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Corporate and Securities
What Happens When A Broker-Dealer Fails? A Summary Of Certain Key Bankruptcy Code and SIPC-Related Issues, by
Marc Abrams, Michael Kelly, Paul Shalhoub and Jack Habert.
This memorandum highlights certain provisions of United States law relevant to a customer of a
registered broker-dealer (like Bear Steams) in the event of its insolvency. an entity that is classified as a "stockbroker" or "commodity broker" under the
Bankruptcy Code is not entitled to seek chapter 11 protection to reorganize its business.^
Instead, the only chapter of the Bankruptcy Code available to a stockbroker or commodity broker
is chapter 7, which is the liquidation chapter of the Bankruptcy Code. Moreover,
notwithstanding the automatic stay provisions of the Bankruptcy Code, the Securities Investor
Protection Corporation ("SIPC") may file an application for a protective decree under the Securities Investor Protection Act of 1970
Federal.
6 pages. Written:
2008. Added:
3-09-2009.
Firm site
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Corporate and Securities
Pre-Merger Conflicts Due Diligence - Top Ten Tips, by
Eric Mosca.
An assessment to benchmark your current processes and resources is vital to understanding what your firm is capable of searching and reporting, and how quickly. This article will cover ten tips to streamline the conflicts due diligence process in anticipation of or in the case of a potential merger.
Non-Specific.
1 pages. Written:
2008. Added:
2-26-2009.
Law Technology Today
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Corporate and Securities
Did Adoption of Forward-Looking Valuation Methods Improve Valuation Accuracy in Shareholder Litigation?, by
Feng Chen, Kenton K. Yee, Yong K. Yoo.
Prior to 1984, Delaware judges relied exclusively on the Delaware Block method - an appraisal formula based on trailing earnings and liquidation value - to price shares in shareholder litigation. In 1984, the Delaware Supreme Court changed the law to permit its judges to use any valuation method they deem appropriate. As a result, judges and litigants began switching away from the Block method and adopting forward-looking valuation techniques based on cash flow and earnings forecasts. While the use of forward-looking methods potentially improves valuation accuracy by incorporating forecast information, the use of forecasts allows more room for subjective manipulation. Did the adoption of forward-looking methods improve or reduce valuation accuracy in shareholder litigation?
Delaware.
25 pages. Written:
2007. Added:
12-14-2008.
Journal of Accounting, Auditing and Finance
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Corporate and Securities
Securities Fraud, by
Kenneth M. Breen; Thomas R. Fallati.
Of course, given the SEC’s emphasis on corporate cooperation, entities that are under an SEC investigation may face requests for waivers of objections to the production of records located overseas. Still, counsel should be prepared to advance possible jurisdictional or diplomatic objections to the production of such records, and needs to consider criminal issues.
Non-Specific.
1 pages. Written:
2007. Added:
9-12-2008.
nacdl.org
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Criminal
Keeping The Board Of Directors Cool While The Company's In The Hot Seat, by
Stephanie A. Martz.
Describes couple of valuable insights from the board members and general counsels, and their insights that we should all keep in mind whether we represent businesses, corporations or employees in corporate and securities, criminal or other matters.
Non-Specific.
1 pages. Written:
2005. Added:
9-12-2008.
nacdl.org
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Corporate and Securities
20 Questions Directors Should Ask About Directors' and Officers' Liability, Indemnification & Insurance, by
Richard J. Berrow.
The briefing is designed to be a concise, plain English introduction to the role of indemnification contracts and directors and officers insurance in corporate governance and risk management. The briefing includes provides practical examples of both pitfalls and opportunities to enhance coverage, in question and answer format. Richard regularly advises clients of the firm on corporate indemnification matters, and on placing and enforcing D&O insurance. He spoke on this topic to the National Audit Committee Conference of the CICA in Toronto in November, 2007.
Non-Specific.
32 pages. Written:
2008. Added:
7-04-2008.
www.fasken.com
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Corporate and Securities
Director and Officer Liability Trends, by
Gordon (Chip) Davenport.
Gives an overview of the latest trends in director and officer (D&O) litigation and the D&O insurance marketplace. Panelists discussed how insurance companies evaluate the companies for which they write D&O policies as well as steps a company and its
directors and officers can take to secure the best possible D&O insurance coverage.
Non-Specific.
6 pages. Written:
2008. Added:
7-04-2008.
Foley & Lardner LLP
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Corporate and Securities
Audit Committee Trends, by
Foley.
The discussion highlighted audit committees’ experiences with the Sarbanes-Oxley Act (SOX) Section 404 and the Public Company Accounting Oversight Board (PCAOB) Auditing Standard No. 5. Panelists examined how audit committees address an array of recurring quarterly review and inquiry responsibilities; audit committee meetings and logistics; the role of audit committees in
the oversight of risk management; and retention of counsel for internal investigations with corresponding attorney-client privilege issues.
Non-Specific.
5 pages. Written:
2008. Added:
7-04-2008.
www.foley.com
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Corporate and Securities
Designated Directors and Designating Investors: Early Planning is Key, by
David M. Morris, Lois Herzeca and Julie E. Kamps.
The designating investor believes that the designated director will protect the investor’s interests by consulting with the investor on major corporate decisions. This is a situation, however, where investors, the directors they
appoint, and the corporations on whose board they
serve should all be wary. The article assumes that the investor is not a controlling shareholder, although many of the same principles would apply to a controlling shareholder.
Non-Specific.
6 pages. Written:
2008. Added:
7-02-2008.
The Corporate Governance Advisor
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Corporate and Securities
Securities Disclosure, by
Alan Singer.
This article principally addresses the voluntary notice and access model adopted in the voluntary notice and access Release, which will constitute the "notice only option" after effectiveness of the revised notice & access rules.
Non-Specific.
11 pages. Written:
2007. Added:
5-09-2008.
Insights
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Corporate and Securities
Strong Inference, by
Gregory G. Ballard and Kathryn F. Shreeves.
The 9th Circuit has most directly confronted
the problem of competing, equally weighted
inferences. In Makor,
the 7th Circuit joined several other circuits
in rejecting the 2d Circuit’s “motive
and opportunity” test. 437 F.3d at 601;
Non-Specific.
2 pages. Written:
2007. Added:
4-04-2008.
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Corporate and Securities
Allegiance Telecom: The Fifth Circuit’s Recent Ruling on Class Certification in Securities Fraud Actions, by
Jonathan M. Hoff and Joshua R. Weiss.
For the second time in three months, the Fifth Circuit Court of Appeals has issued a decision that could dramatically affect the landscape for class certification in securities litigation. Plaintiff s typically attempt to demonstrate predominance by invocation of the presumption of reliance aff orded by the fraud-on-the-market theory.
Non-Specific.
6 pages. Written:
2007. Added:
4-04-2008.
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Corporate and Securities
Selected Enforcement Cases and Developments In the First Half of 2007 Regarding Broker-Dealers, by
Ben A. Indek, Michael S. Kraut, Matthew R. Kalinowski and Alice L. McCarthy.
In 2007, the SEC has been busy pursuing alleged insider traders; several of
those cases involve alleged improper trading and tipping by Wall Street professionals.
The Commission continued to bring cases in the mutual fund market timing, auction rate
securities, conflict of interest and best execution areas. Finally, the Commission has
als
Federal.
49 pages. Written:
2007. Added:
4-03-2008.
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Corporate and Securities
Marriages Gone Bad: A Close-Up Look at Mergers and Acquisitions, by
Céline B. Gerson.
Mergers & acquisitions are generally consummated in hopes of realizing an economic gain. The buyer's strategy to obtain potential revenue enhancement, cost reductions, lower cost of capital, or strategic benefits may be shattered a few years or even months after completion of the transaction when it discovers that it purchased significant liability
Non-Specific.
1 pages. Written:
2007. Added:
4-02-2008.
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Corporate and Securities
Insider Trading and Company Counsel, by
John J. Carney and Jimmy Fokas.
Insider trading liability revolves around two primary theories of liability: The Classic Theory and the Misappropriation Theory. The Classic theory involves corporate insiders who knowingly trade in company stock on
the basis of material nonpublic information,
as well as corporate insiders who have tipped others who traded on this information.
Non-Specific.
3 pages. Written:
2007. Added:
4-02-2008.
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Corporate and Securities
Dos and Don'ts For a Board Investigation, by
George Stamboulidis and Jamie Pfeffer.
The duty of a Director of any business is to protect the company and its shareholders' interests. This article seeks to guide directors through this process and avoid the traps that appear in accompanying scenario (see box) that many corporate stewards may find themselves confronting.
Non-Specific.
4 pages. Written:
2007. Added:
4-02-2008.
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Corporate and Securities
‘Oscar’: Nearing the End of Fraud-on-Market Theory?, by
H. Peter Haveles.
Oscar represents an important step by
appellate courts towards judiciary’s eventual abandonment of presumption & full-fledged embrace of Justice White’s dissent. Based on Oscar & other appellate decisions, it seems as though repudiation of fraud-on-the-market theory will continue & Justice White’s opinion will sometime soon become law of the land
Non-Specific.
2 pages. Written:
2007. Added:
3-12-2008.
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Corporate and Securities
Going to Trial Against the SEC, by
Terence J. Lynam.
Every trial is different, but trying a case against SEC will present characteristically unique challenges, with a lot at stake for a defendant. Although SEC wins majority of the relatively small number of cases it takes to trial each year, it does not win them all. If you proceed to trial, you can expect to encounter a number of predictable scenarios.
Non-Specific.
6 pages. Written:
2007. Added:
3-11-2008.
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Corporate and Securities
Fiduciary Duty Update: Delaware and Texas, by
Byron F. Egan.
SEC disclosure requirements and SOX significantly influence the governance of the internal affairs of public companies, including executive compensation processes, and are increasingly influencing best practices for private companies and nonprofit organizations.
Delaware.
268 pages. Written:
2008. Added:
3-08-2008.
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Alternative Dispute Resolution
Roadmap to Securites ADR, by
Constantine N Katsoris.
Article provides overview of securities arbitration form a corporate and securities viewpoint.
select-JD.
10 pages. Written:
2006. Added:
11-04-2007.
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Corporate and Securities
Director and Officer Liability Trends and D&O Insurance – Advanced Issues, by
Foley & Lardner.
The panel presentation featured an overview of the latest trends in D&O litigation and the D&O insurance marketplace; how insurance companies scrutinize the companies they write D&O
policies for and what a company and its directors and officers can do to get the best possible D&O insurance coverage;
Non-Specific.
8 pages. Written:
2007. Added:
5-10-2007.
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Corporate and Securities
Environment Law 2007, by
Linda E. Benfield, Richard G. Stoll.
Global Legal Group Limited publishes current and practical comparative legal information on a range of key practice areas. The guides provide comprehensive coverage of each topic within different legal systems worldwide. They follow a question & answer format to ensure a thorough explanation, drawn from a collective group of contributors.
Non-Specific.
7 pages. Written:
2007. Added:
5-10-2007.
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Corporate and Securities
Busted M&A deals headed for litigation: What happens when bad things surface between signing and closing, by
Byron F. Egan, R. Franklin Balotti, Nathaniel L. Doliner, George W. Patrick, H. Lawrence Tafe, III.
The issues facing the parties in a soured acquisition will depend somewhat on the structure of the transaction and the wording of the acquisition agreement. Regardless of the wording of the agreement, however, there are some situations in which a buyer can become responsible for a seller’s
liabilities under successor liability doctrines.
Non-Specific.
290 pages. Written:
2005. Added:
5-05-2007.
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Corporate and Securities
Director fiduciary duties under Delaware and Texas law, by
Byron F. Egan.
The conduct of directors and officers is subject to particular scrutiny in the context of
executive compensation, business combinations, whether friendly or hostile, and when the corporation is charged with illegal conduct. The individuals who serve in leadership roles for corporations are fiduciaries in relation to the corporation and its owners.
Non-Specific.
202 pages. Written:
2007. Added:
5-05-2007.
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Corporate and Securities
Private Company Acquisitions, by
Byron F. Egan, H. Lawrence Tafe, III.
The issues facing the parties in an asset purchase transaction will depend somewhat on the structure of the transaction and the wording of the acquisition agreement. Regardless of the wording of the agreement, however, there are some situations in which a buyer can become responsible for a seller’s liabilities under successor liability doctrines.
Non-Specific.
311 pages. Written:
2006. Added:
5-05-2007.
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Corporate and Securities
Compensation Process, by
Byron F. Egan.
The individuals who serve in leadership roles for corporations are fiduciaries in relation to the corporation and its owners. These times make it appropriate to focus upon the fiduciary and other duties of directors and officers, including their duties of care, loyalty and oversight.
Non-Specific.
221 pages. Written:
2007. Added:
5-05-2007.
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Corporate and Securities
Anatomy of a Purchase and Sale Contract, by
Barbara A. Kennedy.
The Contract of Sale ("Contract") is a roadmap from conceptual "deal" to
Closing. This article addresses numerous typical real estate contract provisions used in
Texas, providing background for some, negotiating points for others, & general
overview. Typically, Contract provides legal description from the survey will be used in deed at closing.
Texas.
24 pages. Written:
2006. Added:
5-05-2007.
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Corporate and Securities
Four Years After SOX: Where Are We?, by
M. Carter Crow and Kristan Peters.
Congress passed the Sarbanes-Oxley Act of 2002 four years ago. Just how harsh is the current legal climate for companies and individuals? The presentation focuses on both the employment-law perspective of Sarbanes-Oxley and the corporation's duties and responsibilities in recognizing and preventing fraud and corruption.
Non-Specific.
35 pages. Written:
2006. Added:
4-29-2007.
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Corporate and Securities
Paying Finders' Fees, by
Walter Bissex.
The U.S. Securities and Exchange Commission has recognized a difference between a finder and a broker/dealer in a number of no action letters, but the SEC has not provided a clear definition of a “finder.” If these restrictions on a finder’s activities are not satisfied, then either the finder would have to forgo payment.
Non-Specific.
2 pages. Written:
2006. Added:
4-29-2007.
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Corporate and Securities
The Expanding Securities Enforcement and Litigation Net, by
Harold Degenhardt and Gerard Pecht.
With the Enron story back in the headlines, Fulbright's program provided an update of how the law is developing in this area--and the actions that regulatory authorities and plaintiffs' lawyers are taking to hold in-house counsel responsible for corporate problems.
Non-Specific.
21 pages. Written:
2006. Added:
4-29-2007.
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Corporate and Securities
Recent SEC and PCAOB Proposals Focus on Internal Control over Financial Reporting, by
Arthur Rogers and Elisa Douglass Watts.
Securities & Exchange Commission has recently proposed interpretive guidance with respect to management’s evaluation of internal control over financial reporting specifically designed to provide management with a risk-based approach to assess whether its system of internal control over financial reporting is effective to prevent on a timely basis.
Non-Specific.
2 pages. Written:
2007. Added:
4-26-2007.
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Corporate and Securities
SOX & Procurement What’s The Connection?, by
Mike Taylor, C.P.M..
Sarbanes Oxley Act of 2002
Directs SEC to enact rules protecting
shareholders & the economy
Honesty in financial reporting
Responsibility at the Top
Demonstrate Compliance
Section 404 of the SOX Act,
Management Assessment of Internal Controls; "adequate internal control structure".
Non-Specific.
14 pages. Written:
2006. Added:
4-26-2007.
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Corporate and Securities
Investment Disputes with China, by
Mark Cymrot.
A new awareness of the benefits of foreign investment is moving China to accept broader international arbitration and alternative dispute resolution provisions with investors of its principal trading partners and reform CIETAC rules to respond to foreign criticism.
International.
6 pages. Written:
2006. Added:
3-26-2007.
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Corporate and Securities
Professional Responsibility under the Sarbanes-Oxley Act, by
Jennifer H. Barrett.
The Sarbanes-Oxley Act of 2002 prompted the Securities and Exchange Commission to implement ethics and Standards of Professional Conduct for attorneys. Although the standards primarily focus on attorneys appearing or practicing before the SEC, they have implications for any corporate lawyer.
Non-Specific.
4 pages. Written:
2006. Added:
3-22-2007.
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Corporate and Securities
Interests in Oil & Gas When Are They Securities and Why Does it Matter?, by
Randolph L. Marsh.
Discusses when oil, gas and energy interests can be considered securities.
Oklahoma.
4 pages. Written:
2005. Added:
3-22-2007.
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Corporate and Securities
Tellabs, Inc. v. Makor—The Problem of Pleading Fraudulent Intent, by
Stephen L. Ascher and Hanna Stotland.
Securities fraud cases require the plaintiff to plead the defendant’s fraudulent intent, meaning either intentional wrong doing or recklessness, the latter of which has been defined as ‘‘an extreme departure from the standards of ordinary care . i.e. either known to the defendant or so obvious that the actor must have been aware of it.’
Non-Specific.
4 pages. Written:
2007. Added:
3-20-2007.
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Corporate and Securities
Outside director liability, by
Bernard Black, Brian Cheffins, and Michael Klausner.
This Article analyzes the degree to which outside directors of public companies are exposed to out-of-pocket liability risk—the risk of paying legal expenses or damages pursuant to a judgment or settlement agreement that are not fully paid by the company or another source, or covered by directors’ and officers’ (D&O) liability insurance.
Non-Specific.
106 pages. Written:
2006. Added:
3-20-2007.
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Corporate and Securities
What’s up on stock-drops? Moench revisited, by
Craig C. Martin, Matthew J. Renaud & Omar R. Akbar.
This article addresses the confusion regarding fiduciary duties engendered by ERISA stock-drop litigation, focusing on the controversy surrounding the so called “Moench presumption,” a judicial presumption first applied in the Third Circuit’s 1995 opinion in Moench v. Robertson.
Non-Specific.
32 pages. Written:
2006. Added:
3-17-2007.
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Corporate and Securities
Securities Litigation, by
Stewart Aaron, Arnold & Porter LLP.
A securities litigation attorney generally prosecutes or defends against all types of securities related claims. On the plaintiff side, litigation lawyers bring individual claims on behalf of investors or class actions on behalf of classes of investors. On the defense side, litigation lawyers defend against all manner of securities related claims.
Non-Specific.
14 pages. Written:
2005. Added:
3-13-2007.
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Corporate and Securities
Defending Claims Against Underwriters of Asset-Backed Securities: The Due-Diligence Defense, by
Gregory A. Markel, Gregory G. Ballard - Cadwalader.
With the dramatic expansion of the asset-backed-securities market over the past 30 years, underwriters are increasingly exposed to the threat of lawsuits by disappointed ABS purchasers. This article discusses theories of liability.
Non-Specific.
7 pages. Written:
2006. Added:
3-13-2007.
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Corporate and Securities
The Business Judgment Rule Under Seige: 'Tower Air'. 'IT Group', and Notice Pleading Under Federal Law, by
Randall W. Bodner, Peter L.Welsh.
The business judgement rule has long been a cornerstone of corporate law and business practice in America. Recent cases have held that liberal federal notice pleading superscedes more stringent Delaware rules.
Federal.
7 pages. Written:
2006. Added:
3-12-2007.
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