Mintz Levin - Securities Matters

Delaware Bans Corporate Fee-Shifting Bylaws and Authorizes Delaware-Only Forum Requirement for Intra-Corporate Litigation

Delaware recently enacted new legislation to prohibit stock corporations from adopting fee-shifting bylaws and charter provisions, among other amendments to the Delaware General Corporation Law. The fee-shifting ban ends a…more
| Business Organizations, Securities Law

Happy Public Float Day!

If you are a year-end company, today is the end of your second fiscal quarter, which means that it’s just about time to calculate your public float to see if your reporting status has changed. Here are a few things to…more
| Business Organizations, Securities Law

Data Security Breach Documents Sought in Home Depot Books-and-Records Suit

Home Depot was recently hit with a books-and-records suit in the Delaware Court of Chancery, Frohman v. Home Depot, which seeks documents relating to the giant retailer’s data security breach last September. The plaintiff, a…more
| Business Organizations, Electronic Discovery

Regulation A+ goes effective today

Despite the attempt by the State of Montana’s securities division to stay the rule, Regulation A+ is effective as of today, June 19, 2015. Regulation A+ allows companies organized in the U.S. and Canada to raise money from…more
| Business Organizations, Commercial Law & Contracts, Finance & Banking, Securities Law

Massachusetts Supreme Judicial Court Takes Expansive View of Investment Advisor’s Liability Under Blue Sky Law in Hays v. Ellrich

Last week, the Massachusetts Supreme Judicial Court (SJC) handed down Hays v. Ellrich, a decision with important implications for the investor advising community. The case is significant for two reasons. First, even though the…more
| Business Torts, Civil Procedure, Finance & Banking, Securities Law

Federal Court Rules That SEC Administrative Proceeding Is “Likely Unconstitutional”

As we discussed in a post last November, the SEC’s increasing use of enforcement proceedings before its own administrative law judges (ALJs), rather than before federal court judges, has spawned a number of constitutional…more
| Administrative Law, Constitutional Law, Securities Law

Why Directors and Officers Should Demand a Separate Indemnification Agreement

Corporate directors and officers (“D&O’s”) face significant personal exposure whenever their corporation is involved in a dispute or investigation. For this reason, prudent D&O’s avail themselves of all available legal…more
| Business Organizations, Commercial Law & Contracts, Insurance

Massachusetts Federal Court Holds That LLC Operating Agreement Does Not Shield Defendants from Liability for Breaching Their Fiduciary Duties to Closely Held Corporations

A recent decision by Judge F. Dennis Saylor of the U.S. District Court for the District of Massachusetts, Butler v. Moore, C.A. No. 10-10207-FDS U.S. Dist. LEXIS 39416 (D. Mass. Mar. 26, 2015), offers an example of how fiduciary…more
| Business Organizations, Communications & Media Law

DOJ Emphasizes Role of Criminal Prosecution in Addition to Regulatory Enforcement

The U.S. Department of Justice, through the Assistant Attorney General in charge of its Criminal Division, spoke forcefully on Tuesday regarding “the role of criminal law enforcement in prosecuting conduct that may also be…more
| Administrative Law, Business Organizations, Criminal Law, Securities Law

Preserving Net Operating Losses (NOL) Carryforward: What Are You Doing to Protect Your Company’s Valuable Tax Assets?

A company’s past NOLs can be used to offset taxable income in future years, subject to certain limitations. For companies that have operated at a significant loss and expect to turn a profit in the foreseeable future, the…more
| Business Organizations, Finance & Banking, Securities Law, Taxation

SEC Announces Action Against Company for Using Confidentiality Agreements That Allegedly Could Deter Whistleblowers

As we discussed in a post last month, the SEC has been closely scrutinizing whether companies may be using non-disclosure and confidentiality agreements that could discourage employees from acting as whistleblowers and…more
| Business Organizations, Finance & Banking, Labor & Employment Law, Securities Law

IRS Releases Final Regulations Clarifying 162(m) Limitation on Compensation

Section 162(m) of the Internal Revenue Code precludes the deduction by public companies for compensation paid to certain covered employees in excess of $1,000,000 in any taxable year. This limitation on deduction does not apply…more
| Commercial Law & Contracts, Labor & Employment Law, Securities Law, Taxation

SEC Adopts Regulation A+: New Registration Option For Small and Mid-Sized Companies

The Securities and Exchange Commission adopted yesterday a new set of regulations entitled Regulation “A+,” designed to provide a more streamlined approach for small and mid-sized companies to offer securities to the public…more
| Business Organizations, Commercial Law & Contracts, Finance & Banking, Securities Law

Delaware Bar Proposes Amendments to Ban Fee-Shifting Provisions and Allow Delaware-Only Forum Selection Provisions in Corporate Charters and Bylaws

The Council of the Corporation Law Section of the Delaware State Bar Association recently released proposed amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee-shifting provisions in a corporation’s…more
| Business Organizations, Civil Procedure, Commercial Law & Contracts, Elections & Politics, Securities Law

Supreme Court Holds That Issuers Can Be Liable for Omitting Material Facts From Statements of Opinion in Omnicare Case

In its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, released yesterday, the U.S. Supreme Court held that a securities issuer’s statement of opinion in a registration statement, even…more
| Business Organizations, Business Torts, Securities Law
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