Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
First Decision to Directly Address the Right to Enforce
On Sept. 27, 2005, the United States District Court for the Eastern District of Pennsylvania was the first federal court to address whether private plaintiffs have the right to sue under Section 304 of the Sarbanes-Oxley Act of 2002 (SOX). U.S. District Judge Stewart Dalzell concluded that Section 304 “does not provide a private right of action for shareholders to file a derivative suit.” Neer v. Pelino, No. 04-4791, 2005 WL 2434685 (E.D. Pa. Sept. 27, 2005). Accordingly, only the Securities and Exchange Commission (SEC) may bring an action to enforce Section 304.
Section 304 of SOX
Section 304(a) requires the forfeiture of certain bonuses and profits received or realized by an issuer's CEO and CFO in the event the corporation is required to prepare an accounting restatement due to material noncompliance with any financial reporting requirements as a result of misconduct. More specifically, it provides that in the event of a restatement undertaken due to failure to comply with securities laws as the result of misconduct, the issuers' CEO and CFO must reimburse the corporation for any incentive-based compensation or equity-based compensation they received during the 12-month period following the first public issuance or filing with the SEC of the erroneous financial statements. Section 304 also requires the CEO and CFO to reimburse the issuer for any profits realized from the sale of its stock during that same period. However, Section 304(b) grants the SEC the discretion to “exempt any person from the application of subsection (a), as it deems necessary and appropriate.” Section 304 is silent as to whether a private plaintiff may sue under this Section, and no court prior to Neer had ruled on the issue.
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.
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.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.