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This Proposed Amendment To DGCL Section 141(f) Is A Curate’s Egg

In AGR Halifax Fund, Inc. v. Fiscina, 743 A.2d 1188 (1999), the Delaware Court of Chancery was asked to decide whether a consent given by persons before they became directors could become effective if delivered to the...more

4/16/2014 - Board of Directors Consent Corporate Counsel Corporate Governance

Name And Shame No More?

The last few years has seen the rise of so-called “name and shame” laws. The aims of many these laws may be laudable, but yesterday’s decision by the Court of Appeals for the District of Columbia Circuit calls their...more

4/15/2014 - Administrative Procedure Act Conflict Mineral Rules Disclosure Requirements First Amendment SEC

American Icon Amends Stock Plan To Make It Section 25102(o) Eligible – Why?

Section 102 the National Securities Markets Improvement Act (which amended Section 18 of the Securities Act of 1933) deems securities listed (or authorized for listing) on the NYSE, the American Stock Exchange or the National...more

4/14/2014 - Employee Incentive Plans Exemptions Levi Strauss Nasdaq NSMIA NYSE SEC

And You Thought Dissenters’ Rights Didn’t Apply To Delaware LLCs

Delaware’s Limited Liability Company Act provides that a limited liability company agreement or an agreement of merger or consolidation or plan of merger may provide for appraisal rights. 6 Del. Code § 18-210. Does this...more

4/11/2014 - Appraisal Blue Sky Laws Delaware Limited Liability Company Act Dissenters Rights Equity Securities Foriegn LLCs LLC Merger Agreements RULLCA

Can The Political Concerns Of Corporate Officers Be Of Any Concern Of The Corporation?

Suppose a corporation’s Chief Executive Officer becomes involved in a particularly abhorent (but legal) political movement. Suppose further that the Board of Directors is concerned that the corporation’s stockholders,...more

4/11/2014 - Board of Directors CEOs Political Expression

CalPERS Proposes Conflict Of Interest Disclosure Regulation

CalPERS recently gave notice that it is proposing to adopt a new rule requiring disclosure of conflicts of interests by consultants and external managers. Under the California Administrative Procedure Act, Cal. Gov’t Code §...more

4/9/2014 - CalPERS Conflicts of Interest Consultants Disclosure

Bill Aims To Exempt Venture Capital Company Equity Security Investments From Lenders Law

California requires persons who are engaged in the business of making loans to be licensed under the Finance Lenders Law. Cal. Fin. Code § 22000 et seq. This had been an issue for venture capital funds that extended bridge...more

4/8/2014 - Bridge Loans Commercial Loans Convertible Debt Equity Securities Finance Lenders Financing Lenders SEC Senate Banking Committee Venture Capital

California’s RULLCA Impossible Pleading Requirement For Derivative Suits

California’s Revised Uniform Limited Liability Company Act requires a member of a domestic or foreign LLC to include two specific allegations in any complaint brought in the right of the company. Failure to include these two...more

4/7/2014 - Derivative Suit LLC Pleadings RULLCA Shareholder Litigation Shareholder Rights Shareholders

The Burdens And Standards Of Proof And Review

I expect that that most lawyers can explain the difference between the “burden of proof” and the “standard of proof”. Some lawyers might be more challenged in distinguishing between “standard of proof” and “standard of...more

4/4/2014 - Burden of Proof Preponderance of the Evidence Standard of Proof Standard of Review

Just How Binding Are SEC Statements In An Adopting Release?

Two years ago, I coined the term ““ARR Ratio”. The ARR Ratio (Adopting Release to Rule Ratio) is calculated by dividing the total number of words in the Adopting Release by the total number of words in the actual text of the...more

4/3/2014 - Administrative Procedure Act Preamble SEC

Foreign LLCs Take Note: This Legislative Oversight May Affect You Too

Section 407 of the California Labor Code provides - Investments and the sale of stock or an interest in a business in connection with the securing of a position are illegal as against the public policy of the State and...more

4/2/2014 - LLC RULLCA Sales Stocks

9th Circuit Holds Issuer Is Investment Bank’s “Customer” And “Actions and Proceedings” Include Arbitrations

In 2005 and 2006, the biggest little city in the world (aka Reno, Nevada) issued approximately $211 million in securities employing Goldman, Sachs & Co. as its sole underwriter and broker-dealer. The financing didn’t work...more

4/1/2014 - Arbitration Banks Broker-Dealer Goldman Sachs Underwriting

Why A Form LLC-1 May Be Only Half Right

Under California’s new Revised Uniform Limited Liability Act, an LLC is formed when the California Secretary of State’s Office files the articles of organization. Cal. Corp. Code § 17702.01(d). Only five items of...more

3/31/2014 - Articles of Incorporation Incorporation LLC Operating Agreements

How Will The Courts Interpret This?

I recently commented on the awkwardness of Subdivisions (a) and (b) Corporations Code Section 17703.04 that seemingly are intended to establish that the members of an LLC aren’t liable qua members for the obligations of the...more

3/28/2014 - Corporate Governance LLC Professional Liability

California’s New RULLCA Provides Ample Potential For Member Liability

Recently, I wrote about Corporations Code Section 17703.04(a) which in singularly inept fashion attempts to establish the non-liability of members of a limited liability company under the California’s new Revised Uniform...more

3/27/2014 - Personal Liability Professional Liability RULLCA

Court Declines To Apply Rule 9(b) To Section 25401 Claim

A complaint alleging securities fraud under Rule 10b-5 must meet the stringent pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure as well as the requirements of the Private Securities Litigation Reform...more

3/26/2014 - Complaint Procedures Federal Rules of Civil Procedure PSLRA Securities Fraud

The Securities Fraud Device That The Legislature Devised To Omit

Last year, Senator Jerry Hill authored a bill, SB 538, which rewrote Corporations Code Section 25401. As I posted, the underlying premise was fanciful at best – that California’s statute “has failed to keep up with similar...more

3/25/2014 - Fraud Securities Fraud

What Exactly Was The Legislature Trying To Say?

Section 17703.04(a) is one of many bizarre provisions in California’s new Revised Uniform Limited Liability Company Act: (a) All of the following apply to debts, obligations, or other liabilities of a limited...more

3/24/2014 - Corporate Governance Debt LLC

Some Corporations Code Mysteries

While many disagree with the policy choices made by the drafters of the California General Corporation Law, I think many would agree that the GCL is well drafted from a technical perspective. I find it far better organized...more

3/21/2014 - Corporate Counsel Corporate Governance

Just What Does “Deem” Mean?

The Legislature likes to deem things, but what does it really intend when it does so? Consider the following examples...more

3/20/2014 - Legal Writing

Before This LLC Was Formed, These Members Knew It

The new California Revised Uniform Limited Liability Company Act contains some weird inversions of time and logical order. For example, it allows for the formation of an operating agreement even before an LLC is formed. In...more

3/19/2014 - Limited Liability Companies LLC Operating Agreements RULLCA Supplemental Disclosures

The Odd Case Of The Unformed Applicant And The Non-Complying Name Holder

Suppose you are forming an LLC and have even settled on the perfect name. Alas, the Secretary of State’s office refuses to file the articles of organization because your perfect name is so perfect that someone has already...more

3/18/2014 - Choice of Entity LLC Startups

Another Reason Not To Like California’s New LLC Act

Suppose Bob asks his lawyer, Paul, to form an LLC under California’s new Revised Limited Liability Company Act. Paul’s paralegal, Natalie, signs the Form LLC-1 as the organizer....more

3/17/2014 - LLC Operating Agreements

Another Modest Proposal – Risk Factors

This week, Broc Romanek launched CorporateAffairs.tv. No, it’s not a live video feed of boardroom dalliances. One of Broc’s first videos, Dramatic Risk Factors: We Face Competition (Vol. 1), inspired me to write about an...more

3/14/2014 - Disclosure Requirements Regulation S-K SEC

This Interest May Be Common, But It’s Still Privileged

Section 954 of the California Evidence Code establishes a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”. A “confidential communication...more

3/13/2014 - Attorney-Client Privilege Confidential Communications Corporate Counsel Evidence

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