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69(3): 671-698 (May 2014)
In the Halliburton case, the United States Supreme Court reconsidered the ruling in the decision of Basic Inc. v. Levinson that, twenty-five years ago, adopted the fraud-on-the-market theory, which has since facilitated securities class action litigation. The authors sought to contribute to this reconsideration by providing a conceptual and economic framework for a reexamination of the Basic rule, taking into account and relating their analysis to the Justices' questions at the Halliburton oral argument.
69(3): 699-716 (May 2014)
Federal equity receivers are creations of equity. The in pari delicto doctrine is similarly a defense based in equity. When equity receivers are called upon to administer the assets of a receivership entity for the benefit of defrauded victims, courts sitting in equity must balance the needs of the victims with the rights of the defendants to assert the in pari delicto defense to litigation claims brought by the receiver against them. The competing equities reveal the great discretion that courts can exercise in permitting litigation claims to proceed in the face of the assertion of the in pari delicto defense. Courts, however, must also be mindful of a variety of issues and obstacles in deciding whether to allow the in pari delicto defense.
69(3): 717-732 (May 2014)
The Committee on Corporate Laws of the ABA Business Law Section develops and from time to time proposes changes in the MBCA. The proposed amendments would permit corporations to include in their articles of incorporation a provision that limits or eliminates a director’s or an officer’s duty to present a business opportunity to the corporation.
69(3): 733-742 (May 2014)
The Committee on Corporate Laws of the ABA Business Law Section develops and from time to time proposes changes in the MBCA. The proposed amendments the advancing of expenses to directors and officers, and are being proposed at a time when the volume and cost of litigation have continued to increase dramatically.
69(3): 743-798 (May 2014)
The compiled forms published in the May 2014 of The Business Lawyer.
69(3): 743-744 (May 2014)
The introduction forms published in the May 2014 of The Business Lawyer. These form limited liability company agreements are designed for use for single-member LLCs. Both forms are designed to comply with the requirements of the Delaware Limited Liability Company Act. If a practitioner desires to use either form to organize an LLC under the laws of another jurisdiction, it will be necessary to consider carefully how any differences between the laws of that jurisdiction and the Delaware LLC Act affect the provisions of the forms.
69(3): 745-774 (May 2014)
The Single-Member LLC Entity Member Form published in the May 2014 of The Business Lawyer.
69(3): 775-798 (May 2014)
The Single-Member LLC Individual Member Form published in the May 2014 of The Business Lawyer.
69(3): 799-822 (May 2014)
The article sets forth a number of changes to the Model Nonprofit Corporation Act that have been approved on second reading by the committee that drafts the act.
69(3): 823-902 (May 2014)
This is the 2014 annual summary of developments in securities regulation, litigation and accounting during the preceding year.
69(3): 823-826 (May 2014)
The introduction to the 2014 annual survey of developments in securities regulation, litigation and accounting during the preceding year.
69(3): 827-850 (May 2014)
As noted in the Introduction, during 2013, the U.S. SEC continued to devote its resources to rulemaking required by the Dodd-Frank Act. The SEC focused on undertaking the rulemaking required in order to implement the mandate of Title VII of the Dodd-Frank Act, which relates to the regulation of the markets for derivatives. However, despite progress in this area, the SEC did not promulgate final rules related to security-based swaps in 2013. As a result, the discussion below focuses on the Commission’s rulemaking required by the JOBS Act, which was enacted in April 2012.
69(3): 851-862 (May 2014)
Each year the FASB releases a number of Accounting Standards Updates (each, and “ASU”) that provide guidance to entities that produce financial statements in adherence with U.S. generally accepted accounting principles (“GAAP”). The following sections summarize the ASUs released by the FASB during the 2013 calendar year. Among other times addressed in that period, the updates from 2013 made important changes relating to financial reporting for derivatives, joint and several liabilities, investment companies, employee benefit arrangements, net operating losses, and nonpublic entities.
69(3): 863-902 (May 2014)
This section of the annual survey focuses on important developments in securities law jurisprudence occurred in 2013 in federal district and appellate courts as well as in the U.S. Supreme Court.
69(3): 903-905 (May 2014)
The compiled Fuld@40 papers. This collection of papers reflects the individual thoughts of the authors and provides a diversity of views on opinion practice, how that practice has developed, what progress has been made since the Fuld article and, in some cases, how opinion practice might or should develop in the future.
69(3): 903-904 (May 2014)
This article is the Editor’s Note to the collection of Fuld@40 Papers in this issue of The Business Lawyer.
69(3): 905-908 (May 2014)
This article provides an introduction to the collection of Fuld@40 Papers and calls for advancing James Fuld’s plea that the organized bar establish general principles of legal opinion practice.
69(3): 909-916 (May 2014)
This article compares the need for a clearer articulation of a national opinion practice based on customary practice with the increased use of express opinion limitations. It examines the different types of limitations being used, their need and the consequences to opinion practice of the proliferation of these limitations. The article concludes with a call to reaffirm, with the involvement of opinion recipients, customary practice as the basis for opinion practice but one that is less complex and more effective.
69(3): 917-922 (May 2014)
This article identifies a crisis in confidence among opinion practitioners in relying on customary practice, motivated largely by risk management concerns, and seeks to make the case that reliance on customary practice is the soundest basis for sensible and professional opinion practice.
69(3): 923-932 (May 2014)
The article examines the history and development of legal opinion practice from the time of the Fuld Article, when there was little guidance, to the present, where there is more attention to opinion practice management and the advancement of customary practice as a basis for opinion practice it recognizes that there is more work to be done to achieve James Fuld’s goal of establishing general principles of legal opinion practice.
69(3): 933-940 (May 2014)
This article examines the desirability of normative or contract-based opinion standards as a basis of opinion practice to achieve greater certainty and efficiency, and suggests the reconsideration of this approach. It references the ABA Legal Opinion Accord as an example of normative or contractual standards that can be incorporated by reference into an opinion letter to govern the interpretations of that opinion letter.
69(3): 941-944 (May 2014)
This article examines the reasons for the “kitchen sink approach” to legal opinion practice that uses expansive lists of assumptions, qualifications and exclusions in opinion letters. These reasons include defining more precisely the coverage of the opinion, making it easier to prepare opinion letters, recognizing the realities of the unimportance of certain opinion issues and assisting law firm opinion risk management. The article acknowledges contrary points of view and the appropriateness of reevaluating the role of the kitchen sink approach as customary practice becomes more developed and accepted, although it concludes that now is not the time to abandon the kitchen sink alternative
69(3): 945-948 (May 2014)
This article examines the respective roles of opinion givers and counsel for opinion recipients, comparing the U.S. and U.K. approaches. It concludes that, in the case of a remedies opinion on the enforceability of a local law document such as a mortgage, it is generally more appropriate for a lender recipient to obtain the advice of its own counsel, or request a legal opinion from its own local counsel, rather than looking to borrower’s counsel for the opinion.
69(3): 949-952 (May 2014)
This article explores approaches to risk management in opinion practice. It recognizes that improvements have occurred in the opinion giving process and that the wording of opinions has changed to become more precise and to add limitations. It then asks whether, in addition to improving the quality of their opinions, law firms might add protective procedural provisions. These provisions could include choice of forum (which might be arbitration), specification of governing law, waiver of jury trial, prescribing standards of care, and establishing limitations on liability.
69(3): 953-956 (May 2014)
This article observes that customary practice works only if both opinion givers and opinion recipients and their counsel understand what it is. When the recipient is represented by counsel, the giver ordinarily can assume the recipient is being properly advised about the opinion letter. Even in the absence of counsel, certain recipients can reasonably be expected to understand the opinion letter. When that is not the case, the article recommends that the opinion letter state expressly, in order to put the opinion recipient on notice, the application of customary practice and the need to consult counsel.
69(3): 957-960 (May 2014)
This article examines the issues involved in determining who may rely on opinions. It identifies circumstances, with a focus on syndicated loans, in which parties that are not addressees, such as additional lenders, should be entitled to rely and then discusses approaches to address issues of concern to opinion givers in order to enable such reliance.
69(3): 961-968 (May 2014)
This article describes a paper that discusses qualifications to the remedies opinion that commonly are found in opinion letters in commercial loan transactions and accepted lenders. It notes that in some cases the qualification is required but in other cases it is taken because the cost and effort in determining its need is not justified by the issue’s importance. Moreover, in many cases the legal issues underlying the qualifications are well enough understood by the lender and its counsel.
69(3): 969-972 (May 2014)
The recent Fortress decision is an important reminder inherent in rendering third-party opinions. Counsel brining suit alleging liability in the opinion context may have little familiarity with customary opinion practice. A trial judge may have a different understanding of the meaning and purpose of any opinion and the scope of an opinion giver’s obligation to conduct a factual investigation of the transaction addressed by the opinion than do sophisticated opinion givers and recipients (and their counsel). In short, even as we who regularly give and receive opinions gather with greater frequency and form a more consistent and coherent statement of customary opinion practice, we would do well to remember that others, not in the room, may have very different understandings than we do.
69(3): 973-978 (May 2014)
This article examines the relationships of disclosure to the giving of legal opinions, both in connection with what is said in opinion letters and what is not said. It explores the responsibility of lawyers for such disclosure and potential sources of liability.
69(3): 971-990 (May 2014)
This article discusses the issues that arise when a lawyer must declare to complete an engagement to deliver an opinion, or must withdraw from representation of the client that has requested the opinion, or must withdraw and/or disaffirm a previously issued opinion.
69(3): 991-996 (May 2014)
This article explores the particular ethical issue of dealing with conflicts of interest, especially those that arise late in a transaction. It uses as an example a loan syndication or private equity fund formation when there are late entrants as lenders or investors who will recipients of the opinions and therefore can create conflict issues for the opinion giver or local counsel engaged by the opinion recipients. It also raises the questions of whether just providing an opinion creates conflict issues at all because the ability of an opinion recipient to rely on a closing opinion should not be viewed as a making that recipient adverse to the opinion giver.
69(3): 997-1006 (May 2014)
This article discusses several recent developments that can have an effect on opinion practice in the future. These recent developments include the results of the ABA Legal Opinions Practice Committee survey of law firm opinion practices, a report of that committee on cross-border closing opinions of U.S. counsel discussing ground rules for these opinions, an update of the ABA Securities Law Opinions Subcommittee report on opinions in SEC filings, a new California sample venture capital financing opinion, and changes to securities opinions arising from the JOBS Act and implementing SEC rules.
69(3): 1007-1013 (May 2014)
This article discusses the specific opinion issues that arise from contractual provisions that purport to extend applicable statutes of limitation, as reflected in the 2011 Delaware decision in GRT, Inc. v. Marathon GTF Tech., Ltd.