Fighting Video with Video

Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:

Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.

“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”

Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.

So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?

Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.

“They say a picture is worth a thousand words,” Kelly said.

What Elliott records with his camera can be used for evidence.

“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.

Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.

But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.

When they take the oath and strap on the Sam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.

Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not?  Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered? 

A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.

Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.

And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?

“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.

Officials believe that the cameras will be helpful in protecting themselves and the community.

“I think there will be a time when everyone carries one,” said Kelly.

There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it.  We're still a ways off from figuring out how video will best serve  "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.

But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse.  Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed. 

Why isn't the public required to do so if that's what you demand of cops?  Because you are cops, whose function is to protect and serve at the behest of the public.  This is the life you chose and the obligation that goes with it.











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Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss

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Delaware Court of Chancery Grants Summary Judgment Dismissing Breach of Fiduciary Duty Claims In Absence of Evidence of Directors’ “Conscious Disregard” of Fiduciary Duties

In In re Answers Corp. Shareholders Litigation, C.A. No. 6170-VCN, 2014 WL 463163 (Del. Ch. Feb. 3, 2014), the Delaware Court of Chancery (Noble, V.C.) granted summary judgment in favor of defendants in a stockholder class action for breach of fiduciary duty arising out of the merger of Answers Corporation (“Answers” or the “Company”) with AFCV Holdings, LLC (“AFCV”).  Because the undisputed material facts showed that a disinterested majority of the Board of Directors approved the transaction, plaintiffs were required to offer evidence that the Board consciously acted in bad faith or was controlled by an interested party to survive summary judgment.  Plaintiffs were unable to do so.  The Answers decision highlights the high burden stockholder plaintiffs face to proceed with breach of fiduciary duty claims where a merger is approved by an independent/non-controlled board, even where the sale process may have been flawed.  As the court explained, there is a vast difference between “a flawed inadequate effort to carry out fiduciary duties and a conscious disregard for them.”

Answers was a publicly traded Delaware corporation focused on the questions and answers space online.  Approximately 90% of the website’s traffic and 75% of its revenue came from Google.  In March 2010, AFCV, a portfolio company of a private equity firm with a focus on social media and online information resources, submitted an expression of interest to members of the Answers board concerning a possible business combination.  In September 2010, AFCV sent Robert Rosenschein, the Company’s CEO, a letter of intent proposing to acquire Answers for between $7.50 and $8.25 per share.  The Board eventually obtained an offer of $10.25 per share, but refused to grant AFCV exclusivity while it continued to evaluate other alternatives and strategic buyers.

While negotiations were proceeding, the Company’s financial conditions improved significantly when Answers announced its fourth quarter results for 2010.  In January 2011, the financing committee of the Board recommended attempting to increase the offer price beyond the pending $10.25 per share, but to accept that amount if no further concessions on price were obtained.  AFCV responded with its best and final offer at $10.50 per share.  After noting that there were no other offers of the table and recognizing that Google continued to significantly threaten the Company’s core business, the Board unanimously approved the proposed transaction.

Shortly after the announcement of the merger agreement, several stockholder plaintiffs filed complaints in the Delaware Court of Chancery challenging the transaction.  Plaintiffs alleged that Rosenschein (and two other directors) were conflicted and controlled the negotiation process.  Plaintiffs also alleged that the members of the Board breached its fiduciary duties by acting in bad faith to sell Answers before its rising stock price would exceed AFCV’s offer by (1) purposefully engaging in a limited shopping process, (2) failing to act in the interest of the Company’s public stockholders after circumstances had changed to indicate the offer price was too low and (3) exerting willful blindness by ignoring alternatives to the AFCV transaction.

The court granted defendants’ motion for summary judgment.  The court recognized that a disinterested majority of the Board approved the transaction.  Thus, to survive summary judgment, plaintiffs were required to show that the Board consciously acted in bad faith or that it was controlled by an interested party.  Plaintiffs failed to do so.  The directors submitted evidence that they fielded a variety of unsolicited offers and participated in numerous meetings where they discussed transaction alternatives.  Despite discussions with at least seven other possible acquirers, nobody else made a credible offer to acquire Answers.  The directors also caused the Company’s financial advisor to perform a market check.  Moreover, the directors actively negotiated with AFCV on price.  This evidence undermined any assertion of bad faith.

The court discounted plaintiffs’ contention than an email where a director stated that the value of Answers could be as much as $1.50 higher than AFCV’s $10.25 offer price showed “bad-faith” by recognizing that the Board had plausible business concerns regarding the stability and future success of the Company tied to its reliance upon Google for traffic and revenues.  Plaintiffs also ignored the fact that the Board secured additional merger consideration as a result of the Company’s improving financial condition.  As the court explained:

Plaintiffs’ proffered evidence does not create a genuine issue of material fact.  Evidence based upon a few isolated quotes stating the deal was accelerated or reflecting one director’s belief, or perhaps mere bargaining position, of the Company’s value does not state a claim for bad faith in this context.  Such considerations are within the purview of a disinterested Board . . . .  [N]o allegations have been made concerning the Board’s motives for favoring AFCV as a bidder or presenting some other motive for failing to maximize shareholder value.

Ultimately, although plaintiffs argued a “variety of ways in which they believe the process could have been better conducted, they offer no evidence of that extreme set of facts required to show that the board utterly failed to comply with its duties.”

The court also rejected plaintiffs’ claim that Rosenschein and two other directors dominated and controlled the Board to such a degree as to render it not independent.

The decision in Answers confirms that stockholders bear a high burden when challenging a disinterested/non-controlled board’s decision to approve a strategic transaction.  When faced with non-exculpated duty of loyalty claims, Delaware courts will accept a less-than-optimal shop process as long as the directors did not act with a “conscious disregard” of their duty under Revlon, Inc. v. MacAndrews & Forbes Holdings, 506 A.2d 173 (Del. 1986) [see generally here] to maximize stockholder value in a change-in-control transaction.

Source: http://www.corporatesecuritieslawblog.com/2014/03/delaware-court-of-chancery-grants-summary-judgment-dismissing-breach-of-fiduciary-duty-claims-in-absence-of-evidence-of-directors-conscious-disregard-of-fiduciary-duties/

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Top Verdicts of 2013: Lag in IP Awards Pegged to Federal Circuit Ruling

For the first time in years, intellectual property cases contributed no billion-dollar jury verdicts in 2013. In fact, IP recoveries decreased significantly both in number and in dollar amount when compared with 2012.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202648015482&rss=rss_nlj

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Wisconsin public employee collective bargaining statute amendments declared unconstitutional

A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional.

The trial court declared the statute unconstitutional. Madison Teachers v. Walker (Wisconsin Circuit Ct 09/14/2012)

(1) Certain portions of the statute violated the free speech clauses of the Wisconsin and US constitutions. Although there is no constitutional right to collective bargaining, the statute imposes burdens on the speech and associational rights of employees represented by unions which burdens are not imposed on other employees. They cannot negotiate wage increases greater than the cost of living, they cannot pay dues by payroll deductions solely because the dues go to labor organizations. A ban on fair share agreements means that union members bear the cost of bargaining for non-members who receive the befits of bargaining. Requiring unions to be recertified annually burdens members with the full costs of the election.

(2) The trial court applied strict scrutiny to the equal protection claims because of the infringement on speech rights. The statute creates two classes of employees (represented and non-represented), and the defendants "offer no defense of the statute that would survive strict scrutiny."

(3) Certain portions of the statute violated the Wisconsin constitution's home rule amendment, violated the constitutional bar on impairment of contracts, and deprived employees of property without due process.

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Source: http://www.lawmemo.com/blog/2012/09/wisconsin_publi.html

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Nurse Has Sovereign Immunity

An Orange County Circuit Court grants a special plea of sovereign immunity to a defendant who provided nursing services at a county nonprofit nursing facility. In the requests for admission, plaintiff admitted Dogwood Village was a nonprofit nursing facility owned by Orange County and overseen by the Health Center Commission of Orange County, and that ...

Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/

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Sound The Retreat (Update)

Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society?  It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment. 

"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding. 

Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions.  Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.

The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.

It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.

Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.

The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.

But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."

This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.

The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card.  Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?

The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.

The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.

A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?

While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die. 

While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.

As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened.  It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.

Update:  In an interview on Anderson Cooper 360, one of the jurors spoke:

COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?

JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.

This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.

It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.

While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.

It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case. 

While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.

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Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss

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Entropy: It's Not What It Used To Be*

In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.

My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document.  If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.

When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before."  Of course, I can't tell you anything if you don't take or return my call. "Oh."

It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge.  These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.

Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.

God, grant me the serenity to accept the things I cannot change,
The courage to change the things I can,
And wisdom to know the difference.

Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.

You can choose a ready guide in some celestial voice.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.

When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.

The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.

There is a difference between explanations and excuses.  When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up.  Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.

Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem.  Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works?  We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.

It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.

It's hard to fight entropy, but those who do keep the world running.

* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.

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No Venue Change for Subcontractor’s Fraud Claim

In this suit by a subcontractor hired by defendant demolition company to remove epoxy coating from a concrete floor at Camp Peary, Va., the Norfolk Circuit Court says venue is permissible in Norfolk as to plaintiff’s fraud claim and defendant’s objection to venue is overruled. Plaintiff Specialty Products Inc. (SPI) allegedly bid on the epoxy ...

Source: http://valawyersweekly.com/2014/01/02/no-venue-change-for-subcontractors-fraud-claim/

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Mother Of Earliest Auto Defect Victim Calls On Congress To Act

Laura Christian was reunited with her birth daughter a year before her daughter died in a car accident — the first death attributed to the faulty ignition switch admitted by General Motors. Christian discusses the company's much-maligned vehicle recall.

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Source: http://www.npr.org/2014/04/01/297866825/mother-of-earliest-auto-defect-victim-calls-on-congress-to-act?ft=1&f=1070

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Son Of A Secret Smuggler Digs Up The Truth About His Dad

Tony Dokoupil's father was once busted for distributing enough marijuana "to roll a joint for every college-age person in America." In The Last Pirate, Dokoupil reflects on his dad's time as a dealer.

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Source: http://www.npr.org/2014/03/31/297145984/son-of-a-secret-smuggler-digs-up-the-truth-about-his-dad?ft=1&f=1070

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ENERGY LAW: A SPECIAL REPORT: Digging In

Invigorated exploration for more resources is delivering plenty of work to the legal industry. Our report highlights changes in the law of importance to the attorneys who handle the matters.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202626153260&rss=rss_nlj

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Surprise! EA's digital-distribution service Origin ditches discs (Albuquerque Journal)

Share With Friends: | | Law - Video News, RSS and RSS Feed via Feedzilla.

Source: http://news.feedzilla.com/en_us/stories/law/video/367876052?client_source=feed&format=rss

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Summary of Knox v. SEIU

My summary of Knox v. SEIU at SCOTUSblog.com: Knox knocks unions on mid-year assessment for non-members.

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Source: http://www.lawmemo.com/blog/2012/06/summary_of_knox.html

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Rap Lyrics In Court: Art Vs. Evidence

Criminal cases around the country have seen rap lyrics used as evidence. Los Angeles attorney Alan Jackson and Georgetown law professor Paul Butler weigh in on the fine line between art and evidence.

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Source: http://www.npr.org/2014/04/01/297705052/rap-lyrics-in-court-art-vs-evidence?ft=1&f=1070

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Nurse Has Sovereign Immunity

An Orange County Circuit Court grants a special plea of sovereign immunity to a defendant who provided nursing services at a county nonprofit nursing facility. In the requests for admission, plaintiff admitted Dogwood Village was a nonprofit nursing facility owned by Orange County and overseen by the Health Center Commission of Orange County, and that ...

Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/

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Albuquerque Protest Of Fatal Police Shootings Turns Into Chaos

The protest began Sunday as a march near police headquarters in downtown Albuquerque, N.M., and spread as it continued into the night. Police reportedly used tear gas to disperse crowds.

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Source: http://www.npr.org/blogs/thetwo-way/2014/03/31/297163938/albuquerque-protest-of-fatal-police-shootings-turns-into-chaos?ft=1&f=1070

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America's 50 Outstanding General Counsel

The National Law Journal recognizes lawyers who have what it takes to run exemplary in-house legal departments.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202648667420&rss=rss_nlj

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Alabama federal judge to hold trial on abortion law

[JURIST] Judge Myron Thompson of the US District Court for the Middle District of Alabama [official website] announced on Monday that he would hold a trial on Alabama's new law requiring abortion clinic to have approval to admit patients to nearby hospitals. The Women's Health and Safety Act [text], which was signed into law [JURIST report] last April, requires abortion clinics to meet unprecedented medical standards that supporters argue will protect women from unsanitary conditions. Last year Thompson delayed enforcement...

Source: http://jurist.org/paperchase/2014/03/alabama-federal-judge-to-hold-trial-on-abortion-law.php

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Comparing Law School Rankings? Read The Fine Print

When a school hires its own students, it can bump up its ranking. One school employs 20 percent of its most recent graduates — and jumped nine spots in the rankings this year.

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Source: http://www.npr.org/blogs/money/2014/03/28/294887683/comparing-law-school-rankings-read-the-fine-print?ft=1&f=1070

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Delaware Court of Chancery Grants Summary Judgment Dismissing Breach of Fiduciary Duty Claims In Absence of Evidence of Directors’ “Conscious Disregard” of Fiduciary Duties

In In re Answers Corp. Shareholders Litigation, C.A. No. 6170-VCN, 2014 WL 463163 (Del. Ch. Feb. 3, 2014), the Delaware Court of Chancery (Noble, V.C.) granted summary judgment in favor of defendants in a stockholder class action for breach of fiduciary duty arising out of the merger of Answers Corporation (“Answers” or the “Company”) with AFCV Holdings, LLC (“AFCV”).  Because the undisputed material facts showed that a disinterested majority of the Board of Directors approved the transaction, plaintiffs were required to offer evidence that the Board consciously acted in bad faith or was controlled by an interested party to survive summary judgment.  Plaintiffs were unable to do so.  The Answers decision highlights the high burden stockholder plaintiffs face to proceed with breach of fiduciary duty claims where a merger is approved by an independent/non-controlled board, even where the sale process may have been flawed.  As the court explained, there is a vast difference between “a flawed inadequate effort to carry out fiduciary duties and a conscious disregard for them.”

Answers was a publicly traded Delaware corporation focused on the questions and answers space online.  Approximately 90% of the website’s traffic and 75% of its revenue came from Google.  In March 2010, AFCV, a portfolio company of a private equity firm with a focus on social media and online information resources, submitted an expression of interest to members of the Answers board concerning a possible business combination.  In September 2010, AFCV sent Robert Rosenschein, the Company’s CEO, a letter of intent proposing to acquire Answers for between $7.50 and $8.25 per share.  The Board eventually obtained an offer of $10.25 per share, but refused to grant AFCV exclusivity while it continued to evaluate other alternatives and strategic buyers.

While negotiations were proceeding, the Company’s financial conditions improved significantly when Answers announced its fourth quarter results for 2010.  In January 2011, the financing committee of the Board recommended attempting to increase the offer price beyond the pending $10.25 per share, but to accept that amount if no further concessions on price were obtained.  AFCV responded with its best and final offer at $10.50 per share.  After noting that there were no other offers of the table and recognizing that Google continued to significantly threaten the Company’s core business, the Board unanimously approved the proposed transaction.

Shortly after the announcement of the merger agreement, several stockholder plaintiffs filed complaints in the Delaware Court of Chancery challenging the transaction.  Plaintiffs alleged that Rosenschein (and two other directors) were conflicted and controlled the negotiation process.  Plaintiffs also alleged that the members of the Board breached its fiduciary duties by acting in bad faith to sell Answers before its rising stock price would exceed AFCV’s offer by (1) purposefully engaging in a limited shopping process, (2) failing to act in the interest of the Company’s public stockholders after circumstances had changed to indicate the offer price was too low and (3) exerting willful blindness by ignoring alternatives to the AFCV transaction.

The court granted defendants’ motion for summary judgment.  The court recognized that a disinterested majority of the Board approved the transaction.  Thus, to survive summary judgment, plaintiffs were required to show that the Board consciously acted in bad faith or that it was controlled by an interested party.  Plaintiffs failed to do so.  The directors submitted evidence that they fielded a variety of unsolicited offers and participated in numerous meetings where they discussed transaction alternatives.  Despite discussions with at least seven other possible acquirers, nobody else made a credible offer to acquire Answers.  The directors also caused the Company’s financial advisor to perform a market check.  Moreover, the directors actively negotiated with AFCV on price.  This evidence undermined any assertion of bad faith.

The court discounted plaintiffs’ contention than an email where a director stated that the value of Answers could be as much as $1.50 higher than AFCV’s $10.25 offer price showed “bad-faith” by recognizing that the Board had plausible business concerns regarding the stability and future success of the Company tied to its reliance upon Google for traffic and revenues.  Plaintiffs also ignored the fact that the Board secured additional merger consideration as a result of the Company’s improving financial condition.  As the court explained:

Plaintiffs’ proffered evidence does not create a genuine issue of material fact.  Evidence based upon a few isolated quotes stating the deal was accelerated or reflecting one director’s belief, or perhaps mere bargaining position, of the Company’s value does not state a claim for bad faith in this context.  Such considerations are within the purview of a disinterested Board . . . .  [N]o allegations have been made concerning the Board’s motives for favoring AFCV as a bidder or presenting some other motive for failing to maximize shareholder value.

Ultimately, although plaintiffs argued a “variety of ways in which they believe the process could have been better conducted, they offer no evidence of that extreme set of facts required to show that the board utterly failed to comply with its duties.”

The court also rejected plaintiffs’ claim that Rosenschein and two other directors dominated and controlled the Board to such a degree as to render it not independent.

The decision in Answers confirms that stockholders bear a high burden when challenging a disinterested/non-controlled board’s decision to approve a strategic transaction.  When faced with non-exculpated duty of loyalty claims, Delaware courts will accept a less-than-optimal shop process as long as the directors did not act with a “conscious disregard” of their duty under Revlon, Inc. v. MacAndrews & Forbes Holdings, 506 A.2d 173 (Del. 1986) [see generally here] to maximize stockholder value in a change-in-control transaction.

Source: http://www.corporatesecuritieslawblog.com/2014/03/delaware-court-of-chancery-grants-summary-judgment-dismissing-breach-of-fiduciary-duty-claims-in-absence-of-evidence-of-directors-conscious-disregard-of-fiduciary-duties/

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