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Slaying Zombies in the Courtroom: Texas Enacts the First Law Designed Specifically to Combat Botnets
The Use of DIP Financing as a Mechanism to Control the Corporate Restructuring Process
Three Suggestions for the Texas Limited Liability Company Law
New Schedule UTP: " Uncertain Tax Positions in the Age of Transparency"
Bankruptcy Law - Whether the Bankruptcy Court had the Statutory Authority Under 28 U.S.C. § 157(b) to Issue a Final Judgment on a Tortious Interference Counterclaim, and Whether Such Authority is Constitutional.
Bankruptcy Law - Whether a Debtor-in-Possession Can avoid a Pre-Petition Real Property Foreclosure that Complies with State Law and is Non-Collusive on the Grounds that the Foreclosure Constituted a Preferential Transfer
The Sound of Inevitability: The Doctrine of Inevitable Disclosure of Trade Secrets Comes to Texas
Joint Venture Formation
Top Ten Emerging Issues Facing Trial Lawyers in Business Torts and Commercial Litigation
Boilerplate Provisions
Series LLCs: Nuts and Bolts, Benefits and Risks, and the Uncertainties that Remain
The Series LLC: A New Planning Tool
Practical Pitfalls in Drafting Texas Limited Liability Company Agreements
Statement on Entity Status, Power and Authority Opinions Regarding Pre-Code Texas Entities and Pre-Code Registered Foreign Entities Under the Texas Business Organizations Code
Guaranty and Suretyship Law - Whether an Individual May Avoid Obligations Under a Personal Guaranty Contract When a Company Converts to a Different Organizational Form
Partnership Law - Does a Partner's Desire to Terminate the Partnership at a Later Date Constitute Dissolution?
Bankruptcy Law - May a Creditor Internally Allocate Collateral to Become Oversecured after the Bankruptcy Petition has been Filed?
The Intersection of the Dodd-Frank Act and the Foreign Corrupt Practices Act: What All Practitioners, Whistleblowers, Defendants, and Corporations Need to Know
With the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),1 government authorities are no longer the only ones with a monetary interest in ferreting out those who violate federal laws. Specifically, section 922 of the Dodd-Frank Act provides a whistleblower program that rewards individuals who assist the Securities and Exchange Commission (SEC) in uncovering securities violations, including Foreign Corrupt Practices Act (FCPA) violations. Because the Dodd-Frank Act allows individual whistleblowers to reap significant benefits by reporting offenders and because the SEC and Department of Justice (DOJ) have increased FCPA prosecutions in recent years, global companies and their employees, especially those in the pharmaceutical and medical device industry, should understand how the Dodd-Frank Act and the FCPA intersect.
Transcending Disciplines: What Every Transactional Lawyer Should Know About Litigation
In many large law firms, transactional lawyers and litigators are divided, herded into separate groups on separate floors in separate offices. But they are often divided by more than just office location. Litigators and transactional attorneys have significantly different practices. Thus, transactional lawyers often do not have an opportunity to learn about some aspects of litigation that could prove helpful in their practices. Yet it is often the transactional attorney that has the first, and perhaps best, opportunity to take steps that protect the client’s litigation position. Accordingly, it is important that transactional attorneys familiarize themselves with certain basic litigation concepts so that they will be equipped to take advantage of these opportunities. This paper addresses certain key concepts that should prove useful to a broad range of transactional attorneys, including: litigation holds, “No Oral Modification” clauses, reliance disclaimers, and arbitration clauses.
Restoring the Balance of Class Certification Power in the Fifth Circuit: The United States Supreme Court's Opinion in Erica P. John Fund, Inc. v. Halliburton, Co.
In Oscar and Halliburton, the Fifth Circuit held that in addition to proving all of the Federal Rule of Civil Procedure (“FRCP”) 23 requirements, a putative securities class must prove loss causation by a preponderance of all admissible evidence before class certification may be granted.4 This was an exceedingly high burden and was noted as such by district courts within the Fifth Circuit, including twice by District Judge Barbara M.G. Lynn in the District Court’s Halliburton opinion.5 The Supreme Court apparently agreed with Judge Lynn that the burden was “exceedingly high” and overruled the Fifth Circuit’s decisions in Oscar and Halliburton: “[t]he question presented in this case is whether securities fraud plaintiffs must also prove loss causation in order to obtain class certification…. [w]e hold that they need not.
Bankruptcy Appeals
This paper provides a guide to the rules governing an appeal to the district court and the court of appeals. The most important issue with respect to these relatively straightforward rules is that the deadlines in bankruptcy appeals are much shorter than in ordinary federal court appeals. This paper also addresses two additional issues – the relaxed standard for finality, providing a broader range of orders subject to appeals, and the jurisdictional statute.
The Development of the Texas Non-Compete; A Tortured History
Although Texas offers tax incentives and a favorable business climate, high tech businesses may have, in the past, understandably been reluctant to relocate to Texas because of the prior anemic protection granted to businesses in the arena of non-competes. These businesses, one assumes, have no interest in training their best and brightest today, only to have them become competitors tomorrow. The development of the non-compete covenant body of law in Texas, especially within the past five years, has addressed many concerns that businesses could have with the enforcement of non-competes. The dual prongs of Sheshunoff Management Services v. Johnson3 and Marsh USA v. Cook,4 addressed fully in this article, have provided some stability to the important business and legal issue of non-compete enforcement in the state of Texas.
Conflict of Laws - Does a State's Whole Law, Including that State's Conflict of Laws Principles, Apply to a Choice of Law Provision in a Contract?
Limited Liability Company Law - whether a Manager of a Manager-Managed Limited Liability Company Breached Fiduciary Duties Under Delaware Law to the Limited Liability Company and its Members
Dude, Where's My Car? How the Proposed Uniform Certificate of Title Act Addresses Conflicts Between the Texas Certificate of Title Act and the Uniform Commercial Code
Joe Consumer finds a vehicle at a dealership, makes the deal and fills out paperwork to transfer the ownership of the vehicle while paying the dealer to cover the titling expenses. The dealer promises to send the titling paperwork to the state certificate of title (“CT”) office so that the ownership of record may be transferred to Joe pursuant to the state’s CT law. Then, maybe two weeks after purchasing the car, Joe attempts to leave home for work, but instead finds his vehicle in the process of being repossessed by the dealer's bank. Joe, extremely confused and irritated, may find that, while Joe filled out the appropriate documentation needed for a CT application, the dealer did not file the documentation with the state CT office. Now, Joe must file a declaratory action and argue that a judge should declare Joe to be the proper owner under generally applicable laws including the Uniform Commercial Code (“UCC”), property and contract laws, and perhaps equitable principles, the applicable CT law, and even the Bankruptcy Code. Each of these laws is challenging in this context, and the relations between them add to the complexity. Joe may be facing a very expensive (and uneconomical) lawsuit as his only legal remedy.