It seems that I finally have a good faith basis to pen a law-related post relevant to this blog that warrants the use of a photo of His Holiness Pope Benedict XVI.

As reported recently by the ClassActionBlawg.com here, apparently descendants of The Knights Templar have sued the Supreme Pontiff about alleged confiscation of property that was owned by the secretive group over 700 years ago. Yes, there may be a statute of limitations problem, and as head of state for the sovereign nation referred to as The Holy See and known affectionately as The Vatican, there is also an issue of sovereign immunity. ( Delaware litigation and class actions go together like ham and eggs, so that was my hook.)
 

As a member of the Knights of Malta, which traces its history, according to some accounts, approximately back to the year 1085,  I have an interest in these things and I have finally found a litigation-based reason to post about it on this blog.

 In the case of In Re William Lyon Homes Shareholder Litigation, 2008 WL 3522437 (Del. Ch., Aug. 8, 2008), the Chancery Court ruled that the "at issue" exception to the attorney/client privilege did not apply to the facts of the case, and thus the privilege was not waived, because the defendants specifically adopted a tactic and strategy to use objective, non-privileged data to address the causation issues in the case–precisely so that they would not be subject to the "at issue" exception. 

The court emphasized that a corollary to that tactic is that they will not be permitted to use that privileged communication or any other privileged communications with their attorneys to establish their causation arguments in the case.

The court acknowleged that privileges can serve as a barrier to the "search for the truth" but that is not a justification to disregard the protections afforded by the privilege. 

See prior  related decision in this case by the Delaware Supreme Court under the case name: Alaska Electrical Pension Fund v. Brown,  summarized here, for additional background details, and for the court’s reasoning in which it addresses the right to attorneys’ fees in the settlement of a Delaware class action by non-Delaware lawyers who prosecuted  related claims in California but were not involved directly in the Delaware class action (at least initially).

Carl Icahn writes here on his eponymous blog about his historic record as a shareholder and his impact on corporate governance as well as on shareholder value. He provides examples of several of his long-term investments to which he attributes a large part of his impressive accumulation of wealth. Regardless of which side of the shareholder activism debate one is on, the post is replete with factual details that inform the discussion.

Sutherland v. Sutherland, 2008 WL 3021024 (Aug. 5, 2008).

This is an example of the Chancery Court’s practical side which allows it to cut to the chase and avoid unnecessary procedural entanglements. In this case, despite a Motion to Dismiss that was pending, and in light of the multiple proceedings that ensued after the motion was filed, in order to promote efficiency, the court allowed the plaintiff to amend his complaint.  Apparently a Brief was filed by the plaintiff in reply to the Motion to Dismiss and Chancery Court Rule 15(aaa) gives one a binary choice in light of a Motion to Dismiss: either amend the complaint or respond to the Motion to Dismiss. However, the rule also gives the Court flexibility to amend anyway when  (as here) dismissal "would not be just under the circumstances".

In the meantime, the court cited to several cases that address the procedural impact on a pending complaint based on actions taken by a special litigation committee, especially in terms of arguments about demand excusal under Chancery Court Rule 23.1.

There have been no less than five (5) prior decisions of substance that I previously summarized in this case, which provide the extensive background details regarding this intra-family, internecine warfare, and which are available here.

 I am giving a panel presentation in November to the Pennsylvania Business Institute about lawyers who blog. I am honored that Kevin LaCroix of  The D & O Diary fame has agreed to also be on the panel.

 In the course of preparing for the presentation, I asked Maura Burke, one of our firm’s summer associates, to compile statistics about lawyers who blog and the state of the blogosphere in general among U.S. lawyers. I am indebted to her for diligently compiling the interesting data. The memo by Maura Burke can be read here.

During my family vacation next week (the week of August 18), I am not likely to post about any new cases during that week, but I plan to catch up on about a dozen or more cases that I have already done "draft posts" for and that I plan to finalize, but that were not of such great importance that I rushed to post about them when they first came out.

 

Andrew and Suzanne Schwartz 2000 Family Trust v. AM Apparel Holdings, Inc., 2008 WL 2877804 (Del. Ch., July 28, 2008), read opinion here.

  In this Chancery Court opinion, the respondent corporation failed to establish that the claim for an appraisal was time-barred, due to the confusing and deficient notices from the corporation as to the date of the merger and other statutory requirements. 

In addition, the court discussed the propriety of the plaintiff and the defendant attaching affidavits and other documents outside the record to their filings in connection with the motion for judgment on the pleadings and a motion to dismiss.  See footnotes 3 and 4 for helpful procedural guidelines regarding exhibits in connection with motions to dismiss or motions for summary judgment or motion for judgment on the pleadings.

In Re Nymex Shareholder Litigation, 2008 WL 3349067 (Del. Ch., July 29, 2008).

This short letter decision can be cited for the basic principle that one cost of asserting that a particular document will not be produced based on a claim of privilege is to prepare a timely privilege log, which in expedited litigation, as here, can mean within about 2 days of asserting the privilege.

Here is an article from the current issue of The Delaware Law Weekly by Elizabeth Bennett that is the second in a series she is writing about the legal blogosphere in Delaware. The article confirms that at least some members of the Delaware Chancery Court read blogs (which we also know from citations in their opinions to blogs of leading corporate law professors), and we have previously written about some members of the Delaware Supreme Court who also read blogs.

Especially due to the blogs of leading academics, there is no serious doubt that blogs are at least one mainstream means of keeping up to date on the latest developments in one’s practice area. Here is the article of last week written by Elizabeth Bennett that discussed other aspects of the blogoshere in Delaware, including the involvement by many Delaware lawyers (and at least one member of the Delaware bench) with The Harvard Law School Corporate Governance Blog.

In Smith v. The Reserves Development Corp., 2008 WL 3522433 (Del. Ch., Aug. 12, 2008), the Chancery Court applies the rules of construction for real estate Deeds, and based on a detailed discussion of the background facts also interprets the status and contours of an easement. This opinion has all you ever wanted to know about the interpretation of  the rights granted by a Deed (.e.g., fee simple), and the determination of the existence of an easement.