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CALIFORNIA CORPORATE & SECURITIES LAW

Is A Racial Or Ethnic Group A “Person”?

Yesterday’s post concerned the U.S. Supreme Court’s holding in Matal v. Tam, 2017 U.S. LEXIS 3872 (June 19, 2017) that the “disparagement clause” of the Lanham Act violates the Free Speech Clause of the First Amendment.  As far as most legal commentators were concerned, that was the one and only headline holding of the case.  Before addressing…

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Incorporating Under A Disparaging Name

In Matal v. Tam, 2017 U.S. LEXIS 3872 (June 19, 2017), the U.S. Supreme Court found the “disparagement clause” of the Lanham Act violates the Free Speech Clause of the First Amendment.  The “disparagement clause” prohibits the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons,…

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Are California Statutes Authorizing Desist And Refrain Orders Facially Unconstitutional?

In December 2008, the Commissioner of Corporations issued a desist and refrain order based on alleged violations of the Corporate Securities Law and the Finance Lenders’ Law.  Nearly seven years later, the respondents challenged the order by filing a complaint in the U.S. District Court.  The complaint included four causes of action: (1) violation of…

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District Court Declines To Redress The SEC’s Failure To Respond To Petition Seeking Political Spending Disclosure Rule

Although placed right up front in the First Amendment to the U.S. Constitution, the right to petition the government for redress of grievances is often overshadowed by the other First Amendment rights.  There can be no doubt, however, that the right to petition the government is an important right with a long historical tradition.  The…

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Californians To Vote On Stripping Common Cause Of Its First Amendment Rights

I recently wrote about SB 1272 (Lieu) which calls a special election for this November 4 at which California voters will be able to cast an advisory vote on whether the U.S. Constitution should be amended to overturn the U.S. Supreme Court’s holding in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).  Last week, Governor…

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Name And Shame No More?

The last few years has seen the rise of so-called “name and shame” laws. The aims of many these laws may be laudable, but yesterday’s decision by the Court of Appeals for the District of Columbia Circuit calls their methodology into constitutional question. Nat’l Ass’n of Mfrs. v. SEC, 2014 U.S. App. LEXIS 6840 (D.C.…

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LLC Has No First Amendment Right To Send Its Lawyer To Board Meetings

Usually when someone invokes her right to counsel, she usually has in mind the Sixth Amendment of the U.S. Constitution (or perhaps Article I, § 15 of the California Constitution).  Thus, I was surprised to see a case in which the plaintiff argued that it had a First Amendment right to counsel. SB Liberty, LLC…

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Court Declares Bank Trash Talk Statute Facially Unconstitutional

In my October 2010 post “Don’t Talk Trash About A California Bank“, I discussed Financial Code Section 756 (subsequently reenacted verbatim as Section 1327).  That statute generally criminalizes spreading false rumors about a bank.  In my post, I speculated on whether the statute was constitutional: Moreover, it seems that prosecution would invite a claim that…

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U.S. Supreme Court Asked To Determine Constitutionality Of General Solicitation Ban

Federal and state securities laws are premised on the belief that the government can constitutionally prohibit or limit speech in connection with the offer or sale of securities.  At least one issuer has aggressively challenged this premise and has now taken its case to the U.S. Supreme Court. Phillip Goldstein is an owner/manager of a group of funds…

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Conflict Minerals Bill In Suspense File (For Now)

SB 861 in Suspense In April, I wrote in this post about SB 861 (Corbett), a California bill intended to put some teeth in the Dodd-Frank Act’s mandate (Section 1502) that the Securities and Exchange Commission adopt disclosure and reporting regulations regarding “conflict minerals”.  The day before that posting, the SEC revised its estimate of when it…

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