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Good Faith Issues
The massive corporate scandals that accompanied the new millennium resulted in a host of high-profile legislative and regulatory responses by, among others, Congress, the Securities and Exchange Commission and the national securities exchanges. Fearful of being marginalized by the incursion of these entities into matters of corporate governance, the Delaware courts appear to be using the threat of enhanced exposure to potential personal liability as a means to encourage directors and officers to be more attentive in the performance of their managerial responsibilities.
By virtue of their managerial prerogatives, directors and officers of a corporation owe fiduciary duties to the corporation and its stockholders. These duties govern the conduct of corporate fiduciaries both in making corporate decisions on an episodic basis and in overseeing the corporation's business and affairs on an ongoing basis. Historically, these duties have been characterized as duties of loyalty and care, with the duty of loyalty having an integral good faith component.
In recent years, Delaware courts have begun to refer to a “triad” of fiduciary duties — consisting of loyalty, care and good faith — thereby suggesting that good faith constitutes a duty separate from the duty of loyalty. More importantly, recent opinions of the Delaware courts have indicated that conduct that traditionally would have been viewed as implicating only the duty of care may be found to constitute a breach of the duty of good faith. This analytical shift is significant: Directors are typically exculpated, and both directors and officers are typically indemnified and insured, for breaches of their duty of care, while exculpation and indemnification by the corporation are impermissible, and insurance coverage exclusions may apply, in respect of conduct that constitutes bad faith.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.