[Am-info] States' remedy?
j0h3l17-o4p@pop.earthlink.net
j0h3l17-o4p@pop.earthlink.net
Thu, 15 Aug 2002 11:23:51 -0700
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AM-listers,
In California, the Secretary of State controls the priveleges of
foreign corporations (incorporated in another state) to conduct
business here. For the most part, I believe that these requirements
are fulfilled by paying regular fees. However, the Business and
Professions Code--which regulates business types ranging from
cosmetologists to attorneys--has some curious language which I have
never seen mentioned, much less publicly enforced.
From California Business and Professions code Section 16573:
"Every foreign corporation [incorporated in another state]or
association, exercising any of the powers, franchises or functions of
a corporation in this state, which violates this chapter [Chapter 2,
Part 2, Division 7] is subject to revocation of those powers,
franchises or functions and upon such revocation is prohibited from
doing any business in this state. The Attorney General, or a district
attorney of a county where the offense or any part thereof is
committed, may enforce this provision by bringing proper proceedings
by injunction or otherwise. Upon receipt of a certified copy of the
judgment and decree of any court of competent jurisdiction finding
any foreign corporation or association guilty of violating this
chapter and ordering a revocation of its powers, franchises or
functions of a corporation in this state, the Secretary of State
shall revoke the license of any such corporation or association
heretofore authorized to do business in this state."
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=bpc&codebody=&hits=All
scroll down to Division 7
The Chapter cited refers to Combinations in Restraint of Trade, and
the enforcement provisions may or may not apply to Microsoft. If any
legal types are reading this (other than MS's own, obviously) I would
be very curious to know whether or not they could be, or whether
revocation of business priveleges could be applied to anticompetitive
behavior provisions in other Chapters.
Licenses to conduct business are revoked under the B & P code on a daily basis.
Instead of trying to "level the playing field", it seems that the
various DOJs ought to look at the way sports actually work. Playing
fields don't become "unlevel". Offending players don't have their
arms tied behind their backs, they get booted out of the game for a
while. The simplest, most effective thing that could be done would
be to let MS keep its code, its APIs, its software bundles, its
intellectual property, its money, everything. Everything except its
business license, which is something it does not own, and which the
government is quite capable of legally yanking.
At the Federal level, Judge Kotellar-Kelley could simply instruct the
IRS to alter Microsoft's FEIN status from "active" to "inactive",
beginning Jan. 1, for two years. This remedy would be once sentence
long, do the job convincingly, and, interestingly enough, agree with
nearly every argument Microsoft has ever made, letting them keep
everything they have ever asked for in court! (Have they ever asked
not to be put out of business? Putting competitors out of business
is MSs mission in life, they are fair game!)
At the State level, enforcement of this nature might also help
California deal with outside energy providers who may or may not have
colluded to raise prices.
Can any legal eagles shed some light on these statutes? Is this an
area where increasing public attention might be effective?
eje
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<div>AM-listers,</div>
<div><br></div>
<div>In California, the Secretary of State controls the priveleges of
foreign corporations (incorporated in another state) to conduct
business here. For the most part, I believe that these
requirements are fulfilled by paying regular fees. However, the
Business and Professions Code--which regulates business types ranging
from cosmetologists to attorneys--has some curious language which I
have never seen mentioned, much less publicly enforced.</div>
<div><br></div>
<blockquote>From California Business and Professions code Section
16573:</blockquote>
<div><br></div>
<blockquote>"Every foreign corporation [incorporated in another
state]or association, exercising any of the powers, franchises or
functions of a corporation in this state, which violates this chapter
[Chapter 2, Part 2, Division 7] is subject to revocation of those
powers, franchises or functions and upon such revocation is prohibited
from doing any business in this state. The Attorney General, or a
district attorney of a county where the offense or any part thereof is
committed, may enforce this provision by bringing proper proceedings
by injunction or otherwise. Upon receipt of a certified copy of
the judgment and decree of any court of competent jurisdiction finding
any foreign corporation or association guilty of violating this
chapter and ordering a revocation of its powers, franchises or
functions of a corporation in this state, the Secretary of State shall
revoke the license of any such corporation or association heretofore
authorized to do business in this state."</blockquote>
<blockquote><br></blockquote>
<blockquote
>http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=bpc&cod<span
></span>ebody=&hits=All scroll down to Division 7</blockquote>
<blockquote><br></blockquote>
<div>The Chapter cited refers to Combinations in Restraint of Trade,
and the enforcement provisions may or may not apply to Microsoft.
If any legal types are reading this (other than MS's own, obviously) I
would be very curious to know whether or not they could be, or
whether revocation of business priveleges could be applied to
anticompetitive behavior provisions in other Chapters.</div>
<div><br></div>
<div>Licenses to conduct business are revoked under the B & P code
on a daily basis.</div>
<div><br></div>
<div>Instead of trying to "level the playing field", it
seems that the various DOJs ought to look at the way sports actually
work. Playing fields don't become "unlevel".
Offending players don't have their arms tied behind their backs, they
get booted out of the game for a while. The simplest, most
effective thing that could be done would be to let MS keep its code,
its APIs, its software bundles, its intellectual property, its money,
everything. Everything except its business license, which is
something it does not own, and which the government is quite capable
of legally yanking.</div>
<div><br></div>
<div>At the Federal level, Judge Kotellar-Kelley could simply instruct
the IRS to alter Microsoft's FEIN status from "active" to
"inactive", beginning Jan. 1, for two years. This
remedy would be once sentence long, do the job convincingly, and,
interestingly enough, agree with nearly every argument Microsoft has
ever made, letting them keep everything they have ever asked for in
court! (Have they ever asked not to be put out of business?
Putting competitors out of business is MSs mission in life, they are
fair game!)</div>
<div><br></div>
<div>At the State level, enforcement of this nature might also help
California deal with outside energy providers who may or may not have
colluded to raise prices.</div>
<div><br></div>
<div>Can any legal eagles shed some light on these statutes? Is
this an area where increasing public attention might be
effective?</div>
<div><br></div>
<div>eje</div>
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