76 Mr Bogatz also referred to another Nevada statute, concerning liability risk retention for the purposes of insurance law: NRS § 695E.060. The definition of "liability" in that provision was annexed to Mr Bogatz's report –
695E.060. "Liability" defined.
1. "Liability" means legal liability for damages, including costs of defense, legal costs and fees, and other expenses for claims, because of injuries to other persons, damage to their property, or other damage or loss to those persons resulting from or arising out of any:
- (a) Business, whether or not conducted for profit, or any trade, product, services, whether or not professional, or any premises or operations; or
- (b) Activity of any state or local government, or any agency or political subdivision thereof.
2. The term does not include personal risk liability and an employer's liability concerning its employees, other than legal liability under the Federal Employers' Liability Act.
77 By reference to the provisions relating to domestication, and the definition of "liability" for the purposes of the provisions relating to insurance law, Mr Bogatz expressed the following opinion about the meaning of "liability" in NRS § 92A.250(1)(d) as a consequence of a corporate merger –
By both reference to the language in NRS 92A, and to keep the definition consistent with its use in NRS 695E.060, it is clear under Nevada Law that the term "liability" refers to monetary obligations and not to a requirement of providing information under a regulatory request from a foreign regulator, and a Nevada Court would come to that conclusion if such a question was presented to it.
78 Mr Bogatz then gave an opinion in response to a question concerning whether an obligation of Twitter Inc to respond to a foreign regulatory request for information was a "debt" for the purposes of the merger agreement, as read with NRS Chapter 92A. Mr Bogatz expressed the opinion that a "debt" was a monetary obligation, and that a Nevada court would not construe it as including a requirement to respond to a request for information from a regulatory body.
79 Mr Bogatz was also asked to give an opinion on the question whether an obligation of Twitter Inc to respond to a foreign regulatory request for information was a "duty" for the purposes of the merger agreement, as read with NRS Chapter 92A. Mr Bogatz expressed the opinion that a "duty" under Nevada law applied in contexts such as fiduciary obligations owed by one person to another, such as an obligation of a trustee, and not to regulatory reporting requirements. He referred to other provisions of the Nevada statutes that concerned the duties of trustees and company directors.
