February 1,2010

One thing for sure: These are uncertain times. The lack of certainty in our evolving regulatory landscape loomed large this week, explicitly and implicitly, with agencies seemingly taking a "we will worry about the details later" approach to otherwise radical regulatory initiatives. The IRS is so sure of uncertainty that it wants companies to report on their "uncertain" tax positions. The SEC, although explicitly dodging the issue as to whether climate change even exists & explicitly stating that it is not changing its rules, bothered to put out a highly publicized "interpretive release" with guidelines as to reporting climate change risk. The DOJ is using stings to catch payments to foreign officials, but the Supreme Court has just reaffirmed corporate America's First Amendment rights to underwrite the political process to advance business goals (Citizens United v. Federal Election Commission). The Obama Administration wants to cleave the entire US banking system in two with size and scope limitations and the three enormous sectors (health, insurance, pharma) facing fundamental change as a result of health care reform, now see that initiative stopped indefinitely in its tracks based on the historically serendipitous change in a single Senate seat. Is the system being over-loaded by change? Are we seeing qualitative declines in regulatory initiatives as a result of quantitative increases? One month after a burned-out Senate just decided to go home instead of tackling estate-tax legislation (several Senators announcing retirement), law firms are still writing about the fallout. "Change" the mantra has become "change" the fact; uncertainty is the new certainty; and Washington is starting to show signs of buckling under the weight.

Anyway, rounding out our Top 10 list this week (in no particular order) were the "Zubulake Revisited: Six Years Later" e-discovery decision by Judge Scheindlin (Who is Laura Zubulake?), the SEC's proposed  amends to safe harbor provisions in Exchange Act Rule 10b-18 , the annual HSR pre-merger notification threshold adjustment and, still on the subject of Hart-Scott-Rodino, the DOJ's settlement of a HSR "Gun Jumping" Action Against Smithfield Foods. NB: The numbers reflect new alerts this week (& totals to date) for each Hot Topic.

1.      IRS Rule Would Require Reporting of Uncertain Tax Positions    17 (17)

2.      SEC's Climate Change Disclosure Interpretive Release    15 (15)

3.      DOJ Settles HSR "Gun Jumping" Action Against Smithfield Foods  13 (17)

4.      Citizens United v FEC: SCOTUS Overturns Campaign Expenditures Ban  12 (26)

5.      SEC Proposes Amends to Rule 10b-18 Safe Harbor for Issuer Repurchases  6 (6)

6.      Judge Scheindlin Revisits Watershed E-discovery Case Zubulake  6 (16)

7.      FTC Adjusts HSR Merger Notification Thresholds Downwards  6 (33)

8.      Obama Proposes Size & Scope Limitations For US Banks  5 (6)

9.      DOJ Uses "Sting" To Target Individuals In FCPA Probe  5 (20)

10.    Estate Tax Legislation?  5 (57)