DLR Online Special Features

Please visit here for a list of special feature editions of the DLR Online.


Events & Announcements

Apr. 4, 2018 - The Denver Law Review is currently accepting submissions for its Recent Developments in the Tenth Circuit issue. For details on the issue and submission instructions, please review this document. We look forward to reviewing all submissions!


Mar. 5, 2018 - The Denver Law Review will soon be accepting submissions for the 2018 Emerging Scholar Award. For details on the award including eligibility, award information, and submission instructions, please review this document. We look forward to reviewing all submissions!


2018 Symposium – Uproar: The Intersection of Animals and the Law

Feb. 9, 2018 - Uproar: The Intersection of Animals and the Law The Denver Law Review  presents its Volume 95 Symposium, Uproar: The Intersection of Animals and the Law. Uproar will explore the relationship between animals and the law.

This event is open to the public. To register for this event, please click here.


Volume 95 Staff Announced

The Denver Law Review is excited to announce the Volume 95 Staff. Please join us in congratulating them in this accomplishment and supporting them in continuing the fine tradition of the Denver Law Review. Please click here to view the masthead.

Please click here to view the photo masthead.


Subscriptions and Submissions

For information on how to subscribe to the Denver Law Review, please click here.

For the guidelines on how to submit an article to the Denver Law Review, please click here.

Tuesday
Nov062018

Breach Notification Laws in Colorado: A Potential Model for Other States

[PDF]

Mitchol Dunham[*]

Data breaches are slowly becoming a fact of life. In August 2013, Yahoo’s databases were breached, leaking the information of three billion accounts. At least 868 data breaches occurred in 2017 alone, revealing the records of well over 200 million people. Just recently, on December 11th, 2017, news outlets began to pick up on a list of 1.4 billion passwords in plain text that was circulating the internet. The regularity and cost of these breaches has reignited the drive to reform the laws governing privacy, both on the national and state level.

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Tuesday
Nov062018

Criticism of Attorneys’ Fees Requires Adaptation to a New Market

[PDF]

Susie Lloyd[*]

In the United States, awarding costs to a prevailing litigant is commonplace. Although governed by state and federal statutes, the “American Rule” is often viewed as an excessive and calculated move by attorneys designed to make the rich richer and leave clients writing the check. It is a battle waged on the ground of attorneys seeking just compensation for their abilities in navigating an often inaccessible system, while clients strive to save costs in fear of spending more than practicable in order to sustain their businesses and prevail in countersuits. The contravening interests result in negative attention toward the legal profession. Simply, clients want more for less. And when attorneys cannot deliver without a high cost, clients are turning to other outlets to address the same needs without the high price tag.

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Tuesday
Nov062018

Qualified Immunity: How Clear is Clearly Established?

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Olivia Kohrs[*]

Under 42 U.S.C. § 1983, any person who alleges that a public official deprived him or her of “any rights, privileges, or immunities secured by the Constitution and laws,” may sue that public official for damages. There are, however, exceptions to this protection. Public officials may be protected from liability in these suits under the doctrine of qualified immunity if their conduct “does not violate . . . clearly established . . . constitutional rights of which a reasonable person would have known.” Under this doctrine, public officials may be immune from liability, even if they violate a person’s constitutional rights.

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Tuesday
Nov062018

The False or Misleading Nature of the Exclusion for False or Misleading Statements under Rule 14a-8(i)(3)

[PDF]

Connor Hannagan[*]

Rule 14a-8  of the Securities Exchange Act of 1934, as amended, requires public companies to include shareholder proposals in proxy materials. The provision also contains thirteen grounds for exclusion. Subsection (i)(3) permits the omission of proposals and supporting statements that violate the proxy rules, including those containing “materially false or misleading statements.”

Subsection (i)(3) has at least two unique attributes. First, the exclusion applies both to the proposal and to the supporting statement. Despite this, inaccurate information in the supporting statement does not necessarily result in the exclusion of the entire proposal. Second, the provision expressly cross-references, and necessarily relies upon, Rule 14a-9, the antifraud provision set out in the proxy rules. Rule 14a-9 aims to protect investors by forbidding materially false or misleading statements in any proxy communication. Not a strict liability provision, Rule 14a-9 includes a state of mind requirement.

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Monday
Sep172018

Lucia v. SEC: Justice Breyer Warns of a Dramatic Expansion of the President's Control Over the Federal Civil Service

[PDF]

Kirk McGill[*] & Ben K. McGill[*]

The “Appointments Clause” mandates that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by” the United States Constitution. Thus, the Constitution requires Officers of the United States to receive a commission from a “higher officer.” Accordingly, the President appoints the heads of the “Great Departments” (e.g. cabinet secretaries) with the advice and consent of the Senate, and either these “principal officers,” or the President as Chief Executive, appoint their respective subordinates. This ensures that each officer is accountable to a single superior, and that single superior is either the President or accountable (directly or indirectly) to the President and ultimately to the American electorate. For the first 150 years of the Republic’s history, the vast majority of the Executive Branch consisted of officers, inferior and superior (principal), appointed pursuant to the Constitution and subject to removal by the President or the appointing principal officer at any time and for any reason. In contrast, upon entering office, President Donald Trump had only 554 appointments to make in the Executive Branch out of 2,087,747 nonmilitary Executive Branch employees in Federal Fiscal Year 2017.

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Thursday
Sep132018

The Burden of the Burden of Proof Under Rule 14a-8

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Elizabeth Trower[*]

Rule 14a-8 (the Rule) serves as vehicle for communications between companies and investors. Considered a fixture of the shareholder governance movement, the Rule to some degree amounts to an extension of ownership rights granted under state law. The Rule affords shareholders of a publicly traded company the right to include proposals in the annual proxy materials. The Rule also includes thirteen substantive grounds to omit a proposal.

The burden of establishing an exclusion generally falls on the issuer. The SEC Staff (Staff), however, has provided little guidance on the level of evidence needed to meet the requirement. Indeed, analysis suggests that, in fact, the Staff often does not require that issuers meet this burden by providing empirical support for factual assertions made in no action letter requests.

This Article seeks to examine the history of the company’s burden of proof under Rule 14a-8. Part II of this Article traces the development of the burden from the first mention in 1954 to the eventual inclusion in the language of the rule. Part III focuses on the modern application of the burden. Finally, Part IV argues that the Staff of the Commission has at times required such little evidence as to effectively render the burden of proof meaningless.

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Thursday
Sep132018

The State of the State Law Exclusion Under Rule 14a-8(i)(1)

[PDF]

Maureen McIntee[*]

Rule 14a-8 of the Securities Exchange Act of 1934 (Rule) requires public companies to include stockholder proposals in its proxy statements. The Rule, however, contains thirteen substantive grounds for exclusion. Subsection (i)(1) permits exclusion if “the proposal is not a proper subject for action by shareholders under the laws of the jurisdiction of the company’s organization.”

Regarding the first exclusion inserted into the Rule, the Securities and Exchange Commission (SEC or Commission) originally sought to ensure that the rights of stockholders coincided with state law.  State law, therefore, determined the eligibility of a proposal.  Commonly omitted proposals included those mandating the compensation of officers and directors, infringing on shareholder rights to approve amendments to the articles, and mandating the board take the steps necessary to achieve a sale or merger.  In at least some cases, however, the Commission declined to apply the exclusion to proposals that contained precatory rather than mandatory language.

This article will first examine the administrative history of Rule 14a-8(i)(1).  The next section will focus on staff interpretations through no action letters, particularly those addressing the conflict between mandatory and precatory language in shareholder proposals. The last section will critique the state law exclusion and suggest possible reforms in the SEC staff’s interpretation of the provision.

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Thursday
Sep132018

Eliminating the Post-Submission Holding Period Under Rule 14a-8

[PDF]

Megan Herr[*]

Rule 14a-8 (the Rule) allows shareholders to include proposals in the proxy materials of public companies. The Rule, however, also contains a number of eligibility requirements.  Specifically, shareholders must continuously hold “at least $2,000 in market value” or one percent of the company’s voting securities “for at least one year” before submitting a shareholder proposal in a company’s proxy statement.  In addition, the Rule imposes a “post-submission” holding period requiring proponents to continuously retain the shares through the date of the annual meeting.  Violation of the “post-submission” holding period results in a penalty; the proponent cannot submit another proposal to the same company for the following two calendar years.

Initially, the Rule did not contain minimum ownership requirements or mandatory holding periods. The Securities and Exchange Commission (SEC or Commission) added a “post-submission holding period,” first through informal interpretation and later through an amendment to the Rule. In addition, the Commission included a “pre-submission” holding period.  In an effort to ensure that shareholders had “some measured economic stake or investment interest in the corporation” and “curb abuses” in the proxy process, proponents had to own shares for twelve months prior to the submission of the proposal. The two holding periods came into the Rule for related reasons. Yet the Commission never examined the impact of one on the other.

Part I of this Article will discuss the administrative history of the post-submission holding period and the two-year penalty under Rule 14a-8(f)(2). After providing some history on the requirement, Part II will examine the SEC’s interpretation of shareholder eligibility and the obligation to hold shares through the date of the shareholder meeting. Finally, Part III considers the problems presented by the exclusion and suggests some changes to the Rule.

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Thursday
Sep132018

Limits on the Word Limit Under Rule 14a-8

[PDF]

Daniel Hamilton[*]

The Securities Exchange Act (Exchange Act or Act) granted the Securities and Exchange Commission (SEC or Commission) the authority to regulate the proxy process.  In exercising that authority, the Commission adopted Rule 14a-8 (Rule).  The Rule requires public companies to include shareholder proposals in their proxy materials.

The original version of the rule imposed a word limitation on supporting statements but not the actual proposal.  As a result, shareholders sometimes submitted excessively long proposals.  Eventually, the Commission imposed a cap of 500-words on the entire submission.  To enforce the requirement, the SEC developed a number of counting rules that addressed the use of numbers, web site addresses, symbols, and hyphenated words.  The counting limit also included words and numbers contained in images and charts.

This article will first review the administrative history of the word limit.  The Commission has amended the word limit on a number of occasions, at least in some instances as a result of issuer complaints.  This article will next analyze the staff’s interpretation of the limit, with a particular focus on the period after 1998.  Finally, the piece will discuss the need for changes to better serve the interests of issuers and investors.

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Thursday
Sep132018

"Good Cause" for Nonattendance at the Shareholder Meeting Under Rule 14a-8(h)

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Bryston C. Gallegos[*]

Rule 14a-8 grants shareholders of a publicly traded company the right to include their proposals in the annual proxy statements. The Rule, however, also imposes a number of procedural requirements on proponents. Specifically, subsection (h)(1) requires that either the proponent or a “representative who is qualified under state law” attend the meeting and present the proposal. A violation without “good cause” allows the company “to exclude all of [the shareholder’s] proposals from its proxy materials for any meetings held in the following two calendar years.”

The attendance requirement did not appear in the initial version of Rule 14a-8. The Rule assumed that shareholders would attend meetings and personally present their proposals. Eventually, the Commission amended the Rule to require attendance but permitted waiver upon a showing of good cause. In addition, shareholders could appoint a “qualified representative” to present proposals. Administrative interpretations have, however, effectively repealed the good cause exception. Consequently, the failure to present has become a per se ground for exclusion of a shareholder’s proposal in the following two years.

This article will review the administrative history of subsection (h) and the evolution of a procedural requirement that permitted management to omit shareholder proposals for two years following a violation. Next, this article will examine the SEC Staff’s (Staff or Division) interpretation of the requirement through no-action letters (NAL). Finally, the article will analyze the Staff’s interpretation of subsection (h) and explain how the appearance requirement and good cause excuse may be modified to benefit both shareholders and companies.

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