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Volume 69 - Number 1
Articles
Putting Stockholders First, Not the First-Filed Complaint
69(1): 1-78 (November 2013)
The prevalence of settlements in class and derivative litigation challenging mergers and acquisitions in which the only payment is to plaintiffs’ attorneys suggests potential systemic dysfunction arising from the increased frequency of parallel litigation in multiple state courts. After examining possible explanations for that dysfunction, and the historical development of doctrines limiting parallel state court litigation—the doctrine of forum non conveniens and the “first-filed” doctrine—this article suggests that those doctrines should be revised to better address shareholder class and derivative litigation.
U.C.C. Article 9, Filing-Based Priority, and Fundamental Property Principles: A Reply to Professor Plank
69(1): 79-92 (November 2013)
Uniform Commercial Code Article 9 generally follows the common law principle that one cannot give rights in property that one does not have (nemo dat quod non habet). In many circumstances, however, the priority rules under Article 9, including its rule awarding priority to the first security interest that is perfected or as to which a financing statement has been filed, trump nemo dat and enable a debtor to grant a senior security interest in property that the debtor previously had encumbered. In this article, Professors Steven Harris and Charles Mooney argue that, properly understood, the first-to-file-or-perfect rule confers upon a debtor the power to create a security interest in accounts and other rights to payment that the debtor has already sold and in which it retains no interest. In doing so, the authors take issue with Professor Thomas Plank, whose argument to the contrary appeared in the February 2013 issue of The Business Lawyer.
Reports
Changes in the Model Business Corporation Act—Proposed Amendments to Sections 7.22, 7.24, and 7.29
69(1): 93-106 (November 2013)
The Corporate Laws Committee has approved the changes described in this report on second reading and invites comments from interested persons. Section 7.29 deals with the role of inspectors of election in the shareholdervoting process. That process and the role of inspectors of election have changed in recent years, at least in the case of public corporations, with the increase in“street name” holdings, the use of a securities depositary system and involvementof intermediaries, and the resulting increased role of vote tabulators. The proposed changes are intended to update the provisions on inspectors of election to reflect what inspectors of election in fact do under the current shareholder voting system. Section 7.24, dealing with acceptance of votes and other instruments relating to shareholder voting, is proposed to be changed to better conform to and coordinate with new section 7.29. The Official Comment to section 7.29 also has been streamlined, principally by eliminating the examples relating to acceptance
and rejection of proxy appointments. These examples are expected to be included in the Historical Background commentary to section 7.29 in the Model Business Corporation Act Annotated. Section 7.22, dealing with proxies, is proposed to be changed to more accurately reflect the term of proxy appointments, including irrevocable proxy appointments.
Survey
Corporate Compliance Survey (November 2013)
69(1): 107-132 (November 2013)
This is the ninth survey from the Corporate Compliance Committee. This survey summarizes significant legal developments from the last year regarding corporate compliance and ethics programs, which consist of an organization’s code of conduct, policies, and procedures designed to achieve compliance with applicable legal regulations and internal ethical standards.
Survey
Corporate Governance Survey (November 2013)
69(1): 133-182 (November 2013)
This is a PDF of the entire Corporate Governance Survey. The surveys presented by members of the ABA Business Law Section Corporate Governance Committee relate to two areas in which SEC rulemaking was completed. The first survey discusses the recently effective rules, promulgated by the New York Stock Exchange and NASDAQ, regarding the independence of compensation committee members and the review of independence of compensation consultants. The second survey discusses the legal background of proxy access, as well as activities of shareholders and companies to implement company-by-company approaches to “proxy access” since the D.C. Circuit’s 2011 rejection of a universal proxy access rule.
Dodd-Frank Governance Rules Three Years Later
69(1): 133-134 (November 2013)
The surveys presented by members of the ABA Business Law Section Corporate Governance Committee relate to two areas in which SEC rulemaking was completed. The first survey discusses the recently effective rules, promulgated by the New York Stock Exchange and NASDAQ, regarding the independence of compensation committee members and the review of independence of compensation consultants. The second survey discusses the legal background of proxy access, as well as activities of shareholders and companies to implement company-by-company approaches to “proxy access” since the D.C. Circuit’s 2011 rejection of a universal proxy access rule.
New NYSE and NASDAQ Listing Rules Raise the Accountability of Company Boards and Compensation Committees Through Flexible Standards
69(1): 135-154 (November 2013)
This survey, part of the Corporate Governance Survey, discusses the recently effective rules, promulgated by the New York Stock Exchange and NASDAQ, regarding the independence of compensation committee members and the review of independence of compensation consultants.
Proxy Access by Private Ordering: A Review of the 2012 and 2013 Proxy Seasons
69(1): 155-182 (November 2013)
This survey, part of the larger Corporate Governance Survey, discusses the legal background of proxy access, as well as activities of shareholders and companies to implement company-by-company approaches to “proxy access” since the D.C. Circuit’s 2011 rejection of a universal proxy access rule.
Survey
Cyberspace Law Survey (November 2013)
This survey summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012.
Survey of the Law of Cyberspace: Introduction (Nov 2013)
69(1): 183-187 (November 2013)
This is the introduction to the survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012.
Bearings from the Southern Cross: Cybersecurity Decisions 2012–2013
69(1): 189-197 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece narrates the three narrates three decisions that brought significant changes to the cybersecurity legal landscape.
Developments in Data Security Breach Liability
69(1): 199-207 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece focuses on corporate liability for data breaches.
2013 State of the Law Regarding Internet Intermediary Liability for User-Generated Content
69(1): 209-215 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece primarily focuses on recent jurisprudence interpreting the two major states governing intermediary liability.
Privacy in the Age of Big Data
69(1): 217-225 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece focuses on the privacy issues raised by Big Data and suggests risk mitigation techniques.
Survey of Recent FTC Privacy Enforcement Actions and Developments
69(1): 227-236 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece continues from last year’s and describes major development by the FTC to address consumer privacy, including enforcement actions, reports, and other agency initiatives.
Recent Developments in Mobile Privacy Law and Regulation
69(1): 237-243 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece focuses on mobile privacy.
Global Privacy and Data Security Developments—2013
69(1): 245-254 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece narrates significant developments in global privacy and data security and topics to watch in the coming year.
Electronically Stored Information in Litigation
69(1): 255-262 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece speaks on the balance of discovery of electronically stored information and economics.
Virtual Uncertainty: Developments in the Law of Electronic Payments and Financial Services
69(1): 263-274 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece narrates significant developments in the law of electronic payments and financial services.
Copyrights in Cyberspace—Resales, Reposts, Rebukes
69(1): 275-280 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece starts with the Supreme Court’s reversal of the Second Circuit in Kirtsaeng, and then it considers caselaw developments addressing the reposting of online content and judicial responses to overzealous tactics used by some copyright litigants.
The Changing Scope of Patent Rights
69(1): 281-289 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece discusses a number of decisions by the Federal Circuit on patent cases.
The Shifting Tide in Internet Gambling—Survey of Recent Developments
69(1): 291-299 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece narrates significant developments in the law regarding internet gambling.
Recent Developments in Cyberspace Law: A View from Brazil
69(1): 301-305 (November 2013)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2012. This piece discusses Brazilian developments in the protection of consumers in the internet environs, protection of personality rights, and protection of business and consumers from unauthorized computer access.
