Corporate Accountability Report Index-Summary

DEFENSE CONTRACTS

– Failure to disclose termination of contract at acquired subsidiary was for default material (E.D.N.Y.), 506

DELAWARE

– Anti-dilution protections not breached, Amazon.com suit dismissed (Del. Ch.), 857
– Asset purchase agreement breach, seller James Cable cannot hold buyer's controlling company liable (Del. Ch.), 794
– Attorneys' fees

– – Advancement still very popular after Schoon to attract directors, 631
– – Allocation between plaintiffs in 2 states in tracking stock class action (Del. Ch.), 768
– – Failure to prosecute class action, court refuses to dismiss but awards fees and costs (Del. Ch.), 609
– – Indemnification claim for breach of merger contract reinstated (Del.), 381
– – Partnership agreement requires payment by Heartland Industrial Partners, indemnification still pending (Del. Ch.), 976
– – Presumption that client's actions caused price increase rebutted, fees denied (Del. Ch.), 473
– – Reformed preferred stock deal with Loral Space and Communications, fees upheld (Del.), 977

– “Blank check vehicle” set up to complete acquisition must hold annual meeting (Del. Ch.), 608
– Books and records inspections

– – Director elections, board decision to retain directors without majority of votes does not require (Del. Ch.), 1259
– – Documentary evidence of beneficial ownership not provided, demand against Horizon Lines dismissed (Del. Ch.), 1128
– – Photocopies allowed under LLC agreement access provisions (Del. Ch.), 1002
– – Proper purpose lacking in complaint against THQ/JAKKS (Del. Ch.), 666

– Business judgment rule, decisions resulting in substantial losses protected if no illegal activity and risk management systems in place, Analysis and Perspective, 647
– Cardiovascular risks of Celebrex and Bextra, Pfizer Inc., derivative action dismissed for lack of presuit demand futility (2d Cir.), 171
– Chancery Court, Laster appointed by governor, 1060
– Corporation law cases, 2008 review, 22; first quarter 2009, 451; second quarter 2009, 842; third quarter 2009, 1087
– Director elections, expedited proceedings request denied when court finds debt acceleration threat not serious (Del. Ch.), 502
– Discovery request in class action for post-merger financial documents meets relevance test (Del. Ch.), 503
– Escheatment law questions answered in A.W. Financial case (Del.), 1127
– Fiduciary duty

– – Audit committees, business judgment rule, and liability in financial crisis litigation, Analysis and Perspective, 807
– – Compensatory shares issued for financing personal guaranties diluted plaintiff interest, Del. law approves at time of crisis but not later (1st Cir.), 1288
– – Deal protection measures in merger, claim Data Domain director breached duty, injunction hearing set (Del. Ch.), 856
– – First refusal agreement by Wayport Inc. did not apply to transactions, insider information and breaching duty to minority shareholder claims can continue (Del. Ch.), 1008
– – Good faith, panel discusses state law, 101
– – Good faith standard too lenient, experts advise, Special Report, 22
– – Holding company may sue former CEO for fraud and breach claims involving subsidiary asset purchase agreement (Del. Ch.), 1096
– – Officers have same duties as directors under state law (Del.), 170; application of business judgment rule murky after Gantler, Analysis and Perspective, 454; application of duty to officers should increase cases, says Del. chief justice, 1253
– – Recapitalization, material facts omitted, claim for breach of duty stated (Del. Ch.), 699
– – Trados Inc., disparate treatment of share classes in sale, claims survive dismissal (Del. Ch.), 1031

– General Corporation Law amendments, other entities, summary, Analysis and Perspective, 1043
– In pari delicto doctrine bars AIG suit against co-conspirators (Del. Ch.), 822
– Intervention, pension plaintiffs in stayed Del. case cannot intervene in derivative suit because interests adequately represented (S.D.N.Y.), 636
– LLC operating agreements, Del. decisions show need for clear, thorough drafting, 1231
– Mergers and acquisitions

– – Director liability for sale price, Revlon duties met unless failed to even attempt to get best price (Del.), 406
– – Entire fairness standard applies when procedures to protect minority shareholders were insufficient (Del. Ch.), 1260
– – National City Corp., weak breach of fiduciary duty claim settled by additional disclosures, court approves (Del. Ch.), 1030
– – Stock redemption before merger, claims dismissed because issue governed by contract (Del. Ch.), 609
– – Valuation in short-form merger, minority shareholder has Del. appraisal remedy (3d Cir.), 1207

– Personal liability of directors under DGCL 102(b)(7) Analysis and Perspective, 28
– Presuit demand

– – Autodesk Inc., no allegation of futility, dismissed (N.D. Cal.), 47
– – Director independence conceded by demand on Deep Marine Holdings, plaintiffs precluded from arguing futility (Del. Ch.), 607
– – FCPA violations resulting in settlement, futility not shown (S.D. Tex.), 735
– – Misstatement of grant date present values in proxy statement, dismissed for lack of futility (E.D.N.Y.), 72
– – Stock option backdating, presuit demand futility not shown, derivative suit dismissed (Mass.), 508
– – Wash. follows Del. standard in finding futility in stock option backdating case (Wash.), 702

– Proxy access to nominate directors, reimbursement, and director indemnification proposals pass Del. House, 340; passes Senate, 464; attorneys discuss merits of amendments, 920; impact of proposed federal rules discussed, Special Report, 954; chart of proposals, 1052
– Recapitalization of Regency Affiliates, settlement approved (Del. Ch.), 856
– Shareholder's demand for more data under Del. law denied after special litigation committee investigation (Del. Ch.), 319
– Short form merger, disclosure not made unrestricted, quasi-appraisal is remedy (Del.), 890
– Standing, plaintiffs lacked Del. “continuing ownership” after Merrill Lynch merged with Bank of America (S.D.N.Y.), 263

DERIVATIVE LITIGATION

– Bank of America merger with Merrill Lynch, court names pension funds as class leads (S.D.N.Y.), 891
– Banks' failure to disclose Enron fraud, claims dismissed for lack of duty (S.D. Tex.), 356
– Bear Stearns, breach of fiduciary duty cases consolidated into 3 cases (S.D.N.Y.), 72
– Bonuses were disguised dividends to be shared, minority shareholder claim should have been brought as derivative action (La. Ct. App.), 236
– Del. corporation law cases, 2008 review, 22; first quarter 2009, 451; second quarter 2009, 842; third quarter 2009, 1087
– Director elections, attorneys' fees, dismissed co-defendants are not required to indemnify defendant whose own claim failed (D.D.C.), 613
– Executive compensation cases increasing, best practices for responding to demand letters given, Analysis and Perspective, 1238
– Fair value of corporate stock must take pending action into account (Cal. Ct. App.), 264
– FAS 133, FASB clarifies scope, 17
– Fiduciary duty

– – AIG, claim against former directors may proceed (Del. Ch.), 261
– – Audit committees, business judgment rule, and liability in financial crisis litigation, Analysis and Perspective, 807

– In pari delicto doctrine bars AIG suit against co-conspirators (Del. Ch.), 822
– Intervention, pension plaintiffs in stayed Del. case cannot intervene because interests adequately represented (S.D.N.Y.), 636
– Presuit demand

– – Adolor Corp., drug trial results lacked information, demand futility not shown (E.D. Pa.), 703
– – Affiliated Computer Services going-private deal fails, demand not excused (Del. Ch.), 262
– – Anonymous, brief demand about second merger offer lacked particularity, was inadequate (Tex.), 736
– – Auction rate securities, red flags ignored by Goldman Sachs, presuit demand not excused (S.D.N.Y.), 701
– – Cardiovascular risks of Celebrex and Bextra, Pfizer Inc., dismissed for lack of futility (2d Cir.), 171
– – Citigroup, waste claim for $68M golden parachute survives, fiduciary breach claim failed to show futility (Del. Ch.), 291
– – Director independence conceded by demand on Deep Marine Holdings, plaintiffs precluded from arguing futility (Del. Ch.), 607
– – FCPA violations resulting in settlement, futility not shown (S.D. Tex.), 735
– – Financial restatements after merger, sale of stock at inflated price does not show scienter without history of trades (N.D. Cal.), 705
– – Intel, anti-competitive practices, demand not excused by “red flags” (D. Del.), 825
– – Medtronic Inc. product recall, demand not futile (D. Minn.), 669
– – Misstatement of grant date present values in proxy statement, dismissed for lack of futility (E.D.N.Y.), 72
– – Stock option backdating

– – – Autodesk Inc., no allegation of futility, dismissed (N.D. Cal.), 47
– – – Del. presuit demand futility not shown, suit dismissed (Mass.), 508
– – – ePlus Inc., futility not shown, case dismissed (D.D.C.), 1032
– – – Springloading, and repricing, complaint lacks specific allegations of futility (9th Cir.), 172
– – – Wash. follows Del. standard in finding futility in backdating case (Wash.), 702

– Short-swing profits

– – InfoSpace insider tort claims regarding disgorgement dismissed as de facto indemnification (U.S., rev den), 354
– – Restrictions, CSX Corp. settles (S.D.N.Y.), 11

– SOX bonus forfeiture provision, no private right of action (9th Cir.), 7
– Standing

– – British Virgin Island's permission to sue provision enforced under internal affairs doctrine (Cal. Ct. App.), 742
– – Del. “continuing ownership” after Merrill Lynch merged with Bank of America lacking, dismissed (S.D.N.Y.), 263
– – Recapitalization claim, standing lost when company acquired (Del. Ch.), 699
– – Stock option backdating, standing fails after Biomet merger (Ind. Ct. App.), 265

– Stock option backdating, Maxim Integrated Products, Inc., executives agree to disgorgement (Del. Ch.), 139

DERIVATIVES

– SEC and CFTC authority over, Geithner seeks legislation, 603

DIRECTOR ELECTIONS

– “Blank check vehicle” set up to complete merger must hold annual meeting (Del. Ch.), 608
– Books and records inspections, board decision to retain directors without majority of votes does not require (Del. Ch.), 1259
– Broker voting, NYSE proposal to eliminate, investor groups support, Chamber of Commerce criticizes, 408; SEC approves rule, 818; effects of rule still unknown, 912
– Delaware

– – Corporation law cases, 2009 second quarter review, 842
– – General Corporation Law amendments, other entities, summarized, Analysis and Perspective, 1043

– Expedited proceedings request denied when court finds debt acceleration threat not serious (Del. Ch.), 502
– Legislation, Shareholder Empowerment Act introduced by Peters (D-Mich), would expand rights in compensation, nominations, risk, 765
– “Pfizer Approach,” Axcelis Technologies refuses inspection of records request after board retains unelected directors (Del.), 434
– Proxy access

– – Model Business Corporations Act, ABA committee proposes amendments for access and reimbursement, 853; amendments approved on second reading, 1203
– – Reimbursement, nomination, and director indemnification proposals pass Del. House, 340; passes Senate, 464; attorneys discuss merits of amendments, 920; impact of proposed federal rules discussed, Special Report, 954
– – Say-on-pay and access, Comm'r Walter calls for action, 225
– – Schapiro directs staff to draft proposals, 307; SEC to consider new proposal, 432; will consider in May, 533; Chamber claims SEC lacks authority, 533; SEC likely to grant access, but business groups could challenge, 599; SEC votes 3-2 to propose access, 627; Chamber releases Navigant study critical of pension shareholder activism, 628; correction to page 599, 641; bylaw changes could be prudent preemptive move, 659; number of independent directors likely to increase, 748; proposed rule released, litigation over SEC authority, usurping state rights expected if adopted, 760; panelists against mandatory access, 786; validity and results of Chamber study questioned, 820; legislation affirming SEC authority welcome, 852; groups want comment period extended, 852; Schapiro tells House statutory authority needed, 884; attorneys discuss merits of rule, 920; comments focus on impacts, Special Report, 954; approach too inclusive, says Comm'r Paredes, 971; comments raise SEC authority, preemption, APA requirements issues, 1025; chart of proposals, 1052; staff concerned with APA issues, 1124; SEC vote delayed to allow study of comments, 1198; Comm'r Walter affirms SEC commitment to proposal, 1199; delay on proxy access disappointing but necessary, says Comm'rs Walter and Aguilar, 1200
– – SEC Corporation Fin. Div. agenda includes access and voting system, 968

– Shareholder Bill of Rights

See LEGISLATION, FEDERAL, S 1074

– “Short slate” rule, dissidents can apply to multiple slates (SEC No-Action Letter), 432

DIRECTORS AND OFFICERS

– Attorney-client privilege, communications during their tenure, extent, Analysis and Perspective, 212
– Attorney fees, internal investigation did not entitle trustee to advancement (Md.), 414
– Compensation

See EXECUTIVE COMPENSATION

– Del. corporation law cases, 2008 review, 22; second quarter 2009, 842
– Elections

See DIRECTOR ELECTIONS

– Fiduciary duty

See FIDUCIARY DUTY

– Good faith duty, panel discusses Del. law, 101
– Good faith standard too lenient, experts advise, Special Report, 22
– Hybrid boards generate higher shareholder returns, IRRC study says, 660
– Independence conceded by presuit demand on Deep Marine Holdings, plaintiffs precluded from arguing futility (Del. Ch.), 607
– Independence, social and professional ties to CEO undermine governance, study finds, 232
– Independent directors, study measures information they have about company and trading returns, Special Report, 748
– Internal investigations, report identifies issues directors need to be aware of, 255
– Liability insurance

– – European companies increase coverage after seeing U.S. shareholder suits, 890
– – Wrongful conduct not covered when only corporation is named as defendant (1st Cir.), 1232

– Mutual fund independent directors, SEC considers changing requirements, 102
– NYSE Euronext, proposed rule allowing only three-quarters of board to be independent published for comment, 1162
– Past attorney fee indemnification order fails under preliminary injunction's irreparable harm requirement, but future fee advancement upheld (10th Cir.), 169
– Personal liability of directors under DGCL 102(b)(7), Analysis and Perspective, 28
– Privileged documents company generated in defense, no access in director's suit (Cal. Ct. App.), 130
– Proxy access to nominate

See DIRECTOR ELECTIONS

– Regulation FD, anonymous internet postings raise issues, Analysis and Perspective, 483
– Shareholder activism, boards should develop response teams to manage, 497
– Stock option backdating

See STOCK OPTION BACKDATING

DISCLOSURE

– Books and records inspections

See BOOKS AND RECORDS INSPECTIONS

– Class certification sought in actions against Holland & Knight for failure to disclose, conflicts of interest (M.D. Fla.), 1003
– Climate change, failure in SEC filings common, 729
– Climate change risk, groups push SEC for guidance, Special Report, 933
– “Collective scienter” theory disfavored in Ninth Circuit, disclosure practices may change, 136
– Costs of additional disclosure must be considered, says Comm'r Paredes, 1287
– Credit losses and quality of financing receivables, FASB draft released for comment, 800
– Credit rating shopping, SEC Corporation Fin. Div. working on rule, 968
– Director elections, Axcelis Technologies refuses inspection of records request after board retains unelected directors (Del.), 434
– Electronic postmark sales metrics, Authentidate Holding Corp. had no duty to disclose (S.D.N.Y.), 420
– Enhancement advice from SEC not taken, 39
– Executive compensation

– – Audits, Deloitte Tax LLP offers tips, 71
– – Bank of America merger with Merrill Lynch, investigation

See BANKING

– – Compensation Discussion and Analysis statements

– – – Proxy season changes expected, 196
– – – Recommendations for, TARP influences, 282

– – Expanded rules, issues under, 251
– – Proposals chart, Focus, 1085
– – SEC considers increasing requirements, 691; disclosure, say-on-pay, deductibility limits, clawbacks among issues on table, 692; pay realizable during year should be focus, says consulting firm, 695; issue gaining momentum, 726; proposals on stock award valuation, say-on-pay, risk assessment considered, 786; proposed rule would increase information in proxy statements, 818; proposed rules on compensation consultants disclosure released, 883; companies should review practices and risk in light of rule, 912; ABA panel discusses effects, 970; more clarity needed to meet requirements, 992; summary of proposed SEC rules, Analysis and Perspective, 1017; risk assessment, comments being reviewed, 1286
– – U.K. report urges disclosure and deferred bonuses, 921

– eXtensible Business Reporting Language (XBRL), use of

See REPORTING REQUIREMENTS

– Fair value

See FAIR VALUE

– FASB begins framework project, 831; deliberations will begin to make disclosures more coherent, 868
– Financial instrument accounting project

See FINANCIAL ACCOUNTING STANDARDS BOARD (FASB)

– Fraud, Nuvelo's alfimeprase drug trial disclosures, class action pleadings deficient, dismissed (N.D. Cal.), 8
– “Group” members without beneficial interest in stock fail to trigger Schedule 13D filing (11th Cir.), 42
– Income inflated by inaccurate data disclosures, court ignores co-lead stipulation to name one lead (D. Del.), 824
– Inside earnings data given to analysts but not public, former CFO agrees to fine (S.D. Ind.), 1183
– Intercompany transactions, income tax accounting under GAAP and IFRS, disclosure requirements, Viewpoint, 778
– IPOs

– – Ikanos Communications could not disclose unknowable facts at stock offering (2nd Cir.), 1180
– – Risk disclosures adequate, “bespeaks caution” doctrine requires dismissal of MF Global suit (S.D.N.Y.), 947

– Japan's FSA debating rule encouraging institutional investors to disclose voting, 635
– Lawsuit disclosure under IFRS, IASB won't address U.S. concerns before adoption, 800
– Loan loss accounting by banks, disclosures should be revisited, says SEC, 1038
– Loan loss and credit risk, quarterly footnote disclosures, draft FASB rules coming, 513
– Loans to CEO not on registration statement, class claims against Network Commerce reinstated (9th Cir.), 1179
– Loss causation, speculative statements such as analyst reports, government investigations, special committee reports do not support (N.D. Cal.), 1062
– Loss contingencies, FAS 5 exposure draft discussed in roundtable, 330; effective date of disclosure, details discussed, 1039
– Market-wide downturn not shown after Moody's made corrective disclosures, fraud case continues (S.D.N.Y.), 610
– Merger of National City Corp., weak breach of fiduciary duty claim settled by additional disclosures, court approves (Del. Ch.), 1030
– Military defense contract, failure to disclose termination of contract at acquired subsidiary was for default material (E.D.N.Y.), 506
– Nanomaterials, more shareholder disclosure resolutions expected, 103
– Nanotechnology disclosure inadequate, more regulation needed, says advocacy group, 771
– Off-balance sheet accounting guidance, FASB work with banking regulators on greater disclosure continues, 675
– Oil and gas

– – FASB exposure draft expanding requirements, comments sought, 1135
– – Reserves reporting, SEC rulemaking on, 5

– Oil and gas disclosure and reserve calculation requirements, proposed FASB amendments open for comment, 983
– PCAOB inspection reports, disclosure of issues in nonpublic portion encouraged, says Goelzer, 881
– Pending merger, Stietel Labs. did not disclose in stock buy-back plan (S.D. Fla.), 892
– Pensions and postretirement plans, FASB FAS 132(R)-1 requires more disclosure on net periodic benefit costs, 54
– Recapitalization, material facts omitted, claim for breach of fiduciary duty stated (Del. Ch.), 699
– Regulation FD, staff interpretation issued, 1029
– Related-party transactions not disclosed in SEC filings, charges settled (S.D. Fla.), 50
– Risk management, realistic disclosures limit litigation, 7
– Scienter negated by disclosures about financial indicators, First Marblehead fraud case dismissed (D. Mass.), 1103
– Securities registration violations when stock warrants exercised to sell, failure to disclose is fraud (D.C. Cir.), 792
– Shareholder's demand for more data under Del. law denied after special litigation committee investigation (Del. Ch.), 319
– Short form merger, disclosure not made unrestricted, quasi-appraisal is remedy (Del.), 890
– Small companies, SEC filings lacking internal controls review considered materially deficient, 38
– Social welfare disclosures critical, says CED report, 230
– Tax reserves disclosure, FIN 48, one-third of large companies failed to meet minimum requirements, 294
– Unpublished SEC regulations frozen pending Obama administration review, 98
– Voluntary exchange offer, Viacom and Blockbuster, no fiduciary breach or disclosure violation (Del.), 204

DISCOVERY

– AIG's confidential report on fraud charges, House committee seeks production, 536
– Auction rate securities, Wachovia's stay under PSLRA partly lifted (S.D.N.Y.), 140
– Brady disclosure obligations met when huge open file included “hot documents” databases (5th Cir.), 40
– Compiled documents organized by factual contention should have been disclosed as arranged, compilations get narrow work product protection (S.D.N.Y.), 167
– Deliberative process privilege shields SEC officials from requests (D. Colo), 258
– FOIA as tool in SEC cases, use may rise, but cost and difficulties serious, 828
– Internal investigation documents in stock option backdating case, attorney-client privilege waived by disclosing to SEC, others (N.D. Tex.), 855
– Post-merger financial documents request in class action meets relevance test (Del. Ch.), 503
– Production motion dismissed as court urges parties to insider trading case to review privilege and relevance (S.D. Ohio), 437
– SEC enforcement actions and cost issues, 996
– Work product, deposition of SEC about witnesses they interviewed subject to protective order (N.D. Cal.), 703

DOUBLE JEOPARDY

– Conviction reversed for failure of honest services theory, retrial allowed (5th Cir.), 791
– Enron, retrial of former official after partial acquittal and hung jury, double jeopardy and collateral estoppel issues raised (U.S., oral arg), 416; hung counts should not be considered in double jeopardy analysis (dec), 789; claims against co-defendant must be considered in light of ruling (vac and rem), 826
– Westar Energy, third trial on conspiracy allowed against former executives, charges broader than acquitted wire fraud (10th Cir.), 1033

DRUGS

See HEALTH CARE

DUE PROCESS

– Deloitte & Touch, Adelphia engagement partner's SEC bar proper, due process not denied (D.C. Cir.), 952