chancery’s review of conflicted controller transactions, and in particular, determining what precisely constitutes control and how judicial scrutiny will be applied. Another key issue that will be presented in 2025 is the appeal to the Delaware Supreme Court of two rulings in Moelis, a case which addressed the extent to which a board can allocate responsibilities to stockholders.?The case sent soundwaves through the corporate legal community, resulting in amendments to the DGCL in the spring of 2024.?As Lori notes, the DGCL amendments largely limit the impact of the Moelis II appeal, but that the appeal of the lesser-known Moelis I ruling could be of significant consequence.?At issue in the Moelis I appeal is Delaware's ripeness doctrine, and whether certain matters will be subject to judicial review.?Two groups of law professors have submitted amicus filings, presenting competing arguments about ripeness.?Lori represents one of these groups, who argue that the claims were ripe because they infringe on critical stockholder franchise rights. As Lori observed, "the decision [] has the potential to dramatically change the Court of Chancery's critical role as the policer of an expansion on corporate policies."
Meagan Reda Featured in Law360 Q&A Spotlight on Why REITs Should Expect More Shareholder Activism In 2025
Olshan Shareholder Activism partner Meagan Reda was featured in Law360 Q&A spotlight entitled “REITs Should Expect More Shareholder Activism In '25.” Real estate companies, Meagan explains, should expect more shareholder activist campaigns in 2025. Previous campaigns in the sector included fights over conflict-of-interest and self-dealing concerns between REITs and their external managers, as well as calls to liquidate underperforming companies. “This poor corporate governance makes REITs vulnerable to activism,” Meagan notes. “Often we see the CEO or the chairman of the REIT also controlling or serving as the CEO of the external manager — so, very deep-seated and concerning conflicts of interest,” she continued. Meagan commented on several REIT campaigns in 2024 that echoed these issues, noting that concerns are elevated “when you see these excessive management fees being paid amidst a backdrop of continuously poor performance.”
Meagan Reda Quoted in Bloomberg Law on the Expected Surge in Activist Campaigns in 2025
Olshan Shareholder Activism partner Meagan Reda was recently quoted in a Bloomberg Law article on the expected surge of activist campaigns in 2025. The article notes that Olshan continued its dominance representing more activists than any other law firm in 2024 and extended its top-ranking streak to six years in a row. The top 10 activist-side firms represented 327 activist investors last year, and of those, Olshan represented 136 investors with stakes valued at $28 billion. Meagan explains that the data doesn’t necessarily capture the full picture, as many campaigns end amicably between investors and companies without formal written agreements. She says that Olshan expects to see higher activism activity in 2025 as mergers and acquisitions increase in a more-friendly M&A environment and investors’ attention turns to “underperforming CEOs that have outsized pay-packages and submissive boards.”
Articles
Edward Taibi Publishes Article in Bloomberg Law on Regulatory Trends Under New Administration Impacting Key Industries
Corporate partner Edward Taibi continues to be an industry-leading commentator, as evidenced by his latest column for Bloomberg Law, entitled "Trump's Regulatory Gear Shift Means Turning to a Tested Playbook.” In the article, Ed discusses potential regulatory changes across various industries under the new Trump administration and the potential impact on businesses and investors in sectors such as renewable and nuclear energy, defense, and consumer products.
领英推荐
Edward Taibi Publishes Article in Law360 on How the 2024 Election Results May Prove Fortuitous For Family Offices
Olshan corporate partner?Edward Taibi?published a?Law360?article (subscription required) entitled “2024 Election Results May Prove Fortuitous For Family Offices.” In the article, Ed discusses how the 2024 U.S. election results will impact family offices and addresses how the Republican victory and subsequent appointments to key federal posts will create favorable conditions for family offices to invest in specific industries. He also offers several key areas where family offices can capitalize on the new political shifts and discusses how this relates to various industries, including defense, energy, technology, infrastructure and manufacturing.
Client Alerts
Delaware Court Holds That “Bump-Up” Exclusion Does Not Apply to Section 14(a) Merger Dispute Settlement
On January 7, 2025, the Delaware Superior Court ruled that a policyholder was entitled to D&O insurance coverage for a settlement of a post-merger dispute.?The Court strictly construed the policy’s “Bump-Up Exclusion” with respect to loss representing “inadequate” consideration, finding that the policy provision did not apply to lawsuits seeking relief under Sections 14(a) and 20 of the Securities Exchange Act of 1934. This client alert, authored by Chair of Olshan’s Insurance Coverage Practice Jeremy King, details the Court’s reasoning in rejecting the application of the exclusionary language.
Corporate Transparency Act Compliance Update
In an?abrupt about face on December 26, the Fifth Circuit has reversed course and vacated its stay of the preliminary injunction against the Corporate Transparency Act (“CTA”) while the appeal is pending. The result: the government has – yet again – been enjoined from enforcing the beneficial ownership requirements under the CTA. At the risk of causing whiplash, the CTA remains in limbo and for now, at least temporarily, unenforceable. Links to our latest client alerts on this topic authored by Ken Silverman, Jason Saltsberg, Robert Appleton and Brian Roe are below:
Important Reminder: Schedules 13D and 13G Must be Filed Using Structured, Machine-Readable XML-Based Language Beginning December?18, 2024
Beginning December 18, 2024, Schedules 13D and 13G must be filed with the U.S. Securities and Exchange Commission (“SEC”) using a structured, machine-readable XML-based language. Historically, Schedules 13D and 13G have been filed with the SEC on its EDGAR platform in HTML or ASCII format and are thus not currently machine-readable. The new requirement to file in XML, adopted as part of the SEC’s Modernization of Beneficial Ownership Reporting rule amendments in October 2023, is intended to make it easier for market participants to access, compile and analyze the information disclosed in the Schedules 13D and 13G. Olshan's in-house EDGAR operators have been working for months to ensure a smooth transition to XML filing for our clients by the December 18 deadline.?This Olshan client alert, authored by partners Ryan Nebel, Ken Silverman and Ron Berenblat, discusses the new XML filing requirements and the process for preparing the filings.
Speaking Engagements
Andrew Lustigman Speaking 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, 2025, at 1:00 P.M. at the New York City Bar Association in NYC.
Blogs
Securities Law Blog
Executive Perks and Other Personal Benefits: Compensation or Business Expense?
Earlier this month, the Securities and Exchange Commission (SEC) settled charges against a public company for failing to disclose in its annual proxy statements the full extent of the executive compensation paid to its?Chief Executive Officer.
According to the SEC’s order, the company failed to disclose approximately $1,000,000 worth of perquisites and other personal benefits provided to its Chief Executive Officer, including expenses associated with his authorized use of chartered aircraft for personal purposes. As a result, the company significantly understated the “All Other Compensation” portion of its Chief Executive Officer’s compensation in the Summary Compensation Table of its proxy statement for several years. The SEC found that the company issued proxy statements containing materially false or misleading statements that altered the “total mix of information” considered by shareholders in making a voting decision and failed to maintain policies, procedures or controls designed to ensure that all potential perquisites and personal benefits are identified and analyzed for complete and accurate disclosure in its proxy statements.
Read the entire Securities Law blog post authored by Corporate Partner Spencer Feldman.
Advertising Law Blog
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.
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.
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 Federal Trade Commission’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.
Read the entire Advertising, Marketing, and Promotions 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.