Controlling shareholder; control of sale; presumtion that, in making a business decision, corporate directors act on an informed basis, in good faith, and in the honest belief that the action taken is in the company's best interests. Louisiana-Pacific Resources, Inc; The Commerce Clause is not implicated by a statute that regulates corporations even-handedly and imposes no special or distinct burden on out-of-state interests; dormant commerce clause; straight voting. Mc Kesson HBOC, Inc.; stockholder has right to make written demand to inspect corporate books and records for purpose reasonably related to person's interest as stockholder; derivative action; parent corporation; subsidiary corporation. Verizon Communications, Inc; Stockholders seeking inspection of corporate books and records must present some evidence suggest credible basis from which court can infer mismanagement, waste, or wrongdoing may have occurred. Omission to act by one under a legal duty to do so is sufficient for criminal liability if it is a substantial factor in bringing about the consequences prohibited by statute. Homicide; malice afterthought; manslaughter; murder. Causation; habeas corpus; intervening cause; second-degree murder; superseding cause. Direct action; special injury test disapproved for determining whether a direct action exists; standing to assert direct action depends on whether the individual, not the corporation, suffered harm and would benefit from the recovery or remedy. F & W Acquisition LLC, recission, fraud, contracts may not be rescinded based on misrepresentations made during negotiations unless one party to contract made misrepresentations, knowing them to be false. Derivative Litigation, A director's independence turns on whether the director is, for any substantial reason, incapable of making a decision with only the best interests of the corporation in mind. Failure to instruct the jury on a material element of the prosecution's case violates the defendant's due process rights. A buyer may revoke acceptance of goods when a nonconformity impairs the value of the goods to the individual buyer, taking into account the needs and circumstances of the individual buyer. Last will and testament; wealth protection; living trust; estate planning forms; estate planning trust; administration of trust; the common trust; resignation of trustee; replacement of trustee; trustee's investment powers. The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their race; compelling state interest test; Equal Protection Clause. New York; A policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be a pretext for racial discrimination; peremptory challenge. Deadly force to prevent felony suspect's escape violates fourth amendment unless officers have probable cause to believe that the suspect presents a threat to the life or safety of the officers or others. Animal Feeds International Corp.; A party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.
The Reform Act provides a three-part process for identifying the lead plaintiff in a class action lawsuit: notice; greatest financial stake in the outcome of the controversy; Rule 23 requirements of typicality and adequacy. The substantive fairness of a class action settlement and attorney's fees depends on: (1) the complexity, expense, and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the extent of discover If a board is pursuing a merger for strategic reasons, it may decline to entertain a competing bid that may yield a higher short-term gain for its shareholders in favor of a merger that ensures greater long-range gains. Delaware General Corporation Law 144 provides a safe harbor for interested transactions if the material facts as to the director\'s relationship or interests as to the contract or transaction are disclosed or are known and majority of disinterested direct Abry Partners V, L. One who inflicts an injury upon another that results in death cannot avoid liability because the victim could have taken better care of himself or herself.
The sec, enjoin negligent conduct resulting in securities law violations, the securities and exchange commission, evidence of past negligence, substantial likelihood of future violations of federal securities laws. Ikanos Communications, Inc.; management has duty to make disclosure when a trend, demand, commitment, event, or uncertainty is both presently known and reasonably likely to have material effects on registrant. Apuzzo; to hold an aider and abettor liable for securities law violations, must show underlying violation that defendant knew about, provided substantial assistance, by participating, and by action. In re Novartis Wage & Hour Litigation; Per the Fair Labor Standards Act (FLSA) overtime-pay exemption, "outside salesmen" facilitate the transfer of title to goods; "administrative employees" exercise discretion and independent judgment. Hillsides, Inc.; violation of common law tort of intrusion is intentional intrusion into a place, conversation, or matter plaintiff has a reasonable expectation of privacy, in a manner highly offensive to a reasonable person. Quon; Even when employee has reasonable expectation of privacy in workplace, government employer does not violate Fourth Amendment when it invades the employee's privacy for a legitimate work-related reason. In re American Housing Foundation, Debtor; After an employer's bankruptcy case commences, an employer is only obligated to pay for unused vacation time if the right to payment is specifically expressed in its employment contract with the employee. Residential visitors, who are on the premises for only a short time and who claim no connection to the host other than to transact business, have no legitimate expectation of privacy in the premises under the fourth amendment. Fruit of the poisonous tree doctrine; independent source rule; the fourth amendment prohibits use of evidence obtained by an illegal search and seizure, and evidence obtained as a result of that constitutional violation unless independent source.
Marshall; bankruptcy judges are not constitutionally vested with jurisdiction to decide state common law claims against an entity that is not otherwise part of the bankruptcy proceedings; Northern Pipeline; Norberg. Ickes; the border search doctrine is not subject to a First Amendment exception; the government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border Employee handbooks; employee manual; human resources; anti-fraternization policy; workplace romance; non-fraternization policy; anti-fraternization policies; employee rights; dating a coworker; coworker relationships; employment lawyer. Private Securities Litigation Reform Act; the allegations in the complaint, taken together, must give rise to an inference of scienter, which requires that the defendant made false statements, knowing that they were false. Makor Issues & Rights, Ltd.; Private Securities Litigation Reform Act survives motion to dismiss only if reasonable person would deem inference of scienter cogent and at least as compelling as any opposing inference; scienter. Criminal defendant due process rights are violated if the prosecutor charges defendant with a more serious crime after defendant exercises statutory right to challenge conviction for less serious offense arising from the same conduct. a criminal defendant in federal court is not entitled to a dismissal of the indictment because the prosecutor failed to present to the grand jury substantial exculpatory evidence. no need for severance exists until a defendant makes a convincing showing that he has both important testimony to give concerning one count and a strong need to refrain from testifying on the other. A bank or other institution that receives a check for deposit has a duty to exercise due care to make sure that the depositor is the intended recipient of the funds.
What is ethical; business ethics; ethical issues; ethics requirements; ethical responsibility; ethical standards; attorney ethics and professional responsibility; legal ethics; mandatory ethics CLE; ethics class; ethical businesses. Energy Systems, Inc.; mere congregation of a corporation's directors in same room does not necessarily result in a board meeting, and does not obviate the need for adherence to corporate bylaws and General Corporation Law. Haft; Under Delaware corporation law, an interest sufficient to support an irrevocable proxy must either be an interest in the stock itself or an interest in the corporation generally, such as being CEO. Shareholders Litigation; The fiduciary duty of loyalty requires directors and officers to offer investment opportunities derived from corporate business to the corporation before acting on them individually. Private Securities Litigation Reform Act; Connect the inferences fraud Rule 10b-5. Securities and Exchange Commission; Because investors rely on the reputation, integrity, independence, and expertise of an underwriter, the underwriter has a obligation to investigate and disclose material facts. Despite a claim of innocence, the fifth amendment protection against self-incrimination is available to all those who have reasonable cause to apprehend danger from a direct answer. Perjury; criminal defendant is not deprived of the effective assistance of counsel when his lawyer admonishes him not to give perjured testimony and threatens to disclose to the court any false testimony the defendant may give.
Without red flags, directors have no reason to suspect wrongdoing; does stockholder complaint create a reasonable doubt that board of directors could have properly exercised its independent and disinterested business judgment in responding. P.; Under section 36(b) of the Investment Company Act, a financial adviser has a fiduciary duty and owes an obligation of candor in negotiation, as well as honesty in performance, but not for negotiating own salary. Jordan; The proper remedy for a freeze-out is to restore the minority shareholder as nearly as possible to the position she would have been in had there been no wrongdoing; close corporation; dividend; injunction. Antinora; The general rule of partnership law is that, in the absence of an agreement, the law presumes that partners and joint adventurers intended to participate equally in the profits and losses of the common enterprise. Superior Court; In forming a partnership, the partners obligate themselves to share the risks and benefits and carry out the enterprise with the highest good faith toward each other; fiduciary. 55 Perry Co; Partnership law provides that, subject to any contrary agreement between the partners, no person may become a member of the partnership without the consent of the other partners. Dreifuerst; Unless otherwise agreed, partners who have not wrongfully dissolved the partnership have a right to wind up the partnership and force a sale of the partnership assets; partnership at will. Cuban; Insider trading liability under the misappropriation theory is premised on the undisclosed use of confidential information for personal benefit, in breach of a duty not to do so. Procedural rules usually do not apply retroactively. absent a showing of cause and prejudice attendant to a state procedural waiver, a federal habeas corpus review of a waived objection to the admission of a confession at trial is barred. Qualified immunity does not apply to deprivation of constitutional rights; coercive police interrogation resulting in statements not used at trial violates Constitution only if interrogator's conduct shocks the conscience. A criminal defendant's initial appearance before a judicial officer triggers the attachment of the Sixth Amendment right to counsel. Burden of persuasion; burden of production; insanity; mens rea; voluntary. Due process does not require the prosecution to disprove all affirmative defenses that may be available to defendant, so long as it has proven guilt beyond a reasonable doubt. Deliberate first- degree murder; intent; second-degree murder.
Business judgment rule; good faith; directors owe corporation and shareholders duty of good faith; business judgment rule does not save directors from liability for the conscious disregard of the consequences of corporate action. AFSCME Employees Pension Plan; Bylaws may be unilaterally adopted by shareholders when they appropriately relate to corporate processes rather than substantive decisions or Board's fiduciary duties. Stephens; misrepresentation material if substantial likelihood disclosure of omitted fact would have been viewed by reasonable investor as having significantly altered total mix of information made available; proxy. Shareholder Derivative Litig; Plaintiff must show directors knew not discharging fiduciary obligations or directors demonstrated conscious disregard for responsibilities; business-judgment rule; exculpatory clause; gross negligence. Stephens; Shareholder ratification applies only to circumstances where fully informed shareholder vote approves director action that does not legally require shareholder approval in order to become legally effective. Cullman; director is "interested" when he derives benefit from transaction that is not shared with other shareholders but lacks "independence" when his decision about transaction controlled directly or indirectly by another; disinterested. Shareholders Litig; Pre-suit demand excused only if shown that a majority of the members of board of directors is either personally interested, or is so dominated by or beholden to an interested director that discretion sterilized. Sidhu; Gross negligence is conduct that constitutes reckless indifference, or actions that are without the bounds of reason, and constitutes a breach of the duty of care; bad faith; exculpatory clause. Horn; The question of whether director is required to offer business opportunity to corporation before taking advantage of it is determined according to relationship between particular director and corporation; accounting; constructive trust. Consolidated Shareholder Litig; A director who uses inside knowledge to enrich employees while avoiding shareholder-imposed requirements is not acting loyally and in good faith as a fiduciary; business-judgment rule. Inter-Tel (Delaware), Inc; directors' defensive actions; burden is on directors to identify legitimate corporate purpose, and show that actions reasonable relation to purpose did not preclude shareholders from exercising right to vote. Nasser; Implied authority is agent reasonably believes he has, shown by evidence of acquiescence of the principal; actual authority; apparent agency; apparent agent; apparent authority; express agency; implied agency. Prometheus Development Company, Inc; A partnership agreement provision that allows an interested partner to count its votes is manifestly unreasonable under California corporations law; limited partner; limited partnership; ratification. Derivative Litigation; the law presumes directors act on an informed basis, in good faith, and in the honest beliefof best interests of company; business judgment rule; derivative action; duty of good faith; fiduciary duty. new constitutional rules of criminal procedure will not be applicable to those cases that have become final before the new rules are announced. Fruit of the poisonous tree doctrine aplies to Fourth amendment, not Fifth Amendment; although Miranda requires the suppression of an un-warned admission, the admissibility of any subsequent statement turns on whether it was made voluntarily. Beard; capital defendant and family say no mitigating evidence, but defense lawyer must make reasonable efforts to obtain and review prosecution evidence of aggravation at sentencing phase of trial; death penalty. United States; repeated requests to commit a crime and pleas for sympathy establish entrapment; if defendant's criminal conduct arises from the inducement of law enforcement officers, not the intention of the defendant. Heckenkamp; absent clear warnings, connecting a personal computer to a computer network does not relinquish an otherwise objectively reasonable expectation of privacy; warrantless search. Villarreal; individuals have a reasonable expectation that their letters and other sealed containers will not be opened by government agents without a warrant when they are surrendered to a carrier. Spears; Title III of the Omnibus Crime Control and Safe Streets Act of 1996 creates exception to civil liability for aural interception during business use of a telephone extension; scope of exception limited to the business purpose. Missouri; the constitution prohibits the use of visible shackles during the penalty phase of a criminal trial unless the use is justified by an essential state interest specific to the defendant on trial. Washington; out-of-court statements are inadmissible into evidence if defendant has no opportunity to cross-examine speaker, unless witness is unavailable and defendant has prior opportunity to cross-examine the declarant; hearsay. Gant; Police may search vehicle incident to recent occupant's arrest only if arrestee is within reaching distance of passenger compartment at time search or reasonable to believe vehicle contains evidence offense of arrest; stare decisis. Redding; school search permissible if scope of measures adopted is reasonably related to objectives of search and not excessively intrusive; in loco parentis; qualified immunity. Louisiana; A criminal defendant's consent to police-initiated interrogation cannot be presumed involuntary simply because the court previously appointed a lawyer to represent him; preliminary hearing. United States; Although acquittals may preclude retrial on counts on which the same jury hangs, the consideration of hung counts has no place in the issue preclusion analysis for double jeopardy purposes; hung jury. Gant; Police may search vehicle incident to recent occupant's arrest only if arrestee is within reaching distance of passenger compartment at time of search and reasonable to believe vehicle contains evidence of offense of arrest. Michigan; exclusionary rule not apply suppress evidence obtained in violation knock-and-announce rule; exclusionary rule; fruit-of-the-poisonous-tree-doctrine; inevitable discovery rule; no-knock search warrant. Illinois; Whatever warnings suffice for Miranda's purposes will also be sufficient to safeguard the right to counsel in the context of post-indictment questioning; indict; sixth amendment. Constructive possession of controlled substance is established when the defendant is knowingly in a position or has the right to exercise dominion or control over it, and has some appreciable ability to guide its destiny. Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of heat of passion when it is at issue in a homicide prosecution. One who, with full knowledge of the dangers involved, deliberately exposes a person to danger of death or bodily injury is liable for murder upon death of victim.
Causes of divorce; divorce costs; divorce laws; divorce advice; divorce attorney; dissolution of marriage; division of marital assets; divorce separation agreement; dividing marital assets; dividing marital property. Allegations in the complaint, taken together, must give rise to an inference that the defendant acted with the requisite scienter of false statements, knowing. Leonard; determining relationship includes reasonable expectation of significant investor control, and not investment contract, courts look beyond formal terms of documents circumstances surrounding relationship.; passive. Ishopnomarkup.com, Inc; A Rule 506 exemption is not forfeited when the issuer of stock makes a good faith effort to comply with its disclosure requirements; advice of councel; exemption; good faith. The standard for determining whether a defendant is competent to waive the right to counsel and to enter a guilty plea is the same as the standard for determining whether the defendant is competent to stand trial.
Disbar for alcohol abuse; detection and prevention of alcohol and substance abuse in the legal profession; alcoholic lawyer; disbarment for drug abuse; attorney ethics violation; ABA Model Rules of Professional Conduct; lawyer legal ethics; CLE. If defendant plea of guilty is based on reasonably competent advice, it is intelligent plea not open to attack on the ground defendant counsel may have misjudged admissibility of defendant confession. When a prospective juror harbors preconceived notions of defendant guilt that cannot be set aside by consideration of the evidence, the juror must be dismissed for cause to ensure an impartial jury. When the evidence discloses any possibility that a juror views arise from the sufficiency of government evidence, disqualification must be denied.
Traditional Baking, Inc.; clients are the principals, the attorney is an agent; under law of agency, principal is bound by agent's deeds, except attorney misconduct outside the scope of employment. 8(a)(2) short and plain statement of the claim showing that pleader is entitled to relief, give the defendant fair notice of claim and grounds upon which it rests. General Motors Corp.; sanctionable spoliation is destruction or material alteration of evidence or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation; manufacturer opportunity to inspect Harnden v. Darue Engineering & Manufacturing; federal forum for federal tax litigation sufficiently substantial for exercise of federal question jurisdiction; federal title law; division of labor between state and federal courts United Oil Co. Parts Associates, Inc.; may obtain discovery regarding any matter, not privileged, relevant to claim or defense; other lawsuits regarding similar products relevant to a defendant's failure to warn; indemnify; indemnity agreement. UBS Warburg LLC; corporate counsel has duty to communicate discovery obligations so all relevant information is discovered, retained, and produced; once duty to preserve attaches, identify all sources of discoverable information. Injury in fact and redressability must be established even under a federal statute conferring a private cause of action, private right of action, standing, personal injury, public, injury in fact. Federal cigarette advertising regulations preempt conflicting state regulations, congress expressly preempts state or local action, conflicting state regulation must yield to federal law, supremacy clause. Seelig, Inc., Barriers to commercial traffic between states, direct or indirect, violate the Commerce Clause when purpose and effect of such barriers is to suppress or mitigate the consequences of competition between states. Oneida-Herkimer Solid Waste Management Authority; Laws that favor government operations, but that treat all private businesses equally, do not violate the Commerce Clause; dormant commerce clause. Police dog; drug dog sniff luggage; K-9 dog; investigative detention; when officer's observations lead him reasonably to believe that luggage contains narcotics, officer may detain luggage briefly to investigate circumstances that aroused his suspicion. when police investigation is no longer general inquiry into unsolved crime but focuses on particular suspect in police custody, must allow opportunity to consult with lawyer or warn of absolute constitutional right to remain silent. These grounds are extreme such ascorruption, fraud, partiality, misconduct, etc. William and Martha Messerly; as-is clause may defeat grant of rescission for mutual mistake relating to a basic assumption that materially affects the parties' agreed performance.
Allapattah Services; class action, if named plaintiff meets requirement, supplemental jurisdiction over claims in same case or controversy even if claims for less than jurisdictional amount for diversity jurisdiction; Article III. Three branches of government; grant of executive authority cannot be overridden by a congressional veto, once congress has acted to vest authority in an administrative agency, it cannot act to overturn the action of that agency in the absence of further l Sequestration, budget appropriations cannot be delegated to a legislator the delegation of executive functions to a legislative administrator violates the constitutionally imposed doctrine of separation of powers. When officers have reasonable suspicion that person has committed crime or is about to commit crime, they may temporarily detain individual for questioning no longer than necessary to serve purposes of stop. Mattel, Inc.; The FAA provides the exclusive grounds for expedited vacatur and modification of arbitration awards. American Ash Recycling Corp.; The bargain theory of consideration does not actually require that the parties bargain over the terms of the agreement; rather, a promise and a reciprocal conventional inducement.
Public Company Accounting Oversight Board; Multi-level protection of executive officers from removal is contrary to Article II of the Constitution's vesting of the executive power in the President; Sarbanes-Oxley; inferior officers Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Thomas; when services provided by shareholders and their counsel result in a financial benefit to the corporation, they are entitled to a fair fee. Underwriters performing a due-diligence investigation of two bond offerings by World Com, had a limited number of conversations with the stock issuer and its auditor, made only cursory inquiries, failed to look behind formulaic answers to questions. First Derivative Traders; For purposes of Rule 10b-5, the maker of a false statement is the person who has the ultimate authority over the statement, including content and distribution. Independent source doctrine applies to both evidence obtained for the first time during independent lawful search, and also to evidence initially discovered during, or as consequence of unlawful search, but later discovered independently. A buyer of goods, who gives value for the goods and receives them after the certificate of title is issued, takes the goods free of a security interest perfected in another jurisdiction.