THE BRIEF

FINANCIAL SERVICES LITIGATION QUARTERLY

FALL 2023

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TABLE OF CONTENTS

Were There Underwriting Requirements for PPP Loans After All? The Sound-Value Requirement May Pose Risk for PPP Lenders

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Noteworthy10

District Court Upholds New ERISA Rules on ESG Investing

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Fourth Circuit Holds That Class-Action Waivers Must Be Addressed Before Class Certification

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Ninth Circuit: Fees for Claims-Made Settlements Must Be Based on Actual Recovery

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There's been a flurry of regulatory activity in the UK and Europe over the past few weeks. Here's a look at the highlights.

This week's issue has a strong risk focus. We cover speeches from ASIC Chair Joe Longo and Minister for Home Affairs Clare O'Neil to the AFR Cyber Summit. On the financial services front, the FAR Bills received Assent and the ABA's new Banking Code is anticipated to be in place in 'early 2024' (subject to ASIC approval).

In this edition of Gilbert + Tobin's Corporate Advisory Update, we focus on key legal developments over the last month which are particularly relevant to in-house counsel.

The ACCC’s recommended merger reforms: a deeper dive

The ACCC’s recommended reforms have several significant implications for merging parties:

In recent times, the corporate landscape has witnessed a significant shift as Environmental, Social, and Governance (ESG) initiatives gain traction among investor and consumer groups. Companies operating in carbon-centric industries, particularly those involved in fossil fuel extraction, are experiencing challenges in securing new funding. One such company, Nashville-based driller Alpine Summit Energy Partners, has made headlines by seeking bankruptcy protection, citing the lack of funding in the oil and gas industry due to growing ESG and sustainability concerns.

TABLE OF CONTENTS SOLVENCY II EIOPA INSURANCE DISTRIBUTION DIRECTIVE (IDD) PRIIPS CENTRAL BANK OF IRELAND ANTI-MONEY LAUNDERING (AML) AND COUNTERING THE FINANCING OF TERRORISM (CFT) DATA PROTECTION FINANCIAL SANCTIONS SUSTAINABILITY MISCELLANEOUS Insurance | Quarterly Legal and Regulatory Update | 1 April 2023 – 30 June 2023 © 2023 Dillon Eustace LLP. All rights reserved. 2 11723734v1 1.

Companies are under increasing pressure to examine their ESG policies, particularly after the recent COP26 conference. The UK's commitment to achieving net-zero emissions by 2050 has intensified the ESG focus.

What is ESG?

ESG, or Environmental, Social and Corporate Governance, is a term used to describe a set of standards that measures a business' environmental and social impact.

Why is ESG important in a distressed restructuring?

Managing the financial health of a business to ensure it continues to be viable and successful can be challenging, particularly in today’s economic environment.

June 2023

Contents

Current economic conditions and market instability are likely to see more Australian companies fall into distress in 2023 — creating both opportunities for proactive restructuring as well as distressed asset sales.

That's one of the predictions in this year's edition of From Red to Black, Clayton Utz's annual review of the dynamics of Australia's Restructuring and Insolvency (R&I) market.

As the economic headwinds indicate that borrowers will continue to face financial pressures in 2023 and beyond, lenders are seeking ways to exercise more leverage as “covenant-lite” facilities prevail. Material adverse change clauses in finance documents UK and US perspective By Olga Galazoula, Jacques McChesney and Charlotte Harvey 4 FUNDS INSIDER FUNDS INSIDER 5 The event relied upon by the lender to enforce this clause was the making of an arbitration award that could potentially result in significant damages being awarded against the borrower.