Features

The first half of this article, which appeared in last month's issue, discussed the purpose and effect of recharacterization of debt to equity, distinguished recharacterziation from equitable subordination, and reviewed various approaches, including multi-factor tests, that different courts have employed in determining whether to recharacterize a claim in bankruptcy and non-bankruptcy contexts. This concluding installment explores further the Third Circuit Court of Appeals' decision in <i>In re SubMicron Systems Corporation, et al.</i>, 432 F.3d 448 (3d Cir. 2006) and discusses lessons learned from that case.

Features

On Jan. 18, 2006, the U.S. Food and Drug Administration ('FDA') issued a final rule to revise the required format of prescription drug labels so as to enable physicians to find the information they need more readily. New features include a section called 'Highlights' and a Table of Contents. According to the FDA's press release, this is the first time in 25 years that the labeling requirements have undergone a major revision.

Features

Trademarks serve as symbols of good will and are a valuable asset of the business associated with the mark. Not surprisingly, trademark licenses typically require the licensor's consent for assignments, because licensors want the right to pass on the abilities of new potential licensees. In the event of bankruptcy filing by the licensee, the contractual restriction on assignment is ordinarily unenforceable. <i>See</i> 11 U.S.C. ' 365(f)(1). Bankruptcy Code ' 365(c)(1), however, provides an exception to this general rule: a debtor may not 'assume or assign' any executory contract without consent of the non-debtor if 'applicable law' provides that the non-debtor can refuse to accept performance from a third party.

On Dec. 19, 2005, 11 years after Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), the U.S. Department of Labor issued final regulations under USERRA which became effective Jan. 18, 2006. The final regulations can be found at 20 Code of Federal Regulations (CFR), Part 1002. The DOL suggests these final regulations do not impose any new obligations on employers, but rather, serve as an implementation of the statutory requirements, as well as to clarify and interpret areas of the law. However, these regulations, the first ever issued under USERRA, turn the internal guidance of the DOL into binding regulations.

A corporate lawyer must address a myriad of issues when called on to assist in a merger, acquisition or corporate financing transaction. If the company being acquired or financed has intellectual property assets, the first order of business should be to enlist the aid of IP counsel. <br>Although it is likely in transactions of this type that corporate counsel will experience some degree of sleep deficit, hopefully there will be fewer sleepless nights if an IP attorney is part of the due diligence team. Certain IP-related issues are readily dealt with by experienced corporate counsel. Frequently, however, corporate counsel lacks the time, specific IP legal expertise, or technology-specific knowledge required to identify and resolve issues involving intellectual property assets ' issues that may significantly affect the valuation of the company involved in the corporate transaction.

This question is becoming increasingly important with the proliferation of blogs and Web postings for corporate criticism ' from wakeupwal mart.com to www.googlereallysucks.blogspot.com. And whether companies and their in-house counsel pursue actions against bloggers in these cases involves more than the usual assessment of opportunity costs and the pure business interests of the company. There are limits to the rights of companies to compel an Internet Service Provider (ISP) to reveal the name of its customer, particularly when the ISP customer wishes to remain anonymous. This article explores what the courts are requiring companies to show before they will call for an ISP to divulge a blogger's identity and provides some guidelines in evaluating whether to pursue such a strategy.

As the 2006 proxy season gets underway, shareholder activism shows no signs of slowing. Over the last few years, high-profile corporate scandals and news stories about executive excess and corporate waste have compelled many investors to seek ' or demand ' a more active role in corporate governance matters of the companies they own. Now that most companies have implemented the changes required by the Sarbanes-Oxley Act of 2002 and the stock exchanges, the agenda of the shareholder activist is changing.

On January 4, Securities and Exchange Commission Chairman Christopher Cox announced the SEC's unanimously adopted policy on the use of the its enforcement powers to impose monetary penalties on public companies for securities law violations. According to the policy, when deciding whether to impose fines, the SEC will focus on whether a corporation's violation provided an improper benefit to the company and its shareholders. If so, the SEC will be inclined to seek fines to deter future conduct. Conversely, the SEC will be less likely to pursue fines in cases where they would result in further harm to shareholders already injured by a corporation's actions. This article examines the new SEC policy regarding fines and its implications for corporations and shareholders.