One could not maintain a blog in Wilmington, Delaware without noting the news that came out today about Bank of America announcing its acquisition of MBNA (or as their new logo styles it: "mbna"). Prof. Gordon Smith has a post on it.
An article in the publication Legal Affairs about Vice Chancellor Strine provides keen insights into his style on the Court of Chancery and his influence on corporate law issues. The article is "must reading" for anyone interested in the Court of Chancery and how cases are decided before it. Credit goes to the Confidential Report Blog for the tip.
Prof. Ribstein posts about the hypothetical possibility of going from the Big Four to the Big Two, in light of potential issues facing the biggest accounting firms.
A post by Bainbridge (with references to other posts), comments on the first real prosecution under the 2002 Sarbanes-Oxley Act, in which today a not guilty verdict was handed down against the former HealthSouth CEO.
Prof. Ribstein has a post today that compares the possible indictment of a major class action law firm as reported today in the Wall Street Journal with the recent discussion about the possible indictment of KPMG, as well as the ramifications of both.
The Legal Ethics Forum blog has a discussion, with references, in a post about research concerning the interfacing between character and behavior, such as the Milgram experiment and the Stanford Prison Project. It is worth reading for anyone interested in legal ethics and whether ethics can be effectively taught.
Vice Chancellor Strine recently issued an 85-page opinion in a case called In Re Cox Communications Inc., download decision in pdf format. It is a magnum opus on the issue of the standard that should apply when the court reviews applications for attorneys' fees in representative cases, such as derivative or class action matters. Perhaps in a later post, when time allows, I will provide a more thorough summary.
The Feedmelegal blog has a post that references a legal guide for bloggers, which is a source that should be of interest to those who participate in the blogosphere.
Prof. Ribstein has a post on choice of law and Prof. Bainbridge has a related post, comparing choice of law ex post facto in the bankruptcy context, as opposed to corporate law, where parties agree by contract, before a dispute arises, which forum (e.g., Delaware) they want disputes to be addressed in.
I have written a few posts recently on world affairs on the theory that it is relevant to everyone, despite the limited scope of this blog. I admit to stretching that theory somewhat by referring to this post by Steve Bainbridge who comments on a preview photo of a possible new Popemobile, and provides a second photo with the humorous suggestion that if it were not for the need for dignity and gravitas, a modified Ferrari should be considered.
Chancellor Chandler denied a request for expedited proceedings in the recent letter opinion of Miron v. Microsoft Corp., download pdf. Many prior cases have explained in more detail the legal and factual analysis that determines whether expedited treatment will be afforded in a particular case. The Chancery Court is rightly renowned for giving very fast (and careful) consideration to cases that merit such treatment, but this is an example of a case that did not justify extraordinary scheduling.
Prof. Bainbridge has a post on his blog that refers to a book by writers at The Economist magazine regarding the history of the corporate form. The professor refers to the book as the best short history of the corporation he has ever read. You can disregard the political commentary after the reference, as my intent was not to focus on that part of the post.
The Legal Ethics Forum blog has an extensive posting on the seemingly new role of private lawyers working on behalf of the U.S. Department of Justice as investigators of corporations who agree to waive privilege and turn over notes of the investigation in return for a "deferral" of any indictment of the corporation. It appears to be a "Hobson's choice".
Based on the theory that "world affairs" is an important topic for everyone, this post from Prof. Bainbridge is worth reading, even if it is beyond the limited scope of this blog. Prof. Bainbridge is a nationally-famous corporate law expert whose blog also includes commentary on other topics.
Once again making an exception and expanding the scope of this blog to make an observation on world affairs, if you have been following the news in China lately about the restrictions imposed on blog content there, this post may interest you.
The proposed amendments to the Federal Rules of Civil Procedure regarding electronic discovery moved one step closer to reality this week. The Standing Committee on Rules of Practice and Procedure approved the amendments submitted by the Civil Rules Advisory Committee addressing discovery of electronically stored information.Thanks to the Electronic Discovery Blog which has a post with more details. The Delaware Rules of Civil Procedure are based on the Federal Rules, so the amendments are important for Delaware courts and practitioners.
A recent Chancery Court decision discussed the limitations on the right of a shareholder to demand books and records of a corporation under Section 220 of the DGCL, including whether the board and the company could maintain the confidentiality of board data. In Amalgamated Bank v. UICI, pdf, Vice Chancellor Noble issued his decision after a "trial consisting of documents". He first noted that DGCL Section 220(b) requires that a shareholder show a proper purpose for the demand, and that "proper purpose" is defined as one "reasonably related to such person's interest as a stockholder." The parties
Continue Reading...Over at the Conglomerate blog, Prof. Christine Hurt has an insightful post on the guilty verdict today of the former Tyco CEO and why neither the Sarbanes-Oxley Act nor more aggressive enforcement will likely prevent old-fashioned crimes.
Tip of the hat to Glenn Reynolds at his instapundit blog for a post referring to an article from Robert Samuelson of the Washington Post. Though beyond the scope of Delaware law, my view is that one needs to be aware of what is happening in the world, and trends in other countries as described in the referenced article need to be known.
The Chancery Court recently issued 2 decisions in the following cases: Prestancia Management Group, Inc. v. Virginia Heritage Foundation, II LLC, et al. and Mae Jean Rosser v. New Valley Corporation, et al. Both cases are available on the Chancery Court website.
The Prestancia decision provides a useful primer on the limited scope of the court's subject matter jurisdiction. The court
Continue Reading...Two recent cases were handed down by the Delaware Supreme Court:
Homestore, Inc. v. Tafeen and Qualcomm, Inc. v. Texas Instruments, Inc. Both cases are available on the Court's Website.
In Homestore, ruling on a Motion to Stay Pending Appeal, the Delaware Supreme Court reviews the rationale behind the statutory framework of Section 145(e), which provides for advancement of indemnification payments. The court
Continue Reading...Prof. Bainbridge has a post in which he quotes Dominic Basulto's article involving the difficult issues that arise in defending a corporation in the cross-hairs of a prosecutor's investigation. He also links to the article by Joseph Grundfest on the same basic topic.
Prof. Larry Ribstein has a post about former Delaware Supreme Court Chief Justice E. Norman Veasey's new law review article on Delaware corporate law. I previously entered a post on my blog about comments by Prof. Bainbridge on the same law review article.
For those concerned about conflicts of interest, and the use of what is commonly referred to as "Chinese Walls" to address those conflicts, you should read this post on the Legal Ethics Forum Blog that cites to at least one court decision in which the dissenting opinion thought that use of the words "Chinese Wall" was pejorative in this context, or at least unkind to the Chinese.
Professor Bainbridge comments here on a new law review article by former Delaware Supreme Court Chief Justice E. Norman Veasey, with specific reference to the Technicolor case.
A website resource focused on addressing conflicts of interest issues for attorneys, especially those with business and litigation practices, can be found here. William Freivogel, a recognized authority on the topic, is the author.
In One Sky, Inc. v. Katz, Vice Chancellor Parsons recently discussed in a letter opinion the procedure for seeking court approval to file documents under seal based on alleged confidentiality, pursuant to Chancery Court Rule 5(g).
Prof. Gordon Smith has a second scholarly post based upon his review of the opinion yesterday by Chancellor Chandler allowing Roy Disney's claims against the Disney Co. to proceed to trial, regarding allegations by Roy Disney surrounding the selection of the new CEO.
Yesterday, Chancellor Chandler ruled that the recent claims by Roy Disney regarding the selection of Disney's new CEO can proceed to trial. Posts by Professors Bainbridge, Smith and Ribstein already have provided insightful commentaries on the decision. The full opinion in Shamrock Holdings of California, Inc. v. Iger, et al. is available here.
Anyone interested in the U.S. legal system must be somewhat aware of the process by which any vacancies on the U.S. Supreme Court are filled, and who the likely candidates might be, as well as the ever-changing "short list". Prof. Gordon Smith has an insightful post on one potential candidate.
For anyone interested in the interfacing of blogs and large law firms, Kevin O'Keefe's post is a must read.
A recent ethics decision addressing the obligation of attorneys to maintain confidentiality, determined that the duty applies to avoiding the disclosure of metadata, which is data that is often imbedded in the electronic version of documents, but which is not always viewable on the hard copy. See the link that follows for a more complete discussion. The full article appeared in the May/June 2005 issue of The Bencher, the publication of The American Inns of Court. Download article.
Though it may be outside the limited scope of this blog, to the extent that hard work is a necessary attribute that applies to all endeavors, everyone should be interested in an op-ed article by Thomas Friedman found here in today's New York Times about why countries like India are racing countries like France to the top, in part because in India they try to work 35 hours a day instead of preserving 35-hour work weeks, and nodoby in India expects 6 weeks of vacation a year. Food for thought.
For an exchange among expert commentators on the recent U.S. Supreme Court's Andersen decision, regarding, among other things, the importance of document retention policies and the effect of not properly addressing such matters, see this post, for links to a discussion among Professors Gordon Smith and Christine Hurt, as well as Steve Bainbridge and Larry Ribstein. Their exchange highlights one of the benefits of blogs. Namely, one can obtain the benefit of an exchange of views by experts within days (or even minutes) of a major court decision, such as the Andersen case.
The following article appeared in the Fall 2003 issue of the publication Delaware Lawyer. It was co-written with former State Rep. Richard DiLiberto, Jr., and is an overview of our insights into lawmaking based on our work together in the Delaware State Legislature.
Chancellor Chandler gave a speech yesterday at an event for the Delaware State Chamber of Commerce in which he referred to continuing efforts to maintain the court's pre-eminence as a favored forum for parties to address major business issues.
As a follow-up on my post of yesterday, here is an exchange between Larry Ribstein and Gordon Smith on the U.S. Supreme Court decision in the Andersen case, regarding "document retention policies".
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