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Ninth Circuit Rules on SEC
On March 22, 2005, an en banc panel of the United States Court of Appeals for the Ninth Circuit, in a 10-to-1 decision, interpreted the bounds of Section 1103 of the Sarbanes-Oxley Act of 2002 (SOX), 15 U.S.C. ' 78u-3(c)(3). Section 1103 gives the Securities and Exchange Commission (SEC) the ability to petition a federal district court for a temporary 45-day freeze (which can be extended up to an additional 45 days) on any “extraordinary payments” likely to be made to corporate executives, employees or insiders of a company under investigation by the SEC.
The decision, SEC v. Gemstar-TV Guide Int'l, Inc., et al., No. 03-56129 (9th Cir., March 22, 2005), which held that more than $37.6 million in payments made to Gemstar-TV Guide International, Inc.'s ex-CEO and ex-CFO were extraordinary payments under Section 1103, is unusual because it reversed an initial determination by a three-judge Ninth Circuit panel. Additionally, the decision is the first, and currently only, judicial opinion on the meaning of “extraordinary payments” under Section 1103, and therefore sets out a standard on which all future payments to executives or other employees made while a company is under investigation may be judged.
Section 1103 is one of the powerful new enforcement tools that SOX provided to the SEC. It can be utilized even before the SEC determines to charge anyone with violating the securities laws, and only requires that the SEC has initiated a lawful investigation into potential securities law violations by the company. If the SEC commences litigation, the freeze becomes permanent (unless specifically ordered otherwise by the court) until the litigation is concluded. The text of Section 1103, however, does not define what is meant by “extraordinary payments,” providing an area ripe for litigation.
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.