Consumer & Retail

The Global Legal Chronicle reports that U.S. Bankruptcy Judge Frank Santoro has reconfirmed the Chapter 11 plan of Ascena Retail Group, former owner of Ann Taylor, without the inclusion of third party releases, as a result of the successful appeal prosecuted by Lowenstein Sandler’s Bankruptcy & Restructuring Department on behalf of the securities claimants. The Lowenstein team included Michael S. Etkin, Andrew Behlmann, and Michael Papandrea.

Reuters describes a recent decision by U.S. District Judge David Novak of the Eastern District of Virginia that overturned a restructuring plan for the Mahwah Bergen Retail Group (formerly known as Ascena), the prior owner of Ann Taylor, Lane Bryant, and other retail brands. Citing, among other things, the plan’s inclusion of protections from liability for former top executives, the Court held that the third party releases here were void and unenforceable, and that the use of this tactic in bankruptcy cases was "shocking." Lowenstein Bankruptcy & Restructuring lawyers Michael S. Etkin, Andrew Behlmann, John P. Schneider and Michael Papandrea represent investors who purchased stock in Ascena.

In The Wall Street Journal, Etkin notes that “Judge Novak had a strong reaction with respect to what was attempted through the chapter 11 case with respect to the breadth of these third party releases.”

Reorg examines appellate arguments in the Virginia District Court where two securities fraud plaintiffs, represented by Lowenstein, challenge the release and exculpation provisions in the Ascena Retail debtors’ liquidating plan. Andrew Behlmann argues that his clients, “the only parties with an actual economic interest in the outcome,” should not be denied standing because they opted out of the third-party releases. Calling the plan a “death trap,” Behlmann says his clients were given a “Hobson’s choice” of objecting and losing standing or having to defend against the argument that they “waive[d] every issue on appeal. “ According to Reorg, U.S. District Judge David Novak has indicated that he is likely to invalidate the plan’s third-party release provision.

The Global Legal Chronicle covers Lowenstein’s role representing PJW Restaurant Group, an American restaurant holding company with 26 restaurants and six different brands throughout Southern New Jersey and Eastern Pennsylvania, in its sale to Garnett Station Partners. The deal team was led by Nicholas San Filippo IV.

In TIME, Doreen M. Edelman, partner and Chair of Lowenstein’s Global Trade & National Security group, and senior counsel Laura Fraedrich discuss the impact of sanctions on Cuba-based organizations and businesses that have been locked out of online services such as file transfer sites, social media managers, cloud services, development apps, video calling, and education platforms. Edelman explains that the complicated trade restrictions and inconsistent history of U.S.-Cuba relations discourages U.S. companies from finding workarounds for clients located there. She says: “I’ve worked with a lot of clients over the years who take a very conservative approach and decide they don’t want to run that risk. [Startups especially are] not going to want to pay for legal fees for stuff like this, so they’ll just follow the embargo and be done with it.” Fraedrich adds that the U.S. Treasury Department’s Office of Foreign Assets has lately been more “targeted at people who are in or have been in the government; …you really wonder why we couldn’t go to something like that for Cuba to mitigate some of these secondary and tertiary effects.”

In Supply Chain Management Review, Doreen M. Edelman, partner and Chair of Lowenstein’s Global Trade & National Security practice, and Laura Fraedrich address the recent rollback of tariffs on steel and aluminum imports, and the potential impact on supply chain challenges. Edelman advises companies “to stay engaged and hands-on. Make sure paperwork and advanced CBP filings are in order. Contact everyone in the import supply chain to ensure your products are a priority known to all parties in the import chain. Ensure your classifications, markings, and country of origins representations are accurate, complete, and don’t trigger CBP questions.”

Fraedrich says that the lifting of these tariffs “will help U.S. manufacturers be more competitive in the world market while at the same time helping the EU steel and aluminum manufacturers maintain their production. The move also reinforces the Biden Administration’s vow to re-engage our allies in bilateral and multilateral negotiations on commercial issues to create a more unified front related to threats from countries such as China and Russia. This deal may be the beginning of similar deals for other countries and deeper negotiations with the EU on trade issues.”

Foreign Investment Watch interviews Doreen M. Edelman, partner and Chair of the firm’s Global Trade & National Security group and number one on the company’s Top Advisors 2021 list, about President Joe Biden’s approach to China, the latest governmental trade appointments, a possible U.S. investigation into Chinese subsidies under Section 301 of the U.S. trade law, and other government actions that target China. “One example is Section 889 of the National Defense Authorization Act, which prohibits any U.S. government agency from buying or doing business with any company that uses telecom equipment that uses components from one of the targeted Chinese companies,” Edelman says. “These are broad provisions with the focus being to ostracize China.” She adds, “I don’t think either side wants … [a trade war] because of the market implications, and Biden has pledged to be more multilateral in his approach. Let’s hope that the ongoing bilateral discussions are substantive, and the new appointees can get engaged quickly.”

Edelman continues: “U.S. business and consumers were, and are, the victims of the Section 301 tariffs. No one thought they would last this long. More tariffs would not be prudent. … The silver lining I see is that trade regulations and tariffs are now issues that senior management can take advantage of to optimize their business if they really understand their options. It is critical to every company’s growth strategy.”

In a video interview for SupplyChainBrain, Doreen M. Edelman, Chair of the firm’s Global Trade & National Security practice, discusses the Biden administration’s “holistic” approach to the Buy America Act, noting that–while the legislation is 70 years old– “this is the first time they are actually looking at changing the content requirements and making a larger differential in the benefit of purchasing domestic over foreign products.” For manufacturers of all commercial products (not just defense), Edelman says, “The companies that are going to be successful are the ones that understand their supply chain. … There is no short cut in doing it.” She continues: “The Biden administration is not trying to make it just U.S.-oriented; [they are saying] we want to work with our best trading partners. If you work with us on national security, as a result, you may get a trade preference. It all goes hand in hand.”

In VentureBeat, Jonathan L. Lewis discusses the ruling in Epic Games’ antitrust suit against Apple, where the judge found, among other things, that the defendant’s iOS platform was not an “essential facility.” Lewis says, “It’s not like they came up with this 30% fee commission from thin air. It’s the standard. Are we going to punish innovators for their success and require them to turn over access to what they’ve created because people don’t like to pay what they’re asking?” He adds, “What we focus on in antitrust is if they engaged in some conduct that enables them to charge some price that is above what it would exist in a competitive marketplace.”

Kenneth A. Rosen, Chair Emeritus of Lowenstein’s Bankruptcy & Restructuring Department, speaks to the New York Post about Jessica Simpson’s efforts to reclaim her brand before Sequential Brands, the company that owns it, files for bankruptcy. Simpson and her family want to become the stalking-horse bidders for the brand, but, as Rosen explains, “It’s possible that Jessica Simpson is outbid.” He adds that a bankruptcy judge could grant Simpson’s request, “but that only means that she is the first bidder unless someone wants to top her bid.”

Matt Savare, Chair of the firm’s Commercial Contracts group, comments in Adweek on how social media algorithms can lead to censorship of everyday products such as women’s intimates. Regarding the challenge for Facebook and other companies to create consistent policies, Savare says: “What’s sensitive in San Francisco is very different than what’s sensitive in Omaha, Nebraska. … It’s such a vexing problem, and it’s not going to be solved overnight.”

In Law.com, Julie Levinson Werner, partner in the firm’s Employment Counseling & Litigation group, discusses how curbing employment noncompete agreements affects worker mobility and economic growth. Werner says, “If you look at New York City, if you look at Austin, Texas, if you look at Miami, there’s a vibrant startup community in all three of these locations, and they all have clearly established laws protecting the enforcement of noncompetes in the appropriate circumstances. And it has not hindered development in those areas.”

In this video on SupplyChainBrain, Laura Fraedrich, senior counsel in Lowenstein’s Global Trade & Policy group, discusses why the United States and the European Union seem to have set aside their longstanding dispute over aerospace subsidies. Fraedrich says the shift indicates a mutual desire “to come together and address trade disputes elsewhere in the world, especially those relating to China. They see bigger fish to fry.”

In Foreign Investment Watch, Doreen M. Edelman, Chair of the firm’s Global Trade & National Security group, and Christian C. Contardo discuss a recent report by the Defense Critical Supply Chain Task Force and its recommendations for building U.S. supply chain resilience, including the possibility of requiring companies to disclose foreign capital they receive from adversaries. Edelman says, “I am advising companies, not just technology and defense providers, to focus on their supply chain.” Regarding the possibility of creating an inclusionary process that exempts “trusted partners” from CFIUS requirements, Edelman predicts “a formal or informal loosening of the requirements for trusted partners,” despite the fact that these relationships are always subject to “a fact specific transaction review.” Contardo observes that these recommendations “are in addition to voluntary incentive-based supply-chain security programs such as the Department of Defense Trusted Capital program, [which] matches vetted capital providers to U.S. businesses working with the DoD in key technology sectors as a way for the businesses to raise necessary funding to grow without risking investment from countries of concern to the DoD.”

In an interview on AM Best TV, Kathleen A. McGee, partner in the firm’s Emerging Companies & Venture Capital group and White Collar Defense practice, addresses what she describes as the “emerging epidemic” of ransomware and how companies can mitigate possible damage to their businesses. McGee says, “There is no stopping a nation state when a nation state wants to get into your infrastructure. … Companies need to address the new normal by putting their money where it counts.” She warns that, despite the experience of Colonial Pipeline in recovering much of its losses, there is “no guarantee that the government will be able to recoup your losses, but it is a best practice to notify law enforcement.” McGee further notes that insurance companies have an important role to play by encouraging best practices: “The probability of being impacted by a ransomware attack is much higher than other acts of god, and insurance companies need to reflect that.”

Doreen M. Edelman, Chair of the firm’s Global Trade & National Security group, speaks to Foreign Investment Watch about preemptive disclosures of non­notified CFIUS transactions involving SPACs, where companies state that they will not be submitting a declaration with CFIUS unless they are requested to do so. Edelman calls this approach “a proactive, low risk way to let regulators know that the CFIUS process was not ignored or flouted.” She adds that “by making this statement to the SEC, at least it’s on record somewhere that the parties carefully reviewed the transaction for national security concerns” (subscription required to access article).

Foreign Investment Watch recently ranked Edelman as number one on its Top Advisors 2021 list of lawyers who provide legal advice concerning national security reviews of foreign investments in the United States and abroad

Valeska Pederson Hintz, partner in Lowenstein’s Tech Group, Corporate Governance & Compliance, and Capital Markets & Securities practices, speaks to The Information about how an increasing number of tech founders are maintaining control of their companies through supervoting rights. Pederson Hintz says: “It really has just become the norm to do this high-vote stock,” adding that it is an important consideration for firms going public via SPAC, as well as IPO.

In Compliance Week, Mary J. Hildebrand CIPP/US/E, partner and Chair of the firm’s Privacy & Cybersecurity group, discusses the Biden administration’s more “regulation-friendly” approach to privacy, as demonstrated in a recent letter by Sen. Edward Markey (D-­Mass.) and Rep. Kathy Castor (D-­Fla.) that asks the Federal Trade Commission to investigate possible violations of the Children’s Online Privacy Protection Act (COPPA) by Google Play. Hildebrand says, “The agency has exercised its considerable authority to enforce COPPA on many other occasions, and I’m personally optimistic this letter will trigger an investigation to ensure that Google and its app developers are playing by the rules.”

Robert M. Hirsh is interviewed in S&P Global about the recent spike in U.S. corporate bankruptcy filings. Hirsh believes the number of bankruptcy filings in 2021 will be lower than expected, with a “possible uptick in the fourth quarter.” He says, “Access to capital will keep companies out of court, while restructurings and recapitalizations can also be achieved outside of the bankruptcy process.”

Nicholas San Filippo IV is interviewed on the Deep Wealth: The Sell My Business Podcast, where he discusses proven strategies for achieving successful M&A deals. San Filippo talks about common mistakes business owners make, the impact of the COVID-19 pandemic, and why trust is the currency in mergers and acquisitions. San Filippo also explains why he became an M&A lawyer: “I feel like Superman when I come in and I'm able to help entrepreneurs go from paper wealth to liquid wealth."

Mary J. Hildebrand CIPP/US/E, founder and Chair of Lowenstein’s Privacy & Cybersecurity group, speaks with Law360 about the need for federal regulation governing companies’ collection and maintenance of COVID-related health information, including who has and has not received a Covid-19 vaccine. Hildebrand says, “The current situation with COVID-related data underscores the compelling need for federal action…California residents have been accorded certain rights to personal information under state law which may be helpful, but protection of this sensitive data should not depend on where you live."

Michael S. Etkin comments during a hearing in the Knotel, Inc. Chapter 11 cases referenced in Americas Middle Market by Reorg on the settlement reached between the Debtor, the Lender/Stalking Horse Purchaser, and Official Committee of Unsecured Creditors. Representing the Unsecured Creditors Committee, Etkin points out that the settlement “moved the needle significantly” in terms of greater recoveries and other benefits to creditors. (subscription required to access article)

Lowenstein's representation of the Unsecured Creditors’ Committee of Parent Company of Balducci’s New York and Kings Food Markets in the confirmation of the Plan filed by the Debtors and approved by the court on February 22 is noted in the Global Legal Chronicle and PBV Monitor. The Lowenstein team was led by Joseph J. DiPasquale, Mary E. Seymour, Kenneth A. Rosen, and Jennifer B. Kimble and includes Lowell A. Citron, Rachel Maimin, Jeremy D. Merkin, and Craig Dashiell. View Lowenstein's news announcement about this representation.

Mary J. Hildebrand CIPP/US/E, Chair of Lowenstein Sandler's Privacy & Cybersecurity group, is a guest speaker on Artificial Intelligence Edition, the inaugural episode of the podcast McLane Middleton Minutes, on which she discusses facial recognition software, how companies should structure its use and the data they collect from it, and why a federal law on this issue would be helpful. Citing the increase in class actions and conflicting regulations, she suggests that companies use the Illinois Biometric Information Privacy Act and the FTC’s Ever Album settlement agreement as guideposts on this issue.  

Lowenstein's representation of Avid Ventures in the launch of its $68 million-plus debut venture capital fund founded by Addie Lerner, decade-long investor at General Catalyst, General Atlantic, and Goldman Sachs, is noted in the Global Legal Chronicle. The Lowenstein deal team included Ed Zimmerman, Marie T. DeFalco, Max Karpel, Robert J. Menendez, Joseph F. Hendricks, and Bettina C. Elstroth. View Lowenstein's news announcement about this transaction.

In The American Lawyer, Chair and Managing Partner Gary M. Wingens discusses how the firm performed “shockingly well given what was going on in the world” in 2020. Wingens credits the firm’s investment funds, tech, life sciences, bankruptcy, and capital markets practices, in addition to engagements in venture capital and private equity. “People need lawyers as things change,” he says. Wingens is optimistic about 2021: “I do feel that we are at the beginning of a whole new economic cycle,” he says. “I think there’s going to be an enormous amount of investment activity.”

Ed Zimmerman, Chair and co-founder of Emerging Companies & Venture Capital (fka, The Tech Group) and Adjunct Professor of Venture Capital at Columbia Business School, teamed up with Marie T. DeFalco (Vice Chair of Lowenstein’s Investment Management Group) to represent Avid Ventures in its $68 million-plus debut. Zimmerman tells Business Wire that managing partner Addie Lerner is “a brilliant, hard-charging, and charismatic force within the venture community. She will win deals by force of intellect, personality, and the reputation for excellence and integrity that she has already developed here in the States, in the UK, and in Israel. Having been opposite Addie in my role as counsel to startups, I’ve been impressed to see, more than once, founders rapidly transition from meeting Addie to making room for her in oversubscribed venture rounds.”

In Pitchbook, Zimmerman says: "LPs back the person in a solo GP fund. … I'm excited to see how people react … [to Avid], and whether others say this strategy is different and I'd like to copy it, or at least pivot into it a little bit more.”

Zimmerman tells TechCrunch that Lerner has a reputation for being “extraordinarily thoughtful about deals” and that one entrepreneur called her “one of the smartest people she has met in a decade-plus in venture.” He adds: “I’ve seen it myself in deals and then I’ve seen founders turn down very well branded funds to work with Addie. … Addie will find and win and be invited into great deals because she makes an indelible impression on the people who’ve worked with her and the data is remarkably consistent.”

James C. Shehan, Chair of the firm’s FDA Regulatory practice, tells Law360 there is no cause for concern about the lack of a confirmed FDA commissioner at this point in the Biden administration. He says: "Is it a problem? I'd say no. … The core of the agency continues to function well, so there's no immediate concern." Shehan adds that a confirmed leader is less involved with day-to-day matters and more focused on setting the long-term agenda: "That only happens when you have someone who is officially in charge and is going to be there for a while and says, 'This is something new we should do.’”

Jeffrey Cohen, Chair of Lowenstein’s Bankruptcy & Restructuring Department, comments in Bloomberg on the slower pace of Chapter 11 filings at the beginning of the new year. Cohen notes that “[t]here could be a pickup in restructurings in February as companies evaluate their next steps.” He adds, “It’s not unusual to see a lull in January filings, especially in retail, as companies evaluate holiday performance.” Cohen’s comments also appeared in Crain’s New York Business.

Laura Fraedrich is interviewed in Foreign Investment Watch about foreign direct investment requirements, CFIUS filings, and mitigation negotiations. Regarding the incoming administration, she says, “I anticipate that the United States will return to a more multilateral approach. … Specifically, I think we will see a return to a cooperative effort to restoring the dispute settlement arrangement at the WTO and to the negotiation of multilateral trade agreements.” Fraedrich notes that “during the past five years, the majority of mitigation agreements have related to preventing access to data or technology by the foreign investors,” and she advises companies to “carefully consider where the national security concerns may lie and determine the cost of potential mitigation arrangements when negotiating. This is because certain mitigation requirements might impact the benefit of the bargain and thus valuation. Finding this out after the deal has been struck can create a difficult situation.”

Fraedrich encourages companies to consider foreign investment and ownership implications early in the transaction: “A company organized in the United States might be a foreign entity if there is foreign ownership and control. A joint venture that is organized in a foreign country might be subject to CFIUS jurisdiction if a U.S. business has been contributed. The new rules for private equity funds are complicated, and if fund managers are not careful, a U.S.-organized fund can be a foreign person.”

Real Estate NJ notes the elevation to partner of Daniel A. Suckerman of Lowenstein’s Real Estate practice. The article includes a quote by the group’s Chair, Ted Hunter: “Dan has been an integral part of our real estate team for many years. He has handled numerous headquarters leases, major acquisitions, financings and development transactions — all with equal skill and savvy.”

Doreen M. Edelman is interviewed on the podcast FCPA Compliance Report on why every compliance professional needs to be ready to comply with CFIUS and where CFIUS may be headed under the Biden administration. Edelman urges parties to a transaction to consider‒long before closing‒any factors that could trigger CFUIS scrutiny, such as how the technology in question will be classified for exports, who are the ultimate beneficiaries, and possible exit strategies.

In an article in Tax Notes Federal discussing the Biden administration’s likely approach to trade issues, Doreen M. Edelman says she does not foresee any immediate removal of section 301 tariffs against China in the near future: “I think … [President Biden is] … going to look at them. I don’t think he’s going to come in and immediately remove them in an executive order.” Regarding the ongoing dispute between the United States and the EU about Boeing-Airbus, Edelman state that “the administration will likely push for negotiations to get ‘back on track with the EU’ as part of a move toward multilateralism.”

Doreen M. Edelman, Chair of the firm’s Global Trade & National Security group, discusses in Law360 anticipated trade issues for the incoming administration, such as the digital service tax programs increasingly imposed in Europe that are stirring controversy among Silicon Valley companies. "Digital taxes will also be discussed [with the EU], and the Biden administration will want to be part of a multilateral deal," Edelman predicts. "Biden likes to make all sides appreciate the deal, which may be difficult."

Lowenstein's representation of the Official Committee of Unsecured Creditors of NORPAC Foods, Inc., in the confirmation of the company's Plan of Liquidation is noted in the Global Legal Chronicle. The plan is the product of a Chapter 11 case that saw the successful liquidation of all of NORPAC’s operations, inventory, real estate, and equipment. Lowenstein served as counsel to the Unsecured Creditors Committee in NORPAC's Chapter 11 case and continues to represent the post-effective date Committee. The Lowenstein team is led by Bruce S. Nathan, Jeffrey D. Prol, Scott Cargill, and John P. Schneider. View Lowenstein's news announcement about this matter.

Mary J. Hildebrand CIPP/US/E tells Reuters that Nike’s workout apps are a source of valuable information about customers; she notes that the data they provide give the company a “significant advantage” over rivals. She states, “[Nike] likely has several scientists using the data to see if shoppers will tolerate higher prices.” The Reuters article was reprinted in Yahoo! Finance, Nasdaq, City A.M., América Retail, and the New York Post.

Mary J. Hildebrand CIPP/US/E speaks to Compliance Week about the FTC’s request for information from nine social media companies and streaming services, including Amazon.com, Facebook, and YouTube, concerning their collection, use, and sale of users’ personal information and the impact of those practices on children and teens. “I think this inquiry is long overdue,” she says. “And I doubt it will be the last one. I’m hoping the information they collect might inform a national data privacy law.” Hildebrand warns companies working with the nine organizations singled out by the FTC that they, too, may be affected: “If you’re a company that deals directly with the named organizations, or companies that may share data with these companies, you should take note.”

Laura Fraedrich's arrival to Lowenstein Sandler's Washington, D.C., office as senior counsel in the firm's Global Trade & Policy practice is noted in Bloomberg Law, General Counsel News, The American Lawyer, and The Washington Post. View Lowenstein's news announcement about Fraedrich's arrival to the firm.

In Real Estate NJ, partners Matthew J. Platkin and Peter Slocum discuss how the New Jersey real estate sector should prepare for legal recreational marijuana, noting that “the market for real estate will be fierce when recreational use comes online … particularly … in urban communities, where drug-free school zones greatly limit the options for dispensary locations.” Based on their experience representing medical cannabis clients, they caution landlords and tenants against signing leases too quickly, and they warn about “new requirements that are sure to be imposed by municipalities, including potential ‘host community’ fees levied as a condition of local approval.”

Julie Levinson Werner’s article, “Workplace Diversity—Getting It Right With Goals, Not Quotas,” is referenced in Bloomberg Tax’s Weekend Insights. The article includes her observation that “adopting quotas of a fixed percentage of individuals in certain roles by a certain date based upon race, gender, or other characteristics is legally risky,” and it outlines helpful steps for employers to improve their diversity, equity, and inclusion efforts while preventing discrimination.

In Part 2 of the American Association of Bank Directors’ podcast, Calling All Bank Directors: What You Need to Know Before and After Your Bank Renews Its D&O Insurance, Lynda A. Bennett, Chair of the Insurance Recovery group, discusses how banks and their directors can successfully access their coverage; the importance of understanding the scope of the bank’s indemnification of directors and officers before the policy terms are finalized; how the definition of “claim” in the policy may affect coverage for regulatory investigations and other matters; how to properly and timely file and manage a claim; and how to negotiate the language in the policy without necessarily increasing the cost of the coverage. She notes that “one of the biggest mistakes we see clients make is not providing immediate notice of claims. … A claim is defined in all of these policies quite broadly to include any written demand for monetary or nonmonetary relief.”

Lynda A. Bennett, Chair of the Insurance Recovery group, addresses the current D&O insurance market, the most important provisions in a D&O policy, the most common mistakes that banks make regarding D&O insurance, and how banks may achieve the best possible insurance coverage on Calling All Bank Directors: What You Need to Know Before Your Bank Renews Its D&O Insurance, Part 1, the podcast of the American Association of Bank Directors.  Bennett calls the discussion especially timely as, in her 26 years of practice, she has never seen such a volatile D&O market for bankers and bank directors, as well as for other companies in other industries.

“The market is incredibly in flux, premiums are skyrocketing, self-insured retentions are going up, capacity in the market is shrinking and particularly drying up in certain industries where it is difficult to keep the full tower of coverage that you have and in some instances to stay with the same carriers that have historically been part of your insurance program; and last, we have also seen a restriction in terms, and that is very specific to the banking industry, as insurance companies are taking a very careful and hard look at the scope of coverage that they’re going to provide for regulatory investigations and other informal inquiries conducted by governmental officials.” She adds that COVID-19 has made all these issues even more acute, so it is critically important that companies with coverage coming up for renewal reach out to insurance professionals in order to be prepared for a detailed underwriting process that could be “potentially painful.”

Jennifer B. Kimble is featured in Reorg’s ongoing coverage of the Chapter 11 bankruptcy case of KB US Holdings Inc., the parent company of Balducci’s New York and Kings Food Markets (October 14, 2020; October 16, 2020; October 22, 2020). Lowenstein represents the Official Committee of Unsecured Creditors (UCC), which supports the proposed sale to Acme Markets but objects to the purchase of certain claims and causes of action and which seeks to ensure the preservation of the UCC’s challenge rights under the Final DIP Financing Order. Reorg notes Kimble’s arguments on behalf of the UCC, specifically her objecting to “the extent that causes of action to be purchased would include claims against former or current directors and officers, and constitute a de facto release.” Kimble also raises the points that the debtors’ D&O insurance policies have $15 million of coverage, and the UCC has yet to see a wind-down budget. She argues that “the value of unencumbered assets [should] be carved out of the sale proceeds and that the UCC’s ability to present a challenge [following approval of the sale] be preserved.” (subscription required to access articles)

Mary J. Hildebrand CIPP/US/E speaks to SC Magazine about H&M’s recent $41.5 million penalty for collecting personal data on its employees in Germany. She observes that while companies may understand that their employees have “the same rights under applicable data protection laws [such as GDPR] as revenue-generating customers, [they often lack] … appropriate follow-through and implementation of these policies to ensure that employee privacy rights are respected.”  Hildebrand adds, “H&M has generated an impressive list of to-dos in an effort to compensate for egregious and illegal data collection and processing activities.”

Mary J. Hildebrand CIPP/US/E says that U.S. companies should be prepared to respond to inquiries regarding the Foreign Intelligence Surveillance Act (FISA) and its implications for their business, including EU data transfer activities. In Corporate Counsel and Legaltech News articles discussing a Lowenstein/ACC New Jersey Cyber Day presentation featuring Hildebrand and Mark Faber (Vice President, Corporate Counsel, Cyber and Privacy Law, Prudential Financial), Hildebrand notes that since the European Union Court of Justice invalidated the EU-U.S. Privacy Shield, various EU organizations have required completion of “detailed questionnaires… about FISA...” in order to initiate or continue commercial relationships.

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 Bankruptcy of Century 21 Department Stores is noted in the Global Legal Chronicle. Century 21 operates 13 retail stores across New York, New Jersey, Pennsylvania, and Florida, along with an e-commerce platform. The Lowenstein team is led by Jeffrey Cohen, Kenneth A. Rosen, Lynda A. Bennett, Eric Chafetz, Brent Weisenberg, and Lindsay H. Sklar. View Lowenstein's news announcement about this retention. 

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of KB US Holdings Inc., the parent company of Balducci’s New York and Kings Food Markets, and several affiliates, is noted in the Global Legal Chronicle. The Lowenstein team is led by Kenneth A. Rosen, Mary E. Seymour, Joseph J. DiPasquale, and Jennifer B. Kimble and includes Rachel Maimin and Jeremy D. Merkin. View Lowenstein's news announcement about this retention. 

Lowenstein's representation of Traub Capital, an investment firm specializing in building value in consumer companies using its unique combination of strategic, operational, and financial expertise, in the company’s purchase of MANA Products, a premier beauty contract manufacturer based in Long Island City, New York, is noted in the Global Legal Chronicle. The Lowenstein deal team included Michael A. Brosse, Lauren M. Troeller, Lowell A. Citron, Doreen M. Edelman, Darren Goodman, Ted Hunter, Marc S. Kurzweil, Gavin J. Rooney, Jeffrey M. Shapiro, Michael Walutes, James C. Shehan, Norman W. Spindel, Daniel A. Suckerman, David Toma, Stuart S. Yusem, Abbey E. Baker, Eric Jesse, Stacey  C. Tyler, Naomi D. Barrowclough, Matthew P. Hintz, Manali Joglekar, Kimberly E. Lomot, Kathleen A. McGee, Megan Monson, Zachary L. Berliner, Christian C. Contardo, Mark S. Heinzelmann, Amanda C. Lutick, Michael T. Melchiorre, Joshua A. Rabinovits, Stephen Tanico, Jenna-Marie Tracy, Joseph Mignone, and Keith Janowitz. View Lowenstein's news announcement about this transaction.

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Arandell Holdings is noted in the Global Legal Chronicle. The third-largest printer of catalogs in the United States, Arandell provides production and delivery of higher-end catalogs and other promotional products, along with related data analytics services. The Lowenstein team is led by Bruce D. Buechler, Andrew Behlmann, and Robert M. Hirsh. View Lowenstein's news announcement about this retention. 

The release of Lowenstein’s research report, Getting Paid: A Look at Representations & Warranties Insurance, by Lynda A. Bennett, partner and Chair of Lowenstein’s Insurance Recovery Group, and Eric Jesse, counsel in the group, is noted in Private Equity Wire, DealLawyers, Yahoo! News, Private Equity Professional, and the American Bar Association's Business Law Section Business Law Today newsletter. The report found while R&W policies have proliferated, a key question remains unanswered: Do insurers actually pay the claims? The answer is “yes”–with some caveats. View Lowenstein's news announcement about the report.

Doreen M. Edelman speaks to The Deal about the national security challenges raised for any American corporation buying TikTok's U.S. business. “The devil will be in all the details, and that will be something important for other companies to watch,” she says, adding that “[w]ith the Trump administration fearful that Beijing mines personal information for espionage, blackmail and stolen identities, a ban on foreign access to user data is likely.” She warns that CFIUS mitigation for this transaction may be necessary: “There will have to be separate servers, locations will not be in China, [and] there will be different policies and procedures that will affect the U.S. company.”

Michael B. Himmel, Chair of the firm’s White Collar Defense practice, speaks to the FTI Journal about the importance of conducting internal investigations in a timely manner, even when faced with the challenges of remote work environments in a global pandemic. Himmel says, “When dealing with allegations, an organization’s action or inaction can mean the difference between being granted a deferred prosecution agreement from the Department of Justice or not. … From the civil perspective, how quickly an audit committee responds to an allegation can determine whether a derivative lawsuit has merit.”

Jeffrey Blumenfeld speaks to CNN about a suit by Epic, developer of the popular game Fortnite, against Apple and Google for what Epic claims to be anti-competitive practices in the defendants’ app stores and payment policies. He says that Apple “could argue that the 30% fee for in-app purchases pays for running the App Store and reviewing apps to ensure they are not security risks.” For Epic to prevail, Blumenfeld believes the court would have to be "pretty strongly convinced" that forcing Google and Apple to change their distribution practices would benefit consumers in the long run. He states, "I have a very hard time believing that the result of this lawsuit is that the court says that Apple is not permitted to control distribution of apps through its own App Store."

Doreen M. Edelman comments in Business Insider on the risks for venture capital firms under the Trump administration’s increased scrutiny of foreign investment, as illustrated by the executive order banning TikTok in this country and ordering its parent ByteDance to undo a years-old merger that led to the app's expansion around the world. "I don't feel that enough of the venture companies and the [private equity] backed companies in tech and data understand that this ... could be a real issue," she says.

She explains the broad reach of the Committee on Foreign Investment in the United States (CFIUS), which can not only review but also force changes to deals closed long ago. “There’s no time limit,” she says. There is also no requisite size for a company to come under CFIUS review. "There's no de minimis," Edelman continues. "There's no lower threshold." (subscription required to access article)

Philip J. Gross is highlighted in Reorg regarding the Sur La Table bankruptcy proceedings. As counsel to the official committee of unsecured creditors (Committee) in the Sur La Table Chapter 11 case, Gross comments on the terms of the company’s sale of essentially all of its assets. The sale order was amended following the Committee’s filing of a reservation of rights regarding the allocation of the purchase price, among other issues. The sale order preserves the Committee’s and unsecured creditors’ rights on those issues. (subscription required to access article)

Jeffrey Cohen is featured in Vogue Business regarding the onslaught of U.S. retail bankruptcies. Cohen comments on anticipated bankruptcy trends through the second half of the year.

Doreen M. Edelman is interviewed by Foreign Investment Watch, a publication focused on the intersection of national security and foreign investment, which recently named her one of its top ten advisors in 2020. Edelman discusses the reasons why a CFIUS review is critical for startups, private equity, and venture fund companies, and she looks at the new real estate provisions of FIRRMA, which cover “not just investment in a U.S. business with real estate but also leases, purchased land, and concessions.” She also addresses the Trusted Capital Program, a Department of Defense program that matches prescreened investors with companies working on technology or products of national security interest. Finally, Edelman looks at reporting obligations under the International Investment and Trade in Services Survey Act, which requires all U.S. businesses to file reports identifying foreign direct investment that results in a foreign entity owning or controlling 10 percent or more of a U.S. business. 

Lowenstein's selection as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Sur La Table, Inc. is highlighted in the Global Legal Chronicle. The Lowenstein team includes Jeffrey Cohen, Eric Chafetz, and Philip J. Gross. View Lowenstein's news announcement about this retention.

Kenneth A. Rosen is quoted in Bloomberg Law discussing the rising need for additional bankruptcy attorneys and related support in the wake of the COVID-19 pandemic. As Chair of the Bankruptcy Department, Rosen describes how Lowenstein has focused efforts on bolstering the team for over a year in anticipation of an economic downturn.

Jeffrey Cohen is quoted in Bloomberg Law regarding the growing value of brand names and related intellectual property in Chapter 11 bankruptcy cases in light of increased online retail. Cohen comments on the abrupt shift to online shopping due to the COVID-19 pandemic and the magnified value of intellectual property as physical stores shutter their doors.

Lowenstein's representation of InSite Wireless Group, LLC (InSite), one of the largest privately owned tower and wireless infrastructure companies in the United States, in the acquisition of Repeater Communications Group, LLC, is highlighted in The Deal, the Global Legal Chronicle and Cision PR Newswire. The Lowenstein deal team included Michael A. Brosse, Nicole Rae Morales, and Michael Walutes. View Lowenstein's news announcement about this transaction.

Lindsay H. Sklar is quoted in Reorg regarding the Maines Paper & Food Service bankruptcy proceedings. As counsel to the official committee of unsecured creditors (Committee) in the Maines Chapter 11 case, Sklar comments on the Committee’s recommended changes in light of its ongoing investigations, which were accepted into the Debtors’ disclosure statement and solicitation process. (subscription required to access article)

Phillip Khezri is quoted in Newsday regarding Fairway Markets’ Chapter 11 bankruptcy proceedings in the wake of multiple store closings for the Manhattan-based supermarket chain. Khezri comments on remaining stores’ current performance, after it was announced that the parent company was unable to secure a buyer for its other New York locations.

The Deal reports on the acquisition by Lowenstein client InSite Wireless Group, LLC, one of the largest privately owned tower and wireless infrastructure companies in the United States, in the acquisition of Repeater Communications Group. The Lowenstein deal team included Michael A. Brosse, Nicole Rae Morales, and Michael Walutes. View Lowenstein's news announcement about this transaction.

Kenneth A. Rosen is quoted in the New York Post regarding large payments to Neiman Marcus executives in advance of the company’s Chapter 11 bankruptcy filing. Rosen analyzes the timing of the payouts and explains the effect such pay incentives could have on the bankruptcy case.

Kathleen A. McGee is mentioned in Reuters and The New York Times in an article about companies that raised funds in 2020 through private equity or venture capital investments but that also applied for and received government relief through PPP loans during the COVID-19 pandemic. The piece notes that McGee “has advised companies that if they have cash in the bank that will sustain them for a year, then it could be a red flag for regulators later.”

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Maines Paper & Food Service, Inc. is highlighted in the Global Legal Chronicle. The Lowenstein team includes Jeffrey Cohen, Bruce S. Nathan, Jeffrey D. Prol, and Lindsay H. Sklar. View Lowenstein's news announcement about this retention.

Doreen M. Edelman discusses the increase in CFIUS filing requirements and regulatory scrutiny that private equity firms face for deals involving foreign capital in Fundfire. She notes the reputational impact for companies in addition to the risk of civil and criminal penalties. Edelman says, “[If] you cannot find a way to mitigate with the U.S. government and unwind your deal to a certain extent to reduce the national security issue, you can have to divest, or the foreign party could have to divest from the U.S. business. … It’s just time, money, and embarrassment." (subscription required to access article)

Mary M. Collins, President and CEO of the Media Financial Management Association, discusses the article, “Redesigning the Workplace,” by Amy Komoroski Wiwi and Lauren M. Hollender (published in May/June 2020 issue of The Financial Manager), in her column for TVNewsCheck. Collins reiterates the authors’ counsel on employment issues arising from working from home during the pandemic, including the classification of independent contractors and possible audits, remote privacy concerns and training, and Federal Fair Labor Standards Act (FLSA) requirements. She also discusses their points about joint-employer liability, which can vary by jurisdiction, for companies using staff through agencies.

The largest U.S. mall operator has sued its largest tenant for back rent and other related charges. Kenneth A. Rosen, Chair of Lowenstein's Bankruptcy practice, is quoted in the New York Post as to what this case may mean for future litigation in the retail industry.

Jeffrey Cohen shares with Business Insider his strategy for continued client engagement in the absence of live meetings and events. Cohen, who has served as counsel to athletics companies including Under Armour, Fila USA, and Brooks Running, leverages his passion for fitness to create shared experiences and build personal relationships. (subscription required to access article)

Dealreporter spoke to Doreen M. Edelman about a new Treasury Department proposal that will clarify when inbound investors of U.S. critical technologies need to make a mandatory filing with CFIUS. She says this will narrow the definition of transactions covered by the Foreign Investment Risk Review Modernization Act, making it less “fuzzy” and subjective. She adds that the “same analysis that parties have used to determine whether they are subject to export controls will help them determine whether their CFIUS filings are mandatory or not.” (subscription required to access article)

Boardroom Insider features comments by Lynda A. Bennett on D&O liability risks in the wake of COVID-19. She notes that insurance companies will “take a careful look at your public disclosures on preparations and risk factors” and that a legitimate “notice of circumstances” now can lock in coverage under current terms for possible future claims. Bennett also observes: “There’s going to be a scramble to keep Side A coverage in place,” with the price for this kind of personal protection likely to go up. Finally, she cautions that “[t]here will be no more rote renewals.” Bennett expects tighter terms, broader exclusions for risks associated with pandemics, more questions about preparedness, and increased premiums from fewer providers. (subscription required to access article)

Christopher Porrino, former New Jersey Attorney General and Chair of Lowenstein’s Litigation Department, speaks to ROI-NJ about law enforcement’s aggressive pursuit of alleged price gougers. He says, “Now, not only is the state pursuing civil penalties against those who price-gouge, for the first time in memory, federal authorities are seeking criminal penalties using a 1950s era statute. … The pursuit of criminal penalties in New Jersey is unprecedented in this context, and those businesses that enter the supply chain for scarce personal protective equipment need to beware. This aggressive criminal enforcement is not something legal scholars and law firms predicted, but it is happening at a fevered pace right now in New Jersey and around the country.”

Kathleen A. McGee is quoted in Law360 on the federal government’s evolving guidance about qualifications for SBA PPP loans and the next steps for companies now that the deadline to return those loans has passed. "Initially, there weren't a lot of questions," she says. “Although from the start we were advising clients that … you did have to show need and you had to establish that need was immediate need." When the SBA issued clarifications in late April regarding ownership and affiliation that especially affected technology and VC-backed companies, “that's when people really started to, I would say, panic," she says. McGee notes that even companies with loans under $2 million may still face Department of Justice scrutiny and possible whistleblower suits under the False Claims Act. (subscription required to access article)

In Inc., Julie Levinson Werner discusses how businesses should plan to reopen and stay open post-COVID-19. She recommends training staff on new cleaning and health protocols such as temperature-taking, in addition to rethinking where workers sit in relation to each other. She warns, “Companies that don't outline these new protocols clearly could face official complaints and reputational damage.”

Kenneth A. Rosen, partner and Chair of the Bankruptcy & Restructuring Department group, is quoted in Adweek regarding two predominant trends currently emerging in bankruptcy court to tackle the unprecedented challenge of post-pandemic bankruptcy filings. Rosen discusses how Chapter 11 proceedings are evolving to handle the current retail climate.

The arrival to Lowenstein of senior counsel Mary E. Storella as Vice Chair of the Life Sciences group and head of Life Sciences Transactions is highlighted in NJBIZ, Private Equity Wire, Law.com (New Jersey Law Journal), Bloomberg Law, Mergers & Acquisitions, and The Deal. View Lowenstein's news announcement about Storella joining the firm.

Kenneth A. Rosen, partner and Chair of the Bankruptcy & Restructuring Department group, is quoted in WSJ Pro Bankruptcy regarding the bankruptcy proceedings of retailer J. Crew Group Inc. and the company’s move to protect its Asian supply chain in preparation for reopening stores. Rosen compares the action to recent similar retail filings and comments on the resulting protection to vendors.

In NBCNews.com, Kenneth A. Rosen, partner and Chair of the Bankruptcy & Restructuring Department group, discusses possible outcomes of Chapter 11 bankruptcies, including their impact on consumers and retail leases. Chapter 11 filings offer struggling companies a way to reshape the business and reorganize debt. Following the COVID-19 pandemic, however, the future of reorganizations is unclear.

Ed Zimmerman, partner and Chair of Emerging Companies & Venture Capital (fka, The Tech Group), is quoted in Business Insider discussing the SBA’s issuance of new rules and guidance that may retroactively disqualify many venture-backed startups from receiving small business loans as part of the federal government’s coronavirus relief effort. Zimmerman notes that some companies are already paying back funds they received in response to the new rules after being encouraged to apply for the program by Treasury Secretary Steve Mnuchin. He states that the SBA and Treasury Department have “really muddied the water” with the latest guidelines. (subscription required to access article)

Kenneth A. Rosen, partner and Chair of the Bankruptcy & Restructuring Department group, is quoted in WWD regarding the current uncertainty in retail bankruptcies as a result of the COVID-19 pandemic. Rosen states that “bankruptcy judges are trying to accommodate the concept of maximizing value.” However, external factors are affecting the industry’s ability to formulate projections and create plans of reorganization.

Bloomberg Businessweek references Lowenstein’s Updates on Tax Deadlines and Key Tax Provisions of the CARES Act, authored by Brian A. Silikovitz, Andrew E. Graw, Lesley P. Adamo, Darren Goodman, and Robert B. Krieger and republished in JD Supra. The article recommends the employee retention tax credit for business owners who have not received adequate relief from either the SBA’s Paycheck Protection Program (PPP) or Economic Injury Disaster Loan (EIDL) program.

In Built In, Ed Zimmerman, Kathleen A. McGee, and Kimberly E. Lomot discuss the confusion regarding startups' eligibility under PPP for SBA loans, including how venture capital-backed growth companies should consider certifying “need” under the CARES Act. “The reporting in the press was, ‘Startups are totally ineligible or almost totally ineligible,’” says Zimmerman. “But that’s not what the law says. That’s analysis under Section 103, and the proper way to do the analysis is under 301.” He goes on to clarify under what conditions “negative control” by minority owners may constitute affiliation so as to bar PPP loan eligibility, and how to avoid this through irrevocable waivers or amended charters.

Both Zimmerman and McGee emphasize the importance of documentation. McGee, former Bureau Chief at the New York State Attorney General’s Office, explains the potential risk of future prosecution for companies applying for PPP without having properly assessed the “necessity” certification: “If it is demonstrable on the budget in the Excel spreadsheet you’re keeping that things are going to get much tighter because of COVID-19, then I think you’re justified. … But you have to have that good faith justification. If you have a year of bank, it’s probably going to be a flag raised for regulators.”

Lomot, who has years of experience counseling both borrowers and lenders on SBA loans, also urges caution in taking the certifications seriously: “eagerness to claim available funds…could get startups in trouble if they’re not applying in good faith.”

Ed Zimmerman and Kathleen A. McGee of Lowenstein’s Emerging Companies & Venture Capital group are quoted in The New York Times and Reuters on the risks for venture-backed startups seeking government stimulus aid. McGee warns companies with large cash reserves that applying for SBA loans now could “probably … be a flag raised for regulators who are combing through these applications at another time.”  Zimmerman also advises caution: “One thing that I have said to one or two clients is you might not like me very much today or in three months, but I think you’ll like me four years from now when you’re reading about investigations and private lawsuits in the paper and you don’t have this in your background.”

Robert M. Hirsh is quoted in Bloomberg regarding the current state of bankruptcy filings and the means by which the court system is adapting in order to accommodate the anticipated wave of bankruptcy filings following the coronavirus pandemic.

Jeffrey Cohen is quoted in Law360 regarding the Modell’s Chapter 11 bankruptcy proceedings. As counsel to the official committee of unsecured creditors, Cohen comments on the current suspension of the Chapter 11 case and its impact on the landlord community. He suggests that, while imperfect, suspension of the case was the best long-term solution for both the debtor and the creditors following the COVID-19 retail shutdown.

Dotan Barnea, Co-chair of the firm’s Israel Practice Group, is quoted in Globes discussing the eligibility of Israeli startups and growth companies for assistance from the United States’ recent $2 trillion-dollar federal program for small and medium-sized businesses. He says, "Israeli startups with significant activity in the United States influenced by the COVID-19 crisis should definitely look at the PPP loans,” although he cautions that applicants must show that the management of the company was done by American citizens or green card holders.

Steven S. Rogers comments in NJBIZ about the challenges faced by loan applicants on the first day of the CARES Act SBA loan process. He says, “The goal was apply at 10 a.m. and get a check at 2 p.m. Maybe that’s happening in parts of the country much less densely populated, but everyone who I have spoken to … their particular bank isn’t ready for them.” He remains optimistic: “It’s like an individual who can’t file for unemployment online because the system is overrun, the banks are overrun. While we can be negative on today, it’s not a criticism of the program.”

Doreen M. Edelman is quoted in The Wall Street Journal’s article on calls to delay or roll back tariffs during the COVID-19 pandemic, which are currently being determined on a case-by-case basis. She notes: “Having a tariff that is intended to punish China, but is being paid for by middle-America consumers who may currently be out of work, seems unfair at best and counterproductive.” (subscription required to access article)

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Modell’s Sporting Goods is highlighted in the Global Legal Chronicle. The Lowenstein team includes Jeffrey Cohen, Nicole Fulfree, and Michael Papandrea. View Lowenstein's news announcement about this retention.

Former Attorney General of New Jersey Christopher Porrino discusses price gouging during the COVID19 pandemic, how it is defined, and what businesses can do to avoid legal trouble in his interview with ROI-NJ.

Business Insider includes comments by Steven E. Siesser on the effect of the coronavirus on private equity investments in the leisure and hospitality industries. He says, "I think it's premature for anybody ... to say it's going to be a loss,” noting that the economy will rebound and people will start attending live events again.

In Law.com, Christopher Porrino, former Attorney General of New Jersey and now Chair of Lowenstein Sandler’s Litigation department, discusses the impact on law firms of New Jersey Governor Phil Murphy’s executive order closing nonessential businesses. Executive Order 107 does not mention law firms, but its accompanying FAQs advise that they may continue to operate but must accommodate employees working from home “wherever practicable.” Porrino says, “I don’t think lawyers deserve any special or different treatment. We all need to do our part.”

The arrival of former U.S. Treasury national security lawyer Christian C. Contardo to Lowenstein’s Global Trade & Policy practice in the firm’s Washington, D.C., office is noted in Bloomberg Law, Washington Business Journal, General Counsel News, The Washington Post, Reuters, and The Deal. Contardo has over a decade of experience in federal agencies such the Department of Homeland Security, Immigration and Customs Enforcement, and Treasury, including with the Office of Foreign Assets Control (OFAC) and the Committee on Foreign Investment in the United States (CFIUS). 

In Tax Notes, Doreen M. Edelman comments on requests made by U.S. trade groups asking the Trump administration to remove section 301 tariffs in light of the financial uncertainty surrounding the coronavirus pandemic; she notes that exclusions alone may not be sufficient to help U.S. businesses. “These tariffs were intended to hurt China, but trade policy experts knew when the announcement was made that the administration was mixing apples and oranges," she says. "The companies were to 'take one for the team' and take the long view that the policy to alienate China was a good policy. The effect of the virus on retail companies will put the icing on the cake for retail companies.”

Jeffrey Cohen argued contested issues in a disclosure statement hearing of retailer Fred’s in the U.S. Bankruptcy Court for the District of Delaware. As reported in Law360, Cohen represented concerns on behalf of the Official Committee of Unsecured Creditors regarding comprehensive releases included in the Chapter 11 plan, which would bar stakeholders from pursuing claims against former directors and officers of the now defunct Fred’s. The Lowenstein team includes Jeffrey L. Cohen, Nicole Fulfree, Michael A. Kaplan, Colleen M. Maker, and Lindsay H. Sklar.

Doreen M. Edelman, Chair of the firm’s Global Trade & National Security group, addresses the risks for U.S. dealmakers posed by the new rules implemented by the Committee on Foreign Investment (CFIUS) in an article in The Deal. The February 13^th implementation of the Foreign Investment Risk Review Modernization Act, or FIRRMA, extends the authority of the Committee in ways that will impact “[t]ech startups, private equity firms, hedge funds, C-suite executives and other stakeholders,” says Edelman, warning that “transactions could be jeopardized if parties don’t fully understand the new regulatory regime adopted by the Treasury Department, which oversees the nine-member government panel.” She adds that stakeholders must carefully classify their products and technologies; in “some cases, tech companies may not realize they have Chinese investment that could attract the committee’s attention or may wrongly assume that a small stake isn’t a concern.”

Lowenstein’s role representing independent private equity firm NexPhase Capital, LP in its newly announced strategic partnership with DealerOn, Inc., a leading website and digital marketing company serving the retail automotive industry, was mentioned in citybizlist, Automotive News, The Banks Report, Cision PR Newswire, and AutoSuccess. The Lowenstein deal team included Christopher C. Henry, Andrew P. Erdmann, Alexander Brooks, Matt Savare, Theodore C. Sica, Michael Walutes, Julie Levinson Werner, Eric Jesse, Megan Monson, Bianka V. Barraza, Chelsea P. Ferrette, Carly S. Penner, Bryan Sterba, Matthew Tippy, Vikram Paul, and Serena Ward. View Lowenstein's news announcement about this transaction.

Kenneth A. Rosen is quoted in the The Wall Street Journal (December 12, 2019; January 16, 2020) regarding Sears Holdings’ payments to vendors and administrative creditors in the company’s bankruptcy proceedings. As counsel to several Sears vendors in the Chapter 11 case, Rosen offers insight on the expected payouts.

Lowenstein’s representation of Thames Valley Communications (TVC) in its acquisition by Atlantic Broadband is noted in Light Reading, Telecompaper, citybizlist, Global Legal Chronicle, and Business Wire. TVC is a broadband services company operating in Southeastern Connecticut. Atlantic Broadband, a subsidiary of Cogeco Communications Inc. (TSX: CCA), is the eighth-largest cable operator in the United States. The Lowenstein deal team included Michael A. Brosse, Eugene R. Cheval, Claudia Lorenzo, Michael Walutes, and Megan Monson.

Lowenstein's representation of PVH Corp. [NYSE:PVH] in its definitive agreement to sell its Speedo North America business to Pentland Group for $170 million in cash is highlighted in Law360, Bloomberg Law, Retail Dive, Financial News, and the Global Legal Chronicle. The Lowenstein deal team included Marita A. Makinen, Andrew P. Erdmann, Doreen M. Edelman, Andrew E. Graw, Darren Goodman, Mary J. Hildebrand, Matt Savare, Michael Walutes, Jeffrey M. Shapiro, Jack Sidorov, Abbey E. Baker, Manali Joglekar, Justin Gindi, Sophia Mokotoff, Nicole Rae Morales, Bryan Sterba, and Vikram Paul. The PVH team included Mark Fischer, Jeffrey Hellman, and Meredith Felz (Legal), along with Dana Perlman and Lina Yoo (In-house Deal Makers). (subscription required to access certain content) View Lowenstein's news announcement about this transaction.

Bruce D. Buechler is quoted in Law360 regarding the U.S. Supreme Court’s decision not to hear an appeal brought by the Chapter 7 trustee for bankrupt vegetable cannery Allens Inc. As counsel to International Paper Company, a creditor and one of the defendants in the case, Buechler comments on the status of the lawsuit. (subscription required to access article)

Doreen M. Edelman contributes her 2020 predictions on potential legal issues in international trade in Law360. She notes that the Commerce Department has still not developed guidance on a rule, announced in 2018, on which “emerging and foundational technologies” are subject to export controls. She warns that, to date, many owners and developers of, and investors, in technology such as artificial intelligence, 3-D printing, quantum computing, and robotics “have not focused on export control requirements for these technologies. … Thus, these companies must quickly learn when export controls apply” to them to ensure compliance. (subscription required to access article)

Lowenstein’s representation of lead investor Pamplona Capital Management in the $200 million growth capital equity investment in iFit, the connected fitness streaming platform owned by ICON Health & Fitness, is highlighted in Law360, Bloomberg Law – Big Law Business, and the Global Legal Chronicle. The Lowenstein deal team included Michael A. Brosse, Mitchell McDonald, and Michael T. Melchiorre (Corporate); Michael Walutes (Tax); Lowell A. Citron (Debt Finance); and Nicholas G. Mehler (IP). (subscription required to access article) View Lowenstein's news announcement about this transaction

James C. Shehan is quoted in the Pink Sheet regarding Sarepta Therapeutics Inc.’s decision to not publicly disclose its submission of a formal dispute resolution request appealing the FDA’s rejection of the drug Vyondys 53. Shehan notes that the legal standard for determining whether information such as this must be disclosed is how material is it to an investor’s buy or sell decision and that, because companies don't often win formal dispute resolutions with the FDA, Sarepta’s decision to not disclose the appeal’s existence could be legally permissible. (subscription required to access article)

Kenneth A. Rosen is quoted in the Denton Daily regarding Sears Holdings’ recent claims of assurance to its suppliers, amidst the company’s ongoing bankruptcy proceedings. As counsel to four Sears vendors in the Chapter 11 case, Rosen responds to these claims.

Lowenstein's retention as counsel to the Official Committee of Unsecured Creditors in the bankruptcy case of Bumble Bee Foods is highlighted in the Global Legal Chronicle. The Lowenstein team includes Andrew David Behlmann, Eric Chafetz, Michael A. Kaplan, and Myles R. MacDonald. View Lowenstein's news announcement about this retention.

Lowenstein's representation of Crimson Investment, a global private equity firm headquartered in San Francisco, in the sale of Milton Industries, Inc. to Levine Leichtman Capital Partners, a Los Angeles-based private equity firm, is highlighted in the Global Legal Chronicle. The Lowenstein deal team included Christopher C. Henry, Theodore C. Sica, Brian A. Silikovitz, Mark S. Heinzelmann, Lauren E. Killeen, Sophia Mokotoff, Megan Monson, Nick Samedi, and Jacob D. Unger. View Lowenstein's news announcement about this transaction.

Lowenstein's representation of The Estée Lauder Companies Inc. in its acquisition of the shares that the company does not already beneficially own in Have & Be Co. Ltd., the Seoul-based, global skin care company behind Dr. Jart+ and men’s grooming brand Do The Right Thing, is noted in Mergers & Acquisitions, Yahoo! Finance, Digital Commerce 360, PYMNTS.com, the Global Legal Chronicle, The Deal (article; deal listing), Law360, Business Wire, Bloomberg, and The Beauty Influencers. Led by partner Marita A. Makinen, the Lowenstein deal team includes Gina M. Seong, Darren Goodman, Doreen M. Edelman, Mary J. Hildebrand, Matt Savare, Michael Walutes, Jack Sidorov, Abbey E. Baker, Kate Basmagian, Manali Joglekar, Taryn E. Cannataro, Sophia Mokotoff, Carly S. Penner, Bryan Sterba, and Matthew Tippy. (subscription required to access article) View Lowenstein's news announcement about this transaction.

Kenneth A. Rosen is quoted in two Stock Daily Dish articles on the possible liquidation of Sears and the resignation of Sears Holdings chairman Eddie Lampert. Rosen, counsel to some of the creditors in the company’s Chapter 11 bankruptcy case, addresses the terms of the offer and the significance of Lampert’s move at this juncture.

Kenneth A. Rosen is quoted in Food Dive regarding the Chapter 11 bankruptcy of Dean Foods, the largest dairy producer in the United States. Rosen reflects on the marketplace and stresses the increased importance of efficiency for industry competitors.

Lowenstein's representation of ACV Auctions in its $150 million late-stage venture capital financing is noted in the Global Legal Chronicle. The Lowenstein team included Anthony O. Pergola, Dotan Barnea, Joon Hwan Kim, and Cecily Larison. View Lowenstein's news announcement about this transaction.

Lowenstein’s representation of NexPhase Capital in its investment in Popcornopolis was reported in Business Wire, the Valdosta Daily Times, Bloomberg Law – Big Law Business, The Tullahoma Tennessee News, Mergers & Acquisitions, and the Global Legal Chronicle. The Lowenstein team included Christopher C. Henry, Michael Walutes, Matt Savare, Vanessa A. Ignacio, Julie Levinson Werner, James C. Shehan, Eric Jesse, Sabrina Cua, Bryan Sterba, Megan Monson, and Lauren M. Troeller. View Lowenstein's news announcement about this transaction.

TCG Capital Management’s $83 million investment in Lowenstein client Food52 by was reported by The Wall Street Journal, Vox, Yahoo! Finance, Cision PR Newswire, The Big Lead, TMCNet.com, The PE Hub Network, Bloomberg Law – Big Law Business, Markets Insider, Morningstar, benzinga, StreetInsider.com, Financial Content, Law360, IT News Online, and the Global Legal Chronicle. (The Lowenstein Sandler deal team was led by deal lawyers Ed Zimmerman and Alex D. Leibowitz, with tax support from Brian A. Silikovitz and James E. Gregory (executive compensation). The Lowenstein attorneys on the team were Robert W. Lynn, Pooja Patel, Elias Kwon, Bianka V. Barraza, and Matthew J. Moisan, with subject matter expertise from Sophia S. Mokotoff (tax), Megan Monson (executive compensation), Leah Satlin (commercial contracts), Taryn E. Cannataro (executive compensation), and Eric Jesse (insurance). View Lowenstein's news announcement about this transaction.

Kenneth A. Rosen and Andrew Behlmann's representation of investment bank B. Riley Financial and its affiliate, Great American Group, is highlighted in the Global Legal Chronicle. View Lowenstein's news announcement about this representation.

Jeffrey Cohen, Nicole Fulfree, Michael A. Kaplan, Gabriel L. Olivera, and Keara Waldron are cited in a Global Legal Chronicle article highlighting Lowenstein's having been selected as counsel to the Committee of Unsecured Creditors in Chapter 11 proceedings for Fred’s, Inc., a discount general merchandise store operator. View Lowenstein's news announcement about this representation.

Herschel S. Weinstein provided legal counsel to Hildred Capital Management, LLC as co-counsel in its recapitalization of DermCare Management, LLC with Gemini Investors; the transaction was mentioned in the Valdosta Daily Times, Business Wire, ABL Advisor, and the Global Legal Chronicle.

Lowenstein’s role in the merger agreement between firm client Sonnet BioTherapeutics and Chanticleer Holdings is mentioned in Proactive Investors USA & Canada, ROI-NJ, citybizlist, GlobeNewswire, and the Global Legal Chronicle. The Lowenstein deal team included Steven M. Skolnick, Sarah P. Cole, and Tracy F. Buffer.

Jeffrey Cohen is quoted in a Law360 article detailing a Delaware bankruptcy judge’s approval of United Sporting Companies’ Chapter 11 plan. As a lawyer for the official committee of unsecured creditors in the case, Cohen expresses satisfaction on behalf of the committee, describing how the confirmation represents the best result for the creditors. The Lowenstein attorneys representing the committee include Jeffrey Cohen, Michael Kaplan, Eric Chafetz, Gabriel L. Olivera, Myles R. MacDonald, Rasmeet K. Chahil, and C. Patrick Thomas.

As reported in Law360, a Southern District of New York bankruptcy judge approved the $271 million sale of the assets of upscale fashion retailer Barneys New York. A joint venture between Authentic Brands Group (ABG) and investment bank B. Riley Financial Inc., a Lowenstein Sandler client, was the successful buyer. B. Riley affiliate Great American Group will oversee the liquidation of the retailer’s store and other assets, while ABG will license the brand name, keeping the Barneys' brand alive. The Lowenstein team representing B. Riley included Kenneth A. Rosen and Andrew David Behlmann. According to Behlmann, “The face of modern retail, especially in the fashion space, continues to shift in unprecedented ways. Barneys has been a leading force in premium fashion for almost 100 years, and we are glad that the brand will live on.” (subscription required to access article)

Kenneth A. Rosen comments to CNBC on the changing approach to bankruptcy by retailers, explaining that the 2005 changes to the U.S. Bankruptcy Code shortened the timeline for a sale or reorganization before a retailer was pushed into liquidation and that a new market of liquidators now competes to run retailers’ going-out-of-business sales. “There is no patience for a protracted reorganization anymore,” he says. “Chapter 11 is too darn expensive, and I think lenders have alternatives to a long-term Chapter 11 that are better.”

The transition of leadership of Lowenstein Sandler’s D.C. office to Antitrust/Competition partner Zarema A. Jaramillo was covered in Bloomberg Law – Big Law Business, General Counsel News, The Hill, The Deal, and The Washington Post. Jaramillo is set to take over on January 1, 2020, from Jeffrey Blumenfeld, who founded the D.C. office in 2014 and will remain Co-chair of the firm’s Antitrust/Competition practice.

The Los Angeles Times quotes Doreen M. Edelman, chair of Lowenstein Sandler’s Global Trade & National Security group, in its story on President Donald Trump’s delay of tariffs on cellphones, laptops, toys, shoes, and clothes made in China until after the winter holidays. Edelman says, “This gives breathing room for the retailers and U.S. companies,” adding that the three-month delay will still not give companies enough time to find alternative suppliers outside of China. “We’ve got clients that have specialized, high-end sculptures and ornaments being hand-painted from mountain communities in China that have been doing this for years. … You just can’t pick that up and move that to another country.” The story also appeared in the York Dispatch and the Dothan Eagle.

Jeffrey Cohen is quoted in a Law360 article regarding the Chapter 11 case of United Sporting Companies. As a lawyer for the official committee of unsecured creditors in the case, Cohen remarks on the recent deal struck between the committee and the debtor, which will allow another chance to find a buyer for the debtor’s assets.

Kathleen A. McGee comments for CNET on privacy issues associated with Sony’s robot dog Aibo, a device equipped with facial recognition cameras and always-listening microphones, warning that “there are legitimate privacy concerns about the products in our homes that gather data about us.” McGee says that information can be “bundled and sold in ways that the consumer is not necessarily aware of or may not approve of if she knew about them…What if I'm on a health care regimen with my doctor and I cheat on my diet? Am I now going to be profiled for insurance companies in a less than attractive way?" She cautions that the privacy policy may not offer much guidance on how to erase the device’s memory: “The privacy policy is designed to mitigate regulatory concerns…It is not an instrument for the consumer's use. Full stop."

Lynda A. Bennett provides commentary for Law360’s roundup of “Insurance Cases To Watch In The Second Half Of 2019.” Remarking on the upcoming decision in Daniel Berg v. Nationwide Mutual Insurance Co., where the Pennsylvania Supreme Court will determine whether a state appeals court overstepped its bounds in a bad faith case by vacating a $21 million judgment, Bennett says that upholding the ruling will impact policyholders’ trust in the appellate review process: "Bad faith issues are highly fact-intensive and often hinge on witness credibility. It was troubling to me that an appellate court would usurp the judgment of the trial court on a 'cold record' in a fact-heavy case like this." She also observes that the high dollar amount of the reward serves as a deterrent to insurers from engaging in unreasonable conduct: "The trial judge saw smoke and found fire, and with this damages award, he was clearly trying to send a message to the insurance industry: 'if you behave like this, you will be punished.'"

Doreen M. Edelman, Chair of the Global Trade & National Security group, is quoted in a Fortune article on the effects of the ban of Huawei, the Chinese telecommunications company, on U.S. businesses. She explains that "technology as defined in the export regulations can’t be sold to Huawei without a license … Companies have to figure out how to change their supply chains or customer base or what they manufacture and sell.”

Morningstar Inc., Yahoo Finance, BioSpace, Cision PR Newswire, Chain Drug Review, and the Global Legal Chronicle note Lowenstein Sandler as counsel to Crown Laboratories, Inc. and Hildred Capital Partners LLC in Crown’s acquisition of the North American distribution rights to Keri from GlaxoSmithKline plc (NYSE: GSK). (Lowenstein deal team: Herschel S. Weinstein, Sam E. Khan, Mitchell McDonald, James C. Shehan, Matthew P. Hintz, Michael A. Buxbaum, Matthew Tippy, Erica Perlmutter, Jeffrey M. Shapiro, and Jack Sidorov.) View Lowenstein’s news announcement about this transaction.

Mondaq News, Retail Dive, The PE Hub Network, StreetInsider.com, and the Global Legal Chronicle cover news of Lowenstein client Ethoca’s acquisition by Mastercard. (The Lowenstein deal team included: Steven E. Siesser, Traci M. Tomaselli, Anthony O. Pergola, Lesley P. Adamo, Jeffrey Blumenfeld, Jeffrey M. Shapiro, Jack Sidorov, Michael J. Mueller, Darren Goodman, Megan Monson, Gina M. Seong, James McDonough, Sophia Mokotoff, Erica Perlmutter, and Lauren Killeen.) View Lowenstein’s news announcement about this transaction.

Lowenstein’s 2019 promotion of seven lawyers to partner and six to counsel (including three women in each category) is noted in Bloomberg Law – Big Law Business. These promotions are also highlighted in LawFuel, The Deal, and the Commerce and Industry Association of New Jersey’s (CIANJ) Business Beat newsletter, with Lesley P. Adamo, Dmitry Andreev, Marc S. Kurzweil, James B. O’Grady, Eileen Overbaugh, Peter Slocum, and Julie Levinson Werner highlighted as newly elected partners and Brandon Fierro, Joseph G. Jones, Robert Lynn, Brianne Perlman, Nedda N. Salehi, and Leah Satlin listed as promoted to counsel. Gary M. Wingens is quoted regarding the critical role these lawyers will play in the firm’s continued success. Law360 notes our partner elevations in an article highlighting firms' Q1 promotions. (subscription required to access certain content) View Lowenstein’s news announcement about these promotions.

Doreen M. Edelman is quoted in the International Business Times discussing the delay of a trade deal between the United States and China. Edelman suggests that the suspension could be due to the conflicting goals of the President and Congress.

Matt Savare is quoted in ComputerWorld and The Economic Times regarding IBM’s new blockchain initiative with Stellar and the increased usage of blockchain in fin tech and cryptocurrencies in consumer transactions.  

Ethan L. Silver is quoted in ComputerWorld and The Economic Times regarding blockchain and the possibility of cryptocurrencies eventually becoming a platform for consumer transactions. Silver asserts that companies must be aware of existing regulations for financial networks and how they may be applied to evolving technologies.

Ethan L. Silver is quoted in Financial Planning discussing the Securities Exchange Commission’s increased enforcement of regulations for robo-advisory firms. Silver affirms the necessity of strong, ongoing compliance programs as a key to minimizing the risk of penalization. He stresses the importance of firms to enhance disclosures and limit claims on social media, to ensure that they are “delivering on what was promised through marketing channels.”

Lowenstein Sandler’s role as legal counsel to New Mountain Capital and portfolio company Topix Pharmaceuticals, Inc. in connection with the acquisition by Topix of ClarityRx Clinical Skin Care, Inc. is highlighted in The PE Hub Network, Business Wire, the San Fernando Valley Business Journal, Cosmetics Technology, and the Global Legal Chronicle. (Lowenstein deal team: Marita A. Makinen, David L. Goret, Michael Walutes, Matt Savare, Vanessa A. Ignacio, Anthony W. Raymundo, Megan Monson, Bryan Sterba, and Jacob D. Unger.) View Lowenstein’s news announcement about this transaction.

Edward J. “Ted” Hunter discusses the recent trend of private equity firms acquiring boutique hotels, as published in LODGING Magazine. The increased interest in a more unique travel experience has reshaped the industry, resulting in higher occupancy rates and average daily rates than in recent history.

David M. Wissert and Amy Komoroski Wiwi‘s recent article in The Financial Manager, highlighting the steps employers can take to both prevent and address sexual harassment in the workplace as a result of the #MeToo Movement, was featured in TVNewsCheck. These steps include: examining the company culture, ensuring company policies are strong and widely communicated to all employees, providing training, conducting investigations when necessary, acting and communicating quickly, and considering an investment in employment practices liability (EPL) insurance policies to mitigate risk.

Michael B. Himmel is quoted in Law360 discussing the criminal charges China's Huawei Technologies Co. Ltd. is facing over a supposed trade secrets heist from T-Mobile USA Inc. and an alleged misrepresentation over Huawei’s dealings with Iran. Huawei allegedly conducted a fake internal investigation, attempting to shift blame to rogue employees in an effort to avoid litigation and potential prosecution. Himmel states that the alleged actions form a novel basis for an obstruction of justice charge against the company, noting that these actions were “outside of the box” for a company trying to fend off a civil case.

Lowenstein Sandler is noted as lead counsel to Vesey Street Capital Partners, LLC (VSCP) in their recapitalization of Elite Body Sculpture as published in The PE Hub Network, Cision PR Newswire, and The Business Journals (Lowenstein deal team: Marc B. Kramer, Brooke A. Gillar, Steven E. Siesser, Lowell A. Citron, Michael Walutes, Lesley P. Adamo, Eileen Overbaugh, Elisia M. Klinka, Nicholas Gonski, Darren Goodman, Megan Monson, Eric Jesse, Alanna Sandoval, Jeffrey M. Shapiro, Jack Sidorov, Mark P. Kesslen, Paul M. Krueger, Michael A. Buxbaum, Norman W. Spindel, Mary J. Hildebrand, Bryan Sterba, Manali Joglekar, and Stuart S. Yusem.)

Doreen M. Edelman is featured in a two-part FCPA Compliance Report podcast (December 10; December 17, 2018) discussing the Committee on Foreign Investment in the United States (CFIUS). In part one, Edelman highlights the recent increase in non-compliance penalties, the development of national security measures due to disruptive technologies, and the expansion of CFIUS jurisdiction to companies purchasing non-controlling investments in U.S. companies. In part two, Edelman discusses the requirements for mandatory filings under the CFIUS Pilot Program. 

Doreen Edelman is quoted in Law.com in an article discussing President Trump and China’s Xi Jinping’s recent agreement to a 90-day truce in the trade war. Edelman notes that it is a difficult situation for companies to prepare for and states that she advises clients to diversify their supply chains and have a plan of action in the event higher tariffs are implemented. (This article also appeared in Corporate Counsel, Yahoo! Finance, The American Lawyer International, and the New York Law Journal.) (subscription required to access certain content) 

Business Wire, MarketWatch, Pharmaceutical Business Review, Cosmetics Technology, ABF Journal, Cision PR Newswire, and the Tullahoma News note Lowenstein Sandler as counsel to Crown Laboratories, Inc. (Crown Laboratories) and Hildred Capital Partners, LLC in Crown Laboratories’ acquisition of the North American distribution rights of five OTC consumer brands from GlaxoSmithKline plc (NYSE: GSK). (Lowenstein deal team: Herschel S. Weinstein, Sam E. Khan, Mitchell McDonald, Sunita Patel, James C. Shehan, Matthew P. Hintz, Sofia Kopelevich, Michael A. Buxbaum, Nicholas Gonski, Matthew Tippy, Jeffrey M. Shapiro, and Jack Sidorov. View Lowenstein’s news announcement about this transaction.