Securities

Expert Analysis

• When Minority Stockholders Take Control

  

  It is a mistake to assume that a stockholder that does not own 51 percent of a company’s equity is free from the constraints that apply to controlling stockholders. Recent Delaware cases provide key insight into when minority stockholders can be deemed controlling stockholders, and the level of judicial review that applies to agreements with affiliates of the controlling stockholders, say attorneys with Paul Hastings LLP.

• Merger Price Vs. Discounted Cash Flow: A Study Of Dell

  

  Rejecting the contention by Dell Inc. that the final merger consideration was the best evidence of its fair value, the Delaware Chancery Court recently concluded that the fair value of Dell's common stock at the time it was taken private was approximately 28 percent higher than the final merger price. RSM US LLP's Boris Steffen, who frequently serves as a testifying expert in M&A litigation, dissects the court's analysis and highli... (continued)

• Testing The UBE: Portable But Inaccurate Bar Exam Scores

  

  While there is not much that is new about the uniform bar exam’s components, what is new is that where you take the bar exam may make the difference between passing and failing. Half of the score depends on the strength of the applicant pool in the jurisdiction where the candidate wrote the exam, which may lead to “UBE shopping,” says Suzanne Darrow-Kleinhaus, director of bar programs at Touro Law Center.

• Latest FCPA Deal Validates Pilot Program

  

  The U.S. Department of Justice's recent decision to close its Foreign Corrupt Practices Act investigation of Johnson Controls without charges provides a glimmer of hope that self-disclosure under the so-called pilot program might just be worthwhile, says William Steinman of Steinman & Rodgers LLP.

• Testing The UBE: Missouri Benefits From Uniform Bar Exam

  

  We in Missouri do not take lightly to new trends or frothy ideas. Yet, the uniform bar exam has allowed us to meet the challenges of an increasingly mobile legal profession and the changing needs of clients, and to ensure that a newly admitted attorney has the knowledge, character and fitness to practice in the Show-Me State, says Jim Nowogrocki, president of the Board of Law Examiners in Missouri — the first state to adopt the UBE.

• The Scope Of SEC Defendants' Jury Trial Right: Part 4

  

  In the final part of this series examining the Seventh Amendment jury trial right of a civil defendant in a U.S. Securities and Exchange Commission enforcement action, attorneys with WilmerHale address why, even with regard to otherwise negligence-based securities law violations, the SEC must prove scienter to the jury in order to obtain a second- or third-tier penalty.

• Internal Investigations: Don't Give Law Firm A Blank Check

  

  We have heard increasing complaints from general counsels about the runaway costs of internal investigations by outside counsel. GCs and clients — be it the company, the audit committee or a special litigation committee — are uniquely positioned to play an important role in defining and controlling the scope and costs of an investigation, say John McDermott and Emily Garnett of Brownstein Hyatt Farber Schreck LLP.

• 415 Million Reasons Why It’s Time To Hug A Whistleblower

  

  Five years in, the U.S. Securities and Exchange Commission’s whistleblower program is driving cases that are striking in their quality, significance and scope. Just as the SEC has harnessed the power of insiders, companies can and should utilize those same insiders to better protect their organizations, says Jordan Thomas, chairman of Labaton Sucharow LLP's whistleblower representation practice and a former SEC assistant director.

• Curing Substantive Ambiguities In Debt Documentation

  

  Recent New York state court decisions in GSO Coastline v. Global A&T; Electronics present a cornucopia of issues arising under standard indenture clauses. First, beware of seemingly technical amendments to indentures that have substantive consequences, says Abbe Dienstag of Kramer Levin Naftalis & Frankel LLP.

• Mitigating The Risk Of Post-Merger Legacy Board Factions

  

  As occurred in the case of Cogentix, loyalties to the legacy constituent corporations of a merger can create serious issues for the ongoing governance and management of the post-merger corporation. The risk is heightened when the controller, former CEO or founder of the smaller constituent company continues as a director or manager of the merged company, say attorneys with Fried Frank Harris Shriver & Jacobson LLP.