Volume 45, Issue No. 2 (Spring, 2013)

Texas Journal of Business Law, Vol 45, Issue 2

Published in the Spring, 2013

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