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Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein Jan 1999

Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein

Articles

In the Lloyd's of London cases, the United States Courts of Appeals upheld certain forum-selection clauses that effectually deprived investors of the protections of the federal securities laws as if the investors had expressly waived those protections. This article examines statutory antiwaiver provisions in light of the Lloyd's cases, exploring the effect those provisions have on the administration of the federal securities laws, and suggests that the law be amended to allow contractual waiver in certain circumstances.


Shareholder Derivative Litigation And Corporate Governance, Mark J. Loewenstein Jan 1999

Shareholder Derivative Litigation And Corporate Governance, Mark J. Loewenstein

Articles

In approving settlements of derivative actions that include fees for plaintiff's attorney, courts typically announce that attorney's fees are approved if a substantial benefit is obtained. In fact, courts, particularly Delaware courts, approve settlements in shareholder derivative actions that included substantial fees for plaintiff's attorney, despite the absence of a corresponding benefit to the corporation. Frequently, the "benefit" obtained is a reform in corporate governance, which is of dubious value to the corporation. To deter frivolous litigation, courts should resist the temptation to approve these settlements just to dispose of the litigation. The paper concludes that fees ...