Most companies will be impacted by the immigration initiatives announced by the White House this week.  It will take up to several months for the initiatives to be implemented in order to give the U.S. Department of Homeland Security (DHS) time to ramp up.  And some of the initiatives are aspirational in nature so the end result and timing is unclear at this time.  Be advised that because these are executive acts, they are subject to repeal in the future.  The impact to employers includes the following:
Continue Reading How Will the White House Announcement on Immigration Affect Your Company?

On August 26, 2014, The NASDAQ Stock Market LLC (“NASDAQ”) filed with the Securities and Exchange Commission (the “SEC”) certain proposed amendments to the NASDAQ Stock Market Rules (the “Amendments”) to provide for, among other things, a new all-inclusive annual listing fee (the “All-Inclusive Annual Fee”).  The Amendments were effective upon the filing with the SEC; however, NASDAQ has designated that the Amendments will become operative on January 1, 2015.  Companies that become subject to the All-Inclusive Annual Fee will pay a single annual listing fee to cover various matters which had previously been subject to an annual fee and several other separate fees.  NASDAQ’s incorporation of the All-Inclusive Annual Fee into its fee structure is expected to simplify NASDAQ’s payment process as well as promote visibility into the costs associated with listing on NASDAQ.  NASDAQ also indicated that the All-Inclusive Annual Fee program will give NASDAQ greater visibility into its revenue and allow it to continue to invest in technology and other resources available to NASDAQ-listed companies.  As part of the Amendments, NASDAQ also modified certain listing fees and clarified certain provisions of the NASDAQ Stock Market Rules.
Continue Reading NASDAQ Proposes The Adoption Of A New All-Inclusive Annual Listing Fee

In Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, __ S Ct. __, 2014 WL 2807181 (U.S. June 23, 2014), the United States Supreme Court refused to overturn the landmark decision Basic v. Levinson, but ruled that securities class action defendants may rebut the fraud-on-the-market presumption of investor reliance before the class certification stage by demonstrating lack of price impact.
Continue Reading U.S. Supreme Court Decision Gives More Latitude to Defeat Securities Fraud Class Action Lawsuits Prior to Class Certification

In Baker v. Bank of America, N.A., No. 5:13-CV-92-F, 2014 U.S. Dist. LEXIS 9578 (E.D.N.C. Jan. 27, 2014), the United States District Court for the Eastern District of North Carolina held that even if a consumer timely exercises his or her right to rescind a loan transaction under the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et. seq.i.e., during the three-day statutory “cooling-off” period — that exercise does not automatically cause the loan to be rescinded.  Rather, the court held, if a consumer’s notice of rescission is met with silence by the lender, the consumer must also file a lawsuit in order to complete the rescission before the statute of limitations expires (in this case, the statute of limitations was determined to be four years).   The Baker case provides a thorough interpretation of the effect of the statutory three-day “cooling-off” period, for which, it was noted in the decision, case law is “exceedingly sparse.”
Continue Reading Does A Consumer’s Exercise of a Rescission Right Mean that the Loan Is Automatically Rescinded? Perhaps Not, According to One Federal Court, If the Consumer Does Not Also File a Lawsuit for Rescission

On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State.  Since then, the California drought continues to be severe and unprecedented in recent years, and is taking a pervasive toll on California residents, businesses, farm land, foliage and wildlife.  Despite recent rainfall, local water districts and the State have called for voluntary, and in some locales, mandatory reduction in consumption of water.  After considering the severe human toll, anyone doing business with an entity located in California (or other western states experiencing similar drought conditions) that requires water for any business purpose, particularly farmers in Northern and Central California where there are fewer alternative sources of water, must be concerned about inventory and the impact of the drought on its supply chain.  Can my California contract counterparty fulfill its obligations to produce sufficient quantities of produce, dairy products, steel, flowers, honey, etc., to meet my contract needs?  Waiting for a delivery that never arrives, is delayed or arrives in lower quantity or, worse yet, quality, is not a viable option.  The key is to be prepared to find an alternative supplier so that production goals can be timely met.  Successful navigation of these issues requires careful contract drafting and contemplation in advance of new agreements, and critical analysis of existing contracts.  This article highlights the pertinent legal mechanisms at work and options for your business.
Continue Reading Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements

In Busse v. United Panam Fin. Corp., No. G046805, 2014 Cal. App. LEXIS 11 (Cal. App. Jan. 8, 2014), the California Court of Appeal, Fourth Appellate District, held that when parties to a buyout are under common control, dissenting minority shareholders have the right to set aside or rescind an invalid corporate buyout under Section 1312(b) of the California Corporations Code.  The Court also held that dissenting minority shareholders may not seek monetary damages under Section 1312(b).  This decision clarifies that Section 1312(b) acts as a limited exception to Section 1312(a) of the California Corporations Code by providing dissenting shareholders not only with the general remedy of appraisal, but also with the right to stop or rescind a buyout if the transaction is invalid.  Furthermore, Busse emphasizes that dissenting shareholders may not seek damages arising out of a buyout, even in common control situations.
Continue Reading California Court of Appeal Clarifies Rights of Dissenting Minority Shareholders Under California Corporation Code § 1312(b)

Cyber security, data loss, hacking and schemes to steal personal information and assets electronically are all over the news daily. Companies are the primary targets of these actions since they accumulate information, store it and use it for their internal efforts, for their clients and in interacting with the world outside. In an effort to prevent problems before they arise, and to be in the best possible posture should their company become a victim of these damaging events, below is a list of questions that general counsel, senior management and corporate directors should be asking of themselves and their companies:


Continue Reading Cybersecurity: 36 Questions Every Director Should Ask

In In re Bernard L. Madoff Investment Securities LLC, Nos. 11-5044, 11-5051, 11-5175, 11-5207, 2013 WL 3064848 (2d Cir. June 20, 2013), the United States Court of Appeals for the Second Circuit held that the Trustee of Bernard L. Madoff Investment Securities LLC (“BLMIS”) appointed under the Securities Investor Protection Act (“SIPA”), 15 U.S.C §§ 78aaa, et seq., lacked standing to pursue common law claims on behalf of Madoff’s customers against various banks that maintained checking accounts, created feeder funds, and collected investments from abroad for BLMIS. The Trustee sued under SIPA — which gives a SIPA trustee the “same powers and title with respect to debtor and the property of debtor . . . as a trustee in a case under Title 11” of the bankruptcy code — and alleged that when the defendants “were confronted with evidence of Madoff’s illegitimate scheme,” banking fees from BLMIS provided an incentive to look away, or “at least caused a failure to perform due diligence that would have revealed the fraud.” The Second Circuit affirmed decisions of the United States District Court for the Southern District of New York holding that the doctrine of in pari delicto — the principle that a wrongdoer may not profit from his own misconduct — barred the Trustee’s claims. The ruling significantly restricts the Trustee’s ability to pursue billions of dollars’ worth of claims against alleged aiders and abettors of Madoff’s Ponzi scheme, offers clarity on the issue of a SIPA trustee’s standing to bring actions on behalf of a defunct broker-dealer’s estate or the estate’s creditors.


Continue Reading Second Circuit Affirms Dismissal of Suits Brought by Madoff Trustee Against Banks Accused of Aiding Madoff Fraud