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CALIFORNIA CORPORATE & SECURITIES LAW

Designated Lender’s Counsel

Doug Cornelius at Compliance Building writes today about borrowers paying the legal fees of lender’s counsel: Of course there is a conflict with the law firm. That too is a conflict that has been in place for decades. The bank’s lawyers know they represent the bank. They also know the borrower is paying their bill. Until…

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Court of Appeal Says Same Counsel Can’t Represent Corporation And Individual Defendants in Derivative Suit

Derivative suits put the corporation in the odd position of simultaneously occupying the position of a defendant and plaintiff.  When the suit is initiated, the corporation is named as a nominal defendant.  If, however, the suit is allowed to proceed, then the corporation is the “real” plaintiff.   What does this mean for attorneys who seek…

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Employer’s Lawyer Who Defended Employee At Deposition May Be Liable To The Employee For Malpractice

Corporations may have free speech rights (Citizens United v. FEC, 558 U.S. 310 (U.S. 2010)) but they can’t talk.  Thus, any deposition testimony must come from the mouths of people who are the agents, employees and directors of the corporation.  These people usually come to the deposition with lawyers.  But whom do these lawyers represent…

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Why “Independent Legal Counsel” Is A Splendid Lie

The 1735 edition of Jonathan Swift’s Gulliver’s Travels includes a frontpiece portrait of Capt. Lemuel Gulliver.  Beneath the portrait is a Latin phrase – Splendide Mendax.  This phrase is a snippet from the Roman Poet Horace’s Odes (Book III, Poem 11).  It means splendidly false.  The phrase is perhaps one of the most famous literary…

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Compensation Committees – Whom Do You Represent?

Amongst the many, many, changes wrought by the Dodd-Frank Wall Street Reform & Consumer Protection Act, is this requirement in Section 952(d)(1):   “The compensation committee of an issuer, in its capacity as a committee of the board of directors, may, in its sole discretion, retain and obtain the advice of independent legal counsel and other advisers”. …

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