Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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Private Email Woes Infect The Private Sector

Vice Chancellor J. Travis Laster’s ruling in Amalgamated Bank v. Yahoo!, Inc., C.A. No. 10774-VCL (Del. Ch. Feb. 2, 2016) should sound a tocsin to directors that their “private” emails may not be so private. The ruling...more

2/12/2016 - Board of Directors Books & Records Corporate Officers Delaware General Corporation Law Email Yahoo!

Delaware Inspection Ruling May Cause Yahoo! Inc. To Regret Not Incorporating In Nevada

In a recent blog post, Delaware lawyer Francis Pileggi discusses a recent ruling by Vice Chancellor J. Travis Laster ordering Yahoo! Inc. to produce personal emails of directors and electronically stored information in...more

2/11/2016 - Electronically Stored Information Email Inspection Rights Shareholder Rights Yahoo!

Do The Secretary Of State’s Criteria For Determining “Generally Recognized Presidential Candidates” Violate The APA?

Earlier this week, the California Secretary of State released his list of “generally recognized presidential candidates”. These are the individual whose names will appear on California’s June 2016 primary ballot. The...more

2/10/2016 - Administrative Procedure Act Political Candidates Political Parties Presidential Elections Secretary of State

Insurance Commissioner Calls For Thermal Coal Divestment And Disclosure

Late last month, California’s Insurance Commissioner announced that he had “asked all insurance companies doing business in California to voluntarily divest from their investments in thermal coal”. Thermal coal, also known...more

2/9/2016 - CalPERS CalSTRS Coal Industry Disclosure Requirements Divestment Insurance Industry Oil & Gas

Promises, Promises: Secretary of State Admits California Can’t Accommodate Cumulative Voting

California’s 1879 Constitution enshrined cumulative voting as a constitutional right. Cal. Const. of 1879, Art. XII, § 12 (repealed). The 1931 California General Corporation Law continued mandatory cumulative voting. When...more

2/8/2016 - General Corporation Law Local Elections Secretary of State

A Failure To Mediate Results In A Failure To Litigate

Mediation is often viewed as less costly alternative to litigation. Therefore, it is not unusual for parties to include a mediation provision in their contracts, such as the following...more

2/5/2016 - Attorney's Fees Contract Terms Mediation NV Supreme Court

9th Circuit Holds Subsidiary Could Be The General Manager Of Its Parent

Section 2110 of the California Corporations Code governs service of process on a foreign corporation. One means of valid service under the statute is by delivering process by hand to the corporation’s general manager in...more

2/4/2016 - Corporations Code Foreign Corporations General Motors Service of Process Smith & Wesson Subsidiaries Yamaha

What Vote Should Be Required To Pull The Plug On An LLC?

There are three paths to dissolution under California’s Revised Uniform Limited Liability Company Act (RULLCA). First, an event of dissolution set forth in a written operating agreement or the articles of organization may...more

2/3/2016 - Dissolution Limited Liability Companies Proposed Legislation RULLCA Voting Requirements

District Court Declines To Redress The SEC’s Failure To Respond To Petition Seeking Political Spending Disclosure Rule

Although placed right up front in the First Amendment to the U.S. Constitution, the right to petition the government for redress of grievances is often overshadowed by the other First Amendment rights. There can be no doubt,...more

2/2/2016 - Administrative Procedure Act Disclosure Requirements First Amendment Political Contributions Rulemaking Process SEC

The Investment Company Act And Roy M. Cohn

Last week, UFCW Local 1500 Pension Fund filed a class action and derivative lawsuit against Yahoo! Inc., its board of directors and some of its current and former officers.  (N.D. Cal. Case No. 3:16-cv-00478-RS).  According...more

2/1/2016 - Class Action Derivative Suit Investment Company Act of 1940 Registration Requirement Yahoo!

Are Consultant’s Employees Functionally Equivalent To Client’s Employees?

As a general matter, the attorney-client privilege is waived by disclosing a communication to a third party. When a corporation hires an investment banker, the corporation’s attorneys will frequently communicate with...more

1/29/2016 - Attorney-Client Privilege Confidential Communications Functional Equivalent Third-Party Relationships

Where To Meet? The Answer May Have Surprising Consequences

In my experience, companies most often hold board and shareholder meetings at or near their principal executive offices . As a result, many corporations hold their meetings in California even though they may be incorporated...more

1/28/2016 - Annual Reports Corporations Code Foreign Corporations Principal Place of Business Shareholder Meetings

You Might Be Surprised By These Words In Magna Carta

I’m continuing my desultory study of the Magna Carta, which marked its 800th birthday last June. Although the original charter was written in Latin, my occasional efforts at translation has made me keenly aware that it uses...more

1/27/2016 - Magna Carta

Corporation Owes No Duty To Warn Former Director Of Impending Option Expiration

Does a corporation commit constructive fraud if it fails to warn a former director of the impending expiration of a stock option? That was one question decided earlier this month by Judge Jennifer A. Dorsey in Nelson v....more

1/26/2016 - "choice of Covenant of Good Faith and Fair Dealing Fraud Stock Options Summary Judgment

Resource Extraction Rule: SEC Puts More Time On The Clock

In July 2010, Congress ordered the Securities and Exchange Commission to adopt a resource extraction rule within 270 days (i.e., by April 17, 2011). The SEC did not adopt rules until August 22, 2012, missing the Congress’...more

1/25/2016 - Comment Period Oxfam America Proposed Regulation Resource Extraction SEC

A Not So Frequently Asked Question – When Is An Event Infrequent?

Last January, the Financial Accounting Standards Board, which is better known as the FASB, issued Accounting Standards Update 2015-01. The update eliminates the concept (and definition) of “extraordinary item”. According to...more

1/22/2016 - Accounting Standards Compensation Committee Equity Compensation FASB GAAP

Can A Corporation Be A Citizen Of California?

Notwithstanding the brouhaha engendered by Citizens United v. FEC, 558 U.S. 310, 394 (U.S. 2010) , the idea that corporations are “persons” can be found in numerous California statutes, including California Corporations Code...more

1/21/2016 - Citizens United

Court Holds SEC Filing Is Not Public Disclosure

California has patterned its false claim law, Cal. Gov’t Code §§ 12650 et seq., after the federal False Claims Act. As the names of these laws suggest, they are intended to protect the public fisc from false or fraudulent...more

1/20/2016 - Attorney Generals Disclosure Requirements Escheat Public Disclosure SEC State False Claims Acts

Choosing Delaware, Instead Of California Law, May Prove Very Costly Indeed!

Last spring, I had the pleasure of meeting Delaware Supreme Court Justice Karen Valihura when we were speaking at the Los Angeles County Bar Association’s annual Delaware & California Law Update. Given her visit to...more

1/19/2016 - Abuse of Discretion Breach of Contract Choice-of-Law Contract Negotiations License Agreements

Indemnity Agreements: Res Gestae Atque Gerendae

Can someone be indemnified against an unlawful act? California Civil Code Section 1668 would seem to say “no”:...more

1/15/2016 - Contract Terms Indemnification Unconscionable Contracts

More Maladroit Drafting From The SEC

Last December, the Securities and Exchange Commission proposed a new exemptive rule under the Investment Company Act of 1940. The proposed rule would allow mutual funds, exchange-traded funds (“ETFs”), closed-end funds, and...more

1/14/2016 - Business Development Companies Exemptions Investment Funds Rule 18(f) SEC

CA Court Holds No Fiduciary Duty To Warrant Holders

Judges must perforce pick and choose from the record what facts to include in their written opinions. As a result, opinions don’t necessarily tell the whole story and may omit important details. Recently, for example, I...more

1/13/2016 - Breach of Contract Breach of Duty Comment Period Rule 147 Warrants

California’s Bizarre Voting Record Disclosure Requirements

Section 711 of the California Corporations Code is so poorly drafted that it almost defies explanation. According to the legislature’s findings, the ostensible purpose of the statute is to facilitate the informed and active...more

1/12/2016 - Beneficial Owner Corporations Code Disclosure Requirements Investment Company Act of 1940 Voting Rights

Did Utah’s Securities Commission Really Call Out California’s Commissioner?

I recently ran across an article concerning a row between Utah’s Securities Commission and California’s Commissioner of Corporations, E.C. Bellows. Engineering & Mining Journal, Bingham Galena on Trail of California...more

1/11/2016 - Blue Sky Laws Cross-Border Transactions Jurisdiction Mining Sherman Act

Court Holds Corporations Have No Constitutional Privacy Right, But . . .

Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. Does this right extent to corporations? Seemingly it would if corporations are considered “people”. Some...more

1/8/2016 - Appeals Citizens United Right to Privacy Stock Corporations

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