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59(2): 391 - 419 (February 2004)
In this Article, I will briefly review the history of the Commission’s suspension and bar powers prior to enactment of the Sarbanes-Oxley Act. I will then briefly examine both the character of cease-and-desist proceedings prior to Sarbanes-Oxley, and the law that governs those proceedings, especially recent case law defining the standard for entering a cease-and-desist order. I will then trace the evolution of those portions of Sarbanes-Oxley which changed the standard of entry of a suspension or bar order from “substantial unfitness” to “unfitness,” and discuss what this change might mean in practice. Finally, I will explore the strengths and weaknesses of the new statutory regime.
Composing a Balanced and Effective Board to Meet New Governance Mandates
59(2): 453 - 474 (February 2004)
This Article explores the development and direction of litigation around cash balance plans since the enactment of the ERISA. The first part outlines the main trends in pension benefits plans since ERISA’s passage, and highlights some of the advantages and resulting vulnerabilities of cash balance plans in the current economic setting. The second section discusses the aspects of cash balance plans that have given rise to controversy, litigation, and increased regulation. The third section concludes that, although cash balance plans are increasingly risk for employers, they remain a valuable tool if administered in a way mindful of their potential pitfalls.
59(2): 475 - 501 (February 2004)
This Article examines the Seventh Circuit’s decision in Precision Industries and its effect on the rights afforded to lessees by § 365(h). In Part I, the Article reviews the lower court decisions in Precision Industries. Part II examines the Seventh Circuit’s decision, concluding that the case was wrongly decided. Part III of the Article discusses some of the particular problems created by Precision Industries. Finally, in Part IV, the Article suggests some strategies that can be employed to avoid the perils of Precision Industries.
Extension of Section 524(g) of the Bankruptcy Code to Nondebtor Parents, Affiliates, and Transaction Parties
59(2): 529 - 529 (February 2004)
Each year, the Section of Business Lawyer sponsors the Medes Hershman Student Writing Contest to encourage and reward law student writings on business law subjects of general and current interest. The winning essay for 2002-2003 was submitted by Joshua A. Naftalis. An abstract for Mr. Naftalis’ paper is set forth below.
59(2): 531 - 568 (February 2004)
In section I of this report, we examine the legislative history of section 21(a)(I) and the use of the “statement in writing” provision prior to 2002. In section II, we examine the Commission’s recent uses of section 21(a)(1) to “require” written statements. In section III, we examine some of the questions that arise in interpreting the statement in writing prong of section 21(a)(1). In section IV, we examine some of the practical issues that arise in responding to a section 21(a)(1) order. An in section V, we discuss the prospects for, and make recommendations regarding, the Commission’s future use of this provision.
Changes in the Model Business Corporation Act - Proposed Amendments Relating to Chapter 1 and Chapter 8 (including Subchapters F and G and Duties of Directors and Officers)
Annual Review of Federal Securities Regulation