Saturday, November 30, 2013
Best Billable Hour Practices for Paralegals
Obligations to Clients in Settlement Negotiations
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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
Snake found on defendant in Roanoke court
Source: http://valawyersweekly.com/2013/11/27/snake-found-on-defendant-in-roanoke-court/
Living in a Public Beta
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/10/living-in-a-public-beta/
Italy senate expels former PM Berlusconi
Source: http://jurist.org/paperchase/2013/11/Italy-senate-expels-former-pm-Berlusconi.php
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The Best of the Plaintiffs Bar
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202624154645&rss=rss_nlj
Virtual Staffing: Implementation and Management
Burton is the founder of Burton Law, a virtual law firm which focuses on representing businesses and individuals in litigation matters. He also serves as outside general counsel to small and mid-sized businesses, including new and existing franchises. He is a leading member of both the Dayton Bar Association and the Ohio State Bar Association. He is also a member of the American Bar Association.
Virtual staffing saves Burton Law a significant amount of overhead costs, and those cost savings are passed along to its clients. Tune in to hear more on virtual staffing, including: what to look for, how to manage the staff, and more.
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Friday, November 29, 2013
Dayton appoints Second Judicial District judge
Gov. Mark Dayton has appointed Jennifer Frisch to fill an open judgeship in the Second Judicial District. The judicial appointment is the third announced by Dayton this week.
Frisch currently works as the senior associate general counsel for the University of Minnesota. She also has worked as an attorney at Kelly & Berens.
“Throughout her career, Jennifer Frisch has developed an exemplary record of legal scholarship and professionalism,” Dayton said in a prepared statement. “Ms. Frisch’s commitment to high ethical standards and her efforts to expand diversity in the legal profession have greatly enhanced our court system and the people it serves.”
Frisch is an investigator for the Second Judicial District Ethics Committee. She is a member of the Federal Practice Committee, the Minnesota Supreme Court Advisory Committee on the General Rules of Practice for District Courts and the Diversity Committee for the Minnesota Chapter of the Federal Bar Association. She has taught courses at the University of Minnesota Law School.
Frisch replaces Judge Kathleen Gearin, who retired this year. She will be chambered in St. Paul.
Source: http://minnlawyer.com/minnlawyerblog/2013/11/22/dayton-appoints-second-judicial-district-judge/
TAR Update: Precision, Recall, F-measure & Kleen Products Revisited
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Highlights from the 2013 Georgetown E-Discovery Training
O’Connor is a senior consultant for Gallivan, Gallivan & O'Melia, creators of the Digital WarRoom e-discovery software. He is co-author of the book E-Discovery for Small Cases: Managing Digital Evidence and ESI. The book was noted by PRWeb as the first book to “mainstream” e-discovery for all cases. He is a frequent author and speaker on legal technology and dedicates his work to making advances in the field.
If you couldn’t make it, here’s your chance to learn about the conference: who was there, what they learned, and the plans for next year.
Thanks to our sponsor, Digital WarRoom.
Judge Wilkinson Calls Demise of Filibuster a ‘Sad’ Moment
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Law Librarians at the Front Lines of Change
• Lastres, an attorney, is director of library and knowledge management for Debevoise and Plimpton. He is responsible for the firm’s information and knowledge management initiatives. He is the co-founder of the OnFirmerGround blog — a collaborative effort of international law library associations seeking to promote the value that law firm librarians bring to the business and practice of law.
• Flaherty is corporate counsel of Kia Motors America. He manages all legal matters from transactional to litigation. Before moving in-house he worked at BigLaw where he focused his practice in commercial litigation and e-discovery. Flaherty is known for his meticulous auditing system made specifically for law firms, on which he regularly speaks and writes about.
Tune in for a sneak preview of their upcoming presentation and the future of legal research.
Gender or Family Issue?
In the June issue of the ABA Journal, ABA President Laura Bellows talked about the gender pay inequity in the legal profession, comparing today with 50 years ago when President Kennedy signed the Equal Pay Act. The difference is 77 cents now vs. 59 cents then. And even today, Ms. Bellows says “(f)emale equity partners in the 200 largest firms ... earn 89% of the compensation of their male peers. Not long ago, one of my clients experienced that very same bias, causing her to leave the large firm and open her own shop. Immediately, her income doubled.
But the President’s Message contained a new perspective for me. She said that unequal pay is a family issue, not just a gender issue, that affects families and retirement capabilities of husband/wife, father/mother and the well-being of everyone in the family. And the competition among colleagues is not of male and female, but of lawyer and lawyer. Gender is no longer a fair differentiation within the firm contest.
I’m becoming more sensitive to this issue as I plan for our LawBiz® Practice Management Institute scheduled for April 4th and 5th, 2014, in Santa Monica, CA. Join me and my co-anchor, Rebecca Torrey, an equity partner and member of the Executive Committee of Manatt, Phelps and Phillips, as we focus on management challenges faced by women lawyers in today’s profession.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/Cuh5JQgEIDM/
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Massachusetts' 3 Strikes Law
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/08/massachusetts-3-strikes-law/
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Thursday, November 28, 2013
Digital Library Aids Lawyers in NLRB Case
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202629937276&rss=rss_nlj
Comparing the New iPads for Lawyers
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OPINION: Solution to Rampant Gerrymandering Resides Within the States
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202629807756&rss=rss_nlj
Supreme Court Watch: Employment law cases
We will be watching three pending cases at the US Supreme Court as the Court's session opens today:
Kloeckner v. Solis
Oral argument on October 2.
The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."
Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?
Vance v. Ball State Univ
Oral argument on November 26.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Genesis HealthCare v. Symczyk
Oral argument December 3.
Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.
Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html
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ICC announces arrests for falsifying evidence in Congo rebel leaders' war crimes trial
The Globalization of Legal Technology
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The iPad for Litigators and Life After Google Reader
Back to School Spotlight on Law Students
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Wednesday, November 27, 2013
Delaware General Corporation Law Amended to Speed Up the Consummation of Two-Step Merger Transactions
The Delaware General Corporation Law, 8 Del. Code (the “DGCL”), has been amended to add a new Section 251(h) providing for, subject to certain conditions, a more expeditious and less costly closing of a two-step transaction. This new section will simplify and streamline the going private process by eliminating the need for stockholder approval in the second step of a two-step merger transaction. Under this new rule, completing a going private transaction in Delaware will be faster, more efficient and less costly than before.
Background
In a two-step merger transaction, the buyer launches a tender or exchange offer for any and all of the target’s shares, followed by a second-step merger resulting in the buyer owning all of the target’s outstanding shares.
Second-step mergers may be structured as “long form” mergers or “short-form” mergers. Long-form mergers are used when the buyer is unable to purchase (in the first-step tender offer or otherwise) at least 90 percent of the issued and outstanding shares of the target. In a long-form merger, the target is required to prepare and issue a proxy statement, call and hold a special meeting of its shareholders, and obtain the requisite shareholders’ vote. However, if the buyer is able to purchase 90 percent or more of the target’s issued and outstanding shares, a short-form merger can be employed. In a short-form merger, the vote of the target’s shareholders is not required, therefore, allowing the buyer and the target to consummate the second-step merger immediately following the closing of the tender offer and without having to incur the costs associated with preparing and issuing a proxy statement, soliciting proxies and, of course, holding a shareholders meeting.
In cases where the buyer was unable to purchase 90 percent or more of the target’s shares in the first step of the transaction, buyers and targets have often agreed to include in the merger agreement a “top-up option.” A top-up option is an option granted by the target to the buyer that allows the buyer to purchase additional target shares to achieve the 90 percent ownership threshold that would allow the buyer to consummate a short-form merger.[1] To use a top-up option, the target must have a sufficient number of authorized but unissued shares and treasury shares to allow it to issue the number of shares required to be issued upon the exercise of the top-up option. Top-up options have been commonly used in two-step transactions and have been reviewed and generally approved as a viable option by Delaware courts. See, e.g., In re Cogent, Inc. Shareholder Litigation, 7 A.3d 487 (Del. Ch. 2010).
The Amendment
The addition of Section 251(h) is intended to streamline the short-form merger process. The rationale behind the enactment of the new Section 251(h) is that in cases where the buyer has successfully acquired a majority of the target’s issued and outstanding shares in the tender offer, the buyer already has the power to approve a long-form merger in a shareholders meeting[2] and therefore, even if a top-up option is not available, the buyer and the target should not be required to go through the long and costly process of preparing a proxy statement and holding a special meeting of the target’s shareholders.
Section 251(h) imposes the following conditions in order to be able to take advantage of the new streamlined procedure for merger agreements dated on or after August 1, 2013:
- The target’s shares must be listed on a national securities exchange or held of record by more than 2,000 stockholders immediately prior to the execution of the merger agreement;
- The buyer entity must be a corporation;
- The merger agreement must contain a provision that explicitly opts into Section 251(h),[3] which provision must be approved by the target’s board of directors;
- The second-step merger must be effected as soon as practicable after the closing of the tender offer;
- The target shares that are not canceled in the merger will be converted into the right to receive the same amount and kind of cash, property, rights or securities paid for shares of the same class or series of the target in the tender offer;
- The target’s certificate of incorporation must not require a stockholder vote to approve a merger or contain a super-majority or separate class vote;
- At the time the target’s board of directors approves the merger agreement, no other party to the merger agreement can be an “interested stockholder” (as defined in Section 203 of the DGCL) of the target;[4]
- The tender offer in the two-step merger transaction must have been for any and all of the target’s outstanding stock that, absent Section 251(h), would have been entitled to vote on the merger agreement; and
- Following the consummation of the tender offer, the buyer owns at least the percentage of the target’s shares that would be required to adopt the merger agreement pursuant to the DGCL and the target’s certificate of incorporation if Section 251(h) were not invoked.
Practitioners should keep these requirements in mind not only when drafting transaction documents but also when forming and reorganizing Delaware corporations to ensure that a potential target corporation is in the position to take advantage of the new rule.
[1] The purchase price for the target shares acquired by the buyer upon the exercise of a “top-up option” is often financed with a promissory note issued by the buyer to the target. Upon the consummation of the “short-form” merger, the promissory note is cancelled by operation of the merger. Where the newly issued shares have par value, it has become common for merger agreements to include a requirement that the par value be paid in cash. The purpose of this requirement is to eliminate the potential argument that the issuance of the new shares in exchange for a promissory note is inconsistent with Section 153(a) of the DGCL which requires that shares with par value be issued for a consideration that is not less than the par value.
[2] This is assuming that the requisite shareholder vote to approve the merger is a simple majority of the issued and outstanding shares of the target voting together as a single class.
[3] A Section 251(h) “opt-in” provision was recently included in the August 13, 2013 merger agreement pursuant to which Paulson & Co. Inc. acquired Steinway Musical Instruments Inc.
[4] This condition makes the new Section 251(h) available only in connection with third-party acquisitions. Additionally, Section 251(h) incorporates the “interested stockholder” definition from Section 203 of the DGCL, but does not incorporate the exceptions to that definition for shareholders who receive target’s board approval or who have exceeded the 15% ownership threshold for more than three years.
The new Section 251(h) does not clarify if, for purposes of determining an “interested stockholders” status, only shares held by the buyer are taken into account when calculating 15% ownership, or also shares that are subject to support agreements and/or management rollover agreements with the buyer. Given this ambiguity, it is suggested that, in cases where the buyer enters into support agreements with target’s stockholders and/or rollover agreements with target’s management that cover 15% or more of the target’s issued and outstanding shares, the buyer also seek to include in the merger agreement a top-up option, to the extent one is available.
FCPA Compliance — A Case for Integrated Technology Solutions
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Judge Scheindlin’s Collection Case and Florida E-Discovery Amendments
Developer wins new chance for its fees
Source: http://valawyersweekly.com/2013/11/27/developer-wins-new-chance-for-its-fees/
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Back to School Spotlight on Law Students
The Filibuster is Unconstitutional, Says Professor
Source: http://blogs.wsj.com/law/2013/11/26/the-filibuster-is-unconstitutional-says-professor/?mod=WSJBlog
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Virtual Paralegals: Forming a Magical Team
NSSTA’s Take the Hill
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/07/nsstas-take-the-hill/
Tuesday, November 26, 2013
Gone Clio with Attorney Anthony Reeves
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/10/gone-clio-with-attorney-anthony-reeves/
Kids’ Chance: Helping Children of Injured Workers
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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
What Should Solos Be Charging?
Source: http://legaltalknetwork.com/podcasts/new-solo/2012/07/what-should-solos-be-charging/
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Fighting Video with Video
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.
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Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
Law Librarians at the Front Lines of Change
• Lastres, an attorney, is director of library and knowledge management for Debevoise and Plimpton. He is responsible for the firm’s information and knowledge management initiatives. He is the co-founder of the OnFirmerGround blog — a collaborative effort of international law library associations seeking to promote the value that law firm librarians bring to the business and practice of law.
• Flaherty is corporate counsel of Kia Motors America. He manages all legal matters from transactional to litigation. Before moving in-house he worked at BigLaw where he focused his practice in commercial litigation and e-discovery. Flaherty is known for his meticulous auditing system made specifically for law firms, on which he regularly speaks and writes about.
Tune in for a sneak preview of their upcoming presentation and the future of legal research.
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Delaware General Corporation Law Amended to Speed Up the Consummation of Two-Step Merger Transactions
The Delaware General Corporation Law, 8 Del. Code (the “DGCL”), has been amended to add a new Section 251(h) providing for, subject to certain conditions, a more expeditious and less costly closing of a two-step transaction. This new section will simplify and streamline the going private process by eliminating the need for stockholder approval in the second step of a two-step merger transaction. Under this new rule, completing a going private transaction in Delaware will be faster, more efficient and less costly than before.
Background
In a two-step merger transaction, the buyer launches a tender or exchange offer for any and all of the target’s shares, followed by a second-step merger resulting in the buyer owning all of the target’s outstanding shares.
Second-step mergers may be structured as “long form” mergers or “short-form” mergers. Long-form mergers are used when the buyer is unable to purchase (in the first-step tender offer or otherwise) at least 90 percent of the issued and outstanding shares of the target. In a long-form merger, the target is required to prepare and issue a proxy statement, call and hold a special meeting of its shareholders, and obtain the requisite shareholders’ vote. However, if the buyer is able to purchase 90 percent or more of the target’s issued and outstanding shares, a short-form merger can be employed. In a short-form merger, the vote of the target’s shareholders is not required, therefore, allowing the buyer and the target to consummate the second-step merger immediately following the closing of the tender offer and without having to incur the costs associated with preparing and issuing a proxy statement, soliciting proxies and, of course, holding a shareholders meeting.
In cases where the buyer was unable to purchase 90 percent or more of the target’s shares in the first step of the transaction, buyers and targets have often agreed to include in the merger agreement a “top-up option.” A top-up option is an option granted by the target to the buyer that allows the buyer to purchase additional target shares to achieve the 90 percent ownership threshold that would allow the buyer to consummate a short-form merger.[1] To use a top-up option, the target must have a sufficient number of authorized but unissued shares and treasury shares to allow it to issue the number of shares required to be issued upon the exercise of the top-up option. Top-up options have been commonly used in two-step transactions and have been reviewed and generally approved as a viable option by Delaware courts. See, e.g., In re Cogent, Inc. Shareholder Litigation, 7 A.3d 487 (Del. Ch. 2010).
The Amendment
The addition of Section 251(h) is intended to streamline the short-form merger process. The rationale behind the enactment of the new Section 251(h) is that in cases where the buyer has successfully acquired a majority of the target’s issued and outstanding shares in the tender offer, the buyer already has the power to approve a long-form merger in a shareholders meeting[2] and therefore, even if a top-up option is not available, the buyer and the target should not be required to go through the long and costly process of preparing a proxy statement and holding a special meeting of the target’s shareholders.
Section 251(h) imposes the following conditions in order to be able to take advantage of the new streamlined procedure for merger agreements dated on or after August 1, 2013:
- The target’s shares must be listed on a national securities exchange or held of record by more than 2,000 stockholders immediately prior to the execution of the merger agreement;
- The buyer entity must be a corporation;
- The merger agreement must contain a provision that explicitly opts into Section 251(h),[3] which provision must be approved by the target’s board of directors;
- The second-step merger must be effected as soon as practicable after the closing of the tender offer;
- The target shares that are not canceled in the merger will be converted into the right to receive the same amount and kind of cash, property, rights or securities paid for shares of the same class or series of the target in the tender offer;
- The target’s certificate of incorporation must not require a stockholder vote to approve a merger or contain a super-majority or separate class vote;
- At the time the target’s board of directors approves the merger agreement, no other party to the merger agreement can be an “interested stockholder” (as defined in Section 203 of the DGCL) of the target;[4]
- The tender offer in the two-step merger transaction must have been for any and all of the target’s outstanding stock that, absent Section 251(h), would have been entitled to vote on the merger agreement; and
- Following the consummation of the tender offer, the buyer owns at least the percentage of the target’s shares that would be required to adopt the merger agreement pursuant to the DGCL and the target’s certificate of incorporation if Section 251(h) were not invoked.
Practitioners should keep these requirements in mind not only when drafting transaction documents but also when forming and reorganizing Delaware corporations to ensure that a potential target corporation is in the position to take advantage of the new rule.
[1] The purchase price for the target shares acquired by the buyer upon the exercise of a “top-up option” is often financed with a promissory note issued by the buyer to the target. Upon the consummation of the “short-form” merger, the promissory note is cancelled by operation of the merger. Where the newly issued shares have par value, it has become common for merger agreements to include a requirement that the par value be paid in cash. The purpose of this requirement is to eliminate the potential argument that the issuance of the new shares in exchange for a promissory note is inconsistent with Section 153(a) of the DGCL which requires that shares with par value be issued for a consideration that is not less than the par value.
[2] This is assuming that the requisite shareholder vote to approve the merger is a simple majority of the issued and outstanding shares of the target voting together as a single class.
[3] A Section 251(h) “opt-in” provision was recently included in the August 13, 2013 merger agreement pursuant to which Paulson & Co. Inc. acquired Steinway Musical Instruments Inc.
[4] This condition makes the new Section 251(h) available only in connection with third-party acquisitions. Additionally, Section 251(h) incorporates the “interested stockholder” definition from Section 203 of the DGCL, but does not incorporate the exceptions to that definition for shareholders who receive target’s board approval or who have exceeded the 15% ownership threshold for more than three years.
The new Section 251(h) does not clarify if, for purposes of determining an “interested stockholders” status, only shares held by the buyer are taken into account when calculating 15% ownership, or also shares that are subject to support agreements and/or management rollover agreements with the buyer. Given this ambiguity, it is suggested that, in cases where the buyer enters into support agreements with target’s stockholders and/or rollover agreements with target’s management that cover 15% or more of the target’s issued and outstanding shares, the buyer also seek to include in the merger agreement a top-up option, to the extent one is available.
Ringler's Top Ten on Structured Settlements
Monday, November 25, 2013
Litterbug Gets His Due
Have you EVER heard of anyone getting a ticket for littering? They should, but it just never seems to happen, much to The Juice’s chagrin. Well, a litterbug in New York got busted, sort of. As reported by brooklynpaper.com:
The litterbug told police that he tossed some trash in the parking lot of a fast-food chain between Kingsland and Morgan avenues at 12:50 pm. A moment later, two men came up to him and showed him shields.
Officer, arrest that man! He just admitted to littering! No?
“Hold on,” said one of the men. “What you are doing is illegal.”
Citizen’s arrest! Citizen’s arrest! (This is funny only to geezers like The Juice who watched The Andy Griffith Show.) Sadly, there was no citizen’s arrest, but there was a little bit of strange justice doled out.
The fake cops told the man that they would write him a ticket if he did not give them $60 on the spot. They followed him to his house, but he could not find any money there, so they walked him to an automatic teller machine, where he withdrew $60 and gave it to the men, the real cops reported.
Bam! $60 fine! The Juice is smiling.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/N7KlxXo2YGw/sdf-4.html
Innovations in Legal Technology: The Changing Landscape and How to Keep Up.
• Adam Ziegler began his career as a law clerk for a judge on the U.S. Court of Appeals. He practiced at two large firms before becoming a partner at the aforementioned litigation boutique. Since launching Mootus, he has also started the Boston Meetup group for legal innovators and begun blogging for the site www.smallfirminnovation.com. Ziegler’s career focuses on how technology can help practicing lawyers do more, better and faster for their clients.
On this episode of The Legal Toolkit, host Heidi Alexander chats with Ziegler about how to use technology to maintain an efficient legal practice, keep up with legal-tech innovations, and launch a legal technology startup.
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Magic Words, Magic Rights
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.
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Source: http://blog.simplejustice.us/2013/07/08/magic-words-magic-rights.aspx?ref=rss
The Boston Bombings: Lawyers Assisting During Tragedy
Hmm. Which Football Team Do You Think They’re Rooting For?
(photo via @andy_boothe)
It’s not too hard to figure out who the owner of this vehicle roots for. It’s a little harder to figure out why someone who came across this plate decided to take it to another level. As reported in The Washington Post:
The above license plate was tweeted to Dan yesterday by an eagle-eyed reader who took exception to its meaning. While there are many possible explanations for what the “F” stands for, the Cowboys sticker on the car indicates that the real answer is one I can’t write here.
The person who tweeted the photo also copied the Virginia Department of Motor Vehicles’ Twitter feed. The DMV is on top of its social media, and has vowed to look into it.
The Juice has posted numerous stories on license plates and the license plate police. Just use the search box to the right to find more. (Search “license plate”.)
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/sWOTYQ6-qy0/ss-6.html
Debate intensifies over proposed rules
Source: http://valawyersweekly.com/2013/11/22/debate-intensifies-over-proposed-rules/
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