Language is Everything

A gentle hint at Whoa Nellie's Deli in Lee Vining, CA, entrance to Yosemite Park !

 

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/_hIdKCRnitA/

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Ultrabook Benefits for Attorneys

The big story at the 2012 Consumer Electronics Show was "ultrabooks." This new category of computer stole the thunder, at least for a few days, from tablet computers. Should lawyers be considering ultrabooks in 2012? In this episode, Dennis Kennedy and Tom Mighell take a look at the new world of ultrabooks, whether tablet computers like the iPad are taking over the computer market, and what it all means for traditional notebook computers and desktop PCs.After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/01/ultrabook-benefits-for-attorneys/

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Contaminated Testimony

The symposium at Concurring Opinions on Convicting the Innocent has been less than energetic in its forward momentum, about as controversial as chick peas and less than enthusiastically received. In fact, I suspect I've been one of twelve people total to bother with it, but still I press on. 

In a post by Northwestern lawprof Steve Drizin, director of the NU Center for Wrongful Convictions, he discusses the issue of contaminated police testimony about feeding facts to a defendant giving rise to a false confession.

In the absence of an electronic recording of the entire interrogation, suspects don’t stand much of a chance of convincing a jury that their confessions were coerced or false.  As Dan Simon points out in In Doubt, jurors have great difficulty accepting the idea that anyone would confess to a crime they did not commit, especially a murder or other crime that could result in death or a lengthy prison sentence.  Moreover, in a classic case of the “cover-up being worse than the crime,” the trial process actually encourages prosecutors to prepare police witnesses to testify that the details came from the suspect in an uninterrupted narrative with no prompting, prodding or persuasion from the police.  It’s not a case of suborning perjury.  Without a recording, everyone has plausible deniability about police contamination.  The collective memory of the officers involved —  often months or years after the fact — is washed clean of any contamination.  During trial preparation, prosecutors prepare the officers to testify in ways that are persuasive to juries.    There is nothing more persuasive than a police officer who testifies that the reason he knew the suspect was guilty was because the suspect came up with details that only the true perpetrator could have known.

At first glance, this seems to be the conventional wisdom, that everyone is just doing their job under difficult circumstances, with nothing nefarious going on, and it just works out badly.  Even the "collective memory of the officers involved...is washed clean of any contamination." Time heals all wounds.

But it's not so.  There are two fundamental flaws that routinely occur that undermine this overly kind view of contaminated testimony.  First, the police officer takes the stand and testifies that he remembers everything, everything, as if it happened yesterday.  As much as we might want to wish away any suggestion of perjury, there is no rationalization that allows the cop to testify as to facts as if he recalls them perfectly while simultaneously  justifying his absolution from responsibility for contaminated testimony by the fact that "months or years" have elapsed.

Either he remembers the facts or he doesn't. Which is it?

The second flaw is that the feeding of facts to a defendant in the course of attempting to extract a confession isn't mere happenstance.  It's no accident. It is something police officers are trained to do.  Sure, they occasionally get a defendant who spills his guts, committed the crime and tells all, but that's not the situation under discussion. Rather, Drizin speaks to the false confession, the seemingly inexplicable circumstance where a person who didn't do the crime manages to come up with a confession replete with intimate details.

In exculpating the cop, he ignores what Larry Barksdale was kind enough to tell us, it's the police officer's job to get the confession.  It is the police officer's job to get a confession that will stick, that will suffice to convict the defendant. It is not his job to make certain that it's truthful. If the confession is false, it's our job to prove it.

In the sanitary world of theory, we don't point fingers and accuse anyone of doing bad things. It's just not polite.  But trials don't happen in the sanitary world of theory, and people do bad things.  To testify under oath that nobody planted the details that bolster a confession, but that they came from the defendant alone, is fine, except when it's a lie.  What it is not is a mistake. It is not forgivable. It is not excusable. Even though we may want to be polite and hurt no one's feelings, it's just not real.

This is a tough business, and the stakes in the real world are very high.  If there is to be a solution to the problem of false confessions (whether by the innocent or the guilty, or the somewhat guilty), it has be based on how things actually happen in the courtroom.  Police don't innocently forget that the seeded the confession with details. Police do so to make the confession stick. They do so because their job is to make the confession stick.  They do so because they believe the defendant is guilty, and the ends justify the means. They don't lose sleep over it.

This isn't to say that Larry Barksdale is wrong about his perspective, that it's a cop's job to get a confession that nails a defendant to the wall, even though it's the prime reason for false confessions.  But it is to say that no worthwhile discussion of false confessions can be premised on the notion that it's all a big mistake and cops would never deliberately testify falsely about a confession because they can't remember how they contaminated it, They remember. They contaminated the confession on purpose.

With that in mind, let the discussion continue.

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/14/contaminated-testimony.aspx?ref=rss

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What’s Trending in 2012?

Decriminalizing medical marijuana, fighting to repeal healthcare reform and using social media as evidence are just a few of the topics trending in the legal industry in 2012. Lawyer2Lawyer co-host and attorney, J. Craig Williams discusses the hottest trends currently transforming the legal world with attorney and legal trend-watcher Danny Cevallos, the founding partner of Cevallos & Wong, L.L.P.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/01/what%E2%80%99s-trending-in-2012/

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Contaminated Testimony

The symposium at Concurring Opinions on Convicting the Innocent has been less than energetic in its forward momentum, about as controversial as chick peas and less than enthusiastically received. In fact, I suspect I've been one of twelve people total to bother with it, but still I press on. 

In a post by Northwestern lawprof Steve Drizin, director of the NU Center for Wrongful Convictions, he discusses the issue of contaminated police testimony about feeding facts to a defendant giving rise to a false confession.

In the absence of an electronic recording of the entire interrogation, suspects don’t stand much of a chance of convincing a jury that their confessions were coerced or false.  As Dan Simon points out in In Doubt, jurors have great difficulty accepting the idea that anyone would confess to a crime they did not commit, especially a murder or other crime that could result in death or a lengthy prison sentence.  Moreover, in a classic case of the “cover-up being worse than the crime,” the trial process actually encourages prosecutors to prepare police witnesses to testify that the details came from the suspect in an uninterrupted narrative with no prompting, prodding or persuasion from the police.  It’s not a case of suborning perjury.  Without a recording, everyone has plausible deniability about police contamination.  The collective memory of the officers involved —  often months or years after the fact — is washed clean of any contamination.  During trial preparation, prosecutors prepare the officers to testify in ways that are persuasive to juries.    There is nothing more persuasive than a police officer who testifies that the reason he knew the suspect was guilty was because the suspect came up with details that only the true perpetrator could have known.

At first glance, this seems to be the conventional wisdom, that everyone is just doing their job under difficult circumstances, with nothing nefarious going on, and it just works out badly.  Even the "collective memory of the officers involved...is washed clean of any contamination." Time heals all wounds.

But it's not so.  There are two fundamental flaws that routinely occur that undermine this overly kind view of contaminated testimony.  First, the police officer takes the stand and testifies that he remembers everything, everything, as if it happened yesterday.  As much as we might want to wish away any suggestion of perjury, there is no rationalization that allows the cop to testify as to facts as if he recalls them perfectly while simultaneously  justifying his absolution from responsibility for contaminated testimony by the fact that "months or years" have elapsed.

Either he remembers the facts or he doesn't. Which is it?

The second flaw is that the feeding of facts to a defendant in the course of attempting to extract a confession isn't mere happenstance.  It's no accident. It is something police officers are trained to do.  Sure, they occasionally get a defendant who spills his guts, committed the crime and tells all, but that's not the situation under discussion. Rather, Drizin speaks to the false confession, the seemingly inexplicable circumstance where a person who didn't do the crime manages to come up with a confession replete with intimate details.

In exculpating the cop, he ignores what Larry Barksdale was kind enough to tell us, it's the police officer's job to get the confession.  It is the police officer's job to get a confession that will stick, that will suffice to convict the defendant. It is not his job to make certain that it's truthful. If the confession is false, it's our job to prove it.

In the sanitary world of theory, we don't point fingers and accuse anyone of doing bad things. It's just not polite.  But trials don't happen in the sanitary world of theory, and people do bad things.  To testify under oath that nobody planted the details that bolster a confession, but that they came from the defendant alone, is fine, except when it's a lie.  What it is not is a mistake. It is not forgivable. It is not excusable. Even though we may want to be polite and hurt no one's feelings, it's just not real.

This is a tough business, and the stakes in the real world are very high.  If there is to be a solution to the problem of false confessions (whether by the innocent or the guilty, or the somewhat guilty), it has be based on how things actually happen in the courtroom.  Police don't innocently forget that the seeded the confession with details. Police do so to make the confession stick. They do so because their job is to make the confession stick.  They do so because they believe the defendant is guilty, and the ends justify the means. They don't lose sleep over it.

This isn't to say that Larry Barksdale is wrong about his perspective, that it's a cop's job to get a confession that nails a defendant to the wall, even though it's the prime reason for false confessions.  But it is to say that no worthwhile discussion of false confessions can be premised on the notion that it's all a big mistake and cops would never deliberately testify falsely about a confession because they can't remember how they contaminated it, They remember. They contaminated the confession on purpose.

With that in mind, let the discussion continue.

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/14/contaminated-testimony.aspx?ref=rss

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2011 Intellectual Property Year in Review and Outlook for 2012 – Part I: Patents

IP Counsel host, Attorney Peter Lando, partner at the firm of Lando & Anastasi, LLP, welcomes Craig Smith, partner at Lando & Anastasi, to discuss important patent cases and court decisions in 2011 from the United States Supreme Court and the Court of Appeals for the Federal Circuit covering a wide range of issues, including patentable subject matter, inventor rights, inducement of patent infringement, damages, and inequitable conduct. Peter and Craig also discuss major cases on the dockets of the Supreme Court and Federal Circuit in 2012 that will be followed closely by practitioners and the business community.

Source: http://legaltalknetwork.com/podcasts/ip-counsel/2012/02/2011-intellectual-property-year-in-review-and-outlook-for-2012-part-i-patents/

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Secure Your Legal Data in the Cloud

The use of cloud-based services and technology is top-of-mind for many law departments today, who wonder, "Is the cloud really secure enough to store my company’s confidential legal data?" In this edition of Tech Experts, information security expert, Joe McMorris, VP of Information Technology at Datacert, will explore this question and offer practical advice about the critical information security and compliance questions you should ask before entrusting a cloud-based legal software vendor with your data.

Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/07/secure-your-legal-data-in-the-cloud/

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The Government We Deserve

Alasdair Roberts, Suffolk Law's Rappaport Professor of Law and Public Policy, discusses his recent article on the Neoliberal Revolution. Read the article at: http://bit.ly/K4dhiu.

Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/06/the-government-we-deserve/

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Legal Talk Network Live at LegalTechNY 2012- True Grit: E-Discovery in Big Law Firms

Monica Bay, Editor-in-chief of Law Technology News, discusses this month’s cover story, True Grit. The story dives into the intricacies of how big law firms treat E-discovery, and the surprising gray area surrounding it. Be sure to watch the interview , hosted by Legal Talk Network producer, Kate Kenney.

Source: http://legaltalknetwork.com/podcasts/law-technology-now/2012/02/legal-talk-network-live-at-legaltechny-2012-true-grit-e-discovery-in-big-law-firms/

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The LinkedIn Lawyer

Are you on LinkedIn? Un-Billable Hour host Attorney Rodney Dowell, Executive Director at Lawyers Concerned for Lawyers and Director of LCL’s Massachusetts Law Office Management Assistance Program chats with Dennis Kennedy, lawyer and co-host of The Kennedy-Mighell Report and Allison Shields, author of Legal Ease Blog, about their recently published book, LinkedIn in One Hour for Lawyers. Dennis and Allison talk about how attorneys are using LinkedIn, and the key features that make LinkedIn a valuable networking and client development tool without consuming all of an attorney’s time.

Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/06/the-linkedin-lawyer/

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Lawyers' Duty to Know Technology?

Many lawyers say they are "good lawyers," while knowing very little about legal technology. So does that statement really compute in this technology driven world? Recent discussions about possible changes to ethical rules include requirements that lawyers stay up-to-date on technology. Explore the intersection of technology, law practice and ethical rules, along with the implications for lawyers with Dennis Kennedy and Tom Mighell on this Kennedy-Mighell Report.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/05/lawyers-duty-to-know-technology/

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Donation will bring Israeli legal scholars to Chicago

The University of Chicago Law School will host a succession of Israeli legal scholars, financed through a $1 million donation from alumnus David Greenbaum and his wife Laureine.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202581805349&rss=rss_nlj

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Former candidate gets VSB reprimand

Former Congressional candidate Wayne Powell, who lost to Rep. Eric Cantor, has agreed to a reprimand for his handling of litigation arising from workplace injuries

The complaint, which came to light during Powell’s campaign against Cantor,  accused the Midlothian lawyer of not being forthcoming about a lawsuit he filed against contractors who did roof repairs to the Christian Broadcasting Network Building, the  Richmond Times-Dispatch reports.

Powell contended the allegations were baseless and politically motivated.

The disciplinary ruling was overseen by a three-judge panel of the Chesterfield County Circuit Court, and placed no conditions or restrictions on Powell’s ability to practice law.

Source: http://valawyersweekly.com/vlwblog/2012/12/14/former-candidate-gets-vsb-reprimand/

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The Economic Impact of Lawsuits by Patent Trolls

Patent litigation has taken off in recent decades. While many of the most visible patent lawsuits are initiated by major technology companies seeking to gain leverage over competitors, an increasing number are brought by patent trolls—firms that acquire patents with no intention of developing a technology with them, but instead use them to threaten practicing companies with litigation over alleged infringements. In this BU Law podcast, host David Yas, a BU Law alum, former publisher of Massachusetts Lawyers Weekly and a V.P. at Bernstein Global Wealth, joins James E. Bessen, lecturer in law at Boston University School of Law and a faculty associate at the Berkman Center for Internet and Society at Harvard, to talk about his paper, The Private and Social Costs of Patent Trolls. Together they discuss the economic impact of the surge in lawsuits by patent trolls, the potential for legislation to solve this problem, and how the patent war is ultimately affecting innovation.

Source: http://legaltalknetwork.com/podcasts/boston-university-school-of-law/2012/01/the-economic-impact-of-lawsuits-by-patent-trolls/

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OPINION: Common ground on affirmative action

Asian-Americans, like students of other races, benefit from the kind of diversity that enriches their education and prepares them for careers in the global workplace.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202581423728&rss=rss_nlj

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Douglas Cawley of McKool Smith

Douglas Cawley, principal of McKool Smith in Dallas and a patent lawyer, tells how he works to make jurors comfortable with the idea of large verdicts.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202580580665&rss=newswire

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iLawyer

For a long time, the three most important letters to lawyers on the internet were SEO.  But now that everybody on the internet is an SEO expert New York criminal defense lawyer, and page 1 of Google hasn't gotten any longer, the cool word has changed to branding. 

Establishing yourself as a skilled, hard-working lawyer based on what you do is, well, really hard. It takes not only effort, but time. Nobody can be bothered with the first or can wait for the second. The car payment is due, the kids are hungry and we need money now. So rather than make the long, hard, uphill climb to success, why not just create a brand that will make clients want you more than any other lawyer around?

Yes, yes, you say?  Marketing guru Seth Godin explains how:

Apple's naming approach is inconsistent, it begs for lawsuits (offensive and defensive) and it shouldn't be the model for your organization. iPhone is a phone, iPad is a pad, iPod is a ... (and owning a letter of the alphabet is i-mpossible).

Procter and Gamble, on the other hand, has been doing it beautifully for a hundred years. Crisco, Tide, Pringles, Bounty, Duracell--these are fanciful names that turn the generic product (and the story we believe about it) into something distinct.

No, you dope. You don't want to rename your practice The Crisco Law Firm. You completely misunderstood Godin.  Plus, it carries some unfortunate implications for lock-up that may not entice new clients to come to you.

So many lawyers are striving to find a way to distinguish themselves from all the other lawyers who have carefully crafted their online personas to bring in the clients, and frankly, it's damn hard. We're all pretty much the same on paper. Sure, some have been around longer than others, but an old fool is worse than a young fool, so that doesn't tell the full story.  Some of us have higher Avvo ratings, but that just means you haven't figured out how to put inconsequential nonsense into your profile to fool the algorithm. 

In some jurisdictions, lawyers aren't allowed to practice under a trade name.  Those old men just don't get it. They are branding idiots, determined to make life miserable for anyone with a flair for the cool and enticing.  They wouldn't know cutting edge if it bit them in the butt. 

But even such archaic rules can be played. After all, hasn't Morrison Foerster become MoFo? 

Worse still, if you've got the terrible misfortune of having an Anglo name like Smith, following in the footsteps of your father and grandfather, the naming options will kill you. Smith, Smith, Jones & Smith?  You've got to be kidding. Google is going to slaughter you. Page 37 at best, and nobody will ever know you exist on the web.

At this point, you probably wonder how someone like me, avant-garde and all, plans to rebrand himself to take advantage of this vital and cutting edge marketing concept.  While I've considered some of my options, like Curmudgeon Law, Scott "If you have to ask, you can't afford me" Greenfield and The Law Office of the Guy Who Writes Simple Justice, they've gotten a lukewarm reception.  Apparently, my knowledge of the concept of branding is far better than my execution.  I am so ashamed.

But just because I suck at branding doesn't mean you will. Go for it. Remake yourself into something far, far cooler than you are. One fanciful name will do the trick, and the next thing you know, you'll be rolling in dough.  Brand, baby, brand!

If it works for laundry detergent, you know it will work for you.

 

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/13/ilawyer.aspx?ref=rss

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The Lost Art of the Online Discussion

For many years, we used email and listservs for private and public discussions. Today, the last thing we want to do is add a high-volume email list to our overloaded email inboxes. Yet, we still have the need for discussions of all kinds. What are good ways to have discussions using technology today? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss today’s options for discussions, how to select the right forum for discussions, and whether we can improve the quality of the discussions we have with others.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/07/the-lost-art-of-the-online-discussion/

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Claims College for Litigation Managers

The Claims and Litigation Management Alliance (CLM) is a national organization with over 20,000 members in the claims and litigation management profession. In 2013, CLM will launch the first national resource for continuing education called Claims College. On this Ringler Radio podcast, host Larry Cohen hears from guest, Adam Potter, Executive Director for CLM about Claims College, the faculty of senior level industry leaders and curriculum for Claims Management, Professional Lines and Workers' Compensation.

Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/claims-college-for-litigation-managers/

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Dear Diary: Prosecutors Discouraged My Testimony

That little diary key might have kept out your younger brother, but not the federal government.

Source: http://blogs.wsj.com/law/2012/12/13/dear-diary-prosecutors-discouraged-my-testimony/?mod=WSJBlog

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Defending Big Data

On this October edition of Law Technology Now, host Monica Bay, editor-in-chief of ALM’s Law Technology News, chats with Mark Melodia, partner at Reed Smith and Antony Kim, a partner at Orrick, to discuss the Law Technology News October cover story, Defending Big Data.

Source: http://legaltalknetwork.com/podcasts/law-technology-now/2012/10/defending-big-data/

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Will Lawyers Always Be Late Adopters?

Lawyers are known as notorious late adopters of technology. Is that a fair characterization? Of course it is. What makes lawyers so cautious about new technologies? Will lawyers always be late adopters? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss some recent experiences that have reinforced the idea that lawyers are late adopters, the reasons people do and do not adopt new technologies, and practical ways for lawyers to think about moving to new technologies.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/10/will-lawyers-always-be-late-adopters/

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Content Marketing for Lawyers

If you want to market your practice by leveraging your expertise, content marketing may be your answer. Jared Correia, the host of The Legal Toolkit and Senior Law Practice Advisor with Mass. LOMAP, interviews Gyi Tsakalakis, the director of web marketing for AttorneySync, to get the skinny. Jared and Gyi discuss different types of content marketing and distribution platforms, the efficacy of paywalls and the skill set lawyers need to become effective content marketers.

Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/08/content-marketing-for-lawyers/

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Lawyer gets reprimand for flawed lawsuit

The Virginia State Bar has reprimanded a Martinsville lawyer for filing a lawsuit the judge called “dead on arrival.”

William Swezey sued three people on behalf of a veterinarian who was angered by allegations against him at a hearing on his professional license. The lawsuit claimed the witnesses at the hearing conspired to lie and injure the veterinarian’s business.

Swezey’s suit never made it past the pleadings. As witnesses at a quasi-judicial hearing, the defendants all were protected by absolute immunity, the court ruled. The court imposed more than $30,000 in sanctions against Swezey and the veterinarian, finding Swezey persisted in the untenable claims despite ample warning about the merits of his case.

Swezey’s action resembled a “spite suit,” said Judge Clifford Weckstein in a 2010 opinion. “It appears to be part of a multi-front campaign to punish the defendants for engaging in protected speech,” Weckstein wrote.

Part of Weckstein’s sanction required Swezey to take six hours of continuing legal education on ethics.

Now, Swezey gets a public reprimand from the bar as an additional penalty for his misguided litigation.

Source: http://valawyersweekly.com/vlwblog/2012/12/10/lawyer-gets-reprimand-for-flawed-lawsuit/

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The BP Oil Spill Case and Large Volume E-Discovery

How do you efficiently handle large volume e-discovery in a high-profile case? Digital Detectives co-hosts, Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc., and John W. Simek, Vice President of Sensei Enterprises, get expert advice from Joe Mulenex, the Regional Technical Director for Avansic, who assisted the discovery team for the Plaintiffs Steering Committee in the BP Oil Spill case. Joe discusses the biggest challenges of handling documents and the importance of project management. He also shares his biggest e-discovery take away from this case.

Source: http://legaltalknetwork.com/podcasts/digital-detectives/2012/05/the-bp-oil-spill-case-and-large-volume-e-discovery/

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NLRB: Firing for Facebook posting was legal

Let the NLRB's press release tell the story:

The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]

The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.

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Source: http://www.lawmemo.com/blog/2012/10/nlrb_firing_for.html

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Goodlatte names two to Judiciary staff

Two members of the staff of Rep. Bob Goodlatte, R-6th – both lawyers – have been selected for his senior staff for the House Judiciary Committee where Goodlatte will take office as chairman.

Shelley Husband will serve as chief of staff and Branden Ritchie will become deputy chief of staff and chief counsel, according to Goodlatte’s office.

Husband has been Goodlatte’s chief of staff in his personal office. Ritche has been legislative director and counsel.

“While they will be missed in my personal office, I know that their vast knowledge and expertise make them perfectly suited to lead the Judiciary Committee in the new Congress,” Goodlatte said in a news release.

Source: http://valawyersweekly.com/vlwblog/2012/12/07/goodlatte-names-two-to-judiciary-staff/

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Delaware Chancery Court Rejects Stockholder's Section 220 Books and Records Demand Based Upon Failure to Demonstrate "Credible Basis" for Inspection

In Louisiana Municipal Police Employees’ Retirement System v. Lennar Corp., C.A. No. 7314-VCG, 2012 WL 4760881 (Del. Ch. Oct. 5, 2012), the Delaware Court of Chancery, on a motion for summary judgment, rejected a stockholder’s demand under Section 220 of the Delaware General Corporation Law (“Section 220”).  Section 220 provides that a stockholder in a Delaware corporation may, under certain conditions, request and cause the corporation to make available for inspection certain books and records, provided the demand has a proper purpose and some credible basis exists for suspecting mismanagement, waste, or wrongdoing.  In this instance, although the court found the purpose of the demand — investigation of the corporation’s compliance with labor law — to be proper, it held that the evidence presented did not amount to a credible showing that legitimate issues of mismanagement existed to warrant an investigation.

The facts in the case were not in dispute. In September 2011, a news article reported that the U.S. Department of Labor was investigating several of the nation’s largest home builders, including Lennar Corp. (“Lennar”), to enforce compliance with the Fair Labor Standards Act (“FLSA”). Nine days later, a follow-up article reported that state-level agencies and the IRS had joined the investigation. Shortly thereafter, plaintiff Louisiana Municipal Police Employees’ Retirement System sent a Section 220 demand letter to Lennar seeking board minutes and other documents related to Lennar’s compliance with state and federal labor laws, tax and immigration laws, citing the recent news articles. Lennar rejected the demand, claiming that plaintiff had no credible basis for believing there had been wrongdoing by Lennar.

In response to the rejection, plaintiff filed an action to obtain the requested books and records. In its lawsuit, plaintiff relied on the news articles it had cited in its demand letter and on a series of eight settled lawsuits brought by Lennar employees against Lennar between 2007 and early 2009 alleging FLSA violations. Lennar moved for summary judgment, contending that plaintiff’s evidence was insufficient as a matter of law to support a Section 220 demand.

The Chancery Court first considered whether plaintiff’s stated purpose for the demand was proper. The court noted that Delaware law recognizes that an investigation of corporate mismanagement, waste or wrongdoing is a proper purpose provided the issues investigated affect the stockholder’s interest as a stockholder, and thereby permit the stockholder to seek a remedy. Based upon this standard, plaintiff agreed that it lacked standing to investigate any past wrongdoing that gave rise to the 2007-2009 FLSA suits, and that it sought to investigate only ongoing mismanagement relating to labor law compliance. The court determined that plaintiff stated a proper purpose.

The court next considered whether a credible basis existed to believe mismanagement was in fact occurring to warrant a Section 220 inspection. The court remarked that absent some required showing, Section 220 inspections would occur upon mere suspicion, indiscriminately exposing corporations to constant fishing expeditions and draining corporate resources. At the same time, under a “credible basis” standard, a stockholder need not prove actual wrongdoing occurred, but must only show legitimate mismanagement issues exist. The court noted that this standard is so low that to lower it more would remove the requirement of coming forward with evidence altogether.

Nevertheless, the court concluded that the evidence plaintiff presented failed to clear even this low hurdle. It found that the past FLSA lawsuits as proof of present wrongdoing required an improper, speculative inference, and thus lacked probative value. Specifically, the last of the lawsuits was brought in early 2009, more than two years earlier. All of the lawsuits settled without an admission of wrongdoing. Furthermore, plaintiff offered no proof that the number of FLSA lawsuits — eight — represented a disproportionally high or unusual number for a company of Lennar’s size. Plaintiff itself did not rely on the suits in its demand letter.

The court also discounted the evidentiary value of the newspaper articles. While a newspaper article reporting on possible wrongdoing could meet the “credible basis” test (at least where there is some corroborating evidence), the articles here did not identify any actual mismanagement. The articles mentioned only the existence of the investigation and named Lennar as one of the companies being investigated. As the court put it, the articles provided “no reportorial suggestion, based on investigation, that Lennar is engaged in wrongdoing.”

Lastly, the court considered whether the past lawsuits and the newspaper articles taken together supplied a credible basis of misconduct justifying a Section 220 inspection. It concluded that, because the probative value of each item was so negligible, combining them could make no difference, and granted summary judgment.

This case confirms that the Delaware Court of Chancery, while continuing to endorse the use of Section 220 to investigate claims before stockholders file suit on behalf of the corporation, will nevertheless insist that stockholders meet the low evidentiary showing required to justify imposing Section 220’s books and records inspection burden on the corporation.

For further information, please contact John Stigi at (310) 228-3717 or John Landry at (213) 617-5561.

Source:
http://www.corporatesecuritieslawblog.com/securities-litigation-delaware-chancery-court-rejects-stockholders-section-220-books-and-records-demand-based-upon-failure-to-demonstrate-credible-basis-for-inspection.html

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You Really Think You're The Right Person To Teach This Girl How To Drive?

It's really not that hard to teach someone how to drive. Of course, there is the requirement that you, the teacher, be legally permitted to drive! As reported by timesonline.com (Beaver, PA):

Monaca police said [Bobbie Jo] Gacesa [age 36] was teaching a girl, whose age and identity were not released, how to drive in Gacesa’s minivan on Oct. 26, and as the girl approached Building 2 at Spring Run Apartments, her foot slipped off the brake and onto the gas pedal. The van jumped the curb and struck the building.

Police said the van damaged a metal railing, bent the door jamb at Apartment 207 and broke the building away from the foundation. No injuries were reported.

Doh! Well, even new driver's with learner's permits need ... wait, what's that?

Gacesa, who later admitted to police that she knew the teen did not have a valid driver’s permit or license, got behind the wheel and drove to Building 7 of the complex, where she lives. According to the police report, Gacesa made no effort to contact authorities about the accident, but a witness saw the incident and called police.

How was Ms. Gacesa caught?

Officers said they were able to follow a fresh trail of vehicle fluid right to Gacesa’s van. They said the vehicle’s engine still was warm, there was front-end damage and they could see fluids leaking.

Um. Er. Uh.

When officers checked the license plate on the minivan, they discovered it was registered to someone other than Gacesa. When they spoke with Gacesa, police said she admitted the license plate did not belong to her vehicle and that she does not have insurance.

Sorry?

Officers also discovered Gacesa’s license was expired and had been suspended as a result of a previous drunken-driving conviction. Her vehicle registration and inspection sticker also were expired, according to the police report.

Really sorry? The charges against Ms. Gacesa?

... being involved in an accident resulting in property damage, driving while under license suspension, driving without insurance, driving without registration, license plate fraud and driving without a valid inspection sticker.

Yikes! Here's the source.

Source: http://rss.justia.com/~r/LegalJuiceCom/~3/_910V07C5EA/you_really_think_youre_the_rig_1.html

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The Surefire Way to End Online Piracy: End Copyright

Dr. Dean Baker, co-director of the Center for Economic and Policy Research in Washington, D.C., discusses his recent article in the Huffington Post, "The Surefire Way to End Online Piracy: End Copyright." Read more about Dr. Baker at http://bit.ly/c6VVJo.

Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/01/the-surefire-way-to-end-online-piracy-end-copyright/

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The Last Word

The United States House of Representatives voted 398 to 1, with 36 congressmen unable to find their way to the chamber, to eliminate a word.  The single nay vote came not from disagreement in substance, but focus.

The lone “no” vote was cast by Representative Louie Gohmert, Republican of Texas, who said in a statement that “not only should we not eliminate the word ‘lunatic’ from federal law when the most pressing issue of the day is saving our country from bankruptcy, we should use the word to describe the people who want to continue with business as usual in Washington.”

Yes, the word "lunatic" has been stricken from the laws of the United States of America, the Senate having approved the measure last May. No longer is anyone in America a federal lunatic. Your state may vary.

This comes on the heels of the eradication of the phrase "mental retardation," eliminated two years ago because of its hurtful connotation, where school boys called each other "retard" and neo-conservative media personalities figured out the if you replaced "re" with "lib," they could get a belly laugh out of their followers.  At the same time, 58% of Republicans believe that man was created by God less than 10,000 years ago, when they walked the earth alongside dinosaurs.

Given the meaning and derivation of the word "lunatic," that people would suffer transitory insanity based on movement of the moon, it's just as well that it's gone. But the meaning of mental retardation, that a person's intelligence, based upon IQ, was below a score of 70, is more of a problem. A medical phrase was eliminated because it was abused by jerks and turned into an epithet. When this happened, there were two options. The first was to speak out and return it to its original meaning. The second was to make it disappear.  The first required people to think. The second did not.  The second prevailed.

A while back, there was a huge dispute, a very angry dispute, about the word "niggardly." On the one hand, reasonably well-educated folks understood its meaning to be "cheap" or "miserly."  On the other, it was just too damn close to a hated word to ignore. David Howard, D.C.'s head of the Office of Public Advocate, was forced to resign for using this "racist" word, not because it was racist but because people felt it was. It had no connection whatsoever with the racial slur, but so what? It's gone.

As lawyer and blawger, I use a lot of words. They are useful to convey the correct meaning whenever possible, in the hope that readers or listeners will get the message that I am trying to send. Each day, it gets more difficult to accomplish.

Political correctness has caused us to eliminate words from our lexicon that hurt people's feelings or have taken on disparaging meanings or connotations. In the process of eradicating "hate speech" from the language, we ignore definitions in favor of how words make us feel. But it hasn't stopped at the edge of hurtfulness. It's dribbled over to positive characterizations, empowering people to ascribe attributes and credibility to themselves at will.

In a recent exchange, a marketer argued his "belief" about why he was a professional.  His argument was that he felt entitled to do so, and at no time did a definition of the word come into play. 

There have been similar arguments about one of our favorite words, "justice," a word of such vague meaning that we can all embrace it, own it, define it to support whatever we believe.

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

—Through the Looking Glass, Lewis Carrol (Charles Lutwidge Dodgson)

We cannot communicate with each other if each of us is a Humpty Dumpty to ourselves. The problem is not solved by the elimination of words because they cause some people to feel badly, especially when the feeling bears no actual connection to the word. As we eliminate hurtful words, a new word will be adapted to its use, as we still need words to denigrate each other. Then that word will be eradicated from the lexicon as well. 

Some people think that we can achieve an Orwellian Utopia by only having happy, supportive words, and thereby end that branch of language that can be used to hurt people's feelings or express ideas that some believe should never be expressed. My guess is that will never happen, even if you think it's a good idea.

What may well happen in the process, however, is that the sharp edges of definition will be dulled and rounded, so that the precision of words gives way to an amorphous mass of nice-sounding utterances that are interpreted by each of us in whatever way suits our desires and beliefs.  We will be able to talk among ourselves and agree or disagree without every having the slightest clue if we are talking about the same thing or making any headway in explaining our position.

There doesn't appear to be any harm in the elimination of the word "lunatic" from the United States Code. It was probably a poor choice of words in the first place, reflective of common usage rather than definition.  If it were up to me, however, the word "justice" would also be on the chopping block, as it's one of the most hurtful words around to the wrongly convicted. 

Yes, you know exactly what justice means.  You and Humpty Dumpty.  You lunatic.

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/09/the-last-word.aspx?ref=rss

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The Impact of BU Law’s LL.M. Programs

BU Law has offered a post-graduate legal education leading to the Master of Laws degree for more than 125 years. In this BU Law podcast, host David Yas, a BU Law alum, former publisher of Massachusetts Lawyers Weekly and a V.P. at Bernstein Global Wealth, welcomes John N. Riccardi, BU Law’s assistant dean for Graduate and International Programs and director of the Office of Graduate and International Programs, to take a look at the School’s graduate programs for international lawyers. Later in the program, David is joined by former student Johan S. Ellefsen, who talks about his experience with the LL.M. program and where he is today.

Source: http://legaltalknetwork.com/podcasts/boston-university-school-of-law/2012/03/the-impact-of-bu-laws-ll-m-programs/

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Cost-Effective Law Practice Management

As law firms slowly climb out of this recession, have their legal practice management skills changed? Lawyer2Lawyer co-host and attorney J. Craig Williams welcomes Rudy Bazelmans, Regional Director of Expense Reduction Analysts and Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, to explain the current state of the legal industry, new law practice management skills, what attorneys have done to cut costs and how to keep costs down in the future.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/cost-effective-law-practice-management/

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Choosing a Law Firm Entity Structure

On this October edition of The Legal Toolkit, Jared Correia, Senior Law Practice Advisor with Mass. LOMAP, joins Chiara LaPlume, principal of LaPlume Law, LLC and Sofia Lingos, principal of Lingos Law, to address entity choice for lawyers and law firms. Chiara and Sofia run down the options for law firms and solo lawyers (including d/b/a’s and limited liability entities), talk about why it’s essential to have a partnership agreement and relay why it may useful for an attorney to hire another lawyer to help them get incorporated.

Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/10/choosing-a-law-firm-entity-structure/

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Navigating the SEC's Recent Conflict Minerals Rules: Threading the Needle Through Complex Controls and Procedures and Complying with New Disclosure Requirements

On August 22, 2012, the SEC adopted its final rule related to conflict minerals required by Congress under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), which will require all public companies to implement complex new controls and procedural mechanisms, and in certain cases, conduct supply chain due diligence that could lead to new public disclosures.

Overview

Section 1502 under Dodd-Frank was enacted because of concerns that the exploitation and trade of conflict minerals by armed groups is helping to finance conflict in the Democratic Republic of the Congo (“DRC”) and adjoining countries and is contributing to a humanitarian crisis.

The final rules require all SEC-reporting companies [1] to perform the following three-step analytical process:

• determine whether conflict minerals are necessary to the functionality or production of a product manufactured or contracted to be manufactured by the company;
• if so, conduct a reasonable country of origin inquiry to determine if the company knows or has reason to believe that such minerals may have originated from the DRC or an adjoining country and are not from scrap or recycled sources, and, if as a result of such inquiry, (i) the company determines that the necessary conflict minerals did not originate in a covered country, or has no reason to believe that its necessary conflict minerals may have originated in a covered country, or (ii) determines or reasonably believes that the necessary conflict minerals came from recycled or scrap sources, the company must disclose, on its publicly available Internet website and in a Form SD report (described more fully below) to be filed not later than May 31 of the following calendar year, its determination and briefly describe the reasonable country of origin inquiry it undertook in making its determination and the results of the inquiry it performed; and
• if, as a result of step two above, the company determines (or has reason to believe) that such minerals may have originated from the DRC or an adjoining country and are not from scrap or recycled sources, conduct supply chain due diligence and prepare and file a conflict minerals report (described more fully below) as an exhibit to a Form SD report, which must include a report prepared by an independent private sector auditor that expresses an opinion or conclusion as to whether the design of the due diligence measures set forth in the conflict materials report is in conformity with, in all material respects, the criteria set forth in the due diligence framework used by the company, and whether the company’s description of the due diligence measures it performed is consistent with the due diligence process that the company undertook.

Reporting companies must comply with the rule for the calendar year beginning January 1, 2013, with the first reports due May 31, 2014.

In the adopting release, the SEC provided a flow chart summary of the applicable of the rule. That flow chart is attached hereto as Exhibit A.

What are conflict minerals?

Conflict minerals include: (1) tantalum (which is extracted from columbite-tantalite); (2) tin (which is extracted from cassiterite); and (3) tungsten (which is extracted from wolframite). In addition:

• Columbite-tantalite (also known as coltan) is the metal ore from which tantalum is extracted. Tantalum is used in electronic components, including mobile telephones, computers, videogame consoles, and digital cameras, and as an alloy for making carbide tools and jet engine components.
• Cassiterite is the metal ore that is most commonly used to produce tin. Tin is used in alloys, tin plating, and solders for joining pipes and electronic circuits.
• Gold is used for making jewelry and is used in electronic, communications, and aerospace equipment.
• Wolframite is the metal ore that is used to produce tungsten. Tungsten is used for metal wires, electrodes, and contacts in lighting, electronic, electrical, heating, and welding applications.

The definition of “conflict minerals” may be broadened in the future to include additional minerals or their derivatives that the Secretary of State determines are financing conflict in one or more of the “covered countries.”

The final rule exempts any conflict minerals that are “outside the supply chain” prior to January 31, 2013. Conflict minerals are considered outside the supply chain only in the following circumstances: (1) after any columbite-tantalite, cassiterite, and wolframite minerals have been smelted; (2) after gold has been fully refined; or (3) after any conflict mineral or its derivatives that have not been smelted or fully refined are located outside of the covered countries.

Based on the many uses of these minerals, the SEC has indicated that it expects the rule to apply to approximately 6,000 reporting companies.

What are the “covered countries”?

The covered countries consist of the Democratic Republic of the Congo (DRC) and each country that shares an internationally recognized border with the DRC, which presently includes Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia.

What companies are subject to the new rules?

The new rules apply to all SEC-reporting companies. [2]

There is no exception for companies whose products contain de minimis quantities of the conflict minerals. There is also no exception for smaller reporting companies, emerging growth companies or for foreign issuers (including foreign-private issuers).

What do “necessary to the functionality” and “necessary to the production” of a product mean?

The new rules do not define when a conflict mineral is "necessary to the functionality" of a product or when it is "necessary to the production" of a product. Instead, the SEC chose to provide guidance regarding the interpretation of these phrases. The adopting release noted that whether a conflict mineral is deemed "necessary to the functionality" or "necessary to the production" of a product depends on the company’s particular facts and circumstances, but there are certain factors the SEC believe companies should consider in making their determinations.

In determining whether a conflict mineral is “necessary to the functionality” of a product, the adopting release provides that a company should consider:

• whether the conflict mineral is contained in and intentionally added to the product or any component of the product and is not a naturally occurring by-product ; [3]
• whether the conflict mineral is necessary to the product’s generally expected function, use, or purpose [4]; or
• if the conflict mineral is incorporated for purposes of ornamentation, decoration or embellishment, whether the primary purpose of the product is ornamentation or decoration. [5]

Based on the applicable facts and circumstances, any of these factors, either individually or in the aggregate, may be determinative as to whether conflict minerals are "necessary to the functionality" of a given product.

In determining whether a conflict mineral is “necessary to the production” of a product, the adopting release provides that a company should consider:

• whether the conflict mineral is contained in the product and intentionally added in the product’s production process, including the production process of any component of the product; and
• whether the conflict mineral is necessary to produce the product

Must a conflict mineral be “contained in the product” in order for it to be necessary to the functionality or production of a product?

Yes, for a conflict mineral to be considered “necessary to the functionality” or “necessary to the production” of a product, the product must actually contain the conflict mineral. The adopting release notes, however, that the SEC does consider a conflict mineral used as a catalyst or in another manner in the production process of a product to be "necessary to the production" of the product if that conflict mineral otherwise is necessary to the production of the product and is contained in any amount, including trace amounts, in the product.

What does “manufactured” mean?

The final rule does not define the term "manufacture." The SEC chose not to define the term because it believes that the term is generally understood. The adopting release, however, does offer some guidance as to what the SEC believes is intended to be covered by the term:

• a company that only services, maintains, or repairs a product containing conflict minerals would not be considered to be "manufacturing" a product;
• a company that manufactures a product by assembling that product out of materials, substances, or components that are not in raw material form (such as certain auto and electronics manufacturers), would be considered to be “manufacturing” a product;
• a company that imports, exports, or sells conflict minerals would not be considered to be “manufacturing” a product; and
• a company that mines conflict minerals would not be considered to be manufacturing those conflict minerals.

What does “contracted to be manufactured” mean?

The adopting release indicates that “contract to manufacture” is intended to include companies that have some actual influence over the manufacturing of their products. This determination is to be made based upon all the facts and circumstances, taking into account the “degree of influence” the company exercises over the materials, parts, ingredients, or components to be included in any product that contains conflict minerals or their derivatives.

The adopting release notes that a company will not be considered to “contract to manufacture” a product if its actions involve no more than:

• specifying or negotiating contractual terms with a manufacturer that do not directly relate to the manufacturing of the product, such as training or technical support, price, insurance, indemnity, intellectual property rights, dispute resolution, or other like terms or conditions concerning the product, unless the company specifies or negotiates taking these actions so as to exercise a degree of influence over the manufacturing of the product that is practically equivalent to contracting on terms that directly relate to the manufacturing of the product;
• affixing its brand, marks, logo or label to a generic product manufactured by a third party; or
• servicing, maintaining, or repairing a product manufactured by a third party.

In adopting the “actual influence” standard, the SEC rejected both the “any influence” standard of the proposed rules, and the “substantial influence” standard suggested by some of the commentators to the proposed rules.

The adopting release indicates, by way of example, that a service provider that specifies to a manufacturer that a cell phone it will purchase from that manufacturer to sell at retail must be able to function on a certain network does not in-and-of-itself exert sufficient influence to “contract to manufacture” the phone for purposes of the final rule. On the other hand, a company that specifies the use of a particular conflict mineral in a product manufactured for it does “contract to manufacture” such product for purposes of the final rule even if it does not exhibit substantial influence or control over the manufacturing of the product. The SEC notes that the converse is not true – a company does not avoid “contracting to manufacture” by avoiding to explicitly specify that conflict minerals be included in their products.

What if a company determines that conflict minerals are necessary to the functionality or production of a product manufactured or contracted to be manufactured by the company?

If a company makes the above determination, the company must then move to step two of the process and determine whether those conflict minerals originated in one of the covered countries or are from recycled or scrap resources by conducting a “reasonable country of origin inquiry.”

What steps satisfy the “reasonable country of origin inquiry”?

The final rule does not specify what steps and outcomes are necessary to satisfy the reasonable country of origin inquiry requirement because, according to the adopting release, such a determination depends on each company’s particular facts and circumstances. A reasonable country of origin inquiry can differ from company to company based on the company’s size, products, relationships with suppliers, or other factors.

Are there general standards a company should follow in performing the reasonable country of origin inquiry?

Yes, the inquiry must be (1) performed in good faith and (2) reasonably designed to determine whether the company’s conflict minerals originated in the covered countries or came from recycled or scrap sources.

The reasonable country of origin inquiry standard does not require a company to determine to a certainty that all its conflict minerals did not originate in the covered countries. Instead, and contrary to what the SEC had proposed in the proposed rules, under the final rules, if (i) a company determines that, based on its reasonable country of origin inquiry, its necessary conflict minerals did not originate in the covered countries or did come from recycled or scrap sources, or (ii) based on its reasonable country of origin inquiry, the company has no reason to believe that its conflict minerals may have originated in the covered countries or the company reasonably believes that its conflict minerals are from recycled or scrap sources, the company is not required to move to the third step of the process (described below). Instead, the company must disclose, on its publicly available Internet website and in a Form SD report to be filed not later than May 31 of the following calendar year, its determination with a brief description of the reasonable country of origin inquiry it undertook in making its determination and the results of the inquiry it performed. If the company cannot make this determination, it is required to move to step 3 of the process (described below).

Moreover, in the adopting release, the SEC notes that a company conducting an appropriate inquiry may not be able to determine to a certainty the origin of all its conflict minerals or whether they came from recycled or scrap sources. The SEC also states that a certainty is not required to satisfy the inquiry standard, and that companies may explicitly state that, if true, their reasonable country of origin inquiry was performed in good faith and reasonably designed to determine whether the conflict minerals originated in the covered countries or came from recycled or scrap sources.

Did the SEC provide any examples of methods to satisfy the required reasonable country of origin inquiry?

Yes, in the adopting release the SEC states that the inquiry would be satisfied if a company seeks and obtains reasonably reliable representations indicating the facility at which its necessary conflict minerals were processed and demonstrating that those conflict minerals did not originate in the covered countries or came from recycled or scrap sources. These representations could come either directly from that facility or indirectly through the company’s immediate suppliers, but the company must have reason to believe these representations are true given the facts and circumstances surrounding those representations. A company must also take into account any applicable warning signs or other circumstances indicating that its conflict minerals may have originated in the covered countries or did not come from recycled or scrap sources.

A company would have reason to believe representations were true if a processing facility received a “conflict-free” designation by a recognized industry group that requires an independent private sector audit of the smelter, or an individual processing facility, while it may not be part of the industry group’s “conflict-free” designation process, obtained an independent private sector audit that is made publicly available. A company’s policies with respect to the sourcing of conflict minerals will generally form a part of the company’s reasonable country of origin inquiry, and therefore would generally be required to be disclosed in the company’s Form SD.

Is a company required to obtain representations from all of its suppliers?

No. The adopting release states that a company may conclude that its conflict minerals did not originate in the covered countries, even though it does not receive representations from all of its suppliers, so long as it does not ignore warning signs or other circumstances indicating that the remaining amount of its conflict minerals originated or may have originated in the covered countries.

What if a company determines that, following its reasonable country of origin inquiry, (1) its conflict minerals did not originate in the covered countries or came from recycled or scrap sources or (2) has no reason to believe that its necessary conflict minerals originated in the covered countries or did not come from recycled or scrap sources?

If the company makes the above determination, the company must, not later than May 31 of the following calendar year, in the body of its Form SD under a separate heading entitled “Conflict Minerals Disclosure,” (1) disclose its determination and briefly describe the reasonable country of origin inquiry it undertook in making its determination and the results of the inquiry it performed and (2) provide a link to its Internet website where that disclosure is also publicly available.

In explaining its decision to require companies to provide a brief description of the reasonable country of origin inquiry they undertook and the results, the SEC states in the adopting release that requiring such disclosure is intended to (a) enable stakeholders to assess the company’s reasonable country of origin inquiry and its efforts in carrying out that inquiry and (b) allow stakeholders to form their own views on the reasonableness of the company’s efforts. Based on this information, stakeholders could advocate for different processes for individual companies if they believe it is necessary. The SEC also notes that the reasonable country of origin inquiry processes are expected to change over time based both on improved supply chain visibility and the results of a company’s prior year inquiry. Requiring a company to provide a brief description of the results of its inquiry, therefore, will allow stakeholders to track that progress and advocate for different procedures if they think it is necessary.

Is a company required to maintain reviewable business records supporting its conclusion that its conflict minerals did not originate in the covered countries based on its reasonable country of origin inquiry?

No, the SEC decided not to adopt this requirement. However, the SEC did note in the adopting release that maintenance of appropriate records may be useful in demonstrating compliance with the rule, and may be required by any nationally or internationally recognized due diligence framework applied by a company.

What if a company, following its reasonable country of origin inquiry, knows that any of its necessary conflict minerals originated in the covered countries and are not from recycled or scrap sources, or has reason to believe that its necessary conflict minerals originated in the covered countries and has reason to believe that they are not from recycled or scrap sources?

The company must move to the third step of the process and (i) conduct a due diligence investigation of the source and chain of custody of its conflict mineral, (ii) prepare a conflict mineral report, and (iii) have such conflict mineral report reviewed by an independent private sector auditor.

What due diligence is required?

A company’s due diligence must conform to a nationally or internationally recognized due diligence framework, if such a framework is available for the conflict mineral. The final rule does not mandate that a company use any particular nationally or internationally recognized due diligence framework. However, to satisfy the requirements of the final rule, the nationally or internationally recognized due diligence framework must have been established by a body or group that has followed due-process procedures, including the broad distribution of the framework for public comment, and be consistent with the criteria standards in GAGAS established by the GAO. In the adopting release, the SEC stated that the "Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas" published by the Organisation for Economic Co-operation and Development (OECD) satisfies the SEC’s criteria and may be used as a framework for purposes of satisfying the final rule’s requirement. [6]

A number of commentators recommended that the final rule allow a company to rely on reasonable representations from suppliers and/or smelters in satisfying their due diligence requirement. In the adopting release, the SEC stated that whether a company may rely on reasonable representations from suppliers and/or smelters in satisfying its due diligence requirement will depend on the nationally or internationally recognized due diligence framework.

A company is also required to use a recognized due diligence framework with respect to recycled or scrap conflict minerals. The SEC is not aware of a framework for recycled or scrap conflict minerals other than for gold. [7]

If a nationally or internationally recognized due diligence framework does not exist for a necessary conflict mineral, until such a framework is developed, the company is required to exercise appropriate due diligence in determining the source and chain of custody of the necessary conflict mineral, including whether the conflict mineral is from recycled or scrap sources, without the benefit of a due diligence framework.

What must a company do if, after the exercise of due diligence, it determines that its conflict minerals originated in the covered countries and did not come from recycled or scrap sources or has reason to believe that its minerals originated in the covered countries and did not come from recycled or scrap sources?

The company must file a conflict minerals report as an exhibit to its Form SD, which must be filed by May 31 of each calendar year, and provide that report on its website and, under the heading in its Form SD entitled “Conflict Minerals Disclosure,” disclose that the company has filed a conflict mineral report and provide a link to its website. The conflict mineral report must be accompanied by an independent private sector auditors report (as described below).

On the other hand, if the company determines that its conflict minerals either did not originate in the covered countries or did come from recycled or scrap sources (or the company has no reason to believe that the conflict minerals originated from the covered country or did not come from recycled or scrap sources), a conflict minerals report is not required. However, the company must disclose its determination and briefly describe, in the body of its Form SD under a separate heading entitled “Conflict Minerals Disclosure,” the reasonable country of origin inquiry and the due diligence efforts it undertook in making its determination and the results of the inquiry and due diligence efforts it performed. In addition, the company must disclose this information on its website and provide a link to that website under the heading in its Form SD entitled “Conflict Minerals Disclosure.” The Form SD and website disclosure is required by May 31 of each calendar year.

What is required to be included in the conflict minerals report?

The conflict minerals report must include:

• a description of the measures the company has taken to exercise due diligence on the source and chain of custody of those conflict minerals; a copy of a report prepared by an independent private sector auditor that expresses an opinion or conclusion as to whether the design of the due diligence measures as set forth in the conflict minerals report is in conformity with, in all material respects, the criteria set forth in the due diligence framework used by the company, and whether the company’s description of the due diligence measures it performed is consistent with the due diligence process that the company undertook;
• if the company manufactures products or contracts for products to be manufactured that have not been found to be “DRC conflict free,” the company must provide (1) a description of those products, (2) the facilities used to process the necessary conflict minerals in those products [8], (3) the country of origin of the necessary conflict minerals in those products, and (4) the efforts to determine the mine or location of origin with the greatest possible specificity; and
• if the company manufactures products or contracts for products to be manufactured that are “DRC conflict undeterminable,” the company may avail itself of a transition period but still must provide (1) a description of those products, (2) the facilities used to process the necessary conflict minerals in those products, if known, (3) the country of origin of the necessary conflict minerals in those products, if known (4) the efforts to determine the mine or location of origin with the greatest possible specificity, if applicable and (5) the steps it has taken or will take, if any, since the end of the period covered in its most recent prior conflict minerals report to mitigate the risk that its necessary conflict minerals benefit armed groups, including any steps to improve its due diligence. The transition period is two years for all reporting companies and four years for smaller reporting companies. During the transition period, reporting companies will temporarily not be required to obtain an independent private sector audit of their conflict minerals report with respect to those minerals that are “DRC conflict undeterminable”.

What does “DRC conflict free” mean?

Products are “DRC conflict free” if they (1) do not contain conflict minerals that originate in the covered countries, (2) contain conflict minerals obtained from recycled or scrap sources or (3) do not contain necessary conflict minerals that directly or indirectly financed or benefited “armed groups” in the covered countries. “Armed groups” are defined as groups identified as perpetrators of serious human rights abuses in annual Country Reports on Human Rights Practices under sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961 relating to the covered countries.

What does “DRC conflict undeterminable” mean?

If a company is unable to determine that its conflict minerals did not originate in the covered countries, that its conflict minerals that originated in the covered countries did not directly or indirectly finance or benefit armed groups, or that its conflict minerals came from recycled or scrap sources, the company may refer to such products containing those conflict minerals as "DRC conflict undeterminable."

Can a company’s independent public accounting firm that audits the company’s financial statements perform the independent private sector audit?

Yes, in the adopting release the SEC states that it does not believe that it would be inconsistent with the independence requirements in Rule 2-01 of Regulation S-X if a company’s independent public accountant also performs the independent private sector audit of the conflict minerals report.

According to the adopting release, the entities performing the independent private sector audit of the conflict minerals report must comply with any independence standards established by the GAO, but that the SEC is not adopting any additional independence requirements.

The adopting release also points out that the engagement to perform the independent private sector audit of the conflict minerals report would nevertheless be considered a “non-audit service” subject to the pre-approval requirements of Rule 2-01(c)(7) of Regulation S-X. In addition, the fees related to the independent private sector audit of the conflict minerals report would need to be included in the “All Other Fees” category of the principal accountant fee disclosures required by Item 9 of Schedule 14A and that companies are required to describe the nature of the services comprising the fees disclosed under the "All Other Fees" category. If the accountant were to provide services that extended beyond the scope of the independent private sector audit of the conflict minerals report, the accountant would need to consider whether those services were inconsistent with Rule 2-01 of Regulation S-X.

What is the objective of the independent private sector audit?

The final rule does not require an audit of the entire conflict minerals report, but instead the final rule states that the audit’s objective is to express an opinion or conclusion as to whether the design of the company’s due diligence framework as set forth in the conflict minerals report, with respect to the period covered by the report, is in conformity with, in all material respects, the criteria set forth in the nationally or internationally recognized due diligence framework used by the company, and whether the company’s description of the due diligence measures it performed as set forth in the conflict minerals report, with respect to the period covered by the report, is consistent with the due diligence process that the company undertook.

In the adopting release, the SEC notes that the audit objective adopted for the conflict minerals report differs significantly from the objectives of other audits required by SEC rules, but that in light of the statutory structure, as well as concerns about the costs that could arise from a requirement to audit the conclusion about the conflict minerals’ status or take other approaches, the SEC concluded that the audit objective should be limited in manner set forth in the final rules.

For how long is the "undeterminable" reporting alternative permitted?

The transition period covers the first two reporting cycles (or for the Form SD to be filed in 2013 and 2014) for all companies other than smaller reporting companies. The transition period covers the first four reporting cycles (or the Form SD to be filed in 2013 through 2016) for smaller reporting companies.

Beginning with the third reporting period (the Form SD to be filed in 2015) for all companies and the fifth reporting period (the Form SD to be filed in 2017), for smaller reporting companies, every such company will have to describe products in its conflict minerals report as having "not been found to be DRC conflict free." [9] Also, companies will be required to make such a disclosure even if they are unable to determine that their conflict minerals did not originate in the covered countries, that their conflict minerals that originated in the covered countries did not directly or indirectly finance or benefit armed groups, or that their conflict minerals came from recycled or scrap sources. These companies will also be required to provide an independent private sector audit of their conflict minerals report.

Further, companies can add disclosure or clarification to include the statutory definition of "DRC conflict free" in the disclosure to make clear that "DRC conflict free" has a very specific meaning, or to otherwise address their particular situation. For example, the adopting release provides the following two sample Form SD disclosures:

"The following is a description of our products that have not been found to be "DRC conflict free" (where ‘DRC conflict free’ is defined under the federal securities laws to mean that a product does not contain conflict minerals necessary to the functionality or production of that product that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country)."

For a company that is still unable to determine the origin of some of its conflict minerals after the two-year or four-year transition period referred to above, the SEC suggested that it might state in its Form SD: "We have been unable to determine the origins of some of our conflict minerals. Because we cannot determine the origins of the minerals, we are not able to state that products containing such minerals do not contain conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country. Therefore, under the federal securities laws we must describe the products containing such minerals as having not been found to be ‘DRC conflict free.’ Those products are listed below."

What are recycled or scrap sources?

The final rule specifies that conflict minerals are considered to be from recycled or scrap sources if they are from reclaimed end-user or post-consumer products or from scrap processed metals created during product manufacturing. For this purpose, recycled metal includes excess, obsolete, defective and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of tin, tantalum, tungsten or gold. Minerals partially processed, unprocessed or arise as by-products from another ore are not included in the definition of recycled metal.

When is the Form SD due?

A company’s Form SD is due by May 31 of each year and covers the preceding calendar year (as opposed to fiscal year). Accordingly, the first reporting period for all companies will be from January 1, 2013 to December 31, 2013, and the first Form SDs must be filed on or before May 31, 2014. According to the adopting release, the SEC elected to require disclosure regarding conflict minerals in a Form SD as opposed to in a company’s annual report so as not to interfere with the company’s preparation of its annual report and to reduce the strain on company resources that are focused on preparing a company’s annual report at a time when those resources are likely already to be operating near full capacity.

In addition, contrary to what was contained in the proposed rules, the final rule provides that a company must provide its required conflict minerals information for the calendar year in which the manufacture of a product that contains any conflict minerals is completed, irrespective of whether the company manufactures the product or contracts to have the product manufactured. According to the adopting release, tying the disclosure to when the manufacture of a product is completed will allow companies some flexibility in determining the reporting period. For example, if a company completes the manufacture of a product with conflict minerals necessary to the functionality or production of that product on December 30, 2018, the company must provide the Form SD regarding the conflict minerals in that product for the 2018 calendar year. However, if that company completes the manufacture of that same product on January 2, 2019, the company must provide the Form SD regarding the conflict minerals in that product for the 2019 calendar year.

Is there any relief when a company becomes subject to the new rules due to an acquisition?

Yes. Where a company acquires or otherwise obtains control over a company that manufactures or contracts to manufacture products with conflict minerals necessary to the functionality or production of those products that previously had not been obligated to provide conflict minerals information to the SEC, the new rules allow a company to delay the initial reporting period on the products manufactured by the acquired company until the first calendar year beginning no sooner than eight months after the effective date of the acquisition.

For how long is a company required to keep its conflict minerals information on its website?

A company must make its conflict minerals disclosure or its conflict minerals report available on its website for one year.

Is the Form SD filed or furnished? What is the potential disclosure liability for a reporting company?

The Form SD will be “filed” And therefore will be subject to liability under Section 18 of the Exchange Act. Section 18 of the Exchange Act creates liability for “[a]ny person who shall make or cause to be made any statement in any application, report, or document … which statement was at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable…” Section 18 provides for a private right of action to investors who can prove they were harmed by relying on the misstatement. Section 18, however, does not create strict liability for filed information and provides that a company will not be liable for misstatements in a filed document if it can establish that it “acted in good faith and had no knowledge that such statement was false or misleading.” The information provided on a Form SD report, including the conflict minerals report and the independent auditor’s reports, would not be deemed to be incorporated by reference into a reporting company’s filings under the Securities Act of 1933 unless it specifically elects to do so.

The SEC declined to follow the recommendations of some commentators that the new reports be “furnished” rather than “filed,” but by excluding the reports from 10-Ks, the CEO and CFO certification requirements applicable to 10-Ks do not apply to the Form SD.

In addition, the adopting release noted that the transition period that permits companies to describe their products as “DRC conflict undeterminable” (see above) will allow companies sufficient time to obtain more data on, and control over, their supply chain through revised contracts with suppliers and smelter verification confirmations, thereby mitigating this liability concern.

What should reporting companies do now?

The rule is complicated and different than any other rule under the federal securities laws. There are many provisions of the rule where the SEC has elected to allow reporting companies to make their own determinations as to interpretation and application. Given that the first reporting period commences on January 1, 2013, reporting companies should evaluate their business operations and make a determination as to the rule’s applicability based on their specific facts and circumstances after consulting with its internal finance and legal teams, outside legal counsel, auditors, and other consultants and professionals.

Exhibit A

What if you have questions?

For any questions or more information on these or any related matters, please contact any attorney in the firm’s corporate practice group. A list of such attorneys can be found by clicking Lawyers on this page. Curtis Dombek (213-617-5595, cdombek@sheppardmullin.com), John Tishler (858-720-8943, jtishler@sheppardmullin.com), Louis Lehot (650-815-2640, llehot@sheppardmullin.com), Jason Schendel (650-815-2621, jschendel@sheppardmullin.com), Edwin Astudillo (858-720-7468, eastudillo@sheppardmullin.com), and Lauren Lewis (650-815-2672, lalewis@sheppardmullin.com) participated in drafting this posting.

Disclaimer

This update has been prepared by Sheppard, Mullin, Richter & Hampton LLP for informational purposes only and does not constitute advertising, a solicitation, or legal advice, is not promised or guaranteed to be correct or complete and may or may not reflect the most current legal developments. Sheppard, Mullin, Richter & Hampton LLP expressly disclaims all liability in respect to actions taken or not taken based on the contents of this update.

 

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[1] The new rules do not apply to investment companies required to file reports pursuant to Rule 30d-1 under the Investment Company Act of 1940. It also appears that voluntary filers are not subject to the rule.

[2] The new rules do not apply to investment companies required to file reports pursuant to Rule 30d-1 under the Investment Company Act of 1940. It also appears that voluntary filers are not subject to the rule.

[3] In determining whether a conflict mineral is "necessary" to a product, a company must consider any conflict mineral contained in its product, even if that conflict mineral is only in the product because it was included as part of a component of the product that was manufactured originally by a third party.

[4] Recognizing that there are situations in which a product has multiple generally expected functions, uses, and purposes, the adopting release provides that a conflict mineral need only be necessary for one such function, use, or purpose to be necessary to the product as a whole. For example, a smart phone has multiple generally expected functions, uses, and purposes, such as making and receiving phone calls, accessing the internet, and listening to stored music. If a conflict mineral is necessary to the function, use, or purpose of any one of these, it is necessary to the functionality of the smart phone.

[5] The adopting release indicates that if a primary purpose of the product is mainly ornamentation or decoration, it is more likely that a conflict mineral added for purposes of ornamentation, decoration or embellishment is "necessary to the functionality" of the product. As an example, the adopting release states that the gold in a gold pendant hanging on a necklace is necessary to the functionality of the pendant because it is incorporated for purposes of ornamentation, decoration, or embellishment, and a primary purpose of the pendant is ornamentation or decoration. Conversely, if a conflict mineral is incorporated into a product for purposes of ornamentation, decoration, or embellishment, and the primary purpose of the product is not ornamentation or decoration, it is less likely to be "necessary to the functionality" of the product.

[6] OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict- Affected and High-Risk Areas (2011), available here.

[7] See OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict- Affected and High-Risk Areas: Supplement on Gold (2012), available here.

[8] In the adopting release, the SEC indicated that it believes that the phrase, "facilities used to process the conflict minerals," refers to the smelter or refinery through which the minerals pass.

[9] "DRC conflict free" is a defined term in the statute, meaning that the product "do[es] not contain conflict minerals that directly or indirectly finance or benefit armed groups in the" covered countries.

Source:
http://www.corporatesecuritieslawblog.com/compliance-navigating-the-secs-recent-conflict-minerals-rules-threading-the-needle-through-complex-controls-and-procedures-and-complying-with-new-disclosure-requirements.html

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