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How the CFPB's Supervisory and Enforcement Westlaw Journal DELAWARE CORPORATE Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 28, ISSUE 14 / JANUARY 21, 2014 SEALED DOCUMENTS WHAT’S INSIDE COMMENTARY 5 Courts divide on corruption AT&T sits out Al Jazeera’s appeal statute as 1st Circuit limits 18 U.S.C. § 666 to bribes of confidentiality ruling CONTEST FOR CONTROL AT&T’s pay television unit has told Delaware’s high court it’s sitting out Al Jazeera’s 8 Delaware high court says appeal of an order to let the news media see the records in their legal battle over CEO’s delay waived right AT&T’s refusal to carry the Qatar-based broadcaster’s U.S. cable news arm. to contest his removal Klaassen v. Allegro Dev. Corp. Al Jazeera America LLC v. AT&T Services Inc., (Del.) No. 562, 2013, response to appellant’s opening STOCK-SWAP MERGER brief filed (Del. Jan. 6, 2014). CHALLENGE Al Jazeera filed an opening brief Dec. 20 in 9 Subsidiary’s investors support of its appeal of that Chancery Court get too little in $2.6 billion order to unseal the news network’s breach-of- KKR stock swap, suits say contract complaint against AT&T. According to Corwin v. KKR Fin. Holdings Al Jazeera, if the order stands, companies will (Del. Ch.) increasingly litigate in other courts rather than BOOKS & RECORDS “suffer serious economic loss … in order to enforce 10 Burden of proof too high their contractual rights in Delaware.” in Hershey suit over But AT&T, which had also opposed the unsealing child labor, fund says of the suit in the Chancery Court, nevertheless La. Mun. Employees’ Ret. Sys. said in a response brief filed Jan. 6 with the state v. Hershey Co. (Del. Ch.) Supreme Court that it “takes no position with D&O INSURANCE respect to Al Jazeera’s appeal.” 11 Broadcom’s $118 million As in most courts, litigants are provisionally insurance pact was ambiguous, allowed to file documents in the Chancery Court Delaware high court says under seal without first getting a ruling from Nicholas v. Nat’l Union Fire CONTINUED ON PAGE 4 REUTERS/Brendan McDermid Ins. Co. (Del.) DELAWARE CHIEF JUSTICE NOMINEE COMMENTARY 12 Outspoken Strine nominated to lead Delaware Supreme Court How the CFPB’s supervisory and enforcement ALISON FRANKEL’S ON THE CASE functions work together 15 For law firms, 2014 will be year of extreme change — Allyson B. Baker, a partner of Venable LLP, uses insight gained while she was a lead and challenge enforcement attorney with the Consumer Financial Protection Bureau to examine a recent speech by a CFPB deputy director for clues as to how the agency might prioritize its deployment of supervisory resources in the coming year. SEE PAGE 3 41561402 TABLE OF CONTENTS Westlaw Journal Delaware Corporate Sealed Documents: Al Jazeera Am. v. AT&T Servs. Published since November 1986 AT&T sits out Al Jazeera’s appeal of confidentiality ruling (Del.) ......................................................................1 Publisher: Mary Ellen Fox Commentary: By Allyson B. Baker, Esq., Venable LLP Executive Editor: Donna M. Higgins How the CFPB’s supervisory and enforcement functions work together ........................................................ 3 Managing Editor: Phyllis Lipka Skupien, Esq. Commentary: By Joseph F. Savage Jr., Esq., and Brian Kelly, Esq., Goodwin Procter LLP Senior Editor: Frank Reynolds Courts divide on corruption statute as 1st Circuit limits 18 U.S.C. § 666 to bribes .........................................5 [email protected] Managing Desk Editor: Robert W. McSherry Contest for Control: Klaassen v. Allegro Dev. Corp. Delaware high court says CEO’s delay waived right to contest his removal (Del.) .........................................8 Senior Desk Editor: Jennifer McCreary Desk Editor: Sydney Pendleton Stock-Swap Merger Challenge: Corwin v. KKR Fin. Holdings Subsidiary’s investors get too little in $2.6 billion KKR stock swap, suits say (Del. Ch.) ................................9 Westlaw Journal Delaware Corprate (ISSN 2155-5869) is published biweekly by Books & Records: La. Mun. Employees’ Ret. Sys. v. Hershey Co. Thomson Reuters. Burden of proof too high in Hershey suit over child labor, fund says (Del. Ch.) ............................................ 10 Thomson Reuters D&O Insurance: Nicholas v. Nat’l Union Fire Ins. Co. 175 Strafford Avenue, Suite 140 Broadcom’s $118 million insurance pact was ambiguous, Delaware high court says (Del.) ..........................11 Wayne, PA 19087 877-595-0449 Delaware Chief Justice Nominee Fax: 800-220-1640 Outspoken Strine nominated to lead Delaware Supreme Court ....................................................................12 www.westlaw.com Customer service: 800-328-4880 Breach of Duty: Iron Workers Mid-S. Pension Fund v. Davis U.S. Bank shareholder has 45 days to fix complaint against directors (D. Minn.) .........................................13 For more information, or to subscribe, please call 800-328-9352 or visit Bankruptcy Issues/Settlement: In re Nortel Networks west.thomson.com. ‘Milestone’ Nortel settlement gets court approval (Bankr. D. Del.) ................................................................14 Reproduction Authorization Alison Frankel’s On the Case Authorization to photocopy items for internal For law firms, 2014 will be year of extreme change — and challenge ............................................................15 or personal use, or the internal or personal use by specific clients, is granted by Thomson Chancery Court Cases Filed.............................................................................................................................17 Reuters for libraries or other users regis- tered with the Copyright Clearance Center News in Brief .....................................................................................................................................................18 (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Case and Document Index ...............................................................................................................................19 Drive, Danvers, MA 01923; 978-750-8400; www.copyright.com. How to Find Documents on Westlaw The Westlaw number of any opinion or trial filing is listed at the bottom of each article available. The numbers are configured like this: 2013 WL 000000. Sign in to Westlaw and on the “Welcome to Westlaw” page, type the Westlaw number into the box at the top left that says “Find this document by citation” and click on “Go.” 2 | WESTLAW JOURNAL n DELAWARE CORPORATE © 2014 Thomson Reuters COMMENTARY How the CFPB’s supervisory and enforcement functions work together By Allyson B. Baker, Esq. Venable LLP In an Oct. 9 speech to the Federal Deposit A USEFUL LIST Insurance Corp.’s Advisory Committee on This list provides useful guidance to banks Economic Inclusion, Steve Antonakes, the and non-banks subject to the CFPB’s deputy director of the Consumer Financial supervision authority and, if nothing else, Protection Bureau and also the associate offers at least a tentative roadmap of how director of its Supervision, Enforcement and the agency might prioritize its deployment Fair Lending Unit, discussed the CFPB’s of supervisory resources. In addition, this supervisory and enforcement tools. guidance gives some insight into the CFPB’s Antonakes noted that the CFPB has “the interest in crafting policies that concern a opportunity to oversee consumer financial particular market or industry, regardless products and services across charters and of whether that market or industry’s business models,” and that for this reason, participants are comprised of banks, non- “charter or license type is becoming less banks or both. relevant in determining how we [the CFPB] Courtesy of CFPB Antonakes also stressed that although will prioritize and schedule our examinations the offices of supervision and enforcement CFPB Deputy Director Steve and investigations.” Instead, as Antonakes operate under the same unit umbrella, the explained, the CFPB has “begun to Antonakes said the agency CFPB’s Office of Enforcement has “tools” that implement a prioritization framework that has “begun to implement operate independently from the agency’s allocates our examination, investigation and supervisory function. He noted that instead a prioritization framework fair-lending resources across product types.” of relying on information gathered through that allocates our In a rare public assessment of CFPB the CFPB’s examination process, the Office examination, investigation supervision priorities, Antonakes then of Enforcement can rely on information it and fair-lending resources outlined the “qualitative and quantitative gathers through its investigative function, as factors” used to determine — in part, at least well as information gathered from “listening across product types.” — supervision priorities. to and analyzing consumer complaints, “These factors include,” he said, “the size of a industry whistle-blower tips, and information of the same remedies in either forum means product market; a regulated entity’s market from government agencies, industry, and that the CFPB’s decision to bring a case in share in that product market; the potential consumer groups.” one forum instead of another forum is not for consumer harm related to a particular Antonakes further described some of the driven by the availability of certain remedies product market; and field and market ways in which the Office of Enforcement but by other circumstances specific to
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