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Governor Signs Bill Narrowing Grounds For Business Entity Reinstatement

Over the years, I’ve received several calls asking what can be done when a business entity has been wrongfully terminated. Answering this question became a bit easier in 2006 with the enactment of AB 2588 (Runner) which...more

9/30/2014 - Business Interruption New Legislation Reinstatement Secretary of State

1, 2 or 3 Years? How Should Boards Decide The Frequency Of Say-On-Pay Votes?

Although the initial ruckus over how to determine the outcome of executive compensation say-on-frequency votes has subsided, I still maintain that the Securities and Exchange Commission botched the rule (§240.14a-21(b)). ...more

9/29/2014 - Board of Directors Corporate Governance Say-on-Pay SEC Shareholder Votes Shareholders

NLRB Rules It Illegal For Employer To Say It Will Comply With The Law

Recently, the National Labor Relations Board concluded that an employer violated the law when it adopted a policy requiring employees to “Keep customer and employee information secure. Information must be used fairly,...more

9/26/2014 - Employer Liability Issues Enforcement NLRB

Is The LLC A Party To Its Own Operating Agreement?

Is an LLC a party to its own operating agreement? California’s new Revised Uniform Limited Liability Company Act (RULLCA) defines “operating agreement” as “the agreement, whether or not referred to as an operating...more

9/25/2014 - Choice of Entity LLC Operating Agreements RULLCA

Court Addresses Jurisdiction Over Alleged Tortious Internet Conduct

By dramatically lowering the cost of disseminating information, the internet has made it possible for companies to “cybersmear” their competitors before a large potential audience at very little cost. The internet also...more

9/24/2014 - Cybersmears Intentional Torts Internet Jurisdiction

Oxfam America Takes A Stand, But Does It Have Standing?

Recently, I wrote about Oxfam America’s new lawsuit against the Securities and Exchange Commission for failing to adopt a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. ...more

9/23/2014 - Article III Dodd-Frank Oxfam SEC Standing

SEC Advisory Committee To Consider Fee-Shifting Bylaws, But Why?

One agenda item for the upcoming meeting of the Investor Advisory Committee is a “Discussion of Issuer Adoption of Fee-Shifting Bylaws for Intra-Corporate Litigation”. This is indeed an interesting and timely topic in light...more

9/22/2014 - Bylaws Fee-Shifting Fee-Shifting Statutes SEC

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

9/19/2014 - Appeals Audits Damages Franchise Tax Board Fraud Governmental Immunity Punitive Damages Tax Returns

In Judicial Opinions, These Words Are Truly Zeltn

Readers of this blog know that it isn’t just about the law, it is about the language of the law. As I’ve mentioned, many of our legal terms are derived from Norman French courtesy of William the Conqueror. Recently, I began...more

9/18/2014 - Young Lawyers

Congressman Proposes Federal Non Disparagement Law

Last Friday, I wrote about a new California law that provides that a contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any...more

9/17/2014 - Contracts Clause Disparagement Proposed Legislation

These Words Enjoy Only A Negative Existence

Some words seem to exist only in the negative. One such word is “uncouth”, which means lacking refinement. For example, the Court of Appeal in People v. Williamson, 207 Cal. App. 2d 839 (1962) upheld a conviction for...more

9/16/2014 - Legal Writing

M&A Broker Exemption Bill Resurrects Financial Statement Replaced in 1988

Last week, the North American Securities Administrators Association withdrew its support for S. 1923 which, if enacted, would exempt “M&A brokers” from the broker registration requirements of the Securities Exchange Act of...more

9/15/2014 - Broker-Dealer Compliance Registration SEC Securities Exchange Act

A Bad Review For California’s New Non-Disparagement Law

The advent of social media has dramatically lowered the cost to consumers of acquiring and disseminating information. Formerly, only a handful of people might hear about a bad experience with a retailer or service provider. ...more

9/12/2014 - Disparagement New Legislation Retailers Social Media Waivers

SEC Shamelessly Targets Late Filers

Yesterday, the Securities and Exchange Commission announced “charges” against 28 officers, directors, or major shareholders for failing to report timely ownership and transactions as required by Section 16(a) and Section 13...more

9/11/2014 - Dodd-Frank Enforcement Actions Filing Requirements SEC Securities Exchange Act

Let’s Get This Straight, A URL Is Not An Address (At Least In This Case)

Technology continues to challenge the law. For example, what does it mean for someone to have an address? Is that where a person is physically located or where that person can be found in cyberspace? Such were the...more

9/10/2014 - Internet Landlords Tenants Websites

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

9/9/2014 - Appeals Education Code Equal Protection Tenure

Attorney-Client privilege In M&A Transactions

The title of this recent law review article frames the problem well, At the Whim of Your Adversaries: California’s Hazards in Sell-Side Representation and Waiver of Attorney-Client Privilege, 54 Santa Clara L. Rev. 651...more

9/8/2014 - Attorney-Client Privilege Proposed Amendments

When A Corporation Dissolves, Do The Directors Become Zombies?

Even though a corporation has dissolved, there may still be a need to take certain corporate actions. For example, the corporation may need to continue to prosecute or defend lawsuits, file a final franchise tax return, or...more

9/5/2014 - Board of Directors Corporate Dissolution Corporate Governance Directors

Does The Corporations Code Permit “Boards R Us”?

In an article published last summer, Professors Stephen Bainbridge and M. Todd Henderson argued that “significant gains that could be realized by permitting firms (be they partnerships, corporations, or other business...more

9/4/2014 - Board of Directors Corporate Governance Corporate Management

Federal Prosecutors: The New Architects Of Corporate Governance

If I asked who or what are the primary sources of corporate governance changes, I would expect the following answers: Congress, the Securities and Exchange Commission, the stock exchanges, proxy advisory firms, public pension...more

9/3/2014 - Compliance Corporate Governance Criminal Prosecution Deferred Prosecution Agreements DOJ Enforcement Enforcement Actions Non-Prosecution Agreements

Why The Brouhaha Over “Gadfly”?

University of California – Berkeley law school Professor Steven Davidoff Solomon started a contretemps amongst corporate governance mavens when he published this piece in The New York Times DealBook. Broc Romanek, writing...more

9/2/2014 - User-Generated Content

I Just Don’t Understand Labor Day

I just don’t understand Labor Day. To be more specific, I don’t understand the holiday’s name. “Labor” is derived from the Latin word meaning work or toil. Etymologically speaking, therefore, Labor Day is Work Day. To me,...more

8/29/2014

Why Keeping Corporate Lawyers Quiet Is Good For Us All

In a recent post in The New York Times DealBook, Berkeley Law School Professor Steven Davidoff Solomon argues that keeping corporate lawyers silent “can shelter wrongdoing”. I completely agree that the attorney-client...more

8/28/2014 - Attorney-Client Privilege Corporate Counsel Corporate Governance Ethics Information Management

Judge Rules Choice Of Law Waives CSL Claim

I was quite surprised to read Judge Gregory M. Sleet’s ruling in OpenGate Capital Group LLC v. Thermo Fisher Scientific Inc., 2014 U.S. Dist. LEXIS 92256 (D. Del. July 8, 2014). The lawsuit was brought by the purchaser of a...more

8/27/2014 - Choice-of-Law Conflicts of Laws Purchase Agreement

Company Sues Former Officer For Failing To File Form 4s

A complaint filed in the Central District of California caught my eye because it involved the rather unusual circumstance of a corporation suing a former director and officer for, among other things, failing to file reports...more

8/26/2014 - Chief Compliance Officers Directors Professional Liability Reporting Requirements Securities Exchange Act

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