Foley Hoag LLP

SUMMARY

Included in this Issue:

• New England Series A Deal Activity
• New England Series B and Later Round Deal Activity
• Size of New England Q2 2010 Series A Transactions by Industry
• Size of New England Q2 2010 Series B Transactions by Industry
• The Numbers:Dave Pierson
• Selected New England Series A Deals: Second Quarter 2010
• Selected New England Series B and Later Round Deals: Second Quarter 2010
• Selected New England Series A Deal Terms 2009-2010
• Selected New England Series B and Later Round Deal Terms 2009-2010
• The Activity Level Summary
  • National Series A Deals by Industry
  • National Series B and Later Round Deals by Industry

SUMMARY

In reviewing the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), we found two very different sections worthy of brief note.

Small Issuers exempted from auditor certificates as to accounting controls.

SEC enforcement powers expanded against aiders and abettors and for foreign violators.  [more... ]

SUMMARY

Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") sets forth, among other regulatory changes, a revised net worth test for a natural person to qualify as an "accredited investor" for purposes of Regulation D under the Securities Act of 1933, as amended (the primary private placement exemption relied on by investment advisers managing private investment funds). The revised standard requires such an individual's net worth, or joint net worth with the spouse of that person, at the time of investment to be in excess of $1,000,000, excluding the value of the primary residence of such natural person. [more...]

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Supreme Judicial Court Holds Face Amount of Medical Bills Admissible as Evidence of Reasonable Value of Services Rendered to Personal Injury Plaintiff, But Range of Payments Generally Accepted by Plaintiff's Providers in Satisfaction of Such Bills Also Admissible

• Massachusetts Federal District Court Certifies Medical Monitoring Injunctive and Damages Class Action for Smokers with Only Subcellular Injury, Holding Alleged Common Need for Monitoring Supported Classwide Injunctive Relief and Predominated Over Individualized Issues

• First Circuit Affirms Dismissal of Putative Class Action Against Manufacturer of Recalled Heartworm Medication, Holding Massachusetts Unfair and Deceptive Practices Statute Requires Proof of Economic Loss

• Massachusetts Federal District Court Precludes Manufacture and Design Defect and Causation Testimony From Plaintiff's Expert and Grants Summary Judgment Where Expert's Only Training and Experience Were in Accident Reconstruction

• Massachusetts Appeals Court Affirms Preclusion of Expert Testimony that Holster Was Unfit for Particular Purpose Because Expert Had No Experience With Particular Holster or Holster Design Generally

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), arguably the most far-reaching package of financial regulatory reforms since the New Deal. The legislation restructures the regulatory framework for much of the U.S. financial system, and its effects will be most pronounced on the financial services industry.

However, the Dodd-Frank Act will affect all U.S. public companies by extending the federal regulation of matters relating to corporate governance and executive compensation. [more... ]

SUMMARY

Among the many elements of the massive Dodd-Frank Wall Street Reform and Consumer Protection Act are provisions applicable to public companies requiring defined “say-on-pay” votes. These are shareholder votes on

• executive compensation generally, and
• executive compensation relating to business combinations, known as “golden parachutes”.

In the United States, say-on-pay is advisory and not binding on a company’s board of directors. However, thus far in 2010, at least three companies have received negative say-on-pay votes from shareholders. Public companies would be wise to review their compensation programs with a view to how those programs will be perceived, particularly as explained in the Compensation Discussion and Analysis section of their proxy statements.   [more...]

SUMMARY

On Wednesday June 30, 2010, members of the Securities and Exchange Commission (the “SEC”) voted unanimously to approve new Rule 206(4)-5 (the “Rule”) adopted under the Investment Advisers Act of 1940 (the “Advisers Act”). The Rule is aimed at curbing so-called pay-to-play abuses resulting from investment advisors making political contributions in order to influence persons involved in selecting investment advisors to manage public pension fund assets. The final text of the Rule was published in the Federal Register on July 14, 2010.

The Rule applies to any investment adviser that is registered (or required to be registered) with the SEC, or that is unregistered in reliance on the exemption available under Section 203(b)(3) of the Advisers Act (“Section 203(b)(3)”). The Rule does not, however, apply to most advisers that are registered with state securities authorities, or advisers that are unregistered in reliance on exemptions other than Section 203(b)(3). [more...]

SUMMARY

Earlier today, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”). The Act will implement broad-based changes to the regulatory landscape governing U.S. financial markets. [more...]

SUMMARY

On July 15, 2010, the U.S. Senate (the “Senate”) voted 60-39 to approve the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Bill”). The Bill, which is expected to be signed into law by the President, will implement broad based changes to the regulatory landscape governing U.S. financial markets. Of particular importance to investment advisers managing private investment funds is Title IV of the Bill, entitled the “Private Fund Investment Advisers Registration Act of 2010,” which is summarized below.

Registration of Investment Advisers to Private Funds

Under the current regulatory regime, advisers to private investment funds (such as hedge funds and private equity and venture capital funds) often rely upon the exemption from registration provided by Section 203(b)(3) of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which exempts from registration with the Securities and Exchange Commission (the “SEC”) any investment manager that (i) had fewer than 15 clients in the prior 12 month period and (ii) does not hold itself out generally to the public as an investment adviser (the “Private Adviser Exemption”).   [more...]

SUMMARY

The U.S. Congress has passed legislation requiring companies that utilize “conflict minerals” to conduct due diligence and demonstrate that their products are not fuelling conflict in the Democratic Republic of the Congo (“DRC”). The legislation was added as an amendment to the Wall Street Reform and Consumer Protection Act, which was sponsored by Senator Christopher Dodd (D-CT) and Representative Barney Frank (D-MA), and voted into law on July 15, 2010.

SUMMARY

The U.S. Congress passed legislation that required oil, gas, mining, and other extractive industry companies to report to the Securities Exchange Commission (“SEC”) their payments to governments. The legislation was added as an amendment to the Wall Street Reform and Consumer Protection Act, which was sponsored by Senator Christopher Dodd (D-CT) and Representative Barney Frank (D-MA), and voted into law on July 15, 2010. [more ... ]

SUMMARY

On Wednesday June 30, 2010, members of the Securities and Exchange Commission voted unanimously to approve new Rule 206(4)-5 (the “Rule”) adopted under the Investment Advisers Act of 1940 (the “Advisers Act”). The Rule is aimed at curbing so-called pay-to-play abuses resulting from investment advisors making political contributions in order to influence persons involved in the selection of investment advisors to manage public pension fund assets.  [more...]

SUMMARY

The Supreme Court last week, in the case of Skilling v. United States and two companion cases, severely curtailed the reach of the federal mail and wire fraud statutes by confining the “intangible right of honest services” to only those schemes that involve bribes or kickbacks. In so doing, the Court rejected the government’s argument that honest-services fraud should apply more broadly to undisclosed self-dealing and conflicts of interests. Justice Ginsburg wrote for the Court. Three other Justices (Justices Scalia, Thomas, and Kennedy) concurred in the judgment but would have gone even further and struck down the honest-services fraud provision in its entirety, finding it unconstitutionally vague and therefore in violation of the Due Process Clause of the Fifth Amendment.

SUMMARY

On Friday June 25, 2010, House and Senate Lawmakers culminated two weeks of negotiations and approved a bill, coined the Dodd-Frank Act (the “Bill”), which implements changes to prior House and Senate approved bills to overhaul regulatory oversight of banking and financial institutions.  [more...]

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation. The discussion under each heading is intended to provide only general guidance and is not an exhaustive description of all provisions of federal, state and local law with which a non-U.S. business operating in the U.S. might be required to comply. The laws whose effects are described in this guide are subject to interpretation by courts, may be affected or preempted by federal statutes or regulations, and may themselves be amended or repealed. Particular businesses or industries may also be subject to legal requirements not referred to in this guide. For this reason, you should not rely solely upon this guide when planning the details of a specific transaction or undertaking. Instead, the pertinent details of any transaction or business should be reviewed thoroughly by qualified legal counsel. This guide is intended to outline issues that you may need to address with your legal counsel.

SUMMARY

This morning, Friday, May 28, 2010, the Federal Trade Commission (FTC) announced that it was extending the deadline for enforcement of the Red Flags Rule through December 31, 2010, in order to give Congress sufficient time to amend the law to exclude certain businesses from application of the Rule.  [continues... ]

SUMMARY

On May 20, 2010, the U.S. Senate (the “Senate”) voted 59-39 to approve the Restoring American Financial Stability Act of 2010 (the “Senate Bill”). The Senate Bill would require most advisers to private funds (including advisers to hedge funds but not advisers to “venture capital funds” and “private equity funds” as defined by the SEC) to register as investment advisers with the Securities and Exchange Commission (the “SEC” or the “Commission”) under the Investment Advisers Act of 1940, as amended. The Senate Bill would also impose various recordkeeping and disclosure requirements on private fund managers.

SUMMARY

Included in this Issue:

• New England Series A Deal Activity
• New England Series B and Later Round Deal Activity
• The Numbers: Maybe Belief Makes Reality  – Dave Broadwin
• Selected New England Series A Deals: First Quarter 2010
• Selected New England Series B and Later Round Deals: First Quarter 2010
• Selected New England Series A Deal Terms 2009-2010
• Selected New England Series B and Later Round Deal Terms 2009-2010
• The Activity Level Summary
• New England Series A Deals by Industry
• New England Series B and Later Round Deals by Industry
• National Series A Deals by Industry
• National Series B and Later Round Deals by Industry
• Size of New England 2010 Series A Deals by Industry
• Size of New England 2010 Series B and Later Round Deals by Industry

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Federal District Court Dismisses Product Liability Claims Based on “Benefit-of-the Bargain” Theory, Holding Neither Pure Economic Loss Nor Apprehension of Future Harm Is Legally Cognizable Injury Where Product Has Not Malfunctioned

• First Circuit Vacates Denial of Class Certification in Environmental Tort Claims, Holding that, on Fuller Analysis, Common Issues May Predominate and Class Treatment May Be Superior Method of Litigating Claims 

• Massachusetts Federal District Court Holds Statute Limiting Exclusions of Warranty Applies Only to Consumer Transactions, Finds Disputes Concerning Whether Buyer Gave “Precise and Complete” Specifications Negating Implied Warranty and Whether Plaintiff Was Sophisticated User 

• Massachusetts Appeals Court Holds that Actual Filing, Rather Than Mere Service, of Motion to Amend Complaint to Add Defendants Is Required to “Commence” Action Against Such Defendants for Purpose of Statute of Repose

• Massachusetts Federal District Court Holds Plaintiff in Product Liability Action May Proceed Under Theory of Res Ipsa Loquitor in Absence of Expert Testimony Establishing Product Defect, But Expert Testimony Is Required to Prove Medical Causation

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Contents

1. Exposure to Liability in the Hiring Process

2. Failure to Adequately Document Terms and Conditions of Employment

3. Misclassification Issues
    - Employee or Independent Contractor
    - Exempt or Non-exempt

4. Failure to Comply with Wage Payment Laws

5. Inadequate Protection of Intellectual Property