Bylaws

News & Analysis as of

Recent Governance and Gift-Giving Guidance from the Non-Profit/Public Charities Division

The Non-Profit Organizations/Public Charities Division of the Office of the Attorney General (the “Division”) recently released helpful guidance regarding (i) good governance of charitable organization and (ii) the rules that...more

Can a futures brokerage firm pay trailing commissions to an inactive AP or his estate?

Can a futures commission merchant (FCM) or other commodity futures industry registrant pay trailing commissions to a former associated person (AP) whose registration has been revoked? Or who has retired and is no longer...more

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue). Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted. Our state Wetlands...more

Who Signs The Bylaws?

I am occasionally asked who should sign the bylaws. The question presumes that bylaws must be signed. Although the California General Corporation Law requires that the original or a copy of the bylaws be available to...more

Ouch! Proxy Statement Argues That Resolving Dispute In California Court Was “Costly And Time Consuming”

As Ralph Waldo Emerson once famously told Oliver Wendell Holmes, Jr.: ““Holmes, when you strike at a king, you must kill him.” For the full story, see The Corporations Code Can Make Suing Your Former Employees Costly. I was...more

Accountability and Transition in ICANN’s New gTLD Program

Bringing accountability to the Internet Corporation for Assigned Names and Numbers (ICANN), the little known yet hugely significant global regulator of the Internet domain name system, is always a significant victory. ICANN...more

The Code-Based Fund: The Future of Crowdsourced Startup Funding

For your startup business, crowdfunding campaigns can be a great way to both raise funds and validate your product market. Bridging the gap between crowdfunding and venture financing, the Decentralized Autonomous...more

Court Reverses Summary Judgment On Breach Of Fiduciary Duty Claim Against Corporate Director

In E&E Serv. & Supply v. Ruddick, a corporation sued a former employee who formed a competing business. No. 11-14-00055-CV, 2016 Tex. App. LEXIS 7514 (Tex. App.—Eastland July 14, 2016, no pet. history). The trial court...more

“Veep”: The Evolving Law of Advancement and Indemnification

Companies confer title of “Vice President” on a wide range of employees, from senior executives, in some cases, to line-level personnel, in others. While distinguishing someone functioning as a senior executive from someone...more

CA Corps Not Obligated to Make Records Available for Inspection in California

The California Court of Appeal recently ruled that an inspection demand under California Corporations Code section 1601 requires a corporation to make its books and records available for inspection at an office where they...more

An Analysis of Nasdaq’s “Golden Leash” Disclosure Rule

On July 1, 2016, the Securities and Exchange Commission (SEC) approved, on an accelerated basis, Nasdaq’s new Rule 5250(b)(3), which requires Nasdaq-listed U.S. companies to publicly disclose any arrangements or agreements...more

Preparing Yourself and Your Client for Chapter 11: Part I of II – The Petition Package, Filing the Case, Filing Fees, and First...

As a Chapter 11 debtor’s attorney, the prospect of serving as debtor’s counsel is an exciting – and increasingly rare – opportunity. The preparation for filing a Chapter 11 case involves negotiating complex cash collateral...more

"Proxy Access: Highlights of the 2016 Proxy Season"

Encouraged by the success of proxy access proposals in the 2015 proxy season, shareholder proponents have submitted almost 200 proxy access shareholder proposals for 2016 annual meetings. As of mid-June, approximately 65...more

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

NPRA Redux: Proposed NPCL Amendments Approved by Senate and Assembly

The New York State Assembly and Senate have passed a bill that, if signed by the Governor, would amend the Not-for-Profit Corporation Law (the “NPCL”) and the Estates, Powers and Trusts Law (the “EPTL”) to clarify and refine...more

New Law: Has Your PA Corporation Updated its Bylaws?

It is now almost one year since the Associations Transaction Act came into effect in Pennsylvania on July 1, 2015. It is a good time to ask the question: Has your Pennsylvania corporation updated its Bylaws? ...more

Drafting Bylaws – Four Things To Consider

Four points to consider when drafting these often crucially important, but tiresome, documents: - Distinguish among Shall/Will/Must. I often cite Bylaws as an example of how “shall” may sometimes mean “must” while other...more

Maintain Separation Between A Nonprofit And The Foundation That Supports It

A nonprofit corporation is a business with assets and liabilities just like any other business. When a nonprofit runs into financial trouble, its creditors usually do the same thing as creditors of a for-profit business: ...more

A Recent Illinois Decision Explains How to Deal with Medical Staff Claims

The Illinois Supreme Court released a decision on May 19, 2016 that provides useful guidance in defending and protecting a claim by a medical staff member against a hospital for improperly failing to appoint or reappoint or...more

Who Decides Whether A Shareholder Has Complied With An Advance Notice Bylaw?

UCLA Professor Stephen Bainbridge asked the following question concerning advance notice bylaw provisions in “The Professor is Stumped: Today’s Corporate Law Question“...more

The Court of Chancery Declines to Disturb Company’s “Waiver” of its Forum Selection Bylaw to Settle Derivative Action in...

Many Delaware companies have adopted forum selection bylaws that prevent their stockholders from bringing internal corporate claims in courts outside of Delaware. These bylaws are a valid and effective tool for limiting...more

SEC Begins to Define “Substantial Implementation” Under Proxy Rule 14a-8(i)(10)

The SEC has recently provided guidance on the permissibility of excluding shareholder proxy access bylaw proposals under Proxy Rule 14a-8(i)(10). Rule 14a-8(i)(10) allows a company to exclude a shareholder proposal that has...more

Help Your Clients with Spring Cleaning

As the weather warms, I find myself wanting to do household spring-cleaning chores while also dreading the effort. I long for a day to pack away winter coats and make room for lighter, brighter clothes in the closet, to...more

SEC Releases Additional No-Action Letters on “Substantial Implementation” of Shareholder Proxy Access Proposals

In the last year, the number of companies that have adopted proxy access bylaws provisions – and the number of proxy access proposals submitted by shareholders – has risen significantly. Competing proxy access provisions...more

The Regulator Knows Best: British Columbia Court of Appeal Upholds Bylaws Prohibiting Customer Incentive Programs

In Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41, the British Columbia Court of Appeal determined that it was reasonable for the College of Pharmacists to prohibit pharmacists from using...more

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