Insights

On December 14, 2023, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) released proposed regulation [REG-107423-23] to provide guidance on the manufacturing tax credit requirements under Internal Revenue Code (IRC) section 45X (Proposed Regulations). The Proposed Regulations provide guidance on rules that taxpayers must satisfy to qualify for the Section 45X tax credit.

The Inflation Reduction Act of 2022 (the IRA) amended the rules relating to the production tax credit (the PTC) and the investment tax credit (the ITC) to provide increased credit amounts or rates if a project is located within certain census tracts designated as “Energy Communities” (the “Energy Communities Bonus Credit”).

Shearman & Sterling emerging growth partner, Carmelo Gordian, was featured in The Fintech Times’ Em Conversa series discussing how the FinTech industry in Latin America is expected to replicate the success of global markets.

The recent closure of Silicon Valley Bank (the SVB Closure) has created liquidity issues for many employers, which in turn may impact their ability to, among other things, timely pay employees and operate their compensation and benefit programs. This alert discusses key employee-related considerations for employers that may arise in the wake of the SVB Closure and related disruptions in the employers’ access to liquidity. We note that as a consequence of the liquidity crises produced by the SVB Closure, federal and state labor (or similar) agencies may eventually provide employers with some level of relief from their obligations under applicable federal and state labor law through the issuance of emergency or similar orders. However, as of the date of publication, there is no indication that these agencies will provide employers with any immediate relief.

The Inflation Reduction Act (the “IRA”) provides tax incentive credits for taxpayers that pay prevailing wages to employees and utilize registered apprentices for the construction of energy efficient commercial and residential buildings, electric vehicle charging infrastructure and other clean energy projects. On November 30, 2022, the Internal Revenue Service published a notice to provide guidance on the specific labor standards that taxpayers must meet to qualify for these tax incentives. This article discusses the specifics of the wage and apprenticeship requirements in order for taxpayers to take advantage of the incentives offered.

Shearman & Sterling hosted the webinar Maximizing Opportunities in Clean Hydrogen and Carbon Capture Under the U.S. Inflation Reduction Act on November 17, 2022.

The U.S. Department of Energy (DOE) has now published draft guidance for a Clean Hydrogen Production Standard (CHPS). The draft CHPS also includes a questionnaire seeking feedback from hydrogen industry stakeholders by November 14, 2022, prior to the publication of a final CHPS. This article outlines the key features of the CHPS and the next steps in the process for a more detailed definition of “clean hydrogen” in the U.S.

Project Development & Finance counsel, Gabriel Salinas were quoted in BNamericas sharing their outlook on Latin America’s green hydrogen industry, and on how ESG, regulation and geopolitics play a key role in the future of the hydrogen market.

As the worlds of cryptoassets and insolvency collide, partner Alexander Wood, counsels Tom McKay and Kevin Heverin and associate Kate O’Donoghue have put together a publication analyzing legal, practical and regulatory issues that are likely to arise in an insolvency context.

Partners Omar Samji, Roberta Berliner Cherman, counsel Gabriel Salinas and associate Humzah Yazdani have published a report on the Growing Importance of Low-Carbon Hydrogen in Latin America.

With the Inflation Reduction Act (IRA) now signed into law, attention is shifting to the next potential area for energy reform: permitting. Senator Manchin has outlined his priorities for energy permitting reform legislation, which could be voted on by the end of September.

The House U.S. Congress has passed, as of today, the Inflation Reduction Act (“IRA” or the “Act”), which is expected to be signed into law by President Joe Biden very soon. The IRA is one of the biggest investments in clean energy in history and a major step towards reducing the United States’ greenhouse gas emissions.

On July 27, 2022, Senator Joe Manchin of West Virginia, a key vote in the United States Senate, announced that he would support legislation providing $369 billion for climate and clean energy action in what could be the most ambitious climate bill ever passed by Congress. The bill provides strong support for renewable energy, nuclear, hydrogen, methane reduction and carbon capture.

Emerging Growth, Capital Markets and Mergers & Acquisitions partner Alan Bickerstaff shares insights on the acceleration of tech M&A spending with Fortune as part of their July 26, 2022 Term Sheet Newsletter.

Shearman & Sterling hosted its 2nd Annual Shearman & Sterling Corporate Venture Investor Summit in person in Austin, Texas on May 18-20, 2022.

On March 30, 2022, the SEC released highly anticipated proposed rules for transactions involving special purpose acquisition companies (SPACs). If adopted in their current form, these rules would purport to make wide-ranging changes to the disclosure and liability landscape applicable to SPACs and de-SPAC transactions. While some of these rules may be challenged in court, their impact is likely to be felt before any such challenge has been resolved.

Partners Michael Dorf (San Francisco-Mergers & Acquisitions), Cody Wright (New York-Mergers & Acquisitions) and Robert J. Cardone (Dallas-Mergers & Acquisitions) and counsel Cassandra Cuellar (Austin-Emerging Growth), authored the USA Chapter for the inaugural issue of Chambers’ Technology M&A Global Practice Guide.

Shearman & Sterling was pleased to host the inaugural Family Office Summit in New York City. The one-and-a-half-day program brought together single-family offices, select multi-family offices, institutional investors, board/trustee members and private foundations to network and discuss developments, opportunities and challenges across a number of sectors, including digital assets, private equity, real estate, energy, deep tech and impact.

Shearman & Sterling was pleased to host the latest installment of our Family Office Webinar Series on July 28, 2021, “NFTs – Investment Opportunities in Emerging Digital Assets.” The discussion was led by Donna Parisi, Global Head of Finance and Head of the Family Office Group at Shearman & Sterling, with Vanessa Grellet, Head of Portfolio Growth at Coinfund.

Shearman & Sterling teamed up with FinTech advisor and incubator Rise, created by Barclays, and premier market data and research provider S&P Global Market Intelligence, to produce a mid-year report on M&A activity in the U.S. FinTech sector. The report brings together perspectives and advice regarding the key trends, market forces and deal players that are shaping the consolidation of the U.S. FinTech industry.

On June 7, 2021, Secretary of Energy Jennifer M. Granholm launched the U.S. Department of Energy (DOE) Energy Earthshots initiative. This Earthshots program aims to accelerate breakthroughs in net-zero carbon technologies in the United States and around the world, while creating clean energy jobs and achieving the Biden-Harris Administration’s goal of a net-zero carbon emission economy by 2050.

On May 24, 2021, the State of Nebraska signed into law LB650, providing precise guidance on the management of geological subsurface Carbon Dioxide (CO₂) storage. While other states, including Texas, have issued legislation on this issue in the past, LB650 represents the latest attempt by a state to regulate subsurface CO₂ on a comprehensive basis.

Shearman & Sterling attorneys acted as contributors to the 2021 edition of Global Legal Insights: AI, Machine Learning & Big Data, a book published by Global Legal Group Ltd, London. The publication covers the latest trends, legal issues, board governance considerations and market practices in 24 global jurisdictions around artificial intelligence and its intersection with the laws of each country.

Shearman & Sterling Family Office Group hosted a webinar discussion led by partner Donna Parisi with Anthony Saliba, CEO and founder of Matrix Holding Group. The webinar took place on Wednesday, May 19 at 11:00 am–12:00 pm ET.

Shearman & Sterling Family Office Group hosted a webinar discussion led by partner Donna Parisi with Mark Yusko, the Founder, CEO and Chief Investment Officer of Morgan Creek Capital Management.  The webinar took place on Wednesday, April 28 at 11:00 am–12:00 pm ET.

On April 15, 2021, the U.S. Internal Revenue Service issued to services and enforcement employees of the IRS, a memorandum that extends a temporary deviation from the IRS’s historical practice of requiring hand signatures for most tax returns, election statements and other documents filed with the IRS to elections under section 83(b) of the Internal Revenue Code of 1986, as amended.

In 2020, the world has seen the highest IPO capital raising activity in a decade with no signs of stopping in the first part of 2021. For a company considering an IPO, careful planning and consideration is required to access the public markets. 

Shearman & Sterling has launched a new podcast called Barrier Blasters, a series dedicated to enhancing diversity and inclusion in the communities in which we live and work. The podcast will feature conversations with individuals and industry leaders who have challenged the status quo, broken through barriers, and in doing so, have created opportunities for others.

On January 19, 2021 the Small Business Administration (SBA) issued frequently asked questions that address how to calculate revenue reduction and maximum loan amounts for second-draw Paycheck Protection Program (PPP) loans.

On December 27, 2020 President Trump signed the Consolidated Appropriations Act, 2021 (the Act). The Act reopens the Small Business Administration’s (SBA) Paycheck Protection Program (PPP) that allows businesses to apply for a loan for the first time or allows existing PPP borrowers to apply for a second loan. First-time PPP borrowers will be subject to the PPP’s original eligibility rules, and second-time PPP borrowers will be subject to requirements outlined in this publication.

On December 27, 2020, President Trump signed into law The Consolidated Appropriations Act, 2021 (the CAA). The CAA contains multiple income and employment-tax related provisions that will impact both corporate and individual taxpayers and also contains welcomed resolution to certain issues created under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”).

Shearman & Sterling co-hosted a Startup Panel with S3 Ventures on “The Journey to a Successful Exit,” during which the leaders behind recent exits to DocuSign and Hologic shared their experience in an intimate conversation with members of S3 Ventures and Shearman & Sterling.

Shearman & Sterling held the 1st Annual Shearman & Sterling Corporate Venture Investor Summit on November 12 and 19, 2020.  Co-chaired by Kevin Jacques, Global Head of Visa Ventures; Patrick Eggen, General Partner & Founder of Counterpart Ventures; and Neff Hudson, Vice President of Corporate Development of USAA, the virtual summit offered insights and strategies from leading corporate venture investors, provided ample opportunity to engage in small group discussion, and included thought provoking entertainment.

Partner Chris Forrester led a recent webinar discussion with City Light Capital partners Josh Cohen and Tom Groos. They discussed the increasing number of family offices that are exploring ways to invest for impact across asset classes.

On June 8, 2020, U.S. Department of the Treasury (Treasury) Secretary Steven Mnuchin and Small Business Administration (SBA) Administrator Jovita Carranza issued a statement regarding the enactment of the Paycheck Protection Flexibility Act of 2020 (the Act), which Congress passed on June 3, 2020 and President Trump signed into law on June 5, 2020. The Act eases restrictions on Paycheck Protection Program (PPP) loans and gives business owners more flexibility in spending loan funds.

On May 22, 2020, the U.S. Small Business Administration (SBA) and the U.S. Department of the Treasury published its Paycheck Protection Program (PPP) Loan Forgiveness Rules and Loan Review Procedures and Related Borrower and Lender Responsibilities. The rules provide borrowers and lenders guidance on requirements for loan forgiveness and the SBA’s process for reviewing PPP loans.

Shearman & Sterling attorneys acted as contributors to the 2020 edition of Global Legal Insights: AI, Machine Learning & Big Data, a book published by Global Legal Group Ltd, London. The publication covers the latest trends, legal issues, board governance considerations and market practices in 29 global jurisdictions around artificial intelligence and its intersection with the laws of each country.

On May 13, 2020, the U.S. Small Business Administration (SBA) and the U.S. Department of the Treasury posted additional guidance on eligibility for the Paycheck Protection Program (PPP) by updating the SBA’s Frequently Asked Questions (FAQs) on the PPP to further address the good-faith certification by PPP applicants, which required applicants to certify that the current "economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant" (see question 46 of the FAQs). Question 46 clarifies some of the uncertainty created by questions 31 and 37 of the FAQs, which provided that PPP applicants needed to assess "their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business."

The COVID-19 pandemic has resulted in unprecedented disruption to worldwide markets and personal livelihoods, affecting global companies, small companies and main street businesses alike. As business owners struggle to understand the short-term and long-term implications of the COVID-19 pandemic on their business, customers and employees, we have prepared the following Q&A resource addressing issues business owners need to know as the fallout from the COVID-19 pandemic progresses.

Watch  On April 6, Shearman & Sterling hosted a webinar where a cross-practice team of lawyers highlighted relevant considerations for FinTechs and emerging growth companies in light of the COVID-19 pandemic.

The COVID-19 pandemic has resulted in unprecedented disruption to worldwide markets and personal livelihoods, affecting global companies, small companies and main street businesses alike. As business owners struggle to understand the short-term and long-term implications of the COVID-19 pandemic on their business, customers and employees, we have prepared the following Q&A resource addressing issues business owners need to know as the fallout from the COVID-19 pandemic progresses.

The CARES Act allocated $349 billion for the SBA to guarantee loans to small businesses under the Paycheck Protection Program (PPP).  The PPP utilizes the existing framework of the SBA’s 7(a) loan program to make loans to businesses to incentive near-term employment.  The U.S. Department of the Treasury and the U.S. Small Business Administration (SBA) have released limited guidance on the PPP in the form of summaries, interim final rules and frequently asked questions.

On February 28, 2020, the Texas Supreme Court reversed a ruling from the First Court of Appeals in Houston in the case of Chalker Energy Partners III, LLC, et al. v. Le Norman Operating LLC, 547 S.W.3d 27 (Tex. App.—Houston, 2017). The Texas Supreme Court held that an email exchange “falls short of an agreement as a matter of law” where the parties included a No Obligation Clause in the Confidentiality Agreement.

Currents, the newsletter of the Corporate Counsel Section of the State Bar of Texas, featured an article titled “Strategic Leverage: Utilizing State Law in M&A Sandbagging Negotiations,” authored by partner Todd Lowther (Houston-Tax). The article appeared in Currents’ Winter 2020 issue.

On January 31, 2020, the Texas Supreme Court (the “Court”) affirmed a ruling from the Fifth Court of Appeals in Dallas in the case of Energy Transfer Partners LP et al. v. Enterprise Products Partners LP et al, No. 529 S.W.3d 531 (Tex. App.—Dallas, 2017), holding that “parties can contract for conditions precedent to preclude the unintentional formation of a partnership” under Texas law.

The changes to the cybersecurity and data protection landscape have been significant.

Shearman & Sterling attorneys acted as the founding lead editors and contributors to key chapters in the latest Global Legal Insights edition entitled, AI, Machine Learning & Big Data, a book published by Global Legal Group Ltd, London. The publication covers the important considerations, legal issues and market practices in 31 global jurisdictions around artificial intelligence with respect to how it intersects with the laws of each country.

Of Counsel Simon Dodds (London-Financial Institutions Advisory & Financial Regulatory) discusses how to build the best relationships between in-house counsel and law firms with Craft Counsel.

By Donna Parisi and Michelle Tran

While funding in the fintech space has skyrocketed over the past several years, many women in the space are still struggling to find a seat at the table, a trend seen throughout the startup landscape.

On June 18, 2018, the Securities and Exchange Commission (SEC) issued final rules to amend Securities Act Rule 701, which provides an exemption from registration for securities issued by private companies for compensatory arrangements. The amendment increases, from $5 million to $10 million, the amount of securities that a company can issue to employees and other service providers in reliance on Rule 701 in any consecutive 12-month period without triggering enhanced disclosure obligations.

Many private companies rely on Rule 701 to efficiently issue stock and options to recruit and retain talent.  However, the SEC’s demonstrated interest in pursuing enforcement actions relating to Rule 701 compliance emphasizes the need for private companies to carefully track the aggregate amount of their compensatory equity awards, and to be mindful of the limits and conditions required for the Rule 701 exemption to apply.

On May 24, 2018, President Trump signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act (Reform Act).[1] Although largely focused on regulatory exemptions for smaller financial institutions, the Reform Act also amended a number of securities law provisions focused on capital formation. For a detailed summary and analysis of the Reform Act, including the capital formation related provisions, see our client memorandum “First Major Dodd-Frank Reform Bill Signed into Law.” 

On March 12, 2018, the United States Securities & Exchange Commission (the “SEC”) fined a late-stage private company $160,000 as a result of its failure to comply with the enhanced disclosure requirements of Rule 701 in connection with exercises of options to purchase its stock.

Partners Michael Dorf (San Francisco-Mergers & Acquisitions) and Paul Strecker (London-Mergers & Acquisitions) co-wrote an article on private mergers and acquisitions in the United States, published in Practical Law on March 19. 

The market for internet-connected devices (often referred to as the Internet of Things, or IoT) is growing rapidly. Investment in this burgeoning space can be attractive, and according to research firm IDC, the worldwide spending on IoT could reach up to $1.4 trillion in 2021. There are unique risks associated with IoT investments, however, and potential investors should assess certain privacy and data protection issues when considering potential opportunities.