Office of Administrative Law To Determine Whether CalPERS’ Policy is an Underground Regulation

In August, I submitted a petition to the Office of Administrative Law alleging that the California Public Employees Retirement System had “issued, used enforced, or attempted to enforce an underground regulation”.  Specifically, I challenged CalPERS’ Statement of Investment Policy for External Investment Resource Conflict of Interest.  In CalPERS’ argot, an “external investment resource” is someone who

Commissioner Proposes Custody Rule

Over a year ago, the Commissioner issued this invitation for comments with respect to a complete rewriting of California’s custody rule for investment advisers, 10 CCR § 260.237.  The Commissioner received a number of comments.  However, none of the commenters suggested a comprehensive alternative approach.  Now, the Commissioner has issued notice of her intention to proceed with

Electronic Mail Requires Consent And Cicero’s Guide To Electioneering

Even before the advent of the personal computer, people were talking about electronic mail.  See this March 1973 issue of Popular Science.  They weren’t discussing e-mail, but facsimile transmission.  Although people still send documents by facsimile, other forms of electronic mail have been developed and proven even more popular. More than three decades were to

Can It Be So? Court Holds That A Nebraska Corporation Is Not A Corporation

Section 2010(b) California Corporations Code provides that no action or proceeding to which a corporation is a party abates by dissolution of the corporation.  The statute imposes no time limit on suing dissolved corporations for pre-dissolution activities. In Robinson v. SSW, Inc.,209 Cal. App. 4th 588 (2012), the Court of Appeal considered whether Corporations Code Section

Court Of Appeal Upholds Unsigned Stock Option Agreement

In an opinion handed down yesterday, the Fourth District Court of Appeal upheld an “oral” stock option agreement.  Maughan v. Correia, Cal. Ct. of Appeal Case No. D058957 (Oct. 24, 2012).  The case arose from a fight between a brother and sister over ownership in a family run corporation.  The sister had sued her brother to enforce

Maybe These Scientists Should Have Included A Forward-Looking Statements Disclosure . . .

I was very surprised to read this morning that an Italian court had convicted seven scientists of failing to provide a warning of an earthquake that tragically killed more than 300 people.  See “Italy Orders Jail Terms for 7 Who Didn’t Warn of Deadly Earthquake” New York Times (Oct. 23, 2012).  I think that the story illustrates

California’s Other Securities Law

A year ago, I discussed the question of whether an issuer could prevent unauthorized trading in options with respect to its own securities.  See “Options Trading Without the Issuer’s Consent“.  In fact, one issuer tried, without success, to stop trading in options on its own securities.  Golden Nugget, Inc. v. American Stock Exchange, Inc., 828 F.2d 586

No Complaint Window At Many State Agencies

John Milton is one of my favorite writers.  In his influential defense of freedom of speech, Areopagitica, he linked liberty to the right to complain about the government: [B]ut when complaints are freely heard, deeply consider’d and speedily reform’d, then is the utmost bound of civill liberty attain’d, that wise men looke for. (original spelling)

Why Does CalPERS Need Insider Trading Rules?

Last Spring, I wrote that the California Public Employees Retirement System was considering adoption of regulations governing personal trading by members of its Board of Administration and employees.  These regulations are still under consideration.  Recently, CalPERS gave notice of additional changes to the proposed rules.  While I did submit a few technical comments on the proposed regulations, the

Aren’t All Administrative Decisions Precedential?

As lawyers, we are used to citing earlier decisions as precedent.  Thus, we might expect that the Department of Corporations is free to rely on its earlier administrative decisions as precedent.  Surprisingly, this is not the case.  In fact, the Administrative Procedure Act prohibits a state agency from expressly relying on a decision as precedent