Business Organization Civil Procedure

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Practical Considerations in Identifying and Preparing Your Rule 30(b)(6) Witnesses

As you know, Rule 30(b)(6) of the Federal Rules of Civil Procedure and state counterparts allow a party to depose organizations, including corporations. The party requesting this type of deposition must describe with...more

“That’s [Not] Privileged”: A Corporation’s Duty to Prepare a 30(b)(6) Witness Includes Sharing Knowledge of Legal Counsel

When a company is noticed for a deposition, it has a duty to prepare its witnesses to fully and unevasively answer questions about the designated subject matters. Companies may not realize, though, that the preparation must...more

KBR And Maintaining Privilege Throughout Investigations

Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders...more

Focus on Tax Strategies & Developments - October 2015

Regulatory Developments Under § 367 Affecting Transfers of Appreciated Property to Foreign Corporations - Introduction: On September 14, the U.S. Department of the Treasury (Treasury) and the Internal Revenue...more

MoFo New York Tax Insights - Volume 6, Issue 10

State Tax Department Releases Draft Article 9-A Nexus Regulations Under Corporate Tax Reform - The New York State Department of Taxation and Finance has released draft amendments to the Article 9-A corporate franchise...more

CLIENT ALERT: Delaware Supreme Court Finds That Fully Informed Stockholder Vote Approving Merger Invoked Business Judgment Rule

Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015). In this opinion affirming the Court of Chancery’s dismissal of a purported class action challenging an acquisition transaction, the Delaware...more

Court Of Chancery Upholds Contribution Claim

This interesting decision both explains the conspiracy theory of jurisdiction and upholds an equitable contribution claim by the company required to advance fees to a director to have the director’s companies contribute...more

UK tax treatment of US LLC: HMRC’s practice following Anson

We reported earlier this year on the UK Supreme Court’s decision in HMRC v Anson, in which it was held that a UK taxpayer, Mr. Anson, was entitled to claim relief against his UK tax liabilities for US tax paid on his share of...more

Securities Claims Based on Item 303 of Regulation S-K: It Just Doesn’t Matter

In January 2015, the Second Circuit held in Stratte-McClure v. Morgan Stanley, 776 F.3d 94 (2nd Cir. 2015), that Item 303 of Regulation S-K imposes a duty to disclose for purposes of Section 10(b), meaning that the omission...more

D.C. Circuit Reinforces Attorney-Client Privilege Applicable to Internal Investigations

On August 11, 2015, the United States Court of Appeals for the District Court of Columbia issued a decision of importance to all companies that seek to maintain privilege with respect to internal investigations. The D.C....more

In re Appraisal of Dell Inc., C.A. No. 9322-VCL (Del. Ch. July 13, 2015) (rev'd July 30, 2015) (Laster, V.C.)

In this memorandum opinion, the Delaware Court of Chancery granted a defendant’s motion for summary judgment, holding that the continuous holder requirement set forth in Section 262 of the General Corporation Law of the State...more

Mannix v. PlasmaNet, Inc., C.A. No. 10502-CB (Del. Ch. July 21, 2015) (Bouchard, C.)

In this memorandum opinion, the Court of Chancery granted a motion to dismiss and approved a settlement whereby certain former stockholders would dismiss their appraisal demands in exchange for shares of the surviving...more

Is Safe Harbor Still Safe? U.S. Companies Face Challenges Ahead on the EU Privacy Horizon

Pursuant to European Commission Decision 2000/520, United States–based companies may freely process the personal data of European Union citizens, provided that those companies adhere to the principles and frequently asked...more

"Delaware LLCs and UK Entity Classification: The Fallout From the Curious Case of George Anson"

Fundamental to any developed tax policy is knowing who the taxpayer is (or should be) with respect to any particular transaction. Although that can be relatively straightforward in purely domestic situations, a cross-border...more

Copyright Strategies for Start-Up Companies

As a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings. If you are savvy, you are also aware of the...more

Why Is John Prine Involved In A Suit By Shareholder Activists?

In one of the more consequential legal decisions of recent times, Magistrate Judge Kelly Rankin ruled recently that she would not strike part of a complaint filed by shareholder activists against Peabody Energy Corporation,...more

The Delaware Court Of Chancery’s Not So Exclusive Jurisdiction

Section 145(k) of the Delaware General Corporation Law is quite clear and emphatic about which court may hear actions for indemnification or advancement of expenses: The Court of Chancery is hereby vested with exclusive...more

SEC Proposes Amendments to Rules Governing Administrative Proceedings

The Securities and Exchange Commission appears to be hearing the music. In response to the many voices that have expressed dissatisfaction with the procedures used in SEC administrative hearings, the SEC today issued proposed...more

Disclosure-Only Settlements Face Continued Scrutiny In Delaware

On Thursday, September 17, 2015, in In re Riverbed Technology, Inc. Stockholders Litigation, the Delaware Chancery approved a disclosure-only settlement related to the go-private deal for Riverbed Technology, Inc. Although...more

Fourth Circuit: Business Judgment Rule May Not Protect Bank Officers in FDIC Action

Why it matters - Bank officers may be liable in a lawsuit brought by the Federal Deposit Insurance Corp. (FDIC) while the directors escaped liability, in a new ruling from the Fourth Circuit Court of Appeals interpreting...more

A Farewell to Alms? Peppercorn Settlements of M&A Litigation

An apparently frustrated Delaware Vice Chancellor recently approved yet another disclosure-only settlement of yet another challenge to a merger, but seemed intent on signaling that such proposed class-action settlements might...more

Yaiguaje v Chevron Corporation: Supreme Court releases leading decision on the enforcement of foreign judgments in Canada

Summary - - Supreme Court of Canada favours a relaxed approach to the recognition and enforcement of foreign judgments in Canada. - For a Canadian court to recognize and enforce a foreign judgment, a judgment...more

Delaware District Court Explains Securities Law Pleading Rules

This decision is an excellent primer for what must be plead to state a claim under various sections of the federal securities laws. The pleadings rules to establish a claim well enough to avoid a motion to dismiss are...more

D&O Policies: A Possibility for TCPA Coverage?

Business is booming for plaintiffs’ attorneys wielding the Telephone Consumer Protection Act (TCPA). The TCPA restricts unsolicited telemarketing by fax, voice calls and text messages. Violations can trigger liability of at...more

A Tale of Two Protests: Itemized SBA JV Agreements and Dependence on a Large Business Determination Not Upheld

Recently, two Small Business cases that came out that are notable. Both protests affect Small Business Administration interpretation and application of affiliation rules. The first protest defeated a joint venture agreement...more

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