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CALIFORNIA CORPORATE & SECURITIES LAW

Attorney-Client privilege In M&A Transactions

The title of this recent law review article frames the problem well, At the Whim of Your Adversaries: California’s Hazards in Sell-Side Representation and Waiver of Attorney-Client Privilege, 54 Santa Clara L. Rev. 651 (2014).  In this article, the authors, practicing attorneys Mattia V. Murawski and Brian R. Wilson, argue for an amendment to the California Evidence Code…

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Some Questions About Delaware’s New Law Allowing Parties To Extend The Statute Of Limitations

Delaware recently amended its law to allow parties to a written contract involving at least $100,000 to provide that any action based on that contract may be brought within a period specified in that contract provided that the action is brought prior to the expiration of 20 years from the accrual of the cause of action.  10…

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As Samuel Goldwyn Reportedly Said: “Include Me Out”

A lawyer aims at precision that can never be achieved because of the bluntness of his tool – language.  Consider the word “including”.  Is it a term of enlargement or limitation?  It is a term of enlargment when the intent is to provide a non-exclusive list.  It is a term of limitation when the intent…

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Legitimate Interests Provide No Immunity For Intentional Interference Claims

In law school we study contract law and we study torts.  We don’t study contracts and torts as a single subject (e.g., “contorts”).  Why?  Because they are generally regarded as fundamentally different areas of the law.  They involve different issues – contracts is all about consent while torts is all about the lack of consent. …

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A Shot In A Mug Of Beer May Not Be The Answer To This Exclusive Forum Bylaw Case

In March, Safeway and Albertsons announced that they had entered into a definitive merger agreement.   As night follows day, litigation ensued.  At least 12 class action complaints were filed by alleged stockholders of Safeway against the company, its directors and others.  The seven suits filed in Delaware’s Court of Chancery have been consolidated as In Re…

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And You Thought Dissenters’ Rights Didn’t Apply To Delaware LLCs

Delaware’s Limited Liability Company Act provides that a limited liability company agreement or an agreement of merger or consolidation or plan of merger may provide for appraisal rights.  6 Del. Code § 18-210.  Does this mean that a Delaware LLC with no such provision need not worry about dissenters’ rights?  Not necessarily.  Article 11 of…

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Amicus Decries “Tortification” Of Contract Law

In For Executives, This May Have Been The Most Frightening Holding Of 2013, I wrote about the Court of Appeal’s decision in Asahi Kasei Pharma Corp. v. Actelion Ltd., 222 Cal. App. 4th 945 (2013).   Readers may recall that the case involved a lawsuit by a licensee whose license had been terminated after the licensor…

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SEC No-Action Letter Addresses “M&A Brokers”

Martin A. Hewitt alerted me to this no-action letter issued on January 31, 2014 by the SEC’s Division of Trading and Markets.  The letter was issued in response to a request by six lawyers, including Mr. Hewitt.  In very broad terms the letter states that the Division would not recommend enforcement “if an M&A Broker…

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A Modest Proposal For Preventing M&A Deals From Being A Burden to Shareholders or Corporations, and For Making Them Beneficial to The Public

According to Cornerstone Research, shareholders in 2012 “challenged 93 percent of merger and acquisition (M&A) deals valued over $100 million and 96 percent of transactions valued over $500 million”.  Most of those cases settled and in more than 80% of the settled cases, the only relief was additional disclosure.  I think it is agreed by all parties that…

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40% Is Less Than A Majority But Can It Be “Control”?

Yesterday’s post concerned the Court of Appeal’s opinion in Busse v. United Panam Financial Corp., 2014 Cal. App. LEXIS 11 (Cal. App. 4th Dist. Jan. 8, 2014) holding that shareholders may not pursue monetary damages under Section 1312(b) of the California Corporations Code.  That statute applies if “one of the parties to a reorganization or short-form…

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