 |
|
|
|
| Securities & Regulatory Litigation |
Businesses and their Employees Should Reconsider Taking Laptops & PDAs Abroad
Information Security & Privacy
July 7, 2008
Roy E. Hadley, Jr.
A recent 9th Circuit Court of Appeals decision giving U.S. customs agents nearly unfettered ability to search electronic files should have businesses rethinking what risks employees create by taking electronic devices and files with them on international trips.
|
|
2007 Corporate and Business Organization Case Law Developments
Securities, Corporate and Fiduciary Litigation
January 28, 2008
Thomas S. Richey
In 2007, state and federal courts handed down some fifty decisions on Georgia corporate and business organization issues, some of them addressing long unresolved questions, others applying established principles. The decisions involve business and nonprofit corporations, LLCs, partnerships and joint ventures. They deal with a wide variety of issues, including the standard of care for Georgia corporate officers and directors, common law duties of disclosure, the business judgment rule, reinstatement of administratively dissolved corporations, buy-sell agreements, director and officer liability insurance, derivative action claims in partnerships and LLCs, piercing the corporate veil claims, statutes of limitation for breaches of fiduciary duty, admissibility of evidence under the Business Records Act and professional liability in corporate transactions.
|
|
Just When You Thought It Was Safe: Standard of Care For GA Corporate Directors & Officers Revisited - 06/07
Securities, Corporate & Fiduciary Litigation
June 7, 2007
Thomas S. Richey
In March, the Georgia Court of Appeals ruled that officers and directors of a Georgia corporation cannot be held liable to shareholders for ordinary negligence. In late May, the Court handed down a conflicting decision in another case holding just the opposite. This is not a mere technicality. It affects the management of every corporation incorporated in Georgia, what legal standard of conduct governs their actions, and when they can be held personally liable for company and shareholder losses.
|
|
Important Development in The Standard of Care for Directors and Officers of Georgia Corporations - 05/07
Securities, Corporate & Fiduciary Litigation
May 7, 2007
Thomas S. Richey
In a recent decision, Flexible Products Co. v. Ervast, a three-judge panel of the Georgia Court of Appeals took a major step in resolving the uncertainty regarding the standard of care for officers and directors of Georgia corporations.
|
|
Eleventh Circuit Thwarts Attempt to turn Sarbanes-Oxley Certifications Into Strict Liability For Fraud - 11/03/06
Securities, Corporate & Fiduciary Litigation
November 3, 2006
John R. Bielema
Stacey Godfrey Evans
The Sarbanes-Oxley Act ("SOX") in 2002 imposed increased accounting and reporting requirements on public companies and their officers and directors. One specific requirement of SOX is that public company chief executive officers and chief financial officers must certify each periodic report filed with the Securities and Exchange Commission that contains financial statements.
|
|
Georgia Court Recognizes Claim for Aiding and Abetting Breach of Fiduciary Duty - 07/28/06
Securities, Corporate & Fiduciary Litigation
July 28, 2006
The Georgia Court of Appeals has held that Georgia law permits a claim of aiding and abetting a breach of fiduciary duty.
|
|
Georgia Court Recognizes Claim for Aiding and Abetting Breach of Fiduciary Duty - 07/12/06
Securities, Corporate & Fiduciary Litigation
July 12, 2006
Resolving a long-standing question, the Georgia Court of Appeals has held that Georgia law allows plaintiffs to pursue claims of "aiding and abetting," "inducing" or "procuring" a breach of fiduciary duty. The decision will be important in litigation challenging the actions of corporate management, as well as in litigation against accountants, attorneys and other professionals.
|
|
Cooperation and Remediation - The Best and Only Medicines?
Securities, Corporate & Fiduciary Litigation
May 19, 2006
Stacey Godfrey Evans
W. Scott Sorrels
Providing more evidence that life for public companies is a hard lot in today's regulatory environment, the Securities and Exchange Commission's Enforcement Director, Linda Thomsen, recently commented to the effect that after a company discovers that it engaged in unlawful conduct, it has control over only two things - whether to cooperate and the scope of its remediation plan.
|
|
Georgia Legislature Approves Amendments to Georgia Corporation Code - 04/03/06
Business & Finance and Securities & Corporate Litigation
April 3, 2006
Thomas R. McNeill
Thomas S. Richey
Louis C. Spelios
Last week, the Georgia Legislature approved Senate Bill 469, a bill which affects how Georgia corporations conduct their affairs by modernizing the Georgia Corporate Code. Specifically, the bill contains provisions which relate to: the approval process for corporate transactions; the advancement of expenses to persons entitled to indemnification as corporate directors and officers, as well as the obligation of a corporation to indemnify; proceedings during bankruptcy; and the process by which corporations, limited liability companies, and partnerships, may elect another legal form. The bill is awaiting signature by Georgia Governor Sonny Perdue.
|
|
Necessity to Preserve Evidence Remains despite Reversal of Second Government Conviction regarding Destruction of Documentary Evidence - 03/22/06
Securities Litigation
March 22, 2006
Jason R. Curles
Jennifer Devine Odom
The US government suffered its second setback in its effort to uphold convictions for companies charged with obstruction of justice related to the destruction of documents.
|
|
Securities and Exchange Commission Clarifies Position on Imposing Civil Penalties on Public Companies - 01/09/05
Securities, Corporate & Fiduciary Litigation
January 9, 2006
Jason R. Curles
W. Scott Sorrels
On January 4, 2006, SEC Chairman Christopher Cox announced a unanimously adopted policy designed to guide the market about how the SEC may use its enforcement powers to fine public companies for securities law violations.
|
|
SEC Clarifies Position on Imposing Civil Penalties - 1/04/06
Securities, Corporate & Fiduciary Litigation
January 4, 2006
Jason R. Curles
W. Scott Sorrels
On January 4, 2006, the SEC Chairman announced a unanimously adopted policy designed to guide the market about how the SEC may use its enforcement powers to fine public companies for securities law violations.
|
|
Sarbanes-Oxley Act Provides No Private Right of Action to Seek Disgorgement of Profits and Bonuses from Chief Executive Officers and Chief Financial Officers - 10/14/05
Securities, Corporate & Fiduciary Litigation
October 14, 2005
Jennifer Devine Odom
In an issue of first impression, a federal district court in the Eastern District of Pennsylvania held that there is no private right of action under ยง304 of the Sarbanes-Oxley Act of 2002.
|
|
Supreme Court of Georgia Ruling Allows Companies in Bankruptcy to Pierce their own Corporate Veils to Impose Liability for Company Debts on their Controlling Shareholders - 05/13/05
Securities, Corporate & Fiduciary Litigation
May 13, 2005
Thomas S. Richey
A new Supreme Court of Georgia decision has expanded the potential liability of shareholders of bankrupt Georgia corporations by allowing corporations to "pierce their own corporate veil" and seek to impose liability for their debt on controlling shareholders. Moreover, such claims belong exclusively to the debtor-corporation when it is in bankruptcy and cannot be pursued independently by creditors. The court also ruled that a shareholder who abuses the corporate form can be held liable to the corporation for all its debts.
|
|
The "Loss Causation" Element of Securities Fraud - 04/20/05
Securities, Corporate & Fiduciary Litigation
April 20, 2005
John R. Bielema
Michael P. Carey
Thomas S. Richey
On April 19, 2005, the United States Supreme Court unanimously held that a securities fraud plaintiff who files suit for fraud under Section 10(b) of the Securities Exchange Act of 1934 and the SEC's Rule 10b-5, in order to successfully plead the required element of "loss causation," must allege more than that a security's price at the time of purchase was inflated because of the alleged misrepresentation.
|
|
Supreme Court Declines to Hear Appeal of Decision That Significantly Weakens the Safe Harbor Protection of the Private Securities Litigation Reform Act of 1995 -4/09/05
Securities, Corporate & Fiduciary Litigation Client Alert
April 8, 2005
John R. Bielema
Michael P. Carey
The Private Securities Litigation Reform Act of 1995 ("PSLRA") contains a safe harbor provision intended to afford "forward-looking statements," including projections, forecasts and other "soft" information regarding future events, a significant measure of protection from liability under the anti-fraud provisions of the federal securities laws. Under the safe harbor, a forward-looking statement cannot provide the basis for a claim under Section 10(b) of the Exchange Act so long as it is accompanied by "meaningful cautionary language."
On March 21, 2005, the United States Supreme Court declined to review an appeals court decision that weakens, if not effectively eliminates in some cases, that protection for issuers and corporate executives.
|
|
Questions Directors Should Ask RE: D&O Liability Insurance
Securities, Corporate & Fiduciary Litigation
February 16, 2005
Thomas S. Richey
Recent class action settlements involving payment by outside directors from their personal funds have heightened concerns about the adequacy of director and officer liability insurance coverage. This may appear to be a new issue, but directors have had to pay their own way on many not well-publicized occasions in the past, either because the company on whose board they served had no Directors & Officers (D&O) insurance, because the policy limits were inadequate, or because the insurer denied coverage based on exclusions or sought to rescind the policy for alleged misrepresentations in the application for coverage or accompanying financial information.
|
|
|
|
|
|
