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Backdating

34 Pages Posted: 27 Mar 2008  

Jeffrey L. Kwall

Loyola University Chicago School of Law

Stuart Duhl

Harrison & Held, LLP; Loyola University Chicago School of Law

Abstract

Backdating is a much misunderstood and largely unexplored subject. It involves a wide range of conduct, some of which is an integral part of everyday law practice. To the layperson, backdating connotes wrongdoing. The propriety of backdating, however, depends upon its purpose and effect. Every lawyer should be capable of distinguishing legitimate backdating from improper backdating. Unfortunately, the dividing line is often far from clear.

Little guidance exists on backdating, notwithstanding its pervasiveness, the complexity of determining its propriety, and the serious consequences of a misjudgment. An in-depth examination of the day-to-day backdating issues that most business lawyers face cannot be found in the literature. This Article begins to fill that void.

This Article explains the different meanings of backdating, explores the reasons why it is difficult to distinguish legitimate backdating from improper backdating, examines the impact of disclosure on the propriety of backdating, and develops an analytical approach to assist business lawyers in wrestling with the difficult situations most will confront in their daily practices. By illuminating the subject, it is hoped that this Article will begin a much needed dialogue about backdating.

Keywords: backdating, business law, tax law, corporate law, ethics

JEL Classification: H25, H26, K22, K34, K42, M14

Suggested Citation

Kwall, Jeffrey L. and Duhl, Stuart, Backdating. Business Lawyer, 2008. Available at SSRN: https://ssrn.com/abstract=1112845

Jeffrey L. Kwall (Contact Author)

Loyola University Chicago School of Law ( email )

Chicago, IL 60611
United States
312-915-7152 (Phone)

Stuart Duhl

Harrison & Held, LLP ( email )

333 West Wacker Drive
Chicago, IL 60606
United States

Loyola University Chicago School of Law

25 E. Pearson
Chicago, IL 60611
United States

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