Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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Silver Hills Doesn’t Mute Howey

Anyone who has studied securities regulation since 1946 should be familiar with the U.S. Supreme Court’s definition of a “security” as enunciated by Justice Frank Murphy in S.E.C. v. Howey Co., 328 U.S. 293 (1946). That test...more

2/22/2017 - Corporate Securities Act Risk Capital

What Do You Know? Bill Proposes To Eliminate Scienter

Corporations Code Section 25401 is California’s basic securities antifraud statute...more

2/21/2017 - Corporations Code Proposed Legislation Scienter Securities Fraud

Is California “The Biggest Loser”?

I am very excited to be moderating a panel discussion this weekend at a symposium entitled Can Delaware Be Dethroned? Evaluating Delaware’s Dominance Of Corporate Law. The symposium is being presented by the Lowell Milken...more

2/17/2017 - State of Incorporation

Bill Introduced To Require Registration Of Finders Under The California Finance Lenders Law

The California Finance Lenders Law, Financial Code § 22000 et seq., currently requires licensing of finance lenders and brokers. A finance lender is defined as any person who is engaged in the business of making consumer...more

2/16/2017 - Brokers Commercial Loans Compulsory Licenses Consumer Lenders Finance Lender Finders Proposed Legislation

Investment Advisers And Broker-Dealers Face Scant Likelihood Of California Examinations

The California Department of Business Oversight recently issued a report on its Broker-Dealer/Investment Adviser Program. This report was required by the Budget Act of 2014. Although short, the report provides some...more

2/15/2017 - Broker-Dealer Department of Business Oversight Information Reports Investment Adviser Regulatory Oversight

Getting To The Point On Director Elections

Last week in The Mentor Blog, Broc Romanek mentioned a blog posting of mine from September 2015: Was This Director Duly Elected Or Appointed? My post was concerned Intelligent Digital Systems, LLC v. Beazley Ins. Co., Inc.,...more

2/14/2017 - Bylaws Corporate Governance Directors General Corporation Law

Can The Legislature Hire Its Own Lawyer?

In early January, California Senate President pro Tempore Kevin de León and Assembly Speaker Anthony Rendon jointly announced that the California Legislature had hired outside legal counsel to advise on potential legal...more

2/13/2017 - State Constitutions Trump Administration

Homographic Cases Indeed!

Homographs are words that share the same spelling but have different meanings. One such word that is very familiar to lawyers is the word “case”. Lawyer’s try cases, shelve books in cases, and write in upper case and lower...more

2/10/2017 - Law Firm Associates Professional Development

Applying The Statute Of Frauds Apply To “Et Al.”

Charles II, aka the “Merry Monarch”, was sitting on the English throne when the original Statute of Frauds was enacted in 1677. Therefore, one should be forgiven for the mistaken presumption that all questions involving the...more

2/9/2017 - Joint Venture Non-Signatories Real Estate Brokers Statute of Frauds

Magistrate Judge Rules SEC’s Attorney-Conduct Rules Preempt State Law

Last December, Chief Magistrate Judge Joseph C. Spero ruled that the SEC’s attorney-conduct rules preempt California’s statutory and professional rules requiring attorneys to maintain inviolate the confidences. Wadler v....more

2/8/2017 - Attorney-Client Privilege Delaware General Corporation Law Preemption Rules of Professional Conduct Sarbanes-Oxley SEC

Ninth Circuit Accords Chevron Deference To The SEC, What Would Judge Gorsuch Say?

Last week, I noted that Judge Gorsuch has expressed a certain skepticism of Chevron deference. The next day, the Ninth Circuit Court of Appeals held that the Securities and Exchange Commission’s interpretation of Section...more

2/7/2017 - Chevron Deference FINRA In Pro Per Pro Se Litigants Sanctions SEC

LLC Bound By Agreement Signed By Manager’s Manager

Justice Kenneth R. Yegan clearly and concisely frames the question in Western Surety Co. v. La Cumbre Office Partners, LLC, 2017 Cal. App. LEXIS 77 (2017)...more

2/6/2017 - Appeals Beverly-Killea Limited Liability Company Act Limited Liability Company (LLC) Managing Members Operating Agreements Signatures

U.S. District Court Finds Personal Jurisdiction In Derivative Suit

I think it is beyond peradventure that a state enjoys personal jurisdiction over corporations incorporated within that state. What about the personal jurisdiction over the corporation’s directors and officers? That was the...more

2/3/2017 - Derivative Suit Personal Jurisdiction

Court Of Appeal Voids Jury Trial Waiver Notwithstanding New York Choice of Law

A New York state of mind, but California dreaming - A sophisticated lender and borrower negotiate a loan agreement in New York, the lender disburses the loan proceeds in New York, and both parties agree that New York law...more

2/2/2017 - Appeals Choice-of-Law Jury Trial Loan Agreements Unenforceable Contract Terms Waivers

Must A False Statement To A Franchisee Be Made “In this state”?

The list of instruments and interests included within the definition of a “security” in California Corporations Code Section 25019 is long. A franchise, however, is not to be found amongst the named. In fact, the statute...more

2/1/2017 - Chevron Deference Corporations Code Exemptions Franchises Neil Gorsuch Registration Requirement Securities

Will Congress Deep Six The SEC’s Resource Extraction Rule?

In December of last year, I wrote about how the Securities and Exchange Commission’s Resource Extraction Rule might meet an untimely end. See There’s Still Time For Congress To Void The SEC’s Resource Extraction Rule (Dec....more

1/31/2017 - Disclosure Requirements Executive Orders Form SD Resource Extraction SEC Trump Administration

Court Rules Plaintiff Is Not Required To Advance Defendant’s Legal Expenses

Imagine how frustrated you would be if you sued someone and the defendant responded by demanding that you advance his legal expenses in defending your lawsuit. The plaintiff in Allergia, Inc. v. Bouboulis, 2017 U.S. Dist....more

1/30/2017 - Breach of Duty Corporations Code Fiduciary Duty Indemnification Litigation Fees & Costs

Will The Bureau Of Real Estate Get A Promotion?

Almost five years ago, I decried the demotion and relocation of the Department of Real Estate...more

1/27/2017 - Proposed Legislation Real Estate Professionals

The Right To Dissent And Fractional Shares

I’ve devoted several posts to how California’s General Corporation Law deals with fractional shares. Nevada’s approach to fractional shares is somewhat different. For example, Nevada permits rounding up to a full share in...more

1/26/2017 - Corporations Code Delaware General Corporation Law Dissenters Rights Fractional Shares Shareholder Rights

SEC Continues To Pay Out Millions In Secrecy

Earlier this week, the Securities and Exchange Commission announced awards to three whistleblowers totaling more than $7 million. That is about all anyone can say about the awards. The SEC’s order is only 448 words long,...more

1/25/2017 - Lottery SEC Whistleblower Awards Whistleblowers

How Independent Is The SEC And How Independent Should It Be?

Can the President say “You’re Fired!” to an SEC Commissioner? In a recent post, Broc Romanek emphasized the commonly held understanding that the Securities and Exchange Commission is an “independent agency”. The...more

1/24/2017 - Government Agencies SEC

The DBO As Religious Regulator

In December last, the Department of Business Oversight published the 2016 Commissioner’s Report on the Offer or Sale of Securities by Permit under Corporations Code Section 25113. This report, which is required by California...more

1/23/2017 - Churches Corporations Code Debt Securities Department of Business Oversight NASAA

Fractions And Squeeze Outs

The last two posts have discussed what a corporation may do with fractions of shares. I entitled the first of these posts “Breaking Up Is Not Hard To Do – Fractions, Scrip And Scrippage” in partial reference to the song by...more

1/20/2017 - Corporations Code General Corporation Law Shareholders Short-Form Mergers

I Deliver Some Round Observations About California’s Rounding Rule

Yesterday’s post concerned various actions that a California corporation may pursue in lieu of issuing fractional shares. I left for today the subject of rounding. Section 407 of the Corporations Code expressly permits...more

1/19/2017 - Corporate Governance Corporate Issuers Corporations Code Shareholders

Breaking Up Is Not Hard To Do – Fractions, Scrip And Scrippage

The California General Corporation Law explicitly authorizes a corporation to issue fractional shares. Cal. Corp. Code § 407. A corporation, however, is not required to do so. Id. In lieu of issuing fractions, a...more

1/18/2017 - Corporate Governance Fractional Shares General Corporation Law

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