Volume 45, Issue No. 3 (Fall, 2013)

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.

Fiduciary Duties and Minority Shareholder Oppression from the Defense Perspective: Differing Approaches in Texas, Delaware, and Nevada

Suits by minority shareholders in Texas are on the rise and represent an expanding, cutting-edge area of civil litigation in this state and across the country. This article first addresses fiduciary duty requirements in Texas and Delaware, and the mechanisms available under the “Internal Affairs Doctrine” that may mandate the application of another state’s law instead of Texas’ in the context of fiduciary and shareholder litigation. There follows a discussion of Texas law on the evolving legal theory of “Minority Shareholder Oppression.” As will be seen, unlike the broad and amorphous formulation of the doctrine some Texas Courts of Appeals have adopted (absent meaningful guidance so far from the state’s supreme court), Delaware has rejected the Texas lower courts’ approach of adopting a vague and general, almost standard-less cause of action called “shareholder oppression,” in favor of a case-specific approach designed to protect minority shareholders in limited circumstances, such as squeeze-out mergers and freeze-outs. Delaware courts do this mostly through the way they interpret fiduciary and disclosure duties as well as minority shareholder appraisal rights. Finally, this paper concludes with a brief analysis of minority shareholder oppression in Nevada, a state that is seen as an increasingly attractive alternative forum for incorporation.

The Texas Uniform Trade Secrets Act

This year, the Texas Legislature enacted the Texas Uniform Trade Secrets Act (“TUTSA”). On September 1, 2013, Texas will join 46 other states that are currently governed by some form of the Uniform Trade Secrets Act. TUTSA codifies and modernizes Texas law on misappropriation of trade secrets by providing a simple legislative framework for litigating trade secret cases. Among other things, TUTSA provides an unambiguous and updated definition of trade secrets, a simplified means for obtaining injunctive relief and sealing court records, and an attorneys’ fees provision for recovering fees from those parties who engage in willful and malicious activity. What follows is a section by section analysis of TUTSA.

Lifting the Veil and Finding the Pot of Gold: Piercing the Corporate Veil and Substantive Consolidation in the United States

This article presents a hypothetical case involving a publicly traded entity and its affiliated privately held entity involved in real estate development and services. The two entities are co-borrowers and bondholders have liens on both entities' assets. The article considers application of the doctrines of "piercing the corporate veil" and "substantive consolidation" of assets in this situation.

Statement on Changes to the Procedure for Good Standing Certificates Issued by the Texas Comptroller of Public Accounts

Acceleration Notices - Whether Holder of a Note Gave Proper Notice to Maker of Holder's Intent to Accelerate

Purchasing the Notes - Whether the Purchase of a Promissory Note from the Note Holder by a Third-Party Discharges the Note