Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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SEC Clawback Proposal Overlooks Contract Law Fundamentals

In proposing the clawback rules for stock exchanges mandated by Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Securities and Exchange Commission evinces little regard for contrary...more

7/14/2015 - Bylaws Clawbacks Corporate Governance Dodd-Frank Employment Contract Executive Compensation Indemnity Agreements SEC

Professor Bainbridge Takes On S.B. 75 And The Delaware Bar

UCLA Law Professor Stephen Bainbridge recently posted an article calling Delaware’s recently enacted S.B. 75 a “self-inflicted wound”. SB 75, which was signed into law late last month, limits the ability of Delaware stock...more

7/2/2015 - Bylaws Delaware General Corporation Law Fee-Shifting

Should Directors Be Required To Have Valid Passports?

Lately, I’ve had occasion to think about director qualifications. Section 212(b)(4) of the California Corporations Code permits the bylaws to to specify the qualifications of directors.  In Section 141(b),the Delaware General...more

6/9/2015 - Board of Directors Bylaws Corporations Code Delaware General Corporation Law Fiduciary Duty Passports

No Pay Bylaws Fall Short Of Ending Forced Subsidization

In a post published yesterday on The Harvard Law School Forum on Corporate Governance and Financial Regulation, Delaware lawyer A. Thompson Bayliss and Mark Mixon write that no pay provisions “could transform stockholder...more

6/2/2015 - Attorney's Fees Bylaws Corporate Governance Fee-Shifting Shareholder Litigation Shareholders

SB 75 May Prove To Be Delaware’s Seven Sisters

A century ago, New Jersey was the state in which to incorporate. Long before former Iraqi President popularized the expression “Mother of Battles” (“Um El-Ma’arek“), the famed legal scholar Adolph A. Berle, Jr. bestowed the...more

5/14/2015 - Bylaws Delaware General Corporation Law Fee-Shifting New Legislation

Here’s One Way To Recover Attorneys’ Fees Without Adopting A Fee Shifting Bylaw

With the ongoing hullabaloo concerning the legislative demise of fee shifting bylaw provisions under Delaware law, little attention has been paid to California law. More importantly, no one seems to have noticed that...more

5/12/2015 - Attorney's Fees Bylaws Delaware General Corporation Law Derivative Suit Fee-Shifting Shareholders

It’s Time To Put A Stop To Fee-Shifting (But Not In the Way You Might Think)

The problem with “fee-shifting bylaws” starts with the name.  A better name might be “anti fee-shifting bylaws” because they end the fee shifting that otherwise applies.  Without fee-shifting bylaws, plaintiffs’ attorneys are...more

5/11/2015 - Bylaws Derivative Suit Fee-Shifting Shareholders

Will Delaware’s Fee-Shifting Bylaw Bill Be A Boon To Other States?

Late last week, Senate Bill 75 was introduced in Delaware. This bill is in part a reaction to the Delaware Supreme Court’s holding in ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014) upholding as facially...more

5/6/2015 - ATP Tours Bylaws Delaware General Corporation Law Fee-Shifting Proposed Legislation

How Many Board Members Are Required To Take Action?

Suppose your corporation has a five member board of directors but two seats are vacant.  Suppose further that your corporate bylaws included the following two provisions: A.  Three members of the board shall...more

4/21/2015 - Board of Directors Bylaws Corporate Governance Corporations Code Quorum

Do Your Bylaws Make Obtaining Waivers Of Notice More Onerous?

Yesterday’s post concerned waivers of notice of shareholders’ meetings under Section 602 of the California Corporations Code.  Although not required to do so, corporate bylaws often parrot the statute.  One popular guidebook,...more

4/14/2015 - Bylaws Corporate Governance Corporations Code Email Shareholder Meetings Shareholders Waiver of Notice

Will FAA Give Wings To Arbitration Bylaws?

In January, I discussed the Court of Appeal’s decision in Cobb v. Ironwood Country Club, 233 Cal. App. 4th 960 (Cal. App. 4th Dist. 2015). I found the case interesting because the Court applied a contract law analysis to an...more

3/20/2015 - Arbitration Bylaws Federal Arbitration Act Ironwood Country Club

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

1/29/2015 - Appeals Arbitration Bylaws Exclusive Forum Proposed Amendments

In Texas Can Some Shares Be More Equal Than Others?

Although Rome before Augustus is often described as a republic, it was in many respects ruled by the wealthy who jealously guarded their power. So it was with Rome’s comitia centuriata. In theory, this was an assembly of...more

12/16/2014 - Bylaws Proxy Season Proxy Statements Shareholder Proposals Shareholders Whole Foods

Do Some Companies Already Have Fee-Shifting Provisions (And Not Know It)?

A lot of folks these days are arguing and writing about fee-shifting bylaws as if they were some kind of novel and sudden irruption, like Athena bursting from Zeus’ skull. This overlooks the existence of fee-shifting...more

11/21/2014 - American Rule Bylaws Employment Contract Fee-Shifting Indemnity Agreements

All Shares Are Equal But With Proxy Access Some Shares Are More Equal Than Others

In George Orwell’s famous satire of Stalin’s Soviet Union, Animal Farm, the animals started out with seven commandments. The seventh commandment was “All Animals Are Equal”. As time passed, three of the original...more

11/10/2014 - Bylaws Proxy Access Rule Shareholder Litigation Shareholder Rights Shareholders

If Bylaws Are Contracts, Where’s The Boilerplate?

Bylaws hardly constitute literature. For the most part, they simply regurgitate the applicable general corporation law with a few permitted changes here and there. In general, there seems to be two schools of thought when...more

10/23/2014 - Boilerplate Language Bylaws Contract Formation Corporate Governance

Can An Employment Agreement Be A Wee Bit Too Integrated?

The Bylaws of many public companies provide for mandatory indemnification of directors and officers (and sometimes other agents as well). Often, Bylaws describe these indemnity obligations as contract rights. For example...more

10/22/2014 - Bylaws Corporate Officers D&O Insurance Directors Employment Contract Indemnification Publicly-Traded Companies

Forum Selection Clauses Were Here Before They Were In Bylaws

Recent rulings by judges in Delaware and other states have given impetus to the adoption of exclusive forum bylaws. To the casual observer, the idea might seem entirely novel. But as Koheleth (the Gatherer) wrote “What has...more

10/21/2014 - Breach of Duty Bylaws Corporate Officers Delaware General Corporation Law Derivative Suit Directors Forum Selection Clause Internal Affairs Doctrine

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

Some Questions Boards Might Want To Ask When Considering Fee-Shifting Bylaws

1. Is a fee-shifting bylaw facially valid under applicable law? The Delaware Supreme Court has held that a fee-shifting bylaw adopted by a Delaware non-stock corporation is facially valid. ATP Tour, Inc. v. Deutscher...more

7/7/2014 - ATP Tours Bylaws Corporate Counsel Fee-Shifting Statutes

How Broad Was That Bylaw?

In yesterday’s posting, I noted a recent Form 8-K filing that discloses the adoption of a fee-shifting bylaw. In ATP Tour, Inc. v. Deutscher Tennis Bund, 2014 Del. LEXIS 209 (Del. May 8, 2014), the Delaware Supreme Court...more

7/2/2014 - ATP Tours Bylaws Corporate Governance Delaware General Corporation Law Fee-Shifting

Public Company Adopts Fee Shifting Bylaw

The Delaware Supreme Court caused quite a stir when it concluded that a fee shifting bylaw adopted by a non-stock corporation did not run afoul of the Delaware General Corporation Law. ATP Tour, Inc. v. Deutscher Tennis...more

7/1/2014 - ATP Tours Bylaws Corporate Governance Delaware General Corporation Law Fee-Shifting Statutes Publicly-Traded Companies

Federal Court Rules Boilermakers Didn’t Decide All Issues And Orders Company To File A Form 8-K

At first glance, the plaintiff’s position in Bushansky v. Armacost, 2014 U.S. Dist. LEXIS 88072 (N.D. Cal. June 25, 2014) seems a bit peculiar. The plaintiff had filed suit challenging Chevron Corporation’s adoption of an...more

6/30/2014 - Bylaws Chevron Class Action Delaware General Corporation Law Federal Jurisdiction Form 8-K Forum Selection Clause Shareholder Activism Shareholder Litigation Shareholders

If Fee-Shifting Bylaws Are Ever Put On Trial, This Case Should Be Exhibit A

Item 5.07(d) of Form 8-K requires issuers to disclose “the company’s decision in light of such vote as to how frequently the company will include a shareholder vote on the compensation of executives in its proxy materials...more

6/23/2014 - Board of Directors Bylaws Executive Compensation Form 8-K Proxy Statements Say-on-Pay SEC Shareholder Litigation Shareholders

Fee Shifting Bylaw Provisions May Face Constitutional Limitation

The corporate governance world has been disquieted by Delaware Supreme Court Justice Carolyn Berger’s recent opinion that upheld the validity of a fee-shifting bylaw provision in the bylaws of a Delaware non-stock...more

6/2/2014 - ATP Tours Bylaws Corporate Governance Delaware General Corporation Law Fee-Shifting Statutes Proposed Amendments

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