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When “The Check Is In The Mail” Extinguishes A Debtor’s Obligation

Most creditors likely assume that they have not been paid unless and until they receive checks from their debtors. In many cases that assumption may be correct, but in some cases it won’t be. Section 1476 of the California...more

Does Work Product Belong To The Lawyer Or The Law Firm?

California has codified the attorney work product doctrine in Section 2018.030 of the California Code of Civil Procedure. That statute establishes two categories of protected work product. Under subdivision (a), a “writing...more

Court of Appeal Defines Good Faith Defense Under The UFTA

In 2015, the California legislature refurbished the Uniform Fraudulent Transfer Act and rechristened it as the Uniform Voidable Transactions Act. 2015 Cal. Stats. Ch. 44 (SB 161 (Vidak)). The UFTA has not left the stage...more

Criminal Conviction Of De Facto Officer Does Not Preclude D&O Coverage

After a two week trial in 2013, a jury convicted Mitchell J. Stein, a lawyer, of mail, wire, and securities fraud based on evidence that he fabricated press releases and purchase orders to inflate the stock price of his...more

Court Finds Lawsuit By Corporation Against Minority Shareholder Is “Protected Activity”

SLAPP is the initialization of the phrase “strategic lawsuit against public participation”. A more informative description of SLAPP suits is found in Simpson Strong-Tie Co., Inc. v. Gore, 49 Cal.4th 12, 21 (2010)...more

“And” Or “Or” – This Ninth Circuit Opinion Highlights The Difference

“And” and “or” are classified as conjunctions. They are classified as such because they yoke together words, phrases, clauses and sometimes even sentences. They are not interchangeable, however, as illustrated by the recent...more

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

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

Is “Whistle-Blow” A Bad Word?

John Doe 2 v. Superior Court, 2016 Cal. App. LEXIS 635 (Cal. Ct. App. 2016)If someone send an email stating that they hope that they might whistle-blow on you, have you been libeled? Los Angeles County Superior Court Judge...more

8/3/2016  /  Appeals , Email , Libel , Whistleblowers

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

Court Decides Successor In Merger May Enforce Arbitration Clause

Can a party to written agreement that does not include an arbitration clause enforce an arbitration provision in another agreement to which it is not a party? Boiled down to the essentials, this is the question decided...more

“Conforming With” May Not Be “Pursuant To”

Lawyers often will write “pursuant to [name of law or regulation]” without expecting the phrase to be the source of controversy.  But language is an inherently ambiguous tool and lawyers will, if adequately feed, argue about...more

A Criminal Waste Of Space Foments Securities Law Problem

California Court of Appeal Justice William W. Bedsworth writes the popular syndicated column “A Criminal Waste of Space”.  In this month’s column, Justice Bedsworth expounds on the highly improbable case of a man who...more

Private Placement Memorandum Saves The Day For Defendants

Do you ever wonder whether the time and expense of preparing a private placement memorandum is really worth it? Does anyone ever escape liability because of a well drafted PPM? A recent opinion by the California Court of...more

California, Nevada and 38 Other States Have These, But Delaware Doesn’t

According to the National Center for State Courts, forty states, including California and Nevada, have established intermediate courts of appeal.  California’s Court of Appeal was established by a constitutional amendment...more

Court Of Appeals Holds No ERISA Preemption Of Section 419(b)

The Ninth Circuit Court of Appeals’ recent holding in Sender v. Franklin Res., Inc., 2015 U.S. App. LEXIS 10113 (9th Cir. Cal. June 16, 2015) is reasonably clear and yet there is much about the case that puzzles...more

Court Of Appeal Decides Against Arbitration Bylaw Amendment

Much has been written of late about the enforceability of exclusive forum bylaws. What happens when the forum isn’t a court, but an arbitration? Does it make any difference if the arbitration bylaw is adopted after a...more

‘Tis A “Bootless Labour” To Ask The Staff To Appeal Its Own No-Action Advice

In This “Appeal” Of Whole Foods’ No-Action Letter Isn’t Very Appealing, I wrote about Jim McRitchie’s attempt to “appeal” the staff’s decision with respect to the exclusion of his proxy access proposal to Whole Foods Market,...more

Court Holds Corporation “Coulda, Shoulda” Revived Itself

California law provides that a domestic corporation that fails to pay certain taxes and penalties may have its corporate rights and privileges suspended. Cal. Rev. & Tax. Code § 23301. While suspended, a corporation may not...more

This “Appeal” Of Whole Foods’ No-Action Letter Isn’t Very Appealing

Last week, James McRitchie submitted an “appeal” of the staff’s grant of no-action advice to Whole Foods Market, Inc. As explained in a post by Broc Romanek, Whole Foods was able to obtain that staff’s concurrence in...more

Buyer’s “I Have A Plan” Statement Found To Be Immaterial Puffery

A recent California Court of Appeal decision is a helpful reminder that buyers can also be targets of securities fraud suits. In Goldsholle v. Brisco, 2014 Cal. App. Unpub. LEXIS 7997 (Cal. App. 2d Dist. Nov. 6, 2014), the...more

The Proper Purpose Of Discovery In Derivative Suits

A plaintiff holding less than 2000 shares files a derivative suit against a corporation’s current or former directors and officers. The trial court finds the complaint to be internally inconsistent and that regulatory...more

Nevada Supreme Court Upholds Fraud Verdict Against The California Franchise Tax Board

The Franchise Tax Board’s Shande - This is case that has been more than two decades in the making. It began in the 1990s when inventor Gilbert Hyatt filed a California tax return showing that he relocated from...more

When A Judge Declares A Statute Unconstitutional, What’s An Agency To Do?

In the recent California gubernatorial debate, Governor Jerry Brown defended his decision to appeal Judge Rolf M. True’s ruling in Vergara v. California, Cal. Super. Ct. Case No. BC484642 (June 10, 2014). The case has...more

Defendants Owed No Duty, But Still Liable

In Am. Master Lease Llc v. Idanta, 2014 Cal. App. LEXIS 402 (Cal. Ct. App. 2014), the Second District Court of Appeal resolved the following four questions...more

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