Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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Latest Publications


Is Rescission Ever Legal?

Yesterday’s post concerned when a corporation’s rescission of the issuance of shares does not constitute a “distribution to its shareholders” as defined in Section 166 of the California Corporations Code. I noted that one of...more

7/26/2016 - Corporations Code Equitable Relief Rescission Shareholder Distributions

When A Share Rescission Is Not A Distribution

Section 166 of the California Corporations Code defines “distribution to its shareholders”. Knowing what constitutes a distribution to shareholders is important because Chapter 5 of the General Corporation Law imposes...more

7/25/2016 - Corporate Governance Corporations Code Rescission Shareholder Distributions Stock Redemption Stock Repurchases

Nevada Supreme Court Refuses To “Blue Pencil” Unreasonable Non-Compete

Nevada, unlike California, applies a reasonableness test to non-compete agreements. Although the Nevada courts haven’t identified a specific heuristic to be followed, a covenant not to compete will be found to be...more

7/22/2016 - Blue Pencil Contract Modification Casinos Former Employee Non-Compete Agreements NV Supreme Court Public Policy Reasonableness Factors Restrictive Covenants

In The DBO’s World, Money, Money, Money Transmitters

Many may not realize that the Money Transmitter Division of the California Department of Business Oversight licenses and regulates money transmitters. Money transmitters include issuers of payment instruments (money orders),...more

7/21/2016 - Department of Business Oversight Fraud Money Transmitter Western Union

California And Delaware Corporate Law Differ In Many Respects, Including The Authority Of Committees

Both California and Delaware allow the formations of committees of the Board of Directors. Both states also allow these committees to exercise the authority of the board, but with certain exceptions. California, however,...more

7/20/2016 - Board of Directors Compensation Committee Corporate Governance Delaware General Corporation Law

Court Allows An Exhausted FTC To Serve Summons On The California Secretary Of State

The Federal Trade Commission is not pleased with Discountmetalbrokers, Inc. In fact, the FTC is so unhappy with the company that it filed a complaint alleging that the company held itself out as a legitimate seller of gold...more

7/19/2016 - Cal Code of Civil Procedure Corporate Officers Enforcement Actions FTC Secretary of State Service of Process

The SEC’s Sorcerer’s Stone – Changing EBITDA From A Performance Measure Into Liquidity Measure

Recently, Broc Romanek hosted another one of his excellent webcasts. This one covered the SEC’s Division of Corporation Finance’s recent issuance of several new and modified Compliance & Disclosure Interpretations regarding...more

7/18/2016 - C&DIs EBITDA Liquidity Non-GAAP Financial Measures SEC

What’s With The “U” In Guarantee (Or Should That Be Guaranty)?

Spelling and pronouncing English words can be a challenge. I’ve often been puzzled by the word “guarantee”. What’s the point of including the unpronounced “u”? The word is derived from an Old French word, garantir meaning...more

7/15/2016 - Legal Writing

The DBO Wants Your Social Security Number, But Is It Legal?

Readers will recall that last year the California legislature created a statutory exemption for finders from the California’s registration requirement for broker-dealers (Chap. 743, Stats. 2015). That exemption, codified at...more

7/14/2016 - Broker-Dealer Comment Period Department of Business Oversight Exemptions Proposed Regulation Registration Requirement Statement of Information

How Much Does Your Banker Make?

In the midst of the Great Depression, The New Yorker published a poem by Ogden Nash entitled “Bankers Are Just Like Anybody Else, Except Richer”. But are bankers really wealthier than hoi polloi? The answer may be found in...more

7/13/2016 - Banks Department of Business Oversight Executive Compensation Hedge Funds Section 16

Is Rule 10b-5 The “Mother Of All Litotes”?

Yesterday’s post addressed the use of litotes in California’s broker-dealer suitability rule. Litotes can be an effective rhetorical device, but as Judge Frank H. Easterbrook observed, it is also ambiguous. Associated...more

7/12/2016 - Broker-Dealer Corporations Code Material Misstatements Rule 10(b)

Suitability Of Broker-Dealer Recommendations And Litotes

The Financial Industry Regulatory Authority, better known as FINRA, imposes a suitability requirement on its members. Rule 2111(a) requires, in part, that a broker-dealer or registered representative “have a reasonable basis...more

7/11/2016 - Broker-Dealer Department of Business Oversight FINRA Suitability Requirements

Class A Is Class A and Class B Is Class B And Shall Ever The Twain Meet?

In addition to directors and officers, Section 16 of the Securities Exchange Act of 1934 applies to every person who is “directly or indirectly the beneficial owner of more than 10 percent of any class of any equity security...more

7/8/2016 - Beneficial Owner Equity Securities Securities Exchange Act Share Classes

Is Certiorari A Possibility For SLUSA Question Not Addressed By Any Federal Circuit Court?

In Luther v. Countrywide Financial Corp., 195 Cal. App. 4th 789 (2011), the trial court ruled that state courts do not enjoy concurrent jurisdiction when a class action meeting the definition of a “covered class action” under...more

7/7/2016 - Class Action Countrywide Petition for Writ of Certiorari SLUSA Subject Matter Jurisdiction

Liechtenstein and Article II, Section 1 of the Constitution

I spent the Fourth of July holiday in the Fürstentum Liechtenstein, a very beautiful and surprisingly inaccessible part of Europe. Its capital city has no airport. The country is also largely vertical, as it is sandwiched...more

7/6/2016 - Article II Citizenship Political Candidates Residency Requirements

California Legislature Mulls Anti-Short Selling Bill

In April, I wrote about a bill, SB 726 (Hueso), that would have added a new section to the Corporate Securities Law banning false statements to government officials for the purpose of manipulating the price of a company’s...more

7/5/2016 - Capital Markets Hedge Funds Pending Legislation Price Manipulation Securities Exchange Act

Does “Valid When Made” Apply To Evidences Of Indebtedness Qualified Under The CSL?

Many have expressed disappointment that the U.S. Supreme Court denied certiorari in Midland Funding, LLC v. Madden. The question presented by the petitioners in the case was as follows...more

6/30/2016 - Assignments Consumer Lenders Debt Buyers Madden v Midland Funding Midland Funding National Bank Act SCOTUS Usury

SEC Declines To Define “Mineral” In Resource Extraction Rule But Then Defines It Anyway

As reported by Broc Romanek yesterday, the Securities and Exchange Commission adopted (again) a resource extraction rule. Congress had ordered the SEC to adopt a rule by April 17, 2011. After belatedly adopting a rule, the...more

6/29/2016 - American Petroleum Institute Disclosure Requirements Mineral Extraction Oxfam America Proposed Regulation Resource Extraction SEC

Is Counterfeit Currency A Bank Note?

Counterfeiting was once considered to be tantamount to treason. It is still a serious, but not capital, crime. In fact, it is one of only four crimes specifically mentioned in the Constitution. Notably, however, the...more

6/28/2016 - Bank Notes Counterfeiting Criminal Prosecution Forgery U.S. Treasury

Are A Breach Of Fiduciary Duty And A Breach Of Governing Documents “Non Bis In Idem”?

Last week, I discussed the Court of Appeal’s consideration of whether the business judgment rule protects a director from claims based on breach of the corporation’s governing documents. See Does The Business Judgment Rule...more

6/27/2016 - Board of Directors Breach of Duty Business Judgment Rule Bylaws Fiduciary Duty Homeowners' Association

Does The Business Judgment Rule Protect Directors Who Violate Governing Documents?

Under the business judgment rule, a director will not be liable for a mistake in business judgment provided that certain conditions are met. In the case of a California nonprofit mutual benefit corporation, a director who...more

6/24/2016 - Board of Directors Business Judgment Rule Homeowners' Association Non-Profits Personal Liability

What Is A Knowing Violation Of Law?

Nevada’s private corporation law automatically exculpates directors and officers from individual liability from individual liable to the corporation or its stockholders or creditors for any damages as a result of any act or...more

6/23/2016 - Board of Directors Corporate Officers Corporations Code Personal Liability

10th Circuit Highlights Difference Between Delaware And Nevada Exculpatory Statutes

Because the power to manage a corporation’s affairs rests with the board of directors, it is normally up to the board to decide whether the corporation will pursue a claim. A shareholder who believes that the corporation...more

6/22/2016 - Articles of Incorporation Board of Directors Delaware General Corporation Law Demand Futility Exculpatory Clauses Personal Liability

Genealogy And The Corporate Lawyer

Who is family and how close are they? These aren’t questions that typically occupy the mind of a corporate lawyer. Occasionally, however, consanguinity matters even to a corporate lawyer. Thus, Section 308 of the...more

6/21/2016 - Corporate Governance Corporations Code Probate Code Shareholders

The Legal William Shakespeare

This past April marked the 400th anniversary of the death of William Shakespeare. See Happy Birthday William Shakespeare! In 37 plays, Shakespeare wrote of kings, generals, lovers, and fools. He also made frequent mention...more

6/20/2016 - Shakespeare

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