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Cautious Evolution or Perennial Irresolution: Stock Market Self-Regulation During the First Seventy Years of the Securities and Exchange Commission
A New Player in the Boardroom: The Emergence of the Independent Director's Counsel
59(4): 1413 - 1418 (August 2004)
In the wake of Enron, WorldCom, Sarbanes-Oxley, SEC Rules, NYSE/NASDAQ Listing Requirements, and evolving expectations of directors under state law, there is much angst in corporate boardrooms about the new responsibilities and potential liability of corporate directors. There is, at the very least, cause for more intense focus on process than ever before by the directors on their job of directing the management of the business and affairs of the corporation.
59(4): 1419 - 1445 (August 2004)
This Article provides a short summary of modern principles of modern principles of corporate finance applicable to stock valuation and provides a discussion of the significance courts have placed on event studies in the damages context. The Article also addresses the development of the loss causation doctrine and discusses the evolution of that doctrine and the resulting differences between courts as to the appropriate standard. The Article also closes by setting forth an appropriate standard for pleading and proving loss causation based upon principles of corporate finance.
59(4): 1447 - 1458 (August 2004)
The author provides a walkthrough of recent developments in corporate governance and provides some insight on how to navigate a corporation through it.
59(4): 1459 - 1482 (August 2004)
Two decisions issued by the Delaware judiciary in the summer of 2001 resolved what many believed to be a long-standing ambiguity concerning the applicability of the entire fairness standard of review to going-private transactions.
59(4): 1483 - 1504 (August 2004)
The TriBar Opinion Committee’s report on Third-Party “Closing” Opinions describes customary practice in preparing and interpreting third-party closing opinions. This Report augments the analysis of the remedies opinion contained in that report. The remedies opinion addresses the enforceability of each of the undertakings of the opinion giver’s client in the agreement between the Company and the opinion recipient. These undertakings include affirmative and negative covenants of the Company and the remedies specified in the agreement for breaches by the Company of its contractual obligations. They also include provisions for interpreting and administering the agreement and resolving disputes under it.
59(4): 1505 - 1512 (August 2004)
Section 7(a) of the Securities Act of 1933 requires a registration statement to contain the information specified in Schedule A to the Act. Paragraph 29 of Schedule A requires the filing of “a copy of the opinion or opinions of counsel in respect to the legality of the issue.” The SEC has addressed that requirement in Item 601 or Regulation S-K. Under paragraph (b)(5) of Item 601, a registration statement must include as an exhibit “[a]n opinion of counsel as to the legality of the securities being registered, including whether they will, when sold, be legally issued, fully paid and non-assessable, and, if debt securities, whether they will be binding obligations of the registrant.” The opinion on legality appears as Exhibit 5 to a registration statement and is thus often referred to as an “Exhibit 5 opinion.” This Report examines Exhibit 5 opinions.
59(4): 1513 - 1519 (August 2004)
In 2002, the American Bar Association Section of Business Law adopted Guidelines for preparing legal opinions delivered at the closing of a business transaction by counsel for one party to another party (“closing opinions”). These Guidelines replaced the guidelines included in the section’s 1991 Third Party Legal Opinion Report and reflected developments in customary practice in the decade since 1991. This Report expands upon section 4.5 of the Guidelines, which addresses the negative assurance counsel sometimes provides in securities offerings regarding the disclosure in the prospectus or other offering documents furnished to investors.
59(4): 1521 - 1551 (August 2004)
This annual survey was prepared by the Subcommittee on Recent Judicial Developments of the Negotiated Acquisitions Committee of the ABA’s Section of Business Law. The Subcommittee on Recent Judicial Developments was formed at the 2002 Annual Meeting of the American Bar Association in Washington, D.C. The primary charge of the Subcommittee on Recent Judicial Developments is to summarize, on an annual basis, significant judicial decisions in the area of M&A, and to publish that summary as a service to ABA members who practice in the M&A area.
59(4): 1553 - 1556 (August 2004)
In the following pages are surveys discussing recent case law developments, as well as legislative and regulatory developments, under the Uniform Commercial Code, followed by a survey of recent actions of international bodies in the area of international commercial law. While the promulgating organizations have been finalizing the current round of revisions to various articles of the U.C.C., the courts have continued to construe both earlier versions and newly enacted versions of the Code. The U.C.C. survey articles primarily focus on these noteworthy judicial decisions from the past year involving the various Articles of the U.C.C.
59(4): 1557 - 1579 (August 2004)
This survey discusses some important and interesting cases decided by the courts under Article 2 of the Uniform Commercial Code in 2003. For a discussion of the status of the revision to Article 2, see the Introduction to this Survey.
59(4): 1581 - 1589 (August 2004)
Over $215 billion in equipment lease transactions occur annually, accounting for roughly one-third of all capital investment in the United States.
59(4): 1591 - 1618 (August 2004)
This survey begins with a review of federal legislative and regulatory developments. It then discusses the year’s judicial decisions that address issues under Regulation CC, the bankruptcy code, and Articles 3, 4, and 4A of the Uniform Commercial Code.
Letters of Credit: 2003 Cases
59(4): 1629 - 1636 (August 2004)
Judges decided few cases raising Article 7 issues during calendar year 2003. Although these cases are reported in this survey, the major Article 7 development for 2003 was the adoption of Revised Uniform Commercial Code Article 7 by the National Conference of Commissioners on Uniform State Laws and the American Law Institute.
Article 8--Investment Securities
U.C.C. Survey - Article 9 Developments
59(4): 1663 - 1674 (August 2004)
This Article surveys the significant progress made by the international community during 2003 in its efforts to modernize and harmonize international commercial law.
59(4): 1553 - 1674 (August 2004)
The Complete Uniform Commercial Code Survey Collection for 2004.