80 In response to a question concerning whether the Commissioner had a right to enforce the contractual provisions of the merger agreement against X Corp, Mr Bogatz referred to Nevada laws concerning the rights of third parties to bring proceedings on a contract. Mr Bogatz referred to the "No Third-Party Beneficiaries" provision in article 4.5 of the merger agreement and stated that Nevada courts would enforce such provisions.
The concurrent evidence of Mr Bogatz and Mr Pyle
81 As I have mentioned, Mr Bogatz was examined by senior counsel for the Commissioner in the course of a concurrent evidence session with Mr Pyle.
82 First, Mr Bogatz agreed that the starting point in interpreting a legislative provision is whether it has a plain meaning. If the interpretation is in doubt, then its legislative history can be relevant. My Pyle agreed with this evidence.
83 Secondly, Mr Bogatz gave evidence that the plain meaning of the word "liability" referred to some type of monetary obligation, stating that this was his "initial impression". On this issue, both witnesses were taken to an entry in Black's Law Dictionary (12th ed, Thomson Reuters, 2024), a well-respected legal dictionary in the United States, that attributed meanings to the word "liability" in different senses, including a wide sense that extended to duties and criminal responsibility –
liability n. (18c) 1. The quality, state, or condition of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment <liability for injuries caused by negligence>. — Also termed legal liability; subjection; responsibility. Cf. fault. 2. (often pl.) A financial or pecuniary obligation in a specified amount; debt <tax liability> <assets and liabilities>.
84 Mr Bogatz said that context was relevant to interpretation, and noted the reference to criminal responsibility. Mr Bogatz referred in his evidence to mergers in the context of regulated industries such as gaming and liquor, and expressed the opinion that a merger did not automatically result in the transfer of licences necessary to carry on business in those industries.
85 Mr Pyle considered that at least the first definition in Black's extended the word "liability" to any liability to society enforceable by civil remedy or punishment, and said that he read the word "liability" in NRS § 92A.250(1)(d) not only as encompassing pecuniary liabilities, but also as extending to any legally binding obligation, including obligations to respond to a regulatory notice. Mr Pyle stated that in his experience of mergers, he had never seen the narrow meaning of "liability" being supported. He explained that if a narrow view were taken,
