May 14, 2020

Conflict of Laws

Conflict of Laws

Solution for Conflict of Laws Governing Fraudulent Transfers: Apply the Law That Was Enacted to Benefit the Creditors
      Thomas H. Day, 48(3): 889–913 (May 1993)
This Article analyzes the choice of law for fraudulent transfers in the context of the purposes of fraudulent transfer law. The author concludes that, because fraudulent transfer laws are enacted to protect creditors from the disposition of a debtor's assets when the debtor is insolvent or undercapitalized, the law of the location of the creditors of the debtor should apply.

RULLCA Section 301—The Fortunate Consequences (and Continuing Questions) of Distinguishing Apparent Agency and Decisional Authority
      Thomas E. Rutledge and Steven G. Frost, 64(1): 37-58 (November 2008)
The Revised Uniform Limited Liability Company Act ("RULLCA"), finalized in 2006, adopts a unique formulation rejecting statutory apparent agency authority on behalf of the company. Further, in the member-managed limited liability company, it separates inter se decisional authority from the ability to bind the entity. We trace the history of this development in what is now the dominant form of business organization, explain the objectives and operation of section 301 of RULLCA and its relationship to those provisions addressing inter se decisional authority, and discuss the transition issues that will be faced in a state that adopts RULLCA after having followed the traditional member-managed versus manager-managed paradigm.

Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the "Entire" Deal?
      Glenn D. West and W. Benton Lewis, Jr., 64(4): 999–1038 (August 2009)
Although business lawyers frequently incorporate well-defined liability limitations in the written agreements that they negotiate and draft on behalf of their corporate clients, contracting parties that are dissatisfied with the deal embodied in that written agreement often attempt to circumvent those limitations by premising tort-based fraud and negligent misrepresentation claims on the alleged inaccuracy of both purported pre-contractual representations and express, contractual warranties. The mere threat of a fraud or negligent misrepresentation claim can be used as a bargaining chip by a counterparty attempting to avoid the contractual deal that it made. Indeed, fraud and negligent misrepresentation claims have proven to be tough to define, easy to allege, hard to dismiss on a pre-discovery motion, difficult to disprove without expensive and lengthy litigation, and highly susceptible to the erroneous conclusions of judges and juries. This Article traces the historical relationship between contract law and tort law in the context of commercial transactions, outlines the sources, risks, and consequences of extra-contractual liability for transacting parties today, and surveys the approaches that various jurisdictions have adopted regarding the ability of contracting parties to limit their exposure to liability for common law fraud and misrepresentation. In light of the foregoing, the authors propose a series of defensive strategies that business lawyers can employ to try to limit their clients' exposure to tort liability arising from contractual obligations.

Preemption as Micromanagement
      Larry Ribstein, 65(3): 789–798 (May 2010)

The Enforceability and Effectiveness of Typical Shareholders Agreement Provisions
      Corporation Law committee of the Association of the Bar of the City of New York, 65(4): 1153–1204 (August 2010)

Closing Time: You Don’t Have to Go Home, But You Can’t Stay Here
      Richard D. Bernstein, James C. Dugan, and Lindsay M. Addison, 67(4): 957 - 976 (August 2012)
In a significant trend, U.S. courts are increasingly rejecting cases involving foreign plaintiffs or foreign conduct. This trend was accelerated by the U.S. Supreme Court’s decision in Morrison v. National Australia Bank Ltd., which established that U.S. securities laws cannot be applied extraterritorially. Lower courts have extended the presumption against extraterritoriality to other federal and state statutes.

Supplemental Report: Opinions on Chosen-Law Provisions Under the Restatement of Conflict of Laws
      TriBar Opinion committee, 68(4): 1161-1170 (August 2013)

Putting Stockholders First, Not the First-Filed Complaint
     Leo E. Strine, Jr., Lawrence A. Hamermesh, and Matthew C. Jennejohn, 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. Revisions to the doctrine of forum non conveniens should continue the historical trend, deemphasizing fortuitous and increasingly irrelevant geographic considerations, and should place greater emphasis on voluntary choice of law and the development of precedential guidance by the courts of the state responsible for supplying the chosen law. The “first-filed” rule should be replaced in shareholder representative litigation by meaningful consideration of affected parties’ interests and judicial efficiency.

The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act
     Kenneth C. Kettering; 70(3): 777-834 (Summer 2015)
In 2014, the National Conference of Commissioners on Uniform State Laws approved a set of amendments to the Uniform Fraudulent Transfer Act. Among other changes, the amendments renamed the act the Uniform Voidable Transactions Act. In this paper, the reporter for the committee that drafted the amendments describes the amendment project and discusses the changes that were made to the act.

Cross-Border Closing Opinions of U.S. Counsel
     Legal Opinions committee, ABA Business Law Section; 71(1): 139-226 (Winter 2015/2016)