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Fee Shifting Bylaw Provisions May Face Constitutional Limitation

The corporate governance world has been disquieted by Delaware Supreme Court Justice Carolyn Berger’s recent opinion that upheld the validity of a fee-shifting bylaw provision in the bylaws of a Delaware non-stock corporation.  ATP Tours, Inc. v. Deutscher Tennis Bund (No. 534, 2013, May 8, 2014).  Even though the ink has barely dried on the opinion,…

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In What Branch Of Government Are State Agencies?

Article III, Section 3 of the California Constitution declares that the powers of state government are legislative, executive and judicial.  Section 3 then explicitly provides that “Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”  This is what the Constitution says, but is…

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The Little Hoover Commission And The Architecture Of Power

Last week, I testified before the Milton Marks “Little Hoover” Commission on California State Government Organization and the Economy concerning Governor Jerry Brown’s 2012 Reorganization Plan.  My written comments are available here. The hearing was held in a state auditorium with the Commissioners sitting high on a stage before the audience.  Speakers spoke from a…

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Why The Word “Includes” Conflates The Separation Of Powers

There are many ways to define a term.  Many definitions are “intensional definitions”.   An intensional definition lays down all of the properties required to meet that definition.  For example, Corporations Code Section 185 provides that “Shareholder” means “one who is a holder of record of shares.”  That is, the necessary and sufficient condition for belonging…

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Welcome To Jan Owen, California’s Newest Commissioner Of Corporations!

Yesterday I was very pleased to read that California’s Governor Jerry Brown had announced the appointment of Jan Owen to fill the Commissioner’s seat that Preston DuFauchard will be leaving at the end of the year. I’ve known Jan since my days at the California Business, Transportation & Housing Agency.  At that time, she was serving as Chief Committee…

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Apparently, They Need To Swear More In North Dakota

Swearing Is Required By The California Constitution[1] When I was appointed Commissioner of Corporations, I took an oath to support the U.S. and California constitutions.  Although I don’t recall inquiring about the source of the oath at the time, the oath (and its text) is set forth in Article XX, Section 3 of the California…

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