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62(4): 1233 - 1256 (August 2007)
Approaching the 30th anniversary of the FCPA, enforcement trends indicate a need for an administrative regime that would enable public companies to achieve a measure of regulatory certainty regarding compliance. Case-by-case enforcement is not a satisfactory substitute for a rule enabling the board and senior management to protect the corporation from vicarious liability for the actions of officers and employees. A new, rule-based system of permissive filing, modeled on the principles of other administrative safe-harbor regulations, would serve the national interest advancing the goals of the FCPA.
The Business Lawyer - August 2007, vol. 62, no 4; Debt Recharacterization Under State Law
62(4): 1281 - 1394 (August 2007)
After questioning the value of securities class actions, which are largely unknown outside the United States, this Article discusses 75 defenses that courts have used to dismiss securities claims. These defenses are typically raised at the motion to dismiss stage, and are important because securities class actions that survive motions to dismiss are usually settled rather than resolved on the merits. The Article provides a template for analyzing the application of each defense of securities class action complaints, and then discusses each defense and references key authorities that practitioners can turn to for further analysis.
62(4): 1395 - 1437 (August 2007)
This Article contends that the debate about the so-called “new property” in electronic information has overlooked the flexibility in common law trespass, which maintains a natural balance between over-protection and under-protection of any given resource.
62(4): 1439 - 1465 (August 2007)
This Article examines (i) the statutory criteria provided in the Uniform Commercial Code for distinguishing between true leases of goods and security interests in such goods, and (ii) various concepts developed by courts and commentators for analyzing fact patterns not covered by the statues. This Article concludes that each of these concepts, while helpful to some extent, falls in short in certain respects. Employing some of the more helpful theoretical underpinnings of the statue and these concepts, this Article proposes an alternative framework of analysis focusing on whether or not the lessee can be expected to exhaust the economic value of the goods.
62(4): 1467 - 1477 (August 2007)
In the summer of 2004, the Court of Appeals for the Ninth Circuit issued its opinion in Dagher v. Saudi Refining, Inc., holding that the decision of a legitimate joint venture between two former competitors to charge a single price its products could constitute per se illegal price fixing under Section I of the Sherman Act. This ruling generated significant antitrust uncertainty as to what joint ventures can and cannot do in operating their business. The Supreme Court unanimously reversed the Ninth Circuit, and in doing so helped to clarify this important but murky area of business law. This article details the Court’s Dagher decision, and the guidance that can be taken from it.
The Business Lawyer - August 2007, vol. 62, no 4; Corporate Director's Guidebook, Fifth Edition
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: Introduction
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: Sales
62(4): 1575 - 1583 (August 2007)
This survey focuses on the most important developments in 2006 dealing with the U.C.C. This section discusses leases.
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: Payments - 2006 Developments
62(4): 1607 - 1615 (August 2007)
This survey concentrates on the most significant letter of credit issues addressed in cases decided in the United States in the year 2006.
62(4): 1617 - 1622 (August 2007)
From 2006, the author has selected nine cases. While these nine cases are worth highlighting, none raises particularly novel or especially difficult issues related to documents of title. Rather, these cases reemphasize legal points that seem worthy of being made afresh for readers of this survey. Combining these nine cases with an update on the legislative adoption for U.C.C. Revised Article 7 (2003) makes for a short report for the 2006 Developments.
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: Article 8 -- Investment Securities
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: U.C.C. Article 9--Personal Property Secured Transactions
The Business Lawyer - August 2007, vol. 62, no 4; 2006 Uniform Commercial Code Survey: International Commercial Law--2006 Developments
The Business Lawyer - August 2007, vol. 62, no 4; The Uniform Commercial Code Survey