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Volume 48, Issue No. 3 (Spring 2020)

Creating The Sound Of Our Lives | Remaining or Going Private: Traditional and New Rationales | A New Trend in Securities Fraud: Punishing People Who Do Bad Things | Out-of-State Privileges for Internet Sales after Wayfair | Liability of Parent Corporation -- Whether the parent is liable for the actions of its subsidiary when the parent does not perpetrate fraud | Partner's Duty of Care -- Whether a Partner's Statutory Duty of Care Can Be Disclaimed

Creating The Sound Of Our Lives

A Practical Overview of Music Licensing is presented by Buck McKinney. This article and the accompanying session address fundamental concepts involved in music licensing, several common music licensing scenarios, and practical tips for locating rights owners and administrators. This is document 1 of 6.

Attachment A - ASCAP Rate Schedule and Statement of Operating Policies

This document includes the actual rate schedule and operating policies of ASCAP. This document is part 2 of 6.

Attachment B - Mechanical License Agreement

This is a sample license agreement for a composition of music. This is document 3 of 6.

Attachment C - Application for an HFA Licensing Account

This form is to create a licensing account with HFA for the manufacture and distribution of CDs, Audio Cassettes, LP s, DPD’s, Ringtones etc. within the U.S. If you are interested in licensing music represented by HFA, please contact Newmedia@harryfox.com and describe your proposed digital use. This is document 4 of 6.

Attachment D - Movie Synchronization and Performing Rights License

An example of a license to a motion picture. This is document 5 of 6.

Attachment E - Synchronization License for Copyrighted Works

This is a synchronization license for a copyrighted work. This is document 6 of 6.

Remaining or Going Private: Traditional and New Rationales

The going private transaction has been popular in the past and will likely continue in popularity, given the number of startup “exits.” In the alternative, companies could continue to remain private, as venture capital funding and mega-rounds give companies a way to operate privately and their founders to retain control. Traditional rationales were centered around public speculation and filing or disclosure requirements. I suggest that new rationales include control by founder/CEOs, although it is hard to be sure. In the future, there could be new trends, less founder-centric companies, and more rationales for remaining, or going, private.

A New Trend in Securities Fraud: Punishing People Who Do Bad Things

This article seeks to articulate a distinct view of federal securities law as it is increasingly used in non-traditional enforcement actions commenced to punish corporate bad behavior. This paper argues that these non-traditional enforcement mechanisms should be viewed with skepticism. This skepticism should not be misinterpreted as cynicism, as the author believes that these non-traditional enforcement actions are beneficial vehicles to accomplish the admirable governmental objective of “punishing people who do bad things.” However, the author recognizes that such use of securities law does not fall into a category of clearly defined criminal law and carries a significant risk of abuse. The author also recognizes the “admirable governmental objective” may be thwarted when it comes to private companies. Finally, the author is uneasy with the societal values conveyed when the government sanctions corporate misbehavior in the name of protecting shareholders from deception.

Out-of-State Privileges for Internet Sales after Wayfair

In South Dakota v. Wayfair, Inc., the U.S. Supreme Court overruled its prior decisions in Quill and Bella Hess to allow a state to collect sales tax on internet sales even though the vendor has no “brick and mortar” store, warehouse or other physical presence in the state. Texas has been losing an estimated $1.1 billion a year in tax collections from the old physical-presence requirement. Texas needs to exploit the new rule now. So do other states. The money would be well spent for the highest-priority state needs. The revenue would also just come from actually collecting tax from people who are supposed to be paying tax already, but don’t. In-state Texas merchants who have been withholding sales tax will love the new level-playing field

Liability of Parent Corporation -- Whether the parent is liable for the actions of its subsidiary when the parent does not perpetrate fraud

In R&M Mixed Beverage Consultants, Inc. v Safe Harbor Benefits, Inc. 578 S.W.3d 218 (Tex.App. - El Paso 2019, no pet.), the Court of Appeals cites the Texas Supreme Court for the proposition that there must be evidence that one of the corporations was using the other for purpose of perpetrating actual fraud for the defendant's direct personal benefit. The Court found that the record showed no evidence of actual fraud and therefore the parent would not be liable for the subsidiary's action.

Partner's Duty of Care -- Whether a Partner's Statutory Duty of Care Can Be Disclaimed

In Shannon Med Ctr v Triad Holdings III, LLC. ____S.W.3d ____, No. 14-18-00638-CV, 2019 WL 6606406 (Tex. App. -- Houston (14th Dist)), the Court of Appeals, citing Texas Business Organizations Code (Secs 152.206 and 152.002(b)(3)), held that while a partnership agreement may authorize contracts between a partnership and partners or their affiliates, but a partner entering into those contracts must still comply with the duty of care charged by statute.

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