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Wednesday, June 25, 2014
Supreme Court rules warrant required to search arrestee's cell phone
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday that police officers must obtain a warrant before searching a person's cell phone data, even at the time of arrest. In Riley v. California and United States v. Wurie [SCOTUSblog backgrounders], the court considered the question of whether a search of cell phone data without a warrant violates a person's Fourth Amendment [text] rights. Chief Justice John Roberts delivered the opinion for a unanimous court:Modern cell phones are not...
Supreme Court limits shareholder class action suits
[JURIST] The US Supreme Court [official website] on Monday limited [opinion, PDF] shareholders' class action suits for securities fraud. In Halliburton Co. v. Erica P. John Fund, Inc. [SCOTUSblog backgrounder], the court declined to overturn its 1988 decision in Basic Inc. v. Levinson [text]. Halliburton Co. [corporate website] has faced numerous lawsuits concerning allegations the company put out seriously misleading information in order to manipulate its stock prices. In Basic, Inc. the court adopted the fraud-on-the-market [17 CFR 240.10b-5] presumption,...
Source: http://jurist.org/paperchase/2014/06/supreme-court-limits-shareholder-class-action-suits.php
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Supreme Court limits shareholder class action suits
[JURIST] The US Supreme Court [official website] on Monday limited [opinion, PDF] shareholders' class action suits for securities fraud. In Halliburton Co. v. Erica P. John Fund, Inc. [SCOTUSblog backgrounder], the court declined to overturn its 1988 decision in Basic Inc. v. Levinson [text]. Halliburton Co. [corporate website] has faced numerous lawsuits concerning allegations the company put out seriously misleading information in order to manipulate its stock prices. In Basic, Inc. the court adopted the fraud-on-the-market [17 CFR 240.10b-5] presumption,...
Source: http://jurist.org/paperchase/2014/06/supreme-court-limits-shareholder-class-action-suits.php
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Plaintiffs Seek to Consolidate Target Data Breach Suits
Attorneys who filed class actions against Target Corp. over its security breach last month have moved to coordinate the swelling tide of litigation, estimated at nearly 50 lawsuits.
Source: http://www.nationallawjournal.com/id=1202637342683?rss=rss_nlj
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The Limited License Legal Technician: Washington State’s Paralegal Law Practice
In reaction to rising legal costs and decreased access to legal services, Washington State has authorized paralegals to practice law on a limited basis through its new Limited License Legal Technician (LLLT) program. Soon paralegals will be able to practice in specific areas of law. To learn more about this developing field, tune into this episode of the Paralegal Voice, where host Vicki Voisin interviews NALA President Ann Atkinson, ACP, as well as attorneys Steve Crossland and Thea Jennings of the Washington State Bar Association. Together, they review the licensing, permissible scope of practice, and continuing education requirements for these new LLLT Paralegals.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
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Turkish court orders retrial for hundreds of alleged coup plotters
[JURIST] A court in Istanbul on Thursday ordered the release and retrial of 230 prisoners convicted for their involvement in the Balyoz (Sledgehammer) coup plot [JURIST news archive]. The scheme, which originated as early as 2003, was aimed at overthrowing Turkish Prime Minister Tayyip Erdogan [BBC profile]. The ruling [Reuters report] came one day after Turkey's Constitutional court [official website] determined the prisoners' rights were violated during trial by the court's flawed handling of digital evidence and its rejection of...
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Tuesday, June 24, 2014
Court Grills SEC Over Costly Conflict Minerals Rule
One of the most controversial — and costly — rules in U.S. Securities and Exchange Commission history is under scrutiny by a panel of federal appellate judges, who questioned whether the requirement that publicly traded companies disclose the use of certain minerals from the war-torn Democratic Republic of the Congo violates the First Amendment.
Source: http://www.nationallawjournal.com/id=1202636876934?rss=rss_nlj
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Supreme Court limits EPA greenhouse gas regulations
[JURIST] The US Supreme Court [official website] on Monday limited the power of the Environmental Protection Agency (EPA) [official website] to regulate greenhouse gases while still leaving the agency free to do so in most cases. In Utility Air Regulatory Group v. EPA [SCOTUSblog backgrounder], which was consolidated with six other cases, the court was considering whether the EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act...
Source: http://jurist.org/paperchase/2014/06/supreme-court-limits-epa-greenhouse-gas-regulations.php
Starting Your Own Law Firm: Conversation with Jay Foonberg
Starting a law firm from scratch can be a daunting endeavor. With a down economy, limited budget, and not enough clients, solos can have a tough time breaking into the market. In her debut as the new host of New Solo, Adriana Linares interviews Jay Foonberg, the most influential author on the subject of starting your own law firm. Together they discuss where to find clients, how to get paid, and recommended practice areas. Tune in to learn how attorneys stay relevant with new technology, why it's important to train assistants, and how to sustain a long happy marriage.
Jay Foonberg is the author of How To Start and Build a Law Practice (5th edition) and was a practicing attorney in Beverly Hills for over 40 years. He served in the ABA House of Delegates, is on the Advisory Council for the ABA Commission on Evaluation of the Rules of Professional Conduct, and was a founder of the ABA Law Practice Management Section. In addition to being an author of three other important books (all available from the ABA), Foonberg is a much sought after speaker on topics such as client relations, malpractice prevention, and client development in every one of the 50 states and as far afield as Europe, South America, and Asia. He has received the prestigious Harrison Tweed Award and lifetime achievement awards from 4 American Bar Association entities.
Jay Foonberg is the author of How To Start and Build a Law Practice (5th edition) and was a practicing attorney in Beverly Hills for over 40 years. He served in the ABA House of Delegates, is on the Advisory Council for the ABA Commission on Evaluation of the Rules of Professional Conduct, and was a founder of the ABA Law Practice Management Section. In addition to being an author of three other important books (all available from the ABA), Foonberg is a much sought after speaker on topics such as client relations, malpractice prevention, and client development in every one of the 50 states and as far afield as Europe, South America, and Asia. He has received the prestigious Harrison Tweed Award and lifetime achievement awards from 4 American Bar Association entities.
Source: http://legaltalknetwork.com/podcasts/new-solo/2014/05/starting-law-firm-conversation-jay-foonberg
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Delaware Court of Chancery Underscores Heightened Pleading Standard Necessary to Support a Claim for Breach of Fiduciary Duty In Connection With a Merger
In Houseman v. Sagerman, C.A. No. 8898-VCG, 2014 WL 1478511 (Del. Ch. Apr. 16, 2014), the Delaware Court of Chancery (Glasscock, V.C.) granted, in part, a motion to dismiss filed by certain directors and the financial advisor of Universata, Inc. (“Universata” or the “Company”) arising out of the Company’s merger with HealthPort Technologies, LLC (“HealthPort”). The Court’s analysis serves as a reminder that a stockholder plaintiff must plead an “extreme set of facts” to support a claim for breach of fiduciary duty against a corporation’s directors arising out of allegations that the directors breached their duty of loyalty as a result of the process used to approve a strategic transaction. Although the allegations suggested that Universata’s board of directors (the “Board”) did not conduct a “perfect” process, plaintiffs did not plead facts sufficient to show that the Board “utterly failed to undertake any action to obtain the best price for stockholders.” As a result, the Court dismissed plaintiffs’ claim for breach of fiduciary duty.
Universata was a Delaware corporation focused on providing services with respect to medical records for hospitals and clinics. In 2006, plaintiffs sold a previous business known as Med-Legal, Inc. to Universata and obtained shares in the Company and put rights to those shares whereby a director of the Company, Thomas Whittington, committed to repurchase plaintiffs’ shares pursuant to the put rights.
In 2010, HealthPort approached Universata regarding a potential acquisition. In response to HealthPort’s indication of interest, the Board consulted with its legal advisors and with KeyBanc Capital Markets, Inc. (“KeyBanc”), which it hired as its financial advisor. Due to expense, the Board limited KeyBanc’s engagement to assisting in diligence and identifying additional parties with an interest in acquiring the Company. Notably, the Board did not request that KeyBanc prepare a fairness opinion on the proposed transaction.
In May 2011, the Board approved an Agreement and Plan of Merger between Universata and HealthPort. As a result of the merger, the stockholders of Universata would receive $1.02 per share. In addition the stockholders of Universata would receive stock in a new corporation known as “TechCo” created to hold a patent previously held by Universata. At the meeting approving the merger, KeyBanc advisors informally gave the opinion that the merger price was within the range of reasonableness. Because the directors who approved the merger collectively held a majority ownership interest in the Company, the Board did not solicit a stockholder vote to approve the transaction. Nevertheless, at the same time as the Board approved the merger, it amended a previous equity incentive plan to treat all outstanding stock options like outstanding shares upon a change in control. In addition, the Board voted to vest all outstanding “in the money” warrants for the purchase of shares in the Company.
Plaintiffs, who were a director of the Company and his wife, approved the letter of intent with HealthPort, but did not vote or execute a consent in favor of the merger. Two years after the merger closed, plaintiffs filed a verified complaint against certain directors of Universata and against KeyBanc asserting causes of action for (i) breach of fiduciary duty against the director defendants; (ii) an accounting against director Whittington; (iii) quasi-appraisal against Universata and the director defendants; (iv) aiding and abetting a breach of fiduciary duty against KeyBanc; and (v) for failing to obtain consideration for alleged “litigation assets.” Defendants moved to dismiss.
The Chancery Court denied defendants’ motion to dismiss the accounting claim. With respect to the other claims, the Court granted, in part, and denied, in part, defendants’ motion to dismiss.
Plaintiffs’ breach of fiduciary duty claim was premised on the allegation that the director defendants acted in bad faith by “knowingly and completely fail[ing] to undertake their responsibilities” to maximize shareholder value. Nevertheless, the Court noted that the directors satisfied their duty of loyalty by acting on the advice of legal counsel and hiring KeyBanc as their financial advisor. Moreover, the directors were entitled to decide that the expense of obtaining a fairness opinion outweighed its benefits. The allegations in the complaint showed that Board considered bids from several interested parties, negotiated with HealthPort regarding the deal terms, and ultimately obtained from HealthPort “everything that [the Board] felt [it] could get.” Plaintiffs failed to allege any facts to show that the directors had a motive to act in “bad faith.” To the contrary, the Court observed, the directors had a personal financial interest in obtaining the best deal possible, in alignment with the company’s public stockholders. Accordingly, the Court granted defendants’ motion to dismiss plaintiffs’ cause of action for breach of fiduciary duty.
The Court also dismissed the cause of action for aiding and abetting breach of fiduciary duty against KeyBanc. It found that there were no allegations that KeyBanc actively concealed information from the Board. In addition, KeyBanc did not aid or abet the Board’s alleged breach of fiduciary duty as a result of providing “limited services.” Boiled to its essence, plaintiffs were arguing that “an investment bank must provide all or none of the financial services it offers in valuing and marketing a company.” The Court disagreed and recognized that “Revlon makes clear that there is no single way to sell a company — no single financial service is required.” Accordingly, the Court dismissed plaintiffs’ aiding and abetting a breach of fiduciary duty claim.
The decision in Houseman confirms that stockholders face a high pleading burden when challenging a disinterested board’s decision to approve a strategic transaction. Although the Court recognized that the Board’s process was “less than optimal,” plaintiffs’ allegations could state a claim only for a violation of the fiduciary duty of care. The board’s decision to proceed with the transaction despite several procedural deficiencies did not amount to an “extreme set of facts” sufficient to support a claim for breach of the duty of loyalty.
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Quinn, Samsung Told to Pay $2 Million for Breach Fight
U.S. Magistrate Judge Paul Grewal is imposing sanctions against Quinn Emanuel for leaking confidential discovery.
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Tax Reform Poses Challenges for Large Firms, Accountants Say
The tax reform push on Capitol Hill poses a range of business challenges for large law firms, accounting consultants wrote in a white paper published this month.
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U.S. To Open Immigrant Family Detention Centers In Response To Influx
The Obama administration says it will boost enforcement efforts — and try to dispel beliefs among migrants that new U.S. policies allow them to enter the country illegally.
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Monday, June 23, 2014
Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 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.
Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 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/2013/07/14/fighting-video-with-video.aspx?ref=rss
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UN reports breakdown of law and order in Ukraine
[JURIST] The Office of the UN High Commissioner for Human Rights [official website] on Wednesday issued a report [text, PDF; press release] on Ukraine that cites increasing evidence of abductions, detentions, torture and killings in the two eastern regions of the country where armed forces hold control. The report also cites a number of worrying trends emerging in Crimea. UN High Commissioner for Human Rights Navi Pillay [official profile] urged the armed groups to "stop taking themselves, and the people...
Source: http://jurist.org/paperchase/2014/06/un-reports-breakdown-of-law-and-order-in-ukraine.php
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The Best of the Plaintiffs Bar
These 19 firms are at the cutting edge of plaintiffs' work -- and are giving defense players a run for their money.
Source: http://www.nationallawjournal.com/id=1202624154645?rss=rss_nlj
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Supreme Court Strikes Middle Ground on Securities Fraud Lawsuits
The Supreme Court gave companies more ability to knock down securities-fraud lawsuits brought by investors, but it declined to overturn the controversial legal doctrine that has underpinned investor class actions for more than two decades.
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