The Reform Act provides a three-part process for identifying the lead plaintiff in a class action lawsuit: notice; greatest financial stake in the outcome of the controversy; Rule 23 requirements of typicality and adequacy. The substantive fairness of a class action settlement and attorney's fees depends on: (1) the complexity, expense, and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the extent of discover If a board is pursuing a merger for strategic reasons, it may decline to entertain a competing bid that may yield a higher short-term gain for its shareholders in favor of a merger that ensures greater long-range gains. Delaware General Corporation Law 144 provides a safe harbor for interested transactions if the material facts as to the director\'s relationship or interests as to the contract or transaction are disclosed or are known and majority of disinterested direct Abry Partners V, L. One who inflicts an injury upon another that results in death cannot avoid liability because the victim could have taken better care of himself or herself. The sec, enjoin negligent conduct resulting in securities law violations, the securities and exchange commission, evidence of past negligence, substantial likelihood of future violations of federal securities laws. Ikanos Communications, Inc.; management has duty to make disclosure when a trend, demand, commitment, event, or uncertainty is both presently known and reasonably likely to have material effects on registrant. Apuzzo; to hold an aider and abettor liable for securities law violations, must show underlying violation that defendant knew about, provided substantial assistance, by participating, and by action. In re Novartis Wage & Hour Litigation; Per the Fair Labor Standards Act (FLSA) overtime-pay exemption, "outside salesmen" facilitate the transfer of title to goods; "administrative employees" exercise discretion and independent judgment. Hillsides, Inc.; violation of common law tort of intrusion is intentional intrusion into a place, conversation, or matter plaintiff has a reasonable expectation of privacy, in a manner highly offensive to a reasonable person. Quon; Even when employee has reasonable expectation of privacy in workplace, government employer does not violate Fourth Amendment when it invades the employee's privacy for a legitimate work-related reason. In re American Housing Foundation, Debtor; After an employer's bankruptcy case commences, an employer is only obligated to pay for unused vacation time if the right to payment is specifically expressed in its employment contract with the employee. Residential visitors, who are on the premises for only a short time and who claim no connection to the host other than to transact business, have no legitimate expectation of privacy in the premises under the fourth amendment. Fruit of the poisonous tree doctrine; independent source rule; the fourth amendment prohibits use of evidence obtained by an illegal search and seizure, and evidence obtained as a result of that constitutional violation unless independent source.
Beneficial owner; rights offering; stockholders have records inspection rights after corporation merger; neither record holders nor beneficial holders need have an actual economic interest in stock to have inspection rights. Investment Co; A limited partner who is not also a general partner is not liable for the obligations of the limited partnership unless he takes part in the control of the business. Jerez; Under Utah law, documents that provide for the acquisition, mortgage, or disposition of property of the LLC are binding on the LLC if they are signed by a manager; limited liability company. In imposing new sentence upon defendant whose original sentence has been set aside, trial judge may consider events subsequent to first trial and may impose sentence that is greater or less than original sentence. Habeas corpus; ineffective assistance of counsel; nolo contendere. establishes a bank's standard of care for the processing of checks but does not preempt common law tort claims regarding communications about the processing of checks.
IPO; initial public offering; when the board of directors cannot be expected, due to self interest, to determine whether to initiate legal proceedings against the corporation, it would be futile for the shareholders to make a demand before filing suit. An appellate court should not review a district court sentencing departure decision de novo but instead should ask whether the sentencing court abused its discretion. The manifest necessity requirement, which authorizes granting a mistrial in a criminal case and precludes the defendant from successfully raising a plea of double jeopardy, is met when the indictment is insufficient to charge a crime. Continuing offense; separate and distinct offenses, even if of the same nature, do not constitute a continuing offense, such as two sales of narcotics to the same purchaser, but at different times. A review of the sufficiency of the evidence to support a criminal conviction requires a determination as to whether the record evidence could reasonably support a finding of guilt beyond a "reasonable doubt" standard. Maliciously requires a showing that the defendant acted with an actual intent to cause the particular kind of harm done or that the particular kind of harm might result from his actions. Jury instructions that, by conclusive presumption or misleading directions, shift the burden of proof on an essential element of the crime to the defendant violate the Due Process Clause. When common sense and experience suggest defendant must have known or been aware of a high probability of existence of a fact, the jury may infer his knowledge as element of crime charged. Application of simple negligence standard in criminal proceedings does not violate Due Process Clause; governmental interests deterring similar future conduct outweigh infringement personal freedom. When, by statute, recklessness is established without existence of actual danger, defendant may not escape liability because he was without power to cause danger to his victim. Unconsciousness is an affirmative defense requiring defendant to prove beyond reasonable doubt that mental element of crime is negated by his unconsciousness. To establish first-degree murder, premeditation must be proved by evidence that defendant considered his decision to kill for some period of time before act of killing.
Certifying a corporation's financial condition, question for the jury, fairly presented the financial condition of a corporation, generally accepted accounting priniciples, generally accepted auditing standards, material, materiality. Superior Court; A disclaimer in a standard job application advising an applicant that he or she need not complete certain sections as provided by local law must be clear and conspicuous . Proctor Hospital; Under the cat's paw theory, discriminatory animus of non-decisionmakers can be imputed to decisionmakers only when the non-decisionmaker has a singular influence over the decisionmaker and uses that influence. Metropolitan Government Nashville; Under Title VII, an employee may "oppose" unlawful employment practice as required as a condition precedent to a retaliation claim even though opposition is not expressed as a discrimination claim. De Stefano; Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, must have a strong basis to believe disparate-impact liability. Schneider National, Inc.; An employer is free to decide that some physical and mental characteristics that do not constitute an impairment are more or less preferable and may make individual employees more or less suitable for the job. Legal Aid Society; Under the Americans with Disabilities Act and Rehabilitation Act (ADA), employers must accommodate requests that facilitate arrival and departure from workplace if no undue hardship on operation employer's business. Walters; Specific information provided by employer to employee, in course of employment, and for sole purpose of servicing employer's customers, is legally protectable as confidential proprietary information. Search of passenger compartment of automobile is permissible if officer has reasonable belief, based on specific and articulable facts and rational inferences from facts, that suspect is dangerous and may gain immediate control of weapons. The determination of whether a sale of collateral was commercially reasonable requires a consideration of the totality of the circumstances surrounding the sale.
Initio Partners; In corporate litigation, the court may order the payment of counsel fees and related expenses to a plaintiff whose efforts resulted in the creation of a common fund or the conferring of a corporate benefit. Elevator Co., Inc.; Benefits accruing for services rendered prior to the bankruptcy petition ordinarily relate back to the date of the services but "retiree benefits" under the Bankruptcy Code have a priority claim. De Wolff, Boberg & Associates, Inc.; Although no remedy is available for individual injuries in defined contribution plan, individuals may recover for fiduciary breaches that impair the value of plan assets in the participant's individual account. Sixth amendment confrontation clause demands, for an out of court statement to be admitted into evidence, the witness must be unavailable and defendant must have prior opportunity to cross examine the declarant. The confrontation clause is not violated by the admission of a nontestifying codefendant confession, with proper limiting instruction, when the confession is redacted to eliminate defendant name and any reference to her existence. Under the fifth amendment, a prosecutor may not comment on a defendant s decision not to testify at his trial and the court may not instruct the jury that the defendant's silence is evidence of his guilt. The fifth amendment protection against double jeopardy bars trial of an acquitted defendant on another charge unless the prior acquittal was based on evidence other than that involved in the second prosecution. Person who has been held in criminal contempt for committing criminal offense may not be criminally prosecuted for committing underlying offense if prosecution for the criminal offense does not require proof of different facts. A penalty will implicate the double jeopardy clause only if there was a legislative intent that the penalty be criminal in nature and if the statutory scheme is so punitive as to make the remedy criminal. A judge may not increase a sentence beyond the maximum allowed for an offense based on facts not proven at trial or admitted as a part of the guilty plea. In order to challenge a death sentence on the basis of racial discrimination, a defendant must show either a discriminatory purpose in his case or a discriminatory purpose in enacting or maintaining the death penalty. Under the eighth amendment, bail must be reasonably fixed to ensure a defendant will appear at trial based on the specific facts of the crime charged and not the character of the crime. If have probable cause to believe automobile contains articles that they may be entitled to seize, may search the vehicle pursuant to lawful arrest, without warrant, or impound vehicle into police custody to search at later time. Voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against the latter at a criminal trial. A secured party may not recover a deficiency judgment if sale of the collateral was commercially unreasonable, but the debtor may recover damages for the creditor's failure to comply with legal requirements for a sale. In re Toshiba America HD DVD Marketing and Sales Practices Litigation; express warranty is not created by mere puffery; a statement about future performance may create express warranty if it is an affirmation or representation.
State law may impose restrictions affecting one company's ability to acquire control of another without running afoul of federal law or the Commerce Clause; target corporation; tender offer; Williams Act. Handy; Delaware law protects members and managers of an LLC from liability for obligations of the LLC solely by reason of being or acting as LLC members or managers, but not for other reasons; piercing the corporate veil. Flahive; common law doctrine of piercing the corporate veil is not abrogated by the Limited Liability Company Act and may be used against limited liability company members in appropriate cases. Segal; Because LLCs are not creature of state but of contract, duties and obligations of the LLC members are as set forth in the LLC agreement; implied covenant of good faith and fair dealing; post hoc; sine qua non. Tignor; Only when present circumstances show that it is not reasonably practicable to carry on company's business in accord with articles of organization and any operating agreement may court order dissolution of LLC. Brevig; In dissolution because it is no longer reasonably practicable for a partnership to carry on its business, the partnership assets must be liquidated and the net surplus in cash must be distributed to the partners. Superior Court; Laws that regulate securities trading do not relate to the internal affairs of a corporation, so lawsuits relating to the sales of securities are not governed solely by the state of incorporation. Wolff; Derivative suits on behalf of limited liability companies are allowed, based on the importance of the derivative suit in corporate law, and no evidence the Legislature intended to abolish in the Limited Liability Company Law. Airgas, Inc.; Defensive measures against takeovers are not impermissibly preclusive if they delay a bidder from obtaining control of a board as long as obtaining control in the future is realistically attainable. Blackwell; absent specific contractual provisions, a minority shareholder is not entitled to relief from majority approved corporate actions in a closely held corporation. may impose minimum upon finding, by a preponderance of the evidence, of certain facts. Kentucky; a criminal defense attorney fails to provide effective assistance if the attorney misleads a noncitizen client regarding the removal consequences of a conviction. Absent legislative intent indicating otherwise, repeal or amendment of statute prior to criminal defendant prosecution that renders conduct engaged in by defendant no longer criminal bars further prosecution; deterrence; retribution; savings clause.
Greenmail; interloper; standing; shareholder must have a proper purpose reasonably related to his interest as a stockholder and must further prove some credible evidence of wrongdoing sufficient to warrant continued investigation. 275 Madison Management Corp; A managing general partner of a limited partnership may be removed from the partnership by a limited partner if the managing partner's agent engages in fraudulent conduct. Irving; Where members of a limited liability partnership share no benefit with a partner accused of misconduct, have no direct supervision or control, and have no knowledge of the partner's misconduct, they are statutorily protected. Gursky; New York's Partnership Law provision limiting the personal liability of partners in an LLP does not shield a general partner in a registered LLP from personal liability for breaches of the partnership's or partners' obligations to each o Taghipour v. Sieg; Under Utah law, a sale of property is defined as the conveyance of title to the purchaser for a valuable consideration consisting of the purchase price, or contract of sale, whereby some estate in land passes. In the Matter of 1545 Ocean Avenue, LLC; A petitioner who seeks dissolution of an LLC must establish, in the operating agreement or articles of incorporation, that management is unable or unwilling to permit or promote the stated purpose. (Tyson I); Directors may not ask for shareholder approval of an incentive stock option plan and then later to distribute shares in such a way as to undermine the objectives of that plan. Gifford; The intentional violation of a shareholder approved stock option plan, coupled with fraudulent disclosures, constitutes conduct that is disloyal to the corporation and is therefore an act in bad faith. Shareholder Litigation; When the interests of common stockholders diverge from preferred stockholders, the directors of a corporation have a duty to exercise their discretion in favor of the interests of common stockholders. United States; When liability under Rule 10b-5 is predicated on a defendant's failure to disclose a material fact, positive proof of reliance is not a prerequisite to recovery. Corinthian Colleges, Inc.; A complaint for securities fraud must allege loss causation, so that the defendant is provided notice of what the relevant economic loss might be or the causal connection. Shareholder Litigation; Acquisition tender offer by a controlling shareholder must be non-coercive: non-waivable majority of the minority tender condition; consummate a prompt short-form merger; no retributive threats. Defendant possessed a firearm during enumerated offense. Pereira; joinder of offenses; joinder of criminal charges with multiple offenses is proper when the offenses charged are of similar character or are based on the same act or transaction or parts of a common scheme or plan. United States; For purposes of obtaining a fair trial, it is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. King; taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, is a legitimate police booking procedure and is reasonable under the Four Amendment. Cruel and unusual punishment is an evolving doctrine and depends on the prevailing societal views of the relative punishment afforded to a specific crime. Public Company Accounting Oversight Board; Multi-level protection of executive officers from removal is contrary to Article II of the Constitution's vesting of the executive power in the President; Sarbanes-Oxley; inferior officers Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Thomas; when services provided by shareholders and their counsel result in a financial benefit to the corporation, they are entitled to a fair fee. Underwriters performing a due-diligence investigation of two bond offerings by World Com, had a limited number of conversations with the stock issuer and its auditor, made only cursory inquiries, failed to look behind formulaic answers to questions. First Derivative Traders; For purposes of Rule 10b-5, the maker of a false statement is the person who has the ultimate authority over the statement, including content and distribution. Independent source doctrine applies to both evidence obtained for the first time during independent lawful search, and also to evidence initially discovered during, or as consequence of unlawful search, but later discovered independently. A buyer of goods, who gives value for the goods and receives them after the certificate of title is issued, takes the goods free of a security interest perfected in another jurisdiction. Patchak; suits under the APA must satisfy both Article III's standing requirement and be arguably within the zone of interests protected or regulated by the violated statute. Harris; Amending agency interpretation; when agency gives regulation a definitive agency interpretation, significant revisions require notice and comment under the APA. Duff & Phelps, Inc.; If a closely held company withholds from an employee-stockholder material information about possible increases in stock value in breach of its fiduciary duty, the employee-stockholder may be entitled to damages. M & F Worldwide Corp.; business judgment standard of review governs going private mergers with a controlling stockholder if independent special committee and informed vote of a majority of the minority stockholders. Oklahoma Alcoholic Beverage Laws Enforcement Commission; the type of business entity chosen may affect the types of business that can be conducted by the entity if it affect the licenses the entity may obtain. Ritter; In the absence of red flags alerting corporate directors to misconduct, good faith is measured by the directors' actions to assure that a reasonable reporting and information system exists. Underwriters performing a due-diligence investigation of two bond offerings by World Com, had a limited number of conversations with the stock issuer and its auditor, made only cursory inquiries, failed to look behind formulaic answers to questions. Colkitt; Under § 29(b) of the Securities Act of 1934, party may rescind contract that, when made or as performed, violates federal securities laws; convertible debenture; debenture; rescission; scienter. National Australia Bank, Ltd.; Subject matter jurisdiction in a fraud case exists if conduct in the United States was more than merely preparatory to fraud, and directly caused losses to foreign investors abroad; extraterritorial jurisdiction Business Roundtable v. WPCS Int'l Inc; A beneficial owner's acquisition of securities directly from an issuer, at the issuer's request and with the board's approval, is a "purchase" of those securities under Section 16(b). Right against self incrimination; right to counsel. Causes of divorce; divorce costs; divorce laws; divorce advice; divorce attorney; dissolution of marriage; division of marital assets; divorce separation agreement; dividing marital assets; dividing marital property. Allegations in the complaint, taken together, must give rise to an inference that the defendant acted with the requisite scienter of false statements, knowing. Leonard; determining relationship includes reasonable expectation of significant investor control, and not investment contract, courts look beyond formal terms of documents circumstances surrounding relationship.; passive. Ishopnomarkup.com, Inc; A Rule 506 exemption is not forfeited when the issuer of stock makes a good faith effort to comply with its disclosure requirements; advice of councel; exemption; good faith. The standard for determining whether a defendant is competent to waive the right to counsel and to enter a guilty plea is the same as the standard for determining whether the defendant is competent to stand trial. Disbar for alcohol abuse; detection and prevention of alcohol and substance abuse in the legal profession; alcoholic lawyer; disbarment for drug abuse; attorney ethics violation; ABA Model Rules of Professional Conduct; lawyer legal ethics; CLE. If defendant plea of guilty is based on reasonably competent advice, it is intelligent plea not open to attack on the ground defendant counsel may have misjudged admissibility of defendant confession. When a prospective juror harbors preconceived notions of defendant guilt that cannot be set aside by consideration of the evidence, the juror must be dismissed for cause to ensure an impartial jury. When the evidence discloses any possibility that a juror views arise from the sufficiency of government evidence, disqualification must be denied. Without red flags, directors have no reason to suspect wrongdoing; does stockholder complaint create a reasonable doubt that board of directors could have properly exercised its independent and disinterested business judgment in responding. P.; Under section 36(b) of the Investment Company Act, a financial adviser has a fiduciary duty and owes an obligation of candor in negotiation, as well as honesty in performance, but not for negotiating own salary. Jordan; The proper remedy for a freeze-out is to restore the minority shareholder as nearly as possible to the position she would have been in had there been no wrongdoing; close corporation; dividend; injunction. Antinora; The general rule of partnership law is that, in the absence of an agreement, the law presumes that partners and joint adventurers intended to participate equally in the profits and losses of the common enterprise. Superior Court; In forming a partnership, the partners obligate themselves to share the risks and benefits and carry out the enterprise with the highest good faith toward each other; fiduciary. 55 Perry Co; Partnership law provides that, subject to any contrary agreement between the partners, no person may become a member of the partnership without the consent of the other partners. Dreifuerst; Unless otherwise agreed, partners who have not wrongfully dissolved the partnership have a right to wind up the partnership and force a sale of the partnership assets; partnership at will. Cuban; Insider trading liability under the misappropriation theory is premised on the undisclosed use of confidential information for personal benefit, in breach of a duty not to do so. Procedural rules usually do not apply retroactively. absent a showing of cause and prejudice attendant to a state procedural waiver, a federal habeas corpus review of a waived objection to the admission of a confession at trial is barred. Qualified immunity does not apply to deprivation of constitutional rights; coercive police interrogation resulting in statements not used at trial violates Constitution only if interrogator's conduct shocks the conscience. A criminal defendant's initial appearance before a judicial officer triggers the attachment of the Sixth Amendment right to counsel. Burden of persuasion; burden of production; insanity; mens rea; voluntary. Due process does not require the prosecution to disprove all affirmative defenses that may be available to defendant, so long as it has proven guilt beyond a reasonable doubt. Deliberate first- degree murder; intent; second-degree murder.