Business Organizations Law Commons^™

Franchise Regulation: Comprehensive State Regulation Now Unnecessary, Robert C. Downs

Faculty Works

Since 1970, there has been an epidemic of state regulatory activity con­cerning the sale of franchises and business opportunities. In addition to those states which actually have adopted franchise regulation statutes, several state legislatures currently are considering pending legislation. Undoubtedly, other states, including Missouri, soon will have the opportunity to protect their un­suspecting citizens from the risks believed to be inherent in the franchising industry.

Nor has the franchising business gone unnoticed by the federal govern­ment. On December 21, 1978, the Federal Trade Commission (FTC) published its rule 436, entitled "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures." …

Going Public: Practice, Procedure, And Consequences, Carl W. Schneider, Joseph M. Manko, Robert S. Kant

Villanova Law Review (1956 - )

No abstract provided.

Tender Offers And The Sale Of Control: An Analogue To Determine The Validity Of Target Management Defense Measures, Stuart R. Cohn

UF Law Faculty Publications

The hostile tender offer phenomenon has spawned wholesale defensive measures adopted by target company management. In recent years, confrontations like those of Occidental Petroleum-Mead Corporation and American Express-McGraw-Hill have resulted in target management causing the eventual withdrawal of the tender offer by employing a variety of defensive measures known colloquially as “scorched earth” tactics. The “urge to merge” among major corporations will continue to produce unsolicited, nonnegotiated tender offers at varying scales of size. Consequently, strategies and techniques have been created at a pace faster than the process of litigation, causing a discernible lag between the ingenuity of corporate management …

Choice Of Federal Or State Law For Attorneys' Professional Responsibility In Securities Matters, Ted J. Fiflis

Publications

Professional standards of duty are implicated in the federal securities laws in two types of cases: those instituted by the SEC to impose sanctions for lack of character or unethical conduct and those brought by the SEC or private parties for violations of substantive provisions of the securities laws. The question faced by Professor Fiflis is whether state or federal standards should define the duties imposed under these laws. He argues that the proper method of resolving this question is to apply an interest analysis. Analyzing the various state and federal interests leads Professor Fiflis to the conclusion that federal …

A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, Ronald J. Gilson

Faculty Scholarship

Tender offers present an obvious and inherent conflict of interest between management and shareholders. On the one hand, an offer provides shareholders with the opportunity to sell their shares for a substantial premium over market price. On the other hand, the tender offer is the principal mechanism by which management can be forcibly unseated from control. It should thus come as no surprise that management often resists outsiders' efforts to direct tender offers at its shareholders. The form of that resistance, however, is somewhat surprising. Because the tender offer is the only form of corporate acquisition addressed directly to the …

The Survival Of The Derivative Suit: An Evaluation And A Proposal For Legislative Reform, John C. Coffee Jr., Donald E. Schwartz

Faculty Scholarship

The shareholder derivative suit today faces extinction. Long considered the "chief regulator of corporate management," and a recognized form of litigation in American courts at least since 1855, it now confronts the second great challenge of its history. Thirty-odd years ago, commentators foresaw the derivative suit's demise when state legislatures began adopting security-for-expenses statutes to curb the abuses of "strike suit" litigation. These reports of its death proved exaggerated, however, as plaintiffs discovered various tactics by which to outflank these statutes. As a result, by the late 1960's, the crisis was past, and a revival in the action's popularity was …

Equity Insolvency And The New Model Business Corporation Act, Daniel T. Murphy

Law Faculty Publications

By eliminating earned and capital surplus, the new Model Business Corporation Act may be perceived as providing directors with some additional flexibility regarding distributions to shareholders. As a practical matter however, the statute does not dramatically enlarge the ambit of their discretion. Directors have always had the flexibility to make distributions from both earned or capital surplus. The distributions are still tempered, as they were under the old statute, by the notion of equity solvency. On the other hand, the Comment to new section 45 provides the board of directors with substantial guidance of the proper methodology to use in …

Accounting For Mergers, Acquisitions And Investments, In A Nutshell: The Interrelationships Of, And Criteria For, Purchase Or Pooling, The Equity Method, And Parent-Company-Only And Consolidated Statements, Ted J. Fiflis

Publications

No abstract provided.

Incorporation And The Securities Acts, Daniel T. Murphy

Law Faculty Publications

ATTORNEYS, when advising clients regarding the advantages and disadvantages of incorporating a business, must carefully consider the applicability of the securities laws, state and federal, to the venture from its inception. If a business were run as a proprietorship or a general partnership, the principals could dispose of their interests in the business without consideration of the securities laws. The issuance of stock by a corporation to such individuals in exchange for cash or their interests in the business triggers the application of both state and federal securities laws. More importantly, however, the attorney must recognize that these statutes will …

Glass-Steagall: Some Critical Reflections, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Pennsylvania Takeover Disclosure Law: A Statute Waiting To Be Invalidated, Ira P. Tiger

Villanova Law Review (1956 - )

No abstract provided.

Redemption Of Stock Under The Model Business Corporations Act And The Virginia Stock Corporation Act, Daniel T. Murphy

Law Faculty Publications

The Model Business Corporation Act (hereinafter the "Model Act") has been in existence for more than twenty-five years, and has served as the paradigm for the revised corporation statutes of approximately twenty-five states, including Virginia. Despite its age, certain of its provisions have been infrequently applied and interpreted in judicial opinions. One such set of provisions is that dealing with a corporation's right to redeem shares of its stock. The purpose of this article is to analyze the Model Act's provisions regarding the redemption of shares; and to review, in contrast thereto, the relevant provisions of the Virginia stock corporation …

Corruption And The Foreign Corrupt Practices Act Of 1977, Fredric Bryan Lesser

University of Michigan Journal of Law Reform

This article first discusses the business activities and competing interests which prompted congressional action. Part II analyzes the FCPA and attempts to solve the ambiguities inherent in the criminalization provisions, thereby clarifying which activities are proscribed by the FCPA and what is meant by the Act's corruption requirement. Finally, Part III examines the possibilities for multinational agreements prohibiting bribery.

Ambivalent Reflections On Regulation, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Extraterritorial Effect Of The Registration Requirements Of The Securities Act Of 1933, Peter John Mitchell Rohall

Villanova Law Review (1956 - )

No abstract provided.

Stock Appreciation Rights And The Sec: A Case Of Questionable Rulemaking, Stuart R. Cohn

UF Law Faculty Publications

A stock appreciation rights (SARs) program is a form of deferred incentive compensation. Grantees are awarded SAR-units representing an equal number of the grantor’s equity shares currently being traded in public markets. SARs provide grantees the benefit of stock ownership without equity interest, investment, or risk of loss. Stock appreciation rights programs offer various advantages over other forms of executive compensation and have grown rapidly in number. These advantages include the availability of benefits without the requirement of monetary payments, the utilization of SARs as an interest-free form of financing the purchase of stock under tandem stock option programs, the …

Director And Audit Committee Responsibilities Relating To Perquisites, Charles B. Tomm

Washington and Lee Law Review

No abstract provided.

Tender Offers And Bidder Access To Target Company Shareholder Lists

BYU Law Review

No abstract provided.

Securities Law - Rule 10b-5 - Oral Executory Contract To Purchase Securities Held To Provide Sufficient Basis For Standing To Bring Private 10b-5 Action, And Fraud Occuring During The Pendency Fo The Executory Contract Held To Be In Connection With The Purchase Of Securities, Lisa S. Hunter

Villanova Law Review (1956 - )

No abstract provided.

The Interface Between Securities Act 3(A)(10) And Ohio Revised Code 1707.04: Utilitarian Considerations For Ohio Mergers And Corporate Reorganization Transactions, Robert N. Rapp

Cleveland State Law Review

It is the purpose of this article to examine the interface between Securities Act § 3(a) (10) and Ohio Rev. Code § 1707.04, and to highlight the utility of the combination for Ohio corporate transactions. Subpart II below analyzes the significant background considerations which underlie the new-found importance of § 3(a) (10). It is followed in Subpart III by in-depth consideration of the interface itself. And finally, the application and utilization of the Ohio provision are analyzed in Subpart IV.

Enforcement Of Proxy Regulations In Parent-Subsidiary Mergers

Washington and Lee Law Review

No abstract provided.

The Securities And Exchange Commission And Corporate Democracy, Joel Seligman

Scholarship@WashULaw

On April 28th of last year, the Securities and Exchange Commission announced it would begin a comprehensive reexamination of the shareholders' role in corporate governance. After receiving close to one hundred and fifty letters of comment, the Commission commenced hearings on September 29th in Washington D.C.

Few issues are so worthy of the Commission's concern. Under state corporation law, shareholders have the power to nominate and elect members of the board of directors. Today this power is virtually meaningless in publicly held corporations. The vast majority of shareholders vote by proxy. But neither state nor federal law guarantees shareholders access …

Soft Information: The Sec's Former Exogenous Zone, Ted J. Fiflis

Publications

No abstract provided.

Recent Developments In Securities Law: Causes Of Action Under Rule 10b-5, Russell N. Brown, Thomas C. Carey, Louis S. Faber, Robert B. Fleming Jr., Allen J. Klein, Mark J. Moretti, James Piggush, M. Williams Jr.

Buffalo Law Review

No abstract provided.

Complete Stock Redemption In A Family Corporation: A Warning About The Pitfalls Of Two Standards, Eric T. Johnson

Villanova Law Review (1956 - )

No abstract provided.

Definition Of Control In Secondary Distributions, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Section 2(11) of the Securities Act of 1933 (Act) generally subjects the sale of securities by a person "controlling an issuer" to the same rules that govern the sale of securities by an issuer. Accordingly, before a "control" person may sell the securities he holds in the controlled corporation he must either register them with the Securities and Exchange Commission (Commission) or qualify for an exemption from the registration requirement. While the Act clearly requires that a "control" person either register or qualify for an exemption, it fails to define "control." Thus, the task of defining has fallen to the …

Treasury Shares And Pre-Emptive Rights: Schwartz V. Marien, Barbara G. Edman

Buffalo Law Review

No abstract provided.

Financial Disclosure By Small Corporations, Russell J. Bruemmer

University of Michigan Journal of Law Reform

This note will focus upon the desirability of compelling financial disclosure by corporations not subject to control under the existing federal securities legislation, which includes the vast majority of American corporations. While differing in degree and extent of application to corporations of varying sizes, the benefits derived from disclosure by large, widely-held corporations would also be obtained when disclosure is made by smaller, less widely-held corporations. The extension of federal or state disclosure requirements to corporations of all sizes and ownership dispersions, requiring them to place financial information before their shareholders at least once each year, is suggested.

The Commodity Futures Trading Commission Act: Preemption As Public Policy, Philip F. Johnson

Vanderbilt Law Review

On October 23, 1974, President Ford signed into law P.L. 93-463, bearing the breathless title "Commodity Futures Trading Com-mission Act of 1974"' [hereinafter the CFTC Act]. The CFTC Act followed a series of hearings, beginning in the summer of 1973, held first by a subcommittee of the House Committee on Small Business and followed rapidly by the more traditional oversight committees of the Congress-the House Agriculture Committee and the Senate Agriculture and Forestry Committee.' The result was a major over-haul of the Commodity Exchange Act, which had governed the commodity futures markets since 1922. More significantly, however,the Act has become …

Going Private: Business Practices, Legal Mechanics, Judicial Standards And Proposals For Reform, Lewis D. Solomon

Buffalo Law Review

No abstract provided.