Co-authored by Jason F. Clouser.

The Securities and Exchange Commission recently filed a complaint in Federal Court in Texas against Michael A. Baker, the former Chief Executive Officer of ArthroCare Corporation (ArthroCare), and Michael T. Gluk, its former Chief Financial Officer, asserting claims under Section 304 of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley). In its complaint, the SEC is seeking to force Baker and Gluk to reimburse ArthroCare for incentive compensation they received during the 12-month periods immediately following ArthroCare’s release of financial statements that it later restated, as well as for the profits they obtained from their sales of company stock during these periods.

Continue Reading SEC Seeks Repayment of Executive Compensation Based On Sarbanes-Oxley Act

Co-authored by Jason F. Clouser.

An Arizona district court recently relied on the alter ego doctrine to deny a motion to dismiss for lack of personal jurisdiction in a case involving breach of a partnership agreement and trademark infringement.

Continue Reading Court Applies Alter Ego Doctrine to Deny Motion to Dismiss For Lack of Personal Jurisdiction

Co-authored by Dean N. Razavi.

The U.S. Court of Appeals for the Fifth Circuit recently held that documents referenced in an agreement may satisfy the statute of frauds even if those documents are not finalized. Preston Exploration Company entered into three agreements with Chesapeake Energy Corporation for the sale of certain oil and gas leases. The specific leases to be conveyed were not set forth in the body of the agreements, but rather were referenced in the agreements as being defined in the attached exhibits. Drafts of the exhibits were circulated with the draft agreements and, although it was clear that the exhibits were not finalized, the agreements were executed by Chesapeake without protest.

Continue Reading Incomplete and Unfinished Documents May Satisfy Statute of Frauds

Co-authored by Dean N. Razavi.

The U.S. Court of Appeals for the Fifth Circuit recently held that collective bargaining agreements cannot provide for judicial review of the Railway Labor Act’s (RLA) exclusive and mandatory dispute resolution process. Retired Continental Airline pilots alleged that Continental had breached the retirees’ pension plan by improperly calculating their salaries when determining their pension benefits. The collective bargaining agreement (CBA) between the parties required that, for “minor disputes” involving the interpretation of the pension plan, the retirees must seek review through arbitration before a System Board composed of two representatives from the company and two representatives from the pilot’s union. Although resolution of minor disputes through the System Board was required, the CBA also provided that, if the System Board’s ruling was adverse to a retiree, the retiree could seek judicial review of the dispute under the Employee Retirement Income Security Act (ERISA).

Continue Reading Courts Lack Jurisdiction To Review Determinations By Arbitration Panels Under the Railway Labor Act

The plaintiff, Sagarra Inversiones, S.L. (Sagarra), the minority shareholder in Corporación Uniland S.A. (Uniland), a Spanish Corporation, sought to rescind the sale to Uniland of Giant Cement Holdings, Inc. (Giant), a company controlled by the defendant, Cementos Portland Valderrivas (CPV), the majority shareholder of Uniland. Sagarra asserted that the price paid for Giant was inflated and that CPV caused Uniland to acquire Giant solely to further its own interests, in breach of its fiduciary duties to Uniland. To challenge the sale, Sagarra brought a derivative action in Delaware on behalf of Uniland Acquisition Corp. (UAC), a Delaware subsidiary of Uniland that was created to facilitate the sale. The Delaware Court of Chancery held that Sagarra did not have standing to challenge the sale because it had not satisfied the demand requirements of Spanish law.

Continue Reading Delaware Standing Requirements Do Not Apply to Derivative Suit Involving Spanish Corporation’s Delaware Subsidiary

The plaintiff filed a class action suit in the U.S. District Court for the Southern District of California, alleging that the defendants omitted material facts from a proxy statement, breaching their fiduciary duties and violating the Securities Exchange Act of 1934. In the District Court, defendants moved to stay discovery in three related state court proceedings until a motion to dismiss the federal suit was resolved. The defendants argued that the Court should exercise its power under the Securities Litigation Uniform Standards Act, which permits a district court to stay discovery proceedings in state court in aid of the district court’s jurisdiction.

Continue Reading Federal District Court Stays State Court Discovery Pursuant To SLUSA

Co-authored by Jason Clouser.

The U.S. District Court for the Eastern District of Pennsylvania granted a motion to dismiss a fraud claim against two corporate officers in a case arising out of a failed business relationship between two companies that sell products used in fundraising efforts.

Continue Reading District Court Grants Motion to Dismiss Fraud Claim Against Corporate Officers

Co-authored by Jason Clouser.

The U.S. Court of Appeals for the Fourth Circuit recently affirmed the denial of a preliminary injunction motion by Bethesda Softworks, LLC (Bethesda), finding that the district court did not abuse its discretion by looking to factors outside of the agreement between the parties in ruling on the motion.

Continue Reading Fourth Circuit Holds That Contractual Language Does Not Compel Court to Grant Equitable Relief