News & Publications

The board of directors is entitled to rely upon input of experts, including outside legal counsel and independent accountants, as well as reports prepared by management of the company. The due diligence checklist covers a broad array of topics that are designed to elicit responses from the target company so the target company will either prepare narratives describing certain items of interest to the acquiror or furnish documentation that the acquiror will have the opportunity to review.

How a company is viewed from the outside is crucial for financing, attracting investors or selling the company. Owners of private companies are often disappointed at the value their company is assigned by potential buyers. But there are actions private companies can take to maximize their value.

Key stops along the roadmap for the life of the company include:

• Clarity of Corporate Records & Ownership
• Corporate Agreements & Material Contracts
• Employment Practices
• Intellectual Property Protection
• Company Relationships

Ever since the Pruneyard decision, public shopping malls have been seen as an extension of the public square. Although the property is private, protesters have free speech rights granted by the U.S. and California Constitutions. This can create problems for landlords who are trying to provide a pleasant retail environment for their guests and tenants. Watch this video for more background information on the free speech rights issues.

Recent case law has changed the rules, but Allen Matkins has created a set of model rules for shopping center landlords. These rules address the time, place and manner issues upon which free speech can be limited in shopping malls.

A unanimous Supreme Court held, on March 21, 2012, that parties who receive administrative compliance orders from the U.S. Environmental Protection Agency ("EPA") under the authority of the federal Clean Water Act are entitled to "pre-enforcement review," that is, they may bring lawsuits to challenge the jurisdictional basis for such orders in court. When EPA determines that a person is discharging a pollutant into the "waters of the United States" without a permit, the Clean Water Act requires EPA either to issue a compliance order or to file a lawsuit to enforce the Act's requirements. Compliance orders have become a preferred tool for EPA to obtain quick remediation through "voluntary compliance." Parties who questioned the government's assertion of federal jurisdiction over their property either had to obey the government's compliance order, thereby losing the benefits of their ownership of their land, or refuse to comply, thereby risking ruinous liability for penalties of up to $37,500 per day if EPA decided to sue and the court decided that the government had properly asserted federal jurisdiction.

WRAP insurance in a single "WRAP insurance program" can cover all players in a construction project. These programs are typically either owner controlled or contractor controlled. These WRAP programs can often save significant project costs due to reduced premiums and reduced costs of potential litigation.

Allen Matkins litigator Tom Gibbs discussed strategic tools that parties can use to minimize the risks of litigation by ensuring that they are in a strong position should they have to go to court. By following a few simple practices, companies can minimize the risk of getting sued. These include: maintain your documents - especially confirming letters, tell your story clearly, and maintain your credibility.

Drop and swap transactions can allow for big tax savings, but executing these transactions requires careful planning. A drop and swap transaction is one in which shares of a property owned by a partnership are distributed to each partner and then used to purchase a new property. Timing, however, is critical because if the time between the drop and swap (or the reverse swap and drop) is short, it can be argued that the property was never held for investment purposes - a requirement for a 1031 exchange. It's important that you consult an attorney and carefully plan your drop and swap transaction. Running afoul of the positions taken by the IRS or the California Franchise Tax Board could result in an audit or a trip to court.

This Supreme Court case, while in the employment context, has broader implications for all class action cases. The court case sheds light on the issues of class certification and the use of expert testimony. Attorney Marshall Wallace explains the impacts of this case on class action litigation.

In California, mechanic's lien laws changed. Owners are now entitled to receive a "notice of mechanic's lien." Previously, owners had no way of knowing about a mechanic's lien without running a title report. This often led to frustration among owners who were taken by surprise and were often unable to refinance due to liens that they were unaware of. The new changes require that the owner be sent a "notice of mechanic's lien" before the claim is filed.