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71(1): 1-52 (Winter 2015/2016)
The Securities and Exchange Commission’s aggressive prosecution of securities violations inside administrative proceedings (APs) has generated backlash. Key stakeholders are now attacking the agency’s enforcement program as illegitimate and a growing number of respondents charged in APs have launched broad constitutional challenges. Though these suits target deeply entrenched features of administrative adjudication, they have already begun to prove successful, and threaten significant transformations to the SEC and beyond.
Historically, the SEC’s enforcement architecture embodied respect for the principle that, holding all else equal, procedures ought to be commensurate with the stakes of the adjudication. After Dodd-Frank, the agency abandoned this principle. The backlash is, at least in part, attributable to and justified by this reversal.
The SEC should have done after Dodd-Frank what it had done after previous expansions of its administrative penalty powers: reestablish the equilibrium between penalties and procedures by revising its rules of practice that govern APs. The SEC’s recently proposed amendments to these rules are too little, too late. A bolder approach is required.
71(1): 53-86 (Winter 2015/2016)
The liability of RBC in last year’s In re Rural/Metro decision was derivative of several breaches of fiduciary duty by the Rural/Metro directors, including those directors’ failing “to provide active and direct oversight of RBC.” In discussing that failure, the Court of Chancery stated that a “part of providing active and direct oversight is acting reasonably to learn about actual and potential conflicts faced by directors, management and their advisors.” In the year since Rural/Metro, there has been an ongoing discussion—in scholarly and trade journals, courtrooms and the marketplace—regarding how, if at all, the process of vetting potential financial advisor conflicts should evolve. In this article, we set out our belief that financial advisor engagement letters are an efficient (although admittedly not the only) tool to vet potential conflicts of a financial advisor. We then discuss four contractual provisions that, we believe, are helpful in providing the active and direct oversight that was found lacking in Rural/Metro.
71(1): 87-92 (Winter 2015/2016)
By publication after second reading in the May 2014 issue of The Business Lawyer, the Committee proposed amendments to sections 2.02 and 8.70 of the Model Act (and related changes to sections 1.43, 8.31, and 8.60) permitting advance action to limit or eliminate duties regarding business opportunities.
71(1): 93-104 (Winter 2015/2016)
Subchapter E provides a statutory ratification procedure for corporate actions that may not have been properly authorized and shares that may have been improperly issued. Subchapter E also provides for retroactive validity of subsequent actions taken in reliance on the validity of the defective action that is ratified.
71(1): 105-128 (Winter 2015/2016)
The Amendments establish a procedure that allows a corporation to consummate a merger without a shareholder vote if the merger follows a tender offer following which the tender offeror owns sufficient shares that it could approve the merger if it were submitted to a vote at a meeting at which all shares entitled to vote on the approval were present and voted.
71(1): 129-138 (Winter 2015/2016)
This report considers implications of the amendments for no registration opinions. Two illustrative opinion letters are attached to this report. Each addresses a typical transaction in which a no registration opinion is given.
71(1): 139-226 (Winter 2015/2016)
This Report addresses a subject that has never before been the sole focus of a bar association report: third-party legal opinions given by U.S. lawyers in cross-border transactions. It embodies years of work by lawyers experienced in the field
71(1): 227-252 (Winter 2015/2016)
The complete annual survey of corporate compliance.
71(1): 253-379 (Winter 2015/2016)
The complete annual survey of cyberspace law.
71(1): 253-256 (Winter 2015/2016)
The contributions to this year’s survey fall into five categories: cybersecurity and privacy, social media, intellectual property, contracting and payments, and network neutrality.
71(1): 257-270 (Winter 2015/2016)
During the year covered by this essay, May 2014–May 2015, the profile of cyber threats and risks to U.S. business enterprises changed profoundly. Nation-states and adversaries sought increasingly to cause enterprise-wide damage and disruption.
71(1): 271-280 (Winter 2015/2016)
In 2014–2015, as data security breaches continued to spawn litigation, motions to dismiss kept the focus on what kinds of alleged injury arising from a breach can support Article III standing.
71(1): 281-292 (Winter 2015/2016)
The past year has seen various developments that are modifying data privacy law in the European Union (EU), with consequences for various sectors of business.
71(1): 293-304 (Winter 2015/2016)
For businesses that maintain personal information of consumers, two of the key areas of privacy-related legal risk are private litigation under the Telephone Consumer Protection Act (TCPA) and enforcement actions by the Federal Trade Commission (FTC). This survey reviews the key developments under each over the past year, and reviews the FTC’s initial policy foray addressing the Internet of Things.
71(1): 305-320 (Winter 2015/2016)
During the past year, courts have continued catching up with a changing social media landscape, and decisions involving free speech, privacy, and misappropriation are becoming more common.
71(1): 321-332 (Winter 2015/2016)
This survey addresses recent employment law developments as they pertain to social media, both within and outside the workplace.
71(1): 333-342 (Winter 2015/2016)
This year, we consider a new set of cases in which litigants invoke copyright, desperately or ingeniously, to thwart or protect the online dissemination of material.
71(1): 343-352 (Winter 2015/2016)
As this survey reveals, many patents have been found to be drawn to abstract ideas, but that alone need not doom a patent. The more firmly rooted claims are in a specific technology and the more they incorporate meaningful technical limitations, the more likely these patents are to survive a section 101 challenge in the post-Alice environment.
71(1): 353-360 (Winter 2015/2016)
71(1): 361-372 (Winter 2015/2016)
For this year’s survey, we have chosen to focus on developments affecting providers of services related to bitcoin and other cryptocurrencies, prepaid cards including payroll cards, and other e-payments products, services, and providers.
71(1): 373-379 (Winter 2015/2016)
This survey provides a basic overview of the Open Internet Order. Readers who seek additional detail may consult the full Order, weighing in at 400 single-spaced pages.