Sarbanes Oxley And The Non-Public Subsidiary: A Non-Sequitur?
February 02, 2006
By now, corporate counselors are well acquainted with the fact that the Sarbanes-Oxley Act (SOX) and its whistleblower protections apply to publicly traded companies. What is less well known is that the Sarbanes-Oxley whistleblower protections can also apply to non-public subsidiaries of publicly traded companies. Although the Department of Labor Administrative Review Board noted that it has not addressed the issue at the appellate level, a number of OSHA Administrative Law Judges (who hear SOX whistleblower cases at the trial level) have done so, and their decisions uniformly hold that SOX <i>can</i> protect the employees of <i>non-public subsidiaries</i> of publicly traded companies under certain circumstances. Those decisions also provide practical guidance for corporate counselors who want to limit SOX coverage strictly to the publicly-traded parent.
Voluntary Waiver At The Barrel Of A Gun
February 02, 2006
The federal government is no friend to the attorney-client privilege. That's just simply a fact. Perhaps no other factor lately has applied greater pressure on the privilege than the government's practice of insisting on waiver of the privilege as an indication of cooperation. Certainly other agencies have gotten into the act, but the Justice Department and the Securities and Exchange Commission (SEC) lead the charge in requiring corporate investigation targets to sacrifice confidentiality for the benefits of cooperation. <br>But for the corporate target, the immediate and practical implications of a government-demanded waiver are serious. A party's decision to waive the privilege can have significant consequences, not the least of which may be the inability to assert the privilege in downstream or parallel litigation that so often accompanies a government investigation.
Defining Metadata
February 02, 2006
Recently, the term metadata has become an electronic buzzword for litigators, their clients, IT personnel, courts and lawmakers. From the English dictionary to the proposed amendments to the Federal Rules of Civil Procedure, many information sources are attempting to define and clarify metadata, and its role in modern litigation.
FAS 140 Transfers Exposure Draft: A Primer for Structured Finance
February 02, 2006
In the world of corporate finance, a large segment of debt capital traditionally has been raised by issuing secured debt. In structured finance transactions, by contrast, money is raised by selling financial assets, such as mortgage loans, leases, auto loans or student loans, to a separate special purpose entity (an "SPE"), that often is a subsidiary of the seller, and causing that entity to issue securities backed by those financial assets.
In The Marketplace
February 02, 2006
Highlights of the latest equipment leasing news from around the country.
Can a Remedies Opinion Be Given on an Equipment Lease?
February 02, 2006
We know what an equipment lease is. The Uniform Commercial Code defines it for us: "'Lease' means a transfer of the right to possession and use of goods for a period in return for consideration ... " UCC '2A-103(p). "Goods" include equipment. <i>Id.</i> '2A-103(n). If an agreement qualifies as a lease, then the "lease contract is effective and enforceable according to its terms between the parties, against purchasers of the goods and against creditors of the parties." UCC '2A-301. What could be clearer?
Revisiting Boilerplate or 'Miscellaneous' Lease Provisions
February 02, 2006
Part One of this article addressed issues surrounding the name and address of the subject building and the landlord's right to prescribe rules and regulations. The conclusion discusses lease provisions pertaining to legal fees and expenses and the sale or exchange and assignment by the landlord.
The Leasing Hotline
February 02, 2006
Highlights of the latest commercial leasing cases from around the country.
Economic Interdependency and Big Box/Anchor Store Closings
February 02, 2006
A decision is being contemplated to close one or more stores. Factors for closing stores may vary. Possibly the store is not performing well, the store does not fit within the new prototype, the retailer is pulling out of a geographic area, or a host of other business reasons may be factors considered in determining to close a store.
In the Spotlight: Fallout from Kelo
February 02, 2006
In <i>Kelo v. City of New London</i>, 125 S. Ct. 2655 (2005), the U.S. Supreme Court affirmed the long-standing principle that governments can condemn private land in order to carry out area-wide redevelopment projects. The decision, which affirms the legal status quo, has been spun as a grievous invasion of property rights that now threatens every American home. In this article, we review the reaction of legislators at the national level to the <i>Kelo</i> case and, by examining one state's legislative response, discuss the issues raised by state legislation.
