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Did A Non-Existent Committee Move To Update Corporations Code?

In April, I kvetched about numerous outdated references in the California Corporations Code. For example, several provisions of the Code continue to refer to the “Internal Revenue Code of 1954” more than three decades after...more

Can Pseudo-Foreign Corporations Exonerate Their Directors?

Corporations Code Section 2115 is not an easy read. Fortunately, California Supreme Court Chief Justice Tani Cantil-Sakauye has provided a more digestible overview of the statute...more

California Judge Troubled By Trulia Refuses To Approve Settlement

Kevin LaCroix recently tackled the question Is Deal Litigation in Delaware Done? According to Kevin, “deal litigation has been shifting from Delaware Chancery Court to courts in other states and to federal courts”. He...more

Officers Of Foreign Corporations And The California Courts

Yesterday’s post concerned Section 2116 of the California Corporations Code. Courts sometimes describe Section 2116 as codifying the internal affairs doctrine. See, e.g., Vaughn v. LJ Internat., Inc., 174 Cal. App. 4th 213,...more

Enforceability Of Exclusive Forum Bylaw May Hinge On The Meaning Of “May”

No California appellate court has yet addressed the validity of forum selection bylaws in a published decision. When the question comes before a California appellate court, the outcome may turn on the meaning of “may” in...more

More On Revlon Duties In California

Following yesterday’s post concerning the status of Revlon duties in California, I received a note from Suzanne Weakley, an attorney at the California Continuing Education of the BAR (aka the CEB). For those readers not...more

Is There A “Revlon Duty” In California?

There are certain seminal Delaware corporate law cases that are so well known that corporate lawyers are wont to assume that they have been adopted and followed everywhere. One such case is Revlon, Inc. v. MacAndrews &...more

Did The Harvard Shareholder Rights Project Prove Itself Wrong?

In December 2014, Stanford Law School Professor Joseph A. Grundfest and Daniel M. Gallagher incited an academic titanomachy when they released a draft of an academic paper provocatively entitled “Did Harvard Violate Federal...more

California And Liquidated Damage Clauses

California Civil Code Section 1671(b) provides that “a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the...more

Partnership Dissolution And A Chief Judge’s Lament

Decisions by U.S. District Court judges typically begin with an identification of the parties, an explanation of the procedural posture of the case, or a description of the dispute. Chief Judge Lawrence J. O’Neill, however,...more

Federal Judge Rules Out Private Cause Of Action Under California Control Person Statute

Some persons may be deemed to violate the Corporate Securities Law of 1968 even though they did not directly violate the law. Corporations Code Section 25403(a) provides that a person who with knowledge directly or...more

If The Market Makes You Do It, Why Should The SEC?

The basic premise underlying most disclosure requirements seems to be that issuers won’t disclosures to investors unless legally required to do so. Yet, there is ample evidence of issuers making disclosures in the absence of...more

Real Estate Fund Advisers And Penumbra Registration

Last August, the Securities and Exchange Commission adopted amendments to Form ADV, the form used by investment advisers to register with the SEC and with the states. Included in these amendments were changes to allow...more

More On Real Estate Funds And The Investment Advisers Act

In a previous post, I began to delve into the question of what is a “real estate fund”. See SEC Staff Reports On “Real Estate Funds”, But What Exactly Are They? As noted in that post, a “real estate fund” as defined in Form...more

Of Section Symbols And Pilcrows

It wasn’t so very long ago that the lawyer who typed his or her own documents was a rara avis indeed. Nowadays, there are few attorneys who don’t. Therefore, I think most lawyers today share the annoyance of inserting the...more

5/8/2017  /  Legal Writing , Young Lawyers

Knowledge Of Loan Extensions Precludes Exoneration

The California Civil Code devotes several sections to the subject of the exoneration of sureties. Section 2819, for example, intones...more

SEC Staff Reports On “Real Estate Funds”, But What Exactly Are They?

Yesterday, the SEC staff announced that it had published a suite of new data and analyses of private fund statistics and trends. These data include information with respect to “real estate funds”. But what exactly is a...more

Will California Regulate Lead Generators?

In February, I wrote about SB 297 (Dodd) which as introduced would have required the licensing of finders under the California Finance Lenders Law, Cal. Fin. Code § 22000 et seq. In April, Senator Dodd amended SB 297 to,...more

Qualification Of Offers And Sales Of Non-Voting Common Stock Is No Snap In California

In March, Snap Inc. announced that it and the selling stockholders had sold of 230 million shares of Class A Common Stock to the public at an initial public offering price of $17.00 per share. The gross proceeds of the...more

California And Van Gorkom

As a corporate lawyer, it is hard to ignore the Delaware Supreme Court’s opinion in Smith v. Van Gorkom, 488 A.2d 858 (1985) overruled on other grounds Gantler v. Stephens, 965 A.2d 695 (Del. 2009). Professor Stephen...more

The Limited Liability Company Agreement That Has No Name

Practitioners under California’s Revised Uniform Limited Liability Company Act will be familiar with the concept of an “operating agreement” (Cal. Corp. Code § 17701.02(s)). Indeed, I expect that nearly every LLC formed...more

District Court Rules Plaintiff Failed To Plead Real Estate Investment Was A “Security”

Both the Securities Act of 1933 and the California Corporate Securities Law of 1968 provide similar, but not the same, definitions of a “security”. See Making A List Of Securities And Checking It Twice. Although these lists...more

Buying Assets? Have You Considered This Secretary’s Certificate?

California Corporations Code Section 1001 requires approval by the outstanding shares (Corp. Code § 152) of the principal terms of a sale of all or substantially all of a corporation’s assets (unless the transaction is in the...more

Court Rules Indirect Purchaser Claims Against Theranos May Proceed

Theranos’ anni horribilium began in October 2015 with the publication of a story by investigative reporter John Carreyrou at The Wall Street Journal. Lawsuits and government investigations ensued. Although the Theranos...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

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