Class Action Trends: Foreign Law Impact on Class Actions

James M. Wilson, Jr. — Tue, 06 May 2008 10:22:21 GMT

In this Expert Commentary, James M. Wilson Jr. describes In re Vivendi Universal, S.A. Securities Litigation, a case from the Southern District of New York in which the district court disallowed German and Austrian shareholders of a corporation from participating in a class action lawsuit because of its conclusion that the courts of Austria or Germany would not recognize any final resolution of the case.

The Aging of U.S. Investors and Its Regulatory Implications

James A. Fanto — Mon, 05 May 2008 17:09:55 GMT

The issue of risks posed to senior investors has become a "hot" issue for financial regulators as the aging of the Baby Boom generation may pose special problems for financial professionals and thus for financial industry regulators. Why might this be the case?

The

Uniformity in Unclaimed Property: States Make New Efforts to Simplify Reporting

Lynden Lyman — Mon, 05 May 2008 09:50:55 GMT

There is a significant amount of disparity between the states in terms of their unclaimed property reporting requirements. However, an increasing number of states are recognizing that the benefits of identifying best practices, establishing national standards, and achieving, to whatever degree possible, uniformity. Lynden Lyman, the managing director of the ACS Unclaimed Property Clearinghouse in Boston, discusses this changing area

"Hell or High Water" Clauses, Termination Remedies, and UCC Sec. 1-203: Excel Auto & Truck Leasing v. Alief Indep. Sch. Dist.

Stephen T. Whelan — Wed, 30 Apr 2008 17:50:01 GMT

In Excel Auto & Truck Leasing v. Alief Independent School District, the court inaccurately deemed "hell or high water" clauses as elements indicative of a security agreement and overlooked that the lease agreements had set forth a termination fee that was consistent with secured lender remedies. In this Expert Commentary, Stephen T. Whelan analyzes the decision in Excel Auto, which demonstrates the difficulty many parti

Hugh Webster on Bluetooth SIG, Inc. v. United States of America

Hugh K. Webster — Wed, 30 Apr 2008 17:10:09 GMT

Bluetooth SIG, Inc. v. United States of America, 2008 U.S. Dist. LEXIS 7576 (W.D. Wash., February 1, 2008) was the first federal case in over fifteen years to address the requirements for a trade association to qualify for tax exemption under Section 501(c)(6) of the Internal Revenue Code. In that case, the U.S. District Court for the Western District of Washington held that a tra

Jacobs-Meadway on Trade Dress Protection Aesthetics and Functionality

Roberta Jacobs Meadway — Tue, 29 Apr 2008 07:34:49 GMT

The doctrine which precludes protection of designs and product features which are "functional" has taken divergent twisting paths in addressing aesthetic features. There is no reason to treat aesthetic and/or ornamental considerations differently than any other type of mark, the Southern District of California has determined in California Board Sports, Inc. v. Vans, Inc., Case 06CV2365-IEG-AJB. In her analysis of the decisi

James M. Wilson Jr. On Derivative Suits by LLC Members in New York: Tzolis v. Wolff

James M. Wilson, Jr. — Fri, 18 Apr 2008 11:32:53 GMT

On February 14, 2008, the New York Court of Appeals held that members of limited liability companies ("LLC") may bring derivative suits on behalf of their LLCs, just as shareholders and partners may bring such suits on behalf of their corporations and limited partnerships respectively. The majority's decision is controversial because New York's limited liability statute does

The Relationship Between Trade Associations & Product Liability

Hugh K. Webster — Wed, 16 Apr 2008 16:02:12 GMT

Hugh K. Webster, a partner in the Washington, DC law firm of Webster, Chamberlain & Bean, discusses Northern District of Ohio's recent holding in In re Welding Fume Litigation that participation by a non-manufacturer's employees in an industry association, even on association committee's with a product safety focus, does not create any legal duty on the part of that corporation toward users of products manufactured by othe

Fanto on Rationalizing U.S. Financial Regulation: The Treasury's Plan

James A. Fanto — Wed, 16 Apr 2008 15:39:28 GMT

Financial and corporate crises bring regulation; the bigger the crisis, the more the regulation. A few years ago, major corporations, particularly Enron and WorldCom, were engulfed in scandals. Coming hard upon the bursting of the dot.com bubble and revelations of improper sales practices of Wall Street banks, these scandals were the catalyst for the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"), a far-reaching reform of public companies. One forgets that, only about a year ago all

Jeremy Coffey on Hill v. Gibson, Dunn & Crutcher, LLP

Jeremy Coffey — Wed, 16 Apr 2008 15:28:39 GMT

Hill v. Gibson, Dunn & Crutcher, LLP (In re MS55, Inc.), provides a new tool in the bankruptcy litigator's toolbox for dealing with the in pari delicto doctrine in bankruptcy-related litigation. The court embraced an expansive interpretation of Section 544(a) of the Bankruptcy Code and allowed a chapter 7 trustee to proceed against the debtors' former counsel by stepping into the shoes of a hypothetical creditor rather than of the debtor's bankruptcy estate (which arguably

Murray on "Layered" Contracts and Tacoma Fixture Co. v. Rudd Co.

Dr. John Murray, Jr. — Wed, 16 Apr 2008 14:53:57 GMT

When "layered" contracts encounter the "Battle of the Forms," confusion abounds. Dr. John E. Murray, Jr. discusses

Harl on Qualifying for Special Use Valuation

Neil E. Harl — Fri, 04 Apr 2008 15:01:21 GMT

Until a few years ago, special use valuation was viewed as fading rapidly in importance. The repeal of the federal estate tax after 2009 led many owners of larger estates owning farm or ranch property to believe that time spent qualifying for special use valuation could be better spent elsewhere. However, two developments have changed the picture in recent months: (1) the political winds have shifted and it is now far from clear that the transfer taxes (federal estate tax and generation-skipp

Fanto on Bank Currency Reporting Obligations

James A. Fanto — Fri, 04 Apr 2008 14:55:02 GMT

It seems as if banks cannot get out of the news. First, there is the ongoing financial meltdown, which involves banks and bank groups as culprits in packaging and selling asset-backed securities and otherwise making imprudent credit decisions. Now there is bank reporting of currency transactions that resulted in the resignation of New York Governor Eliot Spitzer, who was not exactly beloved by the banks' securities affiliates. For it was former New York Attorney General Spitzer who launched t

Nehf on Standard Search Logic and UCC 9-506(c)

James P. Nehf — Mon, 24 Mar 2008 11:27:08 GMT

An erroneous financing statement can still be effective to perfect a security interest, but it all depends on the rules and procedures that the filing office uses to perform searches. Law Professor James P. Nehf discusses the "saving grace" of UCC 9-506(c):

Ingrid Michelsen Hillinger — Thu, 13 Mar 2008 11:05:22 GMT

In In re Verus Investment Management, LLC, 344 B.R. 536 (Bankr. N.D. Ohio 2006), the debtor tenant rented office space from Metropolitan Bank, the building was transferred to Metropolitan’s successor in interest, Sky Bank, and the debtor opened an uncertificated CD account with Sky Bank as security and collateral for the debtor’s performance under the lease. Sky Bank sold the building to, and assigned the lease to, Duke,

Livingston on Tracing Cash Proceeds in Article 9 Secured Transactions

Margit Livingston — Wed, 27 Feb 2008 13:42:03 GMT

Secured creditors who finance their debtor’s inventory and receivables are often concerned with being able to maintain their perfected security interests not only in the original collateral but also in the cash proceeds generated from the disposition or collection of the original collateral. In discussing how having an enforceable security int

Why Creditors Should Search and File Against Fixtures in Both the Real Estate and UCC Filing Systems

James P. Nehf — Tue, 26 Feb 2008 17:12:21 GMT

If you are perfecting a security interest in a fixture, searching and filing in the U.C.C. office, in addition to the county real estate records, can avoid unwelcome surprises. A creditor who finances fixtures may believe that searching and filing only in the real estate records is sufficient to protect its interest in the collateral. There are several reasons why this could be a mistake. This Commentary discusses the perfection of s

Fanto on The Rogue Trader & Effectiveness of Compliance Systems Societe-Generale

James A. Fanto — Wed, 20 Feb 2008 09:41:14 GMT

The French bank, Société Générale, recently incurred a loss of approximately $7 billion at the hands of a relatively low level trader, Jérôme Kerviel. The loss apparently came about not through complex fraud, but, rather, Kerviel, making enormous bets on the direction of European equity indexes, an exposure that was beyond his authority to take. Professor James California's Uniform Limited Partnership Act of 2008 has changed one of the basic tenets of limited partnerships: their permitted purposes. Prior to the 2008 Act, limited partnerships could be formed only for the same purposes as a general partnership and that is to "carry on a business for profit." R. Bradbury Clark writes that the 2008 Act is modeled on the 2001 Uniform Limit

James Fanto on Stock Option Backdating & Its Implications for Firm Governance

James A. Fanto — Tue, 12 Feb 2008 13:44:23 GMT

Recent stock option backdating scandals, where an employee stock option recipient obtains an immediate return that he or she has not earned thanks to falsified corporate books and records, have received considerable legal attention lately. Professor James Fanto of Brooklyn Law School discusses option backdating and other stock option manipulations and the federal securities laws that apply. He argues that compensation committees should follow more robust practices when granting employee opt

James M. Wilson Jr. on the Supreme Court's Decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., et al., No. 06-43, 2008 U.S. LEXIS 1091

James M. Wilson, Jr. — Tue, 12 Feb 2008 12:39:49 GMT

On January 15, 2008, the Supreme Court ruled that there is no private right of action under Section 10(b) of the 1934 Securities Exchange Act (“Exchange Act”) against secondary actors (e.g., accounting firms, lawyers, suppliers, and investment banks) who knowingly participated in sham transactions that helped another company violate Section 10(b) by issuing misleading public statements,

Ingrid Michelsen Hillinger on What Constitutes a Refinancing, Why It Matters and How Confused Things Can Get

Ingrid Michelsen Hillinger — Wed, 06 Feb 2008 15:59:55 GMT

Lewiston State Bank v. Greenline Equipment, L.L.C., 147 P.3d 951 (Ct. App. Utah 2006), involved the issue of whether a creditor had refinanced an obligation, which was part of the court’s determination of whether the creditor held a purchase-money security interest (PMSI) in the collateral. Professor of Law Ingrid Michelsen Hillinger discusses the

Margit Livingston on Achieving Attachment of Article 9 Security Interests

Margit Livingston — Mon, 28 Jan 2008 16:51:58 GMT

Creditors seeking enforceable security interests in their debtors’ collateral must attach their security interests under U.C.C Article 9, ideally by means of a well-drafted security agreement. Professor of Law Margit Livingston discusses the concept and In re Rowe, 369 B.R. 73 (Bankr. D. Mass. 2007). Professor Livingston writes:

Professor Margit Livingston on The Debtor's Name on Article 9 Financing Statements

Margit Livingston — Wed, 23 Jan 2008 15:20:07 GMT

Revised U.C.C. Article 9 imposes a clear, specific, objective rule for measuring the sufficiency of a financing statement filed under a name other than the debtor's correct name. In examining this “single search” standard, Professor of Law Margit Livingston writes:

Ingrid Michelsen Hillinger on McCarthy v. BMW Bank of N. Am., 2007 U.S. App. LEXIS 27217

Ingrid Michelsen Hillinger — Wed, 23 Jan 2008 15:19:07 GMT

Professor of Law Ingrid Michelsen Hillinger discusses McCarthy v. BMW Bank of North America, 2007 U.S. App. LEXIS 27217 (D.C. Cir. 2007), a case highlighting perfection exposure faced by motor vehicle lenders in states where perfection under the state certificate of title (COT) statute occurs only when the Department of Motor Vehicles issues the COT noting the lender's lien. The district court found

Hillinger on First National Bank of Picayune v. Pearl River Fabricators, Inc. and U.C.C. 9-316

Ingrid Michelsen Hillinger — Wed, 23 Jan 2008 15:18:24 GMT

Professor of Law Ingrid Michelsen Hillinger examines the decision in First National Bank of Picayune v. Pearl River Fabricators, Inc., 2007 La. LEXIS 2520 (Nov. 16, 2007). It is the first opinion from a state high court to rule on U.C.C. Section 9-316 governing post-filing changes in the law governing a creditor's perfection. Professor Hillinger analyzes the case's complicated fact pattern and write

Ingrid Michelsen Hillinger on United Bank of Iowa v. Independent Inputs

Ingrid Michelsen Hillinger — Fri, 18 Jan 2008 16:24:53 GMT

United Bank of Iowa v. Independent Inputs (In re Western Iowa Limestone, Inc.), 375 B.R. 518, 2007 Bankr. LEXIS 796 (8^th Cir. B.A.P. 2007) reiter

LexisNexis Commercial: Commercial

Rose v. Chase Bank -- Preemption of State UDAP Laws