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Recent cases (most importantly, a 2016 circuit-splitting decision by the Seventh Circuit) may signal that the pendulum is swinging away from the historical difficulty in recovering constructive fraudulent transfers in connection with failed LBOs and leveraged recaps; as well as raising ethical, discovery, and dischargeability issues in connection with “actual intent” fraudulent transfers. This article explores these cases and the history and policy considerations that led to them.
“Business sustainability” has become an important addition to board/management discussions in recent years. “Business sustainability” focuses on a company’s ability to conduct its activities and build shareholder value over the long term, balancing the need for short-term results while adapting business strategies and operations to assure long-term value creation consistent with sustainable business practices. Inherent in meeting these challenges, companies are required by law to maintain a culture that embraces ethical values and legal compliance.
This article reviews the Second Circuit’s decision in the General Motors case and the propriety of a “free and clear” sale order with respect to claims held by parties who did not receive actual notice of the bankruptcy sale. In the underlying decision of the Bankruptcy Court, Judge Gerber determined that although certain claimants did not receive actual notice of the sale, their arguments were similar to parties who had filed objections to the sale, which were overruled. He found, therefore, that those claimants were not prejudiced by the lack of notice. The Second Circuit determined otherwise, and held that such claimants, having been denied any seat at the table, were prejudiced by the lack of notice and consequently, the sale to “New GM” could not be free and clear of such claims.
Every business lawyer needs a basic understanding of bankruptcy law. Your client can be affected by a bankruptcy in many ways: it may be a creditor in a bankruptcy case; it may need or want to do business with a trustee or debtor in a bankruptcy case; or it may be a defendant in a preference action or other bankruptcy litigation, among other possible scenarios. Your client also may face financial distress and need to explore restructuring or wind-down options, including filing for bankruptcy. A business lawyer needs to understand the basics to address common bankruptcy issues that arise in business matters.
This article explains what is encompassed by the term “corporate governance” and discusses how plaintiff and defendant positions in litigation can be affected by an organization’s governance structures, processes and business conduct. Three cases are presented illustrating the determination of liability, causation, and damages in complex commercial litigation and in a Securities Fraud Action and the impact that corporate governance issues and knowledge had on the outcome.
Selection of a business entity is one of the most fundamental and important decisions a business lawyer and her client can make. Delaware is generally recognized as the premier jurisdiction for business formation, and offers a variety of entities, each with different characteristics, which may be formed to meet the needs of the enterprise and to organize the relationship among owners, creditors, and management. Therefore, it is imperative to the selection process that all parties involved possess a basic understanding regarding the lifecycles of the most common Delaware business entities. This article provides a brief overview of the fundamental requirements relating to the formation, maintenance, and termination of Delaware corporations, limited liability companies, and statutory trusts.
Despite one in five Americans having a disability, website owners and developers neglect to make their websites accessible to persons with disabilities. The courts are split as to whether websites are places of public accommodation and if they need to be accessible. The preferred standard for accessibility is WCAG 2.0, a standard developed by the World Wide Web Consortium, which provides that websites must be perceivable, operable, understandable, and robust. This article discusses current legal posture of website accessibility requirements and an overview of the WCAG 2.0 guidelines to make your clients’ websites accessible.
Taxes can be a major factor in business and personal decisions. And it is only natural to think primarily about federal taxes. But state taxes can be big too, and few are bigger than California’s. Surprisingly, even if you are not a resident of California, you may have reason to deal with California’s tax agencies. California’s tax rules are complex, and California’s taxing agencies are notoriously strict when it comes to enforcement. The exposure can be surprisingly big and surprisingly long, as this dive into California taxes for non-Californians makes clear.
At the November Business Law Section meeting, former SEC Commissioner Roberta Karmel was the keynote at the Securities Committee Luncheon, and delivered the following remarks about the need to preserve the independence of the SEC.
Business Law Section’s Corporate Laws Committee is publishing this month the first complete revision to the Model Business Corporation Act since 1984. Dozens of members from Corporate Laws have worked on this seminal book and it is considered one of the most respected books published by the ABA.
The Antitrust Division of the Department of Justice and the Federal Trade Commission recently announced a policy shift in their enforcement priorities related to agreements among competing employers. Specifically, the agencies expressed the DOJ’s intent to criminally prosecute employers and individuals who enter into naked wage-fixing or no-poaching agreements with other employers. As a result of this announcement, all companies that compete for employees should review their compliance programs.
In Grand Acquisition, LLC v. Passco Indian Springs DST, the Delaware Court of Chancery was presented with a rare opportunity to address the contractual freedom granted to parties under the DSTA. This article discusses the policy of maximum freedom of contract shared by the DSTA, the Delaware Limited Liability Company Act, and the Delaware Revised Uniform Limited Partnership Act. It also examines the Court of Chancery’s decision in Grand Acquisition and provides several key takeaways.
After more than 30 years of service as a jurist in the Delaware Judiciary, Justice Henry duPont Ridgely is a walking library of Delaware business law decisions. During his tenure on the Supreme Court of Delaware, he participated in more than 700 published opinions. During his leadership of the Delaware Superior Court, Delaware was first recognized by the U.S. Chamber of Commerce as first among the 50 states for the fairness and reasonableness of its litigation environment. Delaware is still number one today. Now he is Senior Counsel at DLA Piper in Wilmington, Delaware, and a Business Law Advisor to the Business Law Section.
In this issue of “Inside Business Law,” we provide links to register for several upcoming stand-alone committee meetings that will be held in January as well as the Section Spring Meeting that will be held in New Orleans in April.