Source: http://news.feedzilla.com/en_us/stories/law/video/354724420?client_source=feed&format=rss
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Friday, January 31, 2014
California Court of Appeal Clarifies Rights of Dissenting Minority Shareholders Under California Corporation Code § 1312(b)
In Busse v. United Panam Fin. Corp., No. G046805, 2014 Cal. App. LEXIS 11 (Cal. App. Jan. 8, 2014), the California Court of Appeal, Fourth Appellate District, held that when parties to a buyout are under common control, dissenting minority shareholders have the right to set aside or rescind an invalid corporate buyout under Section 1312(b) of the California Corporations Code. The Court also held that dissenting minority shareholders may not seek monetary damages under Section 1312(b). This decision clarifies that Section 1312(b) acts as a limited exception to Section 1312(a) of the California Corporations Code by providing dissenting shareholders not only with the general remedy of appraisal, but also with the right to stop or rescind a buyout if the transaction is invalid. Furthermore, Busse emphasizes that dissenting shareholders may not seek damages arising out of a buyout, even in common control situations.
Plaintiffs were minority shareholders of United Panam Financial Corporation (“Panam”), a publicly traded company that made subprime loans on used cars. Defendant Guillermo Bron (“Bron”) owned 38% of Panam’s stock and generally had power over the corporation’s affairs. Bron allegedly developed a buyout scheme in which he and his partner would acquire Panam’s stock at a bargain price. In furtherance of this plan, Bron allegedly had Panam’s directors set up an independent committee that valued the stock far below book value. Later, Panam’s shareholders approved the buyout by Bron’s group, and the transaction was completed sometime after February 24, 2011.
Plaintiffs filed a class action for breach of fiduciary duty and sought either to rescind the buyout or to receive rescissory damages under Section 1312 of the California Corporations Code. Section 1312 governs the rights of minority shareholders who dissent from corporate buyouts or mergers. Section 1312(a) limits the rights of dissenting minority shareholders exclusively to an independent appraisal of their shares’ value. Consequently, under Section 1312(a), dissenting shareholders do not have a right at law or in equity to attack the validity of a buyout or merger. Section 1312(b), however, provides that, if the parties to a merger or buyout are under common control:
[Section 1312(a)] does not apply to any shareholder . . . who has not demanded payment of cash for that shareholder’s shares pursuant to [chapter 13]; but if the shareholder institutes any action to attack the validity of the reorganization or short-form merger or to have the reorganization or short-form merger set aside or rescinded, the shareholder shall not thereafter have any right to demand payment of cash for the shareholder’s shares pursuant to [chapter 13].
The primary question presented in Busse was whether Section 1312(b) provided dissenting minority shareholders with the right to sue for rescissory damages (i.e., monetary damages).
The trial court sustained Bron’s demurrer, reasoning that (1) plaintiffs’ complaint did not sufficiently allege Bron’s common control and Section 1312(b) was therefore inapplicable and (2) rescissory damages are not available under Section 1312(b). Plaintiffs appealed.
The Court of Appeal reversed the trial court’s decision that plaintiffs failed to allege sufficient facts showing Bron held common control. Common control — which occurs if one party is directly or indirectly controlled by, or under common control with, another party to a transaction — must exist for Section 1312(b) to apply. The Court of Appeal determined Bron held at least indirect control over Panam because Bron possessed 38% of the voting power of Panam’s shareholders, Bron was chairman of the board of directors, and Bron acknowledged he possessed substantial influence over the company’s affairs. Thus, the Court of Appeal concluded that plaintiffs sufficiently alleged facts showing Bron held common control.
Next, the Court of Appeal addressed whether under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind the buyout or, in the alternative, to receive “rescissory damages.” The Court affirmed the trial court’s judgment that under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind or set aside the buyout. Furthermore, the court affirmed that under Section 1312(b) Panam’s dissenting shareholders were barred from seeking rescissory damages.
The Court of Appeal began its discussion of shareholders’ rights under Section 1312(b) with a review of the legislative and judicial history of Section 1312. The history of Section 1312 made clear that courts and the legislature intended to limit dissenting shareholders’ remedies to an appraisal of their shares. With this limitation in mind, the legislature recognized the potential for abuse in transactions where parties to a buyout are under common control. Indeed, in these transactions the controlling party is, in effect, dealing with itself. To protect minority shareholders from abuse in common control situations, the Court of Appeal determined Section 1312(b) provides a dissenting minority shareholder not only with an appraisal remedy, but also with the remedy of setting aside or rescinding a buyout. However, the Court found this was the only additional remedy available to shareholders, and the courts and legislature never intended to provide minority shareholders with the right to seek monetary damages under Section 1312(b).
Thus, while the Court of Appeal affirmed the trial court’s judgment that plaintiffs were precluded from seeking “rescissory damages,” it reversed the trial court’s judgment that plaintiffs did not allege sufficient facts to demonstrate Bron’s common control and found that Section 1312(b) applied. Consequently, the Court of Appeal remanded for the resolution of whether the minority shareholders of Panam may rescind Bron’s buyout under Section 1312(b).
Busse clarifies what remedies are available to dissenting minority shareholders under Section 1312(b). Shareholders have the general right to an appraisal of their shares’ value. Additionally, Section 1312(b) gives dissenting shareholders the right to rescind or set aside a merger or buyout. This additional remedy helps protect minority shareholders in common control situations, which are particularly susceptible to fraud and abuse. However, minority shareholders are still barred from seeking monetary damages or, as stated in Busse, rescissory damages under Section 1312(b).
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Workers’ Compensation Top Legal Trends
Get educated and up-to date when it comes to workers' compensation issues and trends. Ringler Radio host, Larry Cohen joins colleague, Peter Early and special guest, Rebecca Shafer, President of Amaxx Risk Solutions, Inc. talk about reducing workers' compensation costs, current trends and how the use of structured settlements is consistently growing for workers' compensation cases.
Source: http://ringlerradio.com/podcasts/ringler-radio/2014/01/workers-compensation-top-legal-trends/
Martin Lipton: Poison Pills Are ‘Critical in the Face of Increased Activism’
Martin Lipton, the lawyer credited with the creation of the poison pill, has some thoughts on the corporate defense’s makeover.
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Pharma sales reps are FLSA exempt as outside salesmen (5-4)
This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference.
Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)
Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer's motion for summary judgment and denied Christopher's motion to amend the judgment based on the trial court's failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).
The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were "outside salesmen" who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a "sale" requires a "consummated transaction." In Supreme Court briefing DOL's position was that there is no "sale" unless the employee "actually transfers title."
The Court said that the DOL's new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is "flatly inconsistent" with the FLSA.
The FLSA definition of "sale" includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase "other disposition" which - in this unique regulatory environment - includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)
The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote "their own sales." (The dissent agreed that the DOL's current views expressed in briefs are not entitled to any weight.)
Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html
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ENERGY LAW: A SPECIAL REPORT: Digging In
Invigorated exploration for more resources is delivering plenty of work to the legal industry. Our report highlights changes in the law of importance to the attorneys who handle the matters.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202626153260&rss=rss_nlj
Officer Safety and Second Hand Smoke
Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant. Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.
In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
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In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.
After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.
Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns.
The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.
The Circuit wasn't as impressed. While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.
But that wasn't the only argument. There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.
Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court. Instead, the court reached the conclusion of remarkably wisdom: An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential: At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."
Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger. They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.
This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.
And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.
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Source: http://blog.simplejustice.us/2013/07/13/officer-safety-and-second-hand-smoke.aspx?ref=rss
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UN expert praises strides in Rwanda, urges protection of assembly rights
[JURIST] UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, on Monday praised [statement] Rwandan authorities' accomplishments in developing infrastructure and ensuring stability and security since the nation's 1994 genocide [UN backgrounder]. The independent expert recently traveled to Rwanda to meet with government officials and to contribute to efforts taken toward democratization, better human rights protections, and more effective implementation of international human rights standards. While Kiai noted important strides, he urged the...
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Thursday, January 30, 2014
Rachel Vitti: School superintendent's wife making her own mark on educational and human rights issues (Florida Times-Union)
Delaware Supreme Court Holds Receiver is Required to Defend Lawsuits Brought After a Corporation is Wound-Up; Finds No Generally Applicable Statute of Limitation for Claims Against a Dissolved Corporation
In Anderson v Krafft-Murphy Co. Inc., 2013 Del. LEXIS 597 (Del. Nov. 26, 2013), the Delaware Supreme Court held that Sections 278 and 279 of the Delaware General Corporation Law, 8 Del. C. §§ 278-279, require a dissolved corporation to act through a court-appointed trustee or receiver to defend against third party lawsuits brought after the corporation winds-up its business. Further, the Court held that Sections 278-279 contain no generally applicable statute of limitation for third party lawsuits against dissolved corporations. This decision signals that long-tail tort liability can follow a dissolved corporation for decades under Delaware law, underscoring the importance of properly handling a corporation’s dissolution.
Krafft-Murphy Company, Inc. (“Krafft”) was a plastering corporation that dissolved in 1999. Krafft began its operations in 1952, supplying and installing Sprayed Limpet Asbestos in the Washington D.C. area. Krafft’s continued use of asbestos caused it to become a defendant in hundreds of personal injury lawsuits. During the period Krafft supplied and installed asbestos, Krafft was protected by various liability insurance policies. Because asbestos-related injuries were covered by Krafft’s insurance policies, Krafft’s liability insurers took over the defense of Krafft’s asbestos-related lawsuits and agreed to indemnify Krafft for potential damages.
In 2010 — more than ten years after Krafft’s dissolution — Krafft began filing motions for summary judgment in the Delaware Superior Courts arguing that, because Krafft had been dissolved and wound-up, Krafft was no longer amenable to suit. Subsequently, a group of asbestos claimants filed a petition for the appointment of a receiver for Krafft in the Delaware Court of Chancery.
Krafft responded in the Court of Chancery with a motion for summary judgment, contending that (1) all claims brought more than ten years after Krafft’s dissolution were time barred; (2) a receiver was unnecessary for claims brought within ten years of Krafft’s dissolution, because Krafft’s insurers were actively defending those claims; and (3) Krafft did not own any “property” for the receiver to take control of. The asbestos claimants countered with a motion for judgment on the pleadings. The Court of Chancery granted Krafft’s motion for summary judgment and denied the asbestos claimants’ motion for judgment on the pleadings. The asbestos claimants then appealed to the Delaware Supreme Court. The Court reversed the lower court’s grant of Krafft’s motion for summary judgment, and remanded the case to the Court of Chancery.
The Supreme Court rejected Krafft’s argument that claims brought after ten years were time-barred by Sections 280-282. The Delaware Supreme Court held that the Court of Chancery had misread the references in Sections 281(c) and 282 to a ten year time limit on third party claims. The Court clarified that Sections 281(c) and 282 establish director and shareholder safe harbors, not a statute of limitation. The safe harbors in Section 281(c) and 282 protect shareholders and directors as long as the dissolved corporation follows a set of procedures designed to preserve corporate assets. To qualify for the director and shareholder safe harbors, a corporation must reserve funds to cover potential liabilities arising five to ten years after the corporation’s dissolution. However, because the asbestos claimants sued Krafft as a corporation, the Court held that director and shareholder safe harbors were irrelevant to Krafft’s defense.
The Court also held that, although Section 280(a)(1)(c) provides a sixty day time limit for third party claims, a corporation must provide claimants with notice of the corporation’s dissolution to start the sixty day clock. Similarly, the 120 day time bar found in Section 280(a)(4) requires a dissolved corporation to provide claimants a written rejection of their claim. Krafft had not served any of the asbestos claimants with notice of dissolution or rejection of their claims. As a result, the sixty and 120 day time limits did not apply in this case.
Moreover, the Court held that a receiver was required for Krafft to defend the asbestos claims, because Krafft had already completed the Section 278 winding-up process. Under Section 278, a corporation’s body corporate is extinguished once the winding-up process ends. Without a body corporate, a corporation may no longer act on its own behalf, including disposing of property and defending against new lawsuits. However, pursuant to Section 279, a court may appoint a receiver to administer any corporate property interests remaining after the close of the winding-up process. The Court held that Krafft’s unexhausted liability insurance policies qualified as property requiring a receiver’s administration. The Court also rejected Krafft’s argument that a receiver was not required to handle the claims Krafft’s insurers had already agreed to defend. Without a body corporate, Krafft had no power to act absent a court appointed receiver. Thus, a receiver was necessary for Krafft’s defense, despite the participation of Krafft’s insurers.
Finally, the Court rejected Krafft’s argument that it had no “property” for the receiver to take charge of under Section 279. The Court held that, because Krafft’s asbestos liability was not extinguished by its dissolution, Krafft’s rights under its insurance policies were still capable of vesting. Accordingly, Krafft’s insurance policies qualified as “property” under Section 279.
Krafft-Murphy establishes that potential liability for a dissolved corporation persists even after the corporation’s business has been fully wound-up. Due to the lack of any generally applicable statute of limitation for claims made after dissolution, third party claimants could petition for a receiver decades after a corporation is dissolved. Accordingly, a dissolved corporation should consider providing statutory notice of dissolution to claimants, as well as rejecting claims arising after dissolution. Liability insurance carriers might benefit from assisting a dissolved corporate policyholder with the notification and rejection process. This decision thus confirms the importance of conducting a corporate dissolution with care.
Pakistan top court dismisses Musharraf petition to review prior ruling
[JURIST] The Pakistan Supreme Court [official website] dismissed [text, PDF] former military leader Pervez Musharraf's [BBC profile] petition on Thursday to review its 2009 verdict [JURIST report] declaring the 2007 imposed emergency as unconstitutional. The 14 justices, led by Chief Justice Tassaduq Hussain Jillani [JURIST report], dismissed the petition stating that it was barred by length of time since the original ruling. The court also found that Musharraf's grounds for appeal do not fall within the purview or review jurisdiction....
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The Legal Turbulence Facing Amazon’s Drones
News of Amazon’s plans to use delivery drones surprised many, but the fact is that a number of companies are developing drones for commercial uses. However, before any of these commercial drones can take flight, they need to clear a series of legal hurdles, from winning FAA approval to sorting out liability and privacy issues. In this edition of Lawyer2Lawyer, host Bob Ambrogi invites industry lawyer Ben Gielow and Above the Law editor Elie Mystal to discuss the legal issues facing commercial drones and how they are likely to play out.
Ben Gielow is the government relations manager and general counsel for the advocacy sector of the Association of Unmanned Vehicle Systems International. He has been featured in interviews covering the concept of commercial drones since the beginning regarding what legislation and other requirements are necessary for us to see commercial drones in our airways.
Elie Mystal is the editor of Above the Law. A graduate of Harvard Law School, he left his life as a litigator to pursue a career as an online provocateur. He has written editorials for The New York Daily News, The New York Times, and appeared on MSNBC and Fox News.
Special thanks to our sponsor, Clio.
Ben Gielow is the government relations manager and general counsel for the advocacy sector of the Association of Unmanned Vehicle Systems International. He has been featured in interviews covering the concept of commercial drones since the beginning regarding what legislation and other requirements are necessary for us to see commercial drones in our airways.
Elie Mystal is the editor of Above the Law. A graduate of Harvard Law School, he left his life as a litigator to pursue a career as an online provocateur. He has written editorials for The New York Daily News, The New York Times, and appeared on MSNBC and Fox News.
Special thanks to our sponsor, Clio.
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Twitter: A Sleeping Discovery Giant?
Attorney Daniel Cummins and staff reporter Ben Present discuss the emerging issue of social media law. In this installment, the two discuss the differences between Facebook and Twitter, and whether Twitter posts can be discoverable.
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The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
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Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
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Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
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California Court of Appeal Clarifies Rights of Dissenting Minority Shareholders Under California Corporation Code § 1312(b)
In Busse v. United Panam Fin. Corp., No. G046805, 2014 Cal. App. LEXIS 11 (Cal. App. Jan. 8, 2014), the California Court of Appeal, Fourth Appellate District, held that when parties to a buyout are under common control, dissenting minority shareholders have the right to set aside or rescind an invalid corporate buyout under Section 1312(b) of the California Corporations Code. The Court also held that dissenting minority shareholders may not seek monetary damages under Section 1312(b). This decision clarifies that Section 1312(b) acts as a limited exception to Section 1312(a) of the California Corporations Code by providing dissenting shareholders not only with the general remedy of appraisal, but also with the right to stop or rescind a buyout if the transaction is invalid. Furthermore, Busse emphasizes that dissenting shareholders may not seek damages arising out of a buyout, even in common control situations.
Plaintiffs were minority shareholders of United Panam Financial Corporation (“Panam”), a publicly traded company that made subprime loans on used cars. Defendant Guillermo Bron (“Bron”) owned 38% of Panam’s stock and generally had power over the corporation’s affairs. Bron allegedly developed a buyout scheme in which he and his partner would acquire Panam’s stock at a bargain price. In furtherance of this plan, Bron allegedly had Panam’s directors set up an independent committee that valued the stock far below book value. Later, Panam’s shareholders approved the buyout by Bron’s group, and the transaction was completed sometime after February 24, 2011.
Plaintiffs filed a class action for breach of fiduciary duty and sought either to rescind the buyout or to receive rescissory damages under Section 1312 of the California Corporations Code. Section 1312 governs the rights of minority shareholders who dissent from corporate buyouts or mergers. Section 1312(a) limits the rights of dissenting minority shareholders exclusively to an independent appraisal of their shares’ value. Consequently, under Section 1312(a), dissenting shareholders do not have a right at law or in equity to attack the validity of a buyout or merger. Section 1312(b), however, provides that, if the parties to a merger or buyout are under common control:
[Section 1312(a)] does not apply to any shareholder . . . who has not demanded payment of cash for that shareholder’s shares pursuant to [chapter 13]; but if the shareholder institutes any action to attack the validity of the reorganization or short-form merger or to have the reorganization or short-form merger set aside or rescinded, the shareholder shall not thereafter have any right to demand payment of cash for the shareholder’s shares pursuant to [chapter 13].
The primary question presented in Busse was whether Section 1312(b) provided dissenting minority shareholders with the right to sue for rescissory damages (i.e., monetary damages).
The trial court sustained Bron’s demurrer, reasoning that (1) plaintiffs’ complaint did not sufficiently allege Bron’s common control and Section 1312(b) was therefore inapplicable and (2) rescissory damages are not available under Section 1312(b). Plaintiffs appealed.
The Court of Appeal reversed the trial court’s decision that plaintiffs failed to allege sufficient facts showing Bron held common control. Common control — which occurs if one party is directly or indirectly controlled by, or under common control with, another party to a transaction — must exist for Section 1312(b) to apply. The Court of Appeal determined Bron held at least indirect control over Panam because Bron possessed 38% of the voting power of Panam’s shareholders, Bron was chairman of the board of directors, and Bron acknowledged he possessed substantial influence over the company’s affairs. Thus, the Court of Appeal concluded that plaintiffs sufficiently alleged facts showing Bron held common control.
Next, the Court of Appeal addressed whether under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind the buyout or, in the alternative, to receive “rescissory damages.” The Court affirmed the trial court’s judgment that under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind or set aside the buyout. Furthermore, the court affirmed that under Section 1312(b) Panam’s dissenting shareholders were barred from seeking rescissory damages.
The Court of Appeal began its discussion of shareholders’ rights under Section 1312(b) with a review of the legislative and judicial history of Section 1312. The history of Section 1312 made clear that courts and the legislature intended to limit dissenting shareholders’ remedies to an appraisal of their shares. With this limitation in mind, the legislature recognized the potential for abuse in transactions where parties to a buyout are under common control. Indeed, in these transactions the controlling party is, in effect, dealing with itself. To protect minority shareholders from abuse in common control situations, the Court of Appeal determined Section 1312(b) provides a dissenting minority shareholder not only with an appraisal remedy, but also with the remedy of setting aside or rescinding a buyout. However, the Court found this was the only additional remedy available to shareholders, and the courts and legislature never intended to provide minority shareholders with the right to seek monetary damages under Section 1312(b).
Thus, while the Court of Appeal affirmed the trial court’s judgment that plaintiffs were precluded from seeking “rescissory damages,” it reversed the trial court’s judgment that plaintiffs did not allege sufficient facts to demonstrate Bron’s common control and found that Section 1312(b) applied. Consequently, the Court of Appeal remanded for the resolution of whether the minority shareholders of Panam may rescind Bron’s buyout under Section 1312(b).
Busse clarifies what remedies are available to dissenting minority shareholders under Section 1312(b). Shareholders have the general right to an appraisal of their shares’ value. Additionally, Section 1312(b) gives dissenting shareholders the right to rescind or set aside a merger or buyout. This additional remedy helps protect minority shareholders in common control situations, which are particularly susceptible to fraud and abuse. However, minority shareholders are still barred from seeking monetary damages or, as stated in Busse, rescissory damages under Section 1312(b).
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Farm Bill Clears House, On Its Way To Senate
After two years of fits and starts, a new farm bill appears on the verge of passing Congress. The House passed the 959-page proposal on Wednesday, with the Senate likely to pass it next week. The compromise cuts $8 billion from food stamps over the next decade and replaces farm subsidies with more extensive crop insurance.
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Source: http://www.npr.org/2014/01/29/268404378/farm-bill-clears-house-on-its-way-to-senate?ft=1&f=1070
Wednesday, January 29, 2014
Patient Safety Priority in Hospital Environments
Patient safety is essential when it comes to a hospital environment and there has been great progress with methods to increase safety and reduce risk. On this Ringler Radio podcast, host Larry Cohen along with colleague, John Machir and guest, Mary Anne Hilliard, Esq., Chief Risk Counsel and Vice President of Safety and Patient Experience at Children's National Medical Center, talk about the next big frontier in patient safety and the overall impact on patients.
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Technology Audits for Your Firm – By Your Clients
On this edition of The Digital Edge, hosts Sharon Nelson, Esq. and Jim Calloway invite lawyer, friend, and co-presenter Andy Perlman of Suffolk Law School to discuss the new technology audits for lawyers. Kasey D. Flaherty of corporate counsel for Kia Motors developed a technology audit to measure how efficiently lawyers are using technology and determine how much time (and clients' money) they could be saving. Suffolk University is partnering with Flaherty to enhance and automate the audit. Tune in to hear more about the audit, the partnership with Suffolk, how to get involved, and more. Andy Perlman is a Suffolk Law School professor and the director of the University's Institute of Law Practice Technology Innovation. Perlman was the co-chief reporter for the ABA Commission of Ethics 20/20, which successfully implemented changes to the Model Rules of Professional Conduct and related ABA policies to address ethical issues from globalization and technological developments. He also contributes to the blog Legal Ethics Forum.
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Target Security Breach: Litigation and Impact
We now know that 70 million shoppers were impacted by a major security breach involving Target during the height of the holiday shopping season. Ringler Radio host, Larry Cohen joins colleague Heather Anderson and special guest Attorney Larry Golston, from the Beasley Allen Law Firm, as they discuss the current litigation following the security breach, the impact, and what lies ahead to protect their customers' private information.
Source: http://ringlerradio.com/podcasts/ringler-radio/2014/01/target-security-breach-litigation-and-impact/
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Supreme Court Rules for Employers in Two Cases
The Supreme Court Monday gave airlines a wide berth to report potential security threats, dismissing a pilot's lawsuit alleging his employer defamed him by telling the Transportation Security Administration he could be armed and mentally unstable.
Separately, the court rejected a claim by steelworkers from Gary, Ind., that they were entitled to pay for time spent putting on safety gear, finding that the task qualified as "changing clothes," for which their union contract didn't require compensation.
Separately, the court rejected a claim by steelworkers from Gary, Ind., that they were entitled to pay for time spent putting on safety gear, finding that the task qualified as "changing clothes," for which their union contract didn't require compensation.
Source: http://blogs.wsj.com/law/2014/01/27/supreme-court-rules-for-employers-in-two-cases/?mod=WSJBlog
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What Would Atticus Have Done?
Hearing that the mob was going to storm the jail and lynch Tom Robinson, the fictional Atticus Finch stood at the doorway to block their entrance. Among criminal defense lawyers, Atticus Finch is revered as a paragon of honor. Not all lawyers saw it that way.
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
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In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman's article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.
Monroe H. Freedman, ""Atticus Finch, Esq., R.I.P.,"" 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, ""Finch: The Lawyer Mythologized,"" 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
Huh?In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:
The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.This conforms with my assumption as well. I find it impossible to believe that Zimmerman's perception of Martin as being "a punk" wasn't colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist. Maybe not white hooded, cross-burning racism, but racist nonetheless.
Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.Being fully willing to accept that race factored into Zimmerman's perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/16/what-would-atticus-have-done.aspx?ref=rss
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QuickBooks for Attorneys
How confident are you that your client trust account is state bar compliant? Do you have monthly financials to review that make sense to you? Are all your billable time and advanced client costs being captured? Annette Fadness provides bookkeeping relief for the sole and small firm practitioner. She is also the author of QuickBooks for Attorneys: The Definitive User's Manual for Law Firms. Our interview touches on the use of QuickBooks as a primary application to assist lawyers in the better management of their firms.
20 minutes 11 seconds
5.8 MB
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/4Iwy74mcSQI/
Magic Words, Magic Rights
Knowing my love of police "magic words," a reader pointed me to a thread on the subreddit Bad Cop No Donut on whether there is anything to be done when a police officer claims he "smells pot" in a car.
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Or does the 4th Amendment REALLY vanish with those magic words?
I've been stopped and the cop claimed he smelled pot, when, at the time, I hadn't touched the stuff in years. I told him I'd consent to a search if he apologized for wasting both of our time when he didn't find anything. He searched, didn't find anything, and I was on my way without an apology and a "verbal warning" to fix my tail light
Do you ask for another officer's opinion?
Do you tell the officer "bullshit"?
I'm just trying to help some people know what to do in this situation.
Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he "smells pot," he is invoking the automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.
Since smell can't be captured and bottled for later presentation to a judge, the only "proof" of what an officer smelled is the officer's testimony. If he says so, it becomes real, and that's why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn't mean he didn't smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn't require the cop to be right.
But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear. The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it's over, leaving it there.
So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o' the hat. This is where people don't seem to understand how constitutional rights work.
There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing. Bear in mind that the cop may have claimed to smell marijuana, but that doesn't mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.
But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go. What then?
This is where people get confused. That's it? Don't the cops have to, you know, do something?
No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There's nothing. As the cop drives away, that's the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.
The problem there, of course, is that the cop, invoking the magic words that he "smelled pot," will very likely prevail despite the fact that he found nothing. You won't make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.
Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They've performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.
The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided. And here's an even worse secret: they don't even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.
They get this. Most people don't. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.
There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one's invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.
But these rights we love so dearly don't happen on their own. Someone has to make them happen. We make them happen. And if we don't, then we're left on the side of the road with our Maserati in pieces cursing. The cops have magic words, but constitutional rights aren't magic. They only happen if we make them.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/08/magic-words-magic-rights.aspx?ref=rss
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ICJ rules on maritime border dispute between Peru and Chile
[JURIST] The International Court of Justice (ICJ) [official website], the UN's highest court, issued a ruling [opinion, PDF] establishing a new maritime boundary between Peru and Chile [BBC backgrounders] on Monday. The ICJ granted [press release, PDF] Peru some parts of the Pacific Ocean formerly controlled by Chile but left Chile prosperous coastal fishing grounds. The decision ends disputes over the 14,670 square miles of abundant fishing waterways. Peru had wanted the maritime board to extend perpendicularly from where the...
Source: http://jurist.org/paperchase/2014/01/icj-rules-on-maritime-border-dispute-between-peru-and-chile.php
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Tuesday, January 28, 2014
Conviction Tossed; Juror Couldn't Look at Child Porn Evidence
A federal appeals court threw out a 14-year prison sentence and ordered a new trial in a child pornography case because a judge didn't remove a juror who couldn't vow to give the defendant a fair trial.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637051379&rss=rss_nlj
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Obesity can be a disability, at least in Montana
Obesity can be a disability, at least in Montana.
Full decision: BNSF Railway v. Feit (Montana 07/06/2012)
Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.
BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.
The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?
The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).
The federal court laid out these facts:
1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”
3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.
4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.
5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.
6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.
The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).
The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.
Source: http://www.lawmemo.com/blog/2012/07/obesity_can_be.html
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How Bad Ideas Grow Legs
Last January, Instapundit lawprof Glenn Reynolds wrote a short essay that became the darling of many folks who take an interest in criminal justice issues entitled Ham Sandwich Nation: Due Process When Everything is a Crime. To be kind, it was a simplistic rehash of long-time, discredited silver-bullet solutions to complex problems. The only virtue was that it came from Reynolds, who was a law professor and thus credible by definition even though he was dabbling at the edges of an area of law about which he knew nothing.
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
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It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
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Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
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