Posted: March 26th, 2021

Apple Corps Limited did not follow the legal incorporation steps in 1968

Final Exam
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Final Exam
Question 1
Apple Corps Limited did not follow the legal incorporation steps in 1968. When the British government purchased the shares of the company, a clerk noticed the defect and informed the local court. No one knew about the defect prior to the clerk. The issue in the case is who own Apple Corps Limited.
Apple Corps Limited is owned by the British government, Yoko Ono, and Olivia Arias. Despite the defect in the legal incorporation steps, the company is legally registered, and its certificate of incorporation is not revoked. Consequently, Apple Corps Limited continues to exist as a separate legal entity owned through shares by the British Government, which owns 50% of the shares. Both Yoko Ono and Olivia Arias own 50% of the shares in Apple Corps Limited. Yoko Ono is the surviving wife of the late John Lennon and Olivia Arias, the surviving wife of George Harrison.
The determination on who owns Apple Corps Limited is based on the fact that the shareholders relied upon the legally issued certificate of incorporation. This certificate was granted by the British government. The fact that a legal certificate of incorporation exists has not been disputed or challenged in any legal process. What has been challenged is the process and steps through which the company was formed. Besides, the shareholders of the company were not a party to the process of registering the firm. The promoters are the ones who were responsible for the incorporation and registration. Therefore, any criminal liability in the registration of the company would fall on the promoters of the company.
Facts of the case also indicate that no one had noticed the defect prior to the clerk, which means that none of the shareholders knew of the defect. The promoters may as well not have noticed the shortfall in the incorporation steps. In addition, the registrar of companies had not noticed the defect. Therefore, the issue is considered a mistake of omission or commission without any malicious intent or intent to defraud. Hence, to cure the defect, a process of correcting the issue would be entered. However, no process is required for the change in the registration status and shareholding of the company. Therefore, the facts of the case demonstrate that the British government, Yoko Ono, and Olivia Arias would prevail in proving ownership of the company and in convincing the court to enter a process of correcting the defect in the incorporation steps.
Question 2
Creditors who want to trigger an involuntary liquidation proceeding against Apple Corps Limited need to first demonstrate that they have pursued and exhausted the individual claims processes. After finishing the individual enforcement claims processes, the creditors need to prove that they could not recover or collect the debt. A platform for triggering the involuntary liquidation proceedings will then be created. The creditors must jointly file a case to trigger an involuntary liquidation proceeding against the company. Success in the proceedings would result in a collective remedy for all creditors.
Apple Corps Limited has no assets other than a single building valued at $15 million. The building is not attached to charges by any creditor, which then means that all the creditors then have an equitable right to the assets of the business upon liquidation. If a creditor has a charge on the building, then the creditor gets prioritization in its discharge. Assuming that the only asset that Apple Corps Limited has does not have any charge on it, the creditors get equitable remedy. The total debts will be added together to determine the final amount owed to the creditors. Each creditor will then get a proportionate share of the proceeds from the sale of the building. The following table summarizes the equitable share that each creditor would receive if they succeeded in triggering the involuntary liquidation against Apple Corps Limited.
CREDITOR DEBT IN MILLION $ EQUITABLE SHARE IN MILLION $
PLUMBER 0.5 0.075
ELECTRICIAN 1.5 0.225
BANK A 70 10.5
ACCOUNTANT 28 4.2
TOTAL 100 15
Triggering an involuntary liquidation proceeding against Apple Corps Limited may, in fact, appear as a defeatist move because all the creditors would end up losing part of the debt if the company is liquidated. However, if Apple Corps Limited is not liquidated, a possibility is that the business would generate revenues that would be able to reduce the losses that the creditors would incur from the trigger of involuntary liquidation.
Question 3
The intellectual property rights related to The Beatles are owned by Apple Corps Limited. Facts of the case indicate that prior to 2007, Apple Corps Limited owned all of the trademarks and copyrights associated with The Beatles, including those associated with the Apple brand. In 2007, Apple Corps Limited entered a settlement in which the management agreed that Apple Inc. would own all of the trademarks related to Apple and would license some of them back to Apple Corps for its continued use. In other words, Apple Corps only transferred the Apple, Apple Corps, and Apple Music trademarks to Apple Inc. However, it did not move any copyrights to Apple Inc. Furthermore, it failed to transfer The Beatles trademark and copyrights to Apple Inc.
The implication of the finding in the paragraph above is that Apple Corps Limited continues to own the Beatles trademark and copyrights. The copyrights include all music produced by The Beatles and by Apple Corps Limited. Therefore, the sale of The Beatles music on iTunes is considered to be in breach of the intellectual property rights, specifically in relation to the copyrights for the music as Apple Corps did not transfer any copyrights. Furthermore, one may also consider it as a breach of the trademark ‘The Beatles’ because Apple corps did not transfer it in the 2007 settlement with Apple Inc. Hence, Apple Corps Limited would prevail in case it sued Apple Inc. for infringement on its copyrights and trademark, which are the intellectual property of Apple Corps Limited.
Apple Inc. may continue to sell The Beatles music on iTunes if it is expressly authorized to do so by Apple Corps Limited. Similarly, Apple Inc. could license Apple Corps Limited to continue with the use of the Apple trademark where needed. The latter was in terms of settlement between Apple Inc. and Apple Corps Limited in 2007 settlement on trademarks. What is important is that just having the Apple trademark on The Beatles music copyrights does not give Apple Inc. any rights to ownership. The only issue that Apple Inc. may do is to require the removal of the Apple trademark on the catalogs of the Beatles in all future transactions unless the Beatles and Apple Corps are expressly licensed to continue the use of the trademark by Apple Inc. Overall, The Beatles’ trademarks and copyrights are owned by Apple Corps Limited, while the Apple trademark is now owned by Apple Inc.
Question 4
The issue, in this case, is whether the “Fine Bill” issued by Apple Inc. is a security that should be regulated under either the ’33 and /or 34 Acts. Facts of the case indicate that Apple Inc. was fined 13 billion Euros by the EU for tax evasion. The company appealed the ruling by the EU. However, for it to launch the appeal process, it was required to deposit 13 billion euros in an escrow account. The account would pay the EU in case Apple lost the appeal, and it would return the money to Apple Inc. if Apple won the appeal. Apple Inc. publicly issues a fine bill. The public would pay into the fine bill and recover the money if Apple Inc. won the appeal against the EU. However, if the company lost, then the public would forego the entire amount plus any interest and adjustment due to inflation.
The analysis finds that the fine bill is a security instrument that is regulated under 33 and 34 acts. Specifically, the fine bill is a debt instrument similar to a bond. The only difference is that it is issued under off-balance-sheet financing methods. The fine bill as structured has no implications on the company’s books since it is not entered into the balance sheet. The company benefits by paying for the tax fine without digging into its cash reserves or financing methods that would impact negatively on the financial statements of the business.
The first reason why the fine bill is regulated under the ‘33 and ‘34 acts is the fact that Apple Inc. is a publicly listed company. As a publicly listed firm, Apple Inc. is required to publish financial statements under 33 act. The financial statements should be available on the website of the corporation and the SEC. Secondly, the fine bill is issued publicly. In the interest of protecting citizens, ’34 requires that Apple Inc. publishes a prospectus that describes the security, the business of Apple, and offers its financial statements. The fact that Apple Inc. is dealing with the case in a foreign country does not prevent SEC from taking regulatory actions against Apple Inc. As a public company whose securities are registered in the US, it must comply with the regulations in the US.
The fine bill exposes the shareholders of Apple Inc. to potential losses, which necessitates actions by the SEC under 33 and 34 acts. If Apple Inc. does not attract investors for the fine bill, it would have to consider balance sheet financing. The implications are that Apple Inc. would have to pay the fine from its assets, which implies the shareholders are exposed. The firm has failed to disclose this as a contingent liability in its balance sheet, hoping that it secures off-balance-sheet funding through the fine bill. 34 Act requires that the company publishes all material information and associated disclosures. The 13 billion euros is material information that would potentially affect the shares of the business, including the shareholders. Such facts attract the attention of the SEC.
The public, which is likely to subscribe to the fine bill, is also exposed to potential losses and fraud. The enactment of 33 was primarily to protect the public from fraudulent transactions. The transaction by Apple Inc. is evidently fraudulent because members of the public who pay into the fine bill escrow would only be compensated if Apple Inc. wins the appeal. However, the public would lose its appeal was rejected, which is a very likely scenario. What makes it fraudulent is the fact that Apple Inc. would be compensated by Ireland for any asset seizures in case the escrow account was seized. In that case, Apple Inc. would be gaining unfairly against the public investors who stand to lose a hundred percent of the investment where Apple Inc. does not win the appeal in the tax case against the EU.
Based on the facts in the case, it is clear that the fine bill is a security that should be regulated under either the 33 and /or 34 Acts. The fine bill is, in fact, a form of debt, with the difference being off the balance sheet financing. The bill is issued by a public company to be subscribed to by public members. Therefore, the SEC is mandated to regulate the company.

Question 5
Apple Corps Limited violates the earlier settlement agreements with Apple Inc. Apple Inc. sues to enforce the agreement in a US court. The issue, in this case, is whether the US court has jurisdiction in this case. While Apple Corps Limited is now owned by the British Government, the US court has jurisdiction because Apple Corps Limited represents commercial interests, and the settlements between Apple Corps Limited and Apple Inc. was entered as part of commercial engagements between two commercial bodies. The US court also has jurisdiction because the actions of Apple Corps Limited have an objective and direct impact within the territory of the US. In other words, the actions of Apple Corps Limited have direct implications on the shareholders of Apple Inc. in the US. Due process also demands respect for the rule of law. Intellectual property rights that are protected in the US are protected equally elsewhere in the same way that the British government would expect that intellectual property rights protected in the UK be protected in the US.
The British government cannot invoke sovereign immunity in the case. The suit is between Apple Inc. and Apple Corps Limited. With the veil of incorporation, the consideration is that Apple Corps Limited would be sued as a separate legal entity with the right to sue and be sued. The court in the US would as well assume no knowledge of the shareholders of Apple Corps Limited. The principles of incorporation and what it means for a company to be a separate legal entity are very important. The case would be decided purely on the merit of the arguments presented by both Apple Inc. and Apple Corps Limited with no consideration as to other factors, such as the ownership of the corporations. The only issue that the court needs to consider is the fact that the entity filing the case is a US corporation and that the respondent in the suit is a foreign company.
The last key factor demonstrating why the US court has jurisdiction is the fact that the US and the UK are signatories to international commercial law, which covers the protection against infringement of intellectual property rights. Under the law, the US court and every other court has jurisdiction over matters involving the infringement of intellectual property rights. The customary implications are that all companies and entities must respect intellectual property rights anywhere and everywhere across the world.
Based on the analysis, the US court has jurisdiction in the case of Apple Inc. against Apple Corps Limited. The process would be deemed fair under international commercial laws, which are applied customarily across all jurisdictions in the world. In particular, intellectual property rights are protected across the world. Besides, the veil of incorporation means that the court will not be interested in knowing the owners of Apple Corps Limited and instead will be focusing on the merits of the case.