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Traditional Baking, Inc.; clients are the principals, the attorney is an agent; under law of agency, principal is bound by agent's deeds, except attorney misconduct outside the scope of employment. 8(a)(2) short and plain statement of the claim showing that pleader is entitled to relief, give the defendant fair notice of claim and grounds upon which it rests. General Motors Corp.; sanctionable spoliation is destruction or material alteration of evidence or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation; manufacturer opportunity to inspect Harnden v. Darue Engineering & Manufacturing; federal forum for federal tax litigation sufficiently substantial for exercise of federal question jurisdiction; federal title law; division of labor between state and federal courts United Oil Co. Parts Associates, Inc.; may obtain discovery regarding any matter, not privileged, relevant to claim or defense; other lawsuits regarding similar products relevant to a defendant's failure to warn; indemnify; indemnity agreement. UBS Warburg LLC; corporate counsel has duty to communicate discovery obligations so all relevant information is discovered, retained, and produced; once duty to preserve attaches, identify all sources of discoverable information. Injury in fact and redressability must be established even under a federal statute conferring a private cause of action, private right of action, standing, personal injury, public, injury in fact. Federal cigarette advertising regulations preempt conflicting state regulations, congress expressly preempts state or local action, conflicting state regulation must yield to federal law, supremacy clause. Seelig, Inc., Barriers to commercial traffic between states, direct or indirect, violate the Commerce Clause when purpose and effect of such barriers is to suppress or mitigate the consequences of competition between states. Oneida-Herkimer Solid Waste Management Authority; Laws that favor government operations, but that treat all private businesses equally, do not violate the Commerce Clause; dormant commerce clause. Police dog; drug dog sniff luggage; K-9 dog; investigative detention; when officer's observations lead him reasonably to believe that luggage contains narcotics, officer may detain luggage briefly to investigate circumstances that aroused his suspicion. when police investigation is no longer general inquiry into unsolved crime but focuses on particular suspect in police custody, must allow opportunity to consult with lawyer or warn of absolute constitutional right to remain silent. These grounds are extreme such ascorruption, fraud, partiality, misconduct, etc. William and Martha Messerly; as-is clause may defeat grant of rescission for mutual mistake relating to a basic assumption that materially affects the parties' agreed performance.
Allapattah Services; class action, if named plaintiff meets requirement, supplemental jurisdiction over claims in same case or controversy even if claims for less than jurisdictional amount for diversity jurisdiction; Article III. Three branches of government; grant of executive authority cannot be overridden by a congressional veto, once congress has acted to vest authority in an administrative agency, it cannot act to overturn the action of that agency in the absence of further l Sequestration, budget appropriations cannot be delegated to a legislator the delegation of executive functions to a legislative administrator violates the constitutionally imposed doctrine of separation of powers. When officers have reasonable suspicion that person has committed crime or is about to commit crime, they may temporarily detain individual for questioning no longer than necessary to serve purposes of stop. Mattel, Inc.; The FAA provides the exclusive grounds for expedited vacatur and modification of arbitration awards. American Ash Recycling Corp.; The bargain theory of consideration does not actually require that the parties bargain over the terms of the agreement; rather, a promise and a reciprocal conventional inducement.
Federal Impact Aid Program; financial assistance to local school districts; prohibits offsetting federal aid by reducing state aid to a local district; unreasonably interfering with a state program that seeks to equalize per-pupil expenditures. Secretary of Labor; An agency's practice of advising affected entities that a regulation does not apply to them establishes an authoritative departmental interpretation that may not be changed without prior notice and comment. EPA; If Congress grants a procedural right to protect concrete interests,like right to challenge agency action unlawfully withheld, litigant can assert without meeting ordinary standards for redressability and immediacy; standing. Earth Island Institute; doctrine of standing requires federal courts to satisfy plaintiff alleged such personal stake in outcome of controversy to warrant plaintiff's invocation of federal court jurisdiction; case or controversy requirement. City of New York; Use of Line Item Veto Act to cancel spending for a budget item violates the Constitution by permitting the virtual amendment of Congressional acts by the President.; delegation doctrine. Redding; school search permissible in scope when measures adopted reasonably related to objectives of search, not excessively intrusive in light of age and sex of student and nature infraction; qualified immunity. EPA; Because greenhouse gases fit squarely within the Clean Air Act's definition of air pollutant, the EPA has the authority to regulate the emission of such gases from new motor vehicles. Leemon Family LLC; parties to an LLC have substantial authority to shape their own affairs, and any conflicts between the LLC Act and their agreement will be resolved in favor of the agreement. Jaffari; a limited liability company (LLC) is bound by the operating agreement signed by some members and that defines the LLC's governance and operation, even if the LLC itself did not sign. Boland Trane Associates, Inc.; Although an SLC's substantive decisions are presumed reasonable, there is no presumption that the SLC was independent, acted in good faith, or followed reasonable procedures. Cellular Information Systems, Inc.; corporate fiduciary generally must place the corporation's interests before his own, but here no valid expectancy interest and did not usurp any corporate opportunity. Gugliuzzi; the knowledge of an agent acting within the scope of his or her authority is chargeable to the principal, regardless of whether that knowledge is actually communicated. When a non-testifying codefendant confession incriminating defendant is not directly admissible against defendant, the confrontation clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant. A statute is void for vagueness if it fails to specify the conduct punishable thereunder such that the defendant lacks fair warning that his conduct violates the statute. When there is doubt as to whether an instrument has been forged or merely altered, the court will assume that the instrument was altered.
Under Communications Act of 1934, the Federal Communications Commission (FCC) regulates interstate telephone communications using a traditional regulatory system similar to what other commissions regulating other common carriers. Mukasey; An immigration judge's credibility determination must be based on specific, cogent reasons that bear a legitimate nexus to the findings; asylum and protection; Convention Against Torture; Board of Immigration Appeals . Sale of securities falls under 10(b) of the Securites and Exchange Act of 1934; section 10(b) forbids the use of any manipulative or deceptive device or contrivance relating to the sale of a security that is misleading or operates as a fraud or deceit. The Chase Manhattan Bank; Boilerplate successor obligor clauses do not permit assignment of the public debt to another party in the course of a liquidation unless to a single purchaser. RJR Nabisco, Inc.; When there is no express covenant restricting the incurring of new debt, and no perceived direction to that end from the express covenants, the court will not imply a covenant. Bolger; A derivative action that alleges only a breach of the duty of care, and not a breach of the duty of loyalty, does not require separate legal representation of the corporate plaintiff and the management defendants. RCO AG Credit, Inc.; When the court requires a plaintiff in a derivative action to post a bond for the defendant's anticipated attorney's fees and costs, the defendant may not recover costs or fees greater than that bond. Oak Industries, Inc.; The relationship between a corporation and its bondholders is contractual in nature, and the rights and obligations of the parties will be spelled out in the documentation of that relationship. Allied Artists Picture Corporation; When and in what amounts dividends will be declared rests in the honest discretion of the directors, assuming the absence of fraud or a gross abuse of discretion. Delaware corporate law authorizes the indemnification of an officer's legal expenses when the officer has been successful in the underlying proceeding, as well as the advancement of expenses in pending proceedings. Goodyear; a shareholder derivative action must state with particularity any effort made by the plaintiff to obtain the desired action from the directors and the reasons for not obtaining the action or making the effort. Shareholder Litigation; to obtain a preliminary injunction, must demonstrate (1) a reasonable probability of success on the merits, (2) will suffer irreparable harm, and (3) the balance of the equities Nixon v. China Media Express Holdings, Inc.; shareholder may inspect the books and records of a corporation to investigate fraud and mismanagement, and the ability of the board to act independently and in good faith. In re MFW Shareholders Litigation; business judgment rule standard of review applies to controlling stockholder merger if procedural safeguards followed; majority of the minority stockholder approval. Imposition of death sentence for murder in the first degree is not void under due process clause solely because trial court considered additional information from probation department and other sources. Right to a jury trial is not violated by pennsylvania mandatory minimum sentencing act. Moore; The Sixth Amendment requires reasonable competence in representing the accused, but substantial deference must be afforded to counsel's judgment. Habeas corpus; per curiam; opinion; vagueness doctrine; void for vagueness. Court broad construction of a state criminal statute provides fair notice that statutory language will encompass conduct related to that forbidden by the statute.
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.
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.
C; For an attorney statement in the course of representation to form the basis of a misrepresentation claim, the statement must be more than a legal opinion and must relate to actual facts. Only increases in per hour emissions are modifications requires preapproval. 1367; if federal court has jurisdiction over a federal claim, it has supplemental jurisdiction over state claims so related to original jurisdiction that they form part of the same case or controversy. First Bancorp; no supplemental jurisdiction (formerly ancillary jurisdiction or pendent jurisdiction) if plaintiff's state law claims substantially predominate over the federal claims or raise complex or novel issues of state law. The collective rights interpretation of the second amendment is affirmed; right to maintain an effective state militia and does not establish an individual right to own or possess firearms for personal use, right to bear arms. Clarkstown, ordinance that discriminates against interstate commerce in favor of local business or investment is per se invalid, unless municipality demonstrates it has no other means to advance a legitimate local interest. An in court identification of a defendant by a witness must be excluded from evidence if it is based solely on a pretrial identification that was obtained without notice to and participation by defense counsel. The compulsory production of private books and papers subject to forfeiture compels owner to be witness against himself and is equivalent to an unreasonable search and seizure. La Salle II, LLC; the doctrine of impossibility of performance excuses performance if objectively impossible due to destruction of the subject matter of the contract or by operation of law.
Last will and testament; wealth protection; living trust; estate planning forms; estate planning trust; administration of trust; the common trust; resignation of trustee; replacement of trustee; trustee's investment powers. The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their race; compelling state interest test; Equal Protection Clause. New York; A policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be a pretext for racial discrimination; peremptory challenge. Deadly force to prevent felony suspect's escape violates fourth amendment unless officers have probable cause to believe that the suspect presents a threat to the life or safety of the officers or others. Animal Feeds International Corp.; A party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.
8's requirement of short and plain statement of the plaintiff's claim that is simple, concise, and direct; on information and belief. Withrow; When a party has signaled consent to the magistrate judge's authority to hear a case through actions rather than words, there is little value in strict insistence on an express consent requirement. Sanderson Plumbing Products, Inc; A discrimination plaintiff's case may be sufficient to submit to the jury if consists of a prima facie case of discrimination and sufficient evidence that defendant's proffered explanation was merely a pretext. Koenig; Just as questions from the bench can provide insight that helps lawyers make a stronger case, so too can questions from the jury help lawyers tailor their presentations; motion in limine. MGM Grand Hotel, Inc; Where the jury is still available, a district court's decision to resubmit an inconsistent verdict for clarification is within its discretion; comparative negligence; contributory negligence. Walker; The elements of a Rule 60(d) cause of action include (1) a judgment that, in equity and good conscience, ought not be enforced; (2) a good defense to the cause of action on which the judgment is founded; (3) fraud, accident. Hallock; Collateral order requirements (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal; collateral order doctrine. Sturgell; The rule against nonparty preclusion is subject only to certain recognized exceptions: (1) a nonparty may agree to be bound by a judgment, (2) certain substantive relationships..; virtual representation; virtual representation doctrin National Equipment Rental, Ltd. Szukhent; a contractually designated agent's prompt acceptance and transmittal to named defendants of a summons and complaint, pursuant to authorization contained in the contract, constitutes adequate service. Praxair, Inc; Under Federal Rule of Procedure 15(c), an amendment that changes the party against whom a claim is asserted relates back to the date of the original pleading under certain limited conditions such as related companies. Kroger; plaintiff in diversity case cannot rely on ancillary jurisdiction to permit amendment to complaint to bring claim against non-diverse third-party defendant; complete diversity; diversity jurisdiction. Russell; Time limits for filing a notice of appeal are jurisdictional in nature, and the untimely filing of notice, even if filed in reliance on a district court order, deprives the court of appeals of jurisdiction; equitable; habeas corpus. American Brands, Inc; An appeal as of right may be taken from interlocutory orders of federal district courts granting, continuing, modifying, refusing, or dissolving injunction; consent decree; interlocutory. TREX, Inc; Interlocutory appeals are within court's discretion, and will be granted only when court certifies that each ruling presented for appeal involves a controlling question of law as to which there is substantial difference of opinion. ACLU; statute that suppresses a substantial amount of protected speech is unconstitutional if less restrictive alternatives exist to further the governmental objective; content-based restriction; preliminary injunction. Du Pont Advance Fiber Sys; Under Federal Rule of Civil Procedure 11, a complaint must not be presented for an improper purpose, such as to harass or to cause unnecessary delay or cost of litigation; contain claims warranted by existing law. Paragon Group, Inc; A defendant's claims against a plaintiff must be asserted as a counterclaim if arise out of the transaction or occurrence and do not require the presence of third parties over whom the court lacks jurisdiction. Blue Cross and Blue Shield of Kansas, Inc; The burden of proving that a challenged discovery request is relevant is on the party who makes the request, while proving that the request is unduly burdensome rests with the party making the objection. Target Corp; Spoliation is the destruction or material alteration of evidence or the failure to preserve property for another\'s use as evidence in pending or reasonably foreseeable litigation; mitigation-of-damages doctrine. West LB AG; A court may shift the cost of restoring and searching for relevant information in an electronic form when the party who converts the data into an inaccessible format should have reasonably anticipated a need to produce that data. Harris; When opposing parties tell two different stories, and one is blatantly contradicted by the record so that no reasonable jury could believe it, a court should not adopt that version for purposes of ruling on a motion for summary judgment. PV Holding Corp; When determining a party's domicile, the controlling factors are the party's actual place of residence and the real intention of remaining there as disclosed by the party's entire course of conduct. Derderian; The Multiparty, Multiforum Trial Jurisdiction Act (MMTJA) requires federal courts to abstain when substantial majorities of all plaintiffs and of the principal defendants are residents of a single state. Tenet Healthsystem Memorial Medical Center, Inc; The Class Action Fairness Act (CAFA) creates a narrow exception to federal jurisdiction and allows the discretionary remand of purely local actions. Professional ethics; ethics lawyer; lawyer ethics; legal ethics issues; attorney substance abuse and drug addiction; attorney ethics violation; ABA Model Rules of Professional Conduct; lawyer legal ethics; Mandatory Continuing Legal Education. Warrantless arrest permitted even for a misdemeanor or infraction punishable only by a fine; if an officer has probable cause to believe that a person has committed a very minor criminal offense, the officer may arrest that person without a warrant.
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.
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Controlling shareholder; control of sale; presumtion that, in making a business decision, corporate directors act on an informed basis, in good faith, and in the honest belief that the action taken is in the company's best interests. Louisiana-Pacific Resources, Inc; The Commerce Clause is not implicated by a statute that regulates corporations even-handedly and imposes no special or distinct burden on out-of-state interests; dormant commerce clause; straight voting. Mc Kesson HBOC, Inc.; stockholder has right to make written demand to inspect corporate books and records for purpose reasonably related to person's interest as stockholder; derivative action; parent corporation; subsidiary corporation. Verizon Communications, Inc; Stockholders seeking inspection of corporate books and records must present some evidence suggest credible basis from which court can infer mismanagement, waste, or wrongdoing may have occurred. Omission to act by one under a legal duty to do so is sufficient for criminal liability if it is a substantial factor in bringing about the consequences prohibited by statute. Homicide; malice afterthought; manslaughter; murder. Causation; habeas corpus; intervening cause; second-degree murder; superseding cause.