The Law Handbook – Victoria’s most trusted practical guide to the law since 1977
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Doctrine of Corporate Opportunity. Cellular Information Systems, Inc. Gugliuzzi; the knowledge of an agent acting within the scope of his or her authority is chargeable to the principal, regardless of whether that knowledge is actually communicated. Limited Liability Company Operating Agreement. Jaffari; a limited liability company is bound by the operating agreement signed by some members and that defines the LLC's governance and operation, even if the LLC itself did not sign.
Estate of Collins v. Geist; A manager of an LLC has the apparent authority to bind the LLC when he executes in its name an instrument for carrying on, in the usual way, its business or affairs. Claim For Attorney's Fees. Adams; when the underlying shareholder claim is invalid, so is the shareholder's claim for attorneys' fees. Haft; Under Delaware corporation law, an interest sufficient to support an irrevocable proxy must either be an interest in the stock itself or an interest in the corporation generally, such as being CEO.
Usurp Corporate Investment Opportunity. Shareholders Litigation; The fiduciary duty of loyalty requires directors and officers to offer investment opportunities derived from corporate business to the corporation before acting on them individually.
In re Massey Energy Company Derivative and Class Action Litigation; application of plaintiff-friendly pleading standards usually precludes a dismissal of their claims at the pleading stage. Majority Shareholder Fiduciary Duty.
All shareholders must benefit proportionately. Going Private Merger Standard of Review. Oklahoma Alcoholic Beverage Laws Enforcement Commission; the type of business entity chosen may affect the types of business that can be conducted by the entity if it affect the licenses the entity may obtain.
Law; a limited liability company and its sole member are distinct legal entities. Managing Co-Member Fiduciary Duty. Feldstein; a managing co-member of an LLC owes the other members a fiduciary duty to make full disclosure of all material facts. Director Duty of Loyalty. Kosowsky; a director acting in subjective good faith may nevertheless breach his duty of loyalty.
Muhanna; an attorney of record has apparent authority to enter into an agreement on behalf of his client, and the agreement is enforceable against the client by other parties. Director Liability for Employee Misconduct. Ritter; In the absence of red flags alerting corporate directors to misconduct, good faith is measured by the directors' actions to assure that a reasonable reporting and information system exists.
Common Fund Fee Award. Thomas; when services provided by shareholders and their counsel result in a financial benefit to the corporation, they are entitled to a fair fee.
Award of Attorneys' Fees. Initio Partners; In corporate litigation, the court may order the payment of counsel fees and related expenses to a plaintiff whose efforts resulted in the creation of a common fund or the conferring of a corporate benefit. In the Matter of Kevin Kunz. Apparently separate securities offerings, single unified offering, single plan of financing made. Securities professionals are held to a standard of reasonable prudence. Certifying a corporation's financial condition, question for the jury, fairly presented the financial condition of a corporation, generally accepted accounting priniciples, generally accepted auditing standards, material, materiality.
Publicly traded corporations have no duty of continuous disclosure to their investors. Affiliated Ute Citizens v. Affirmative fraud, rule b5 violation, failure to disclose, causation, concealment, misrepresentation, reliance. In Re Razorfish, Inc. Private Securities Litigation and Reform Act of , psla, appoint lead plaintiff, appoint lead counsel, securities class action, lawyer-driven litigation.
The sec, enjoin negligent conduct resulting in securities law violations, the securities and exchange commission, evidence of past negligence, substantial likelihood of future violations of federal securities laws. In Re WorldCom, Inc. Underwriters performing a due-diligence investigation of two bond offerings by WorldCom, had a limited number of conversations with the stock issuer and its auditor, made only cursory inquiries, failed to look behind formulaic answers to questions.
Under the safe-harbor provision of 27A of the Securities and Exchange Act, forward-looking statements must be accompanied by meaningful cautionary statements that adequately identify important factors that could cause actual results to differ. Safe-harbor provision of 27A of the Securities and Exchange Act; fraud on the market theory; forward-looking statements must be accompanied by meaningful cautionary statements that adequately identify important risk factors.
In the Matter of W. Officers and directors of public companies have a duty to make full disclosure as required by all SEC filings and regulations. Nursing Home Pension Fund, Local v. Private Securities Litigation Reform Act; the allegations in the complaint, taken together, must give rise to an inference of scienter, which requires that the defendant made false statements, knowing that they were false.
Allegations in the complaint, taken together, must give rise to an inference that the defendant acted with the requisite scienter of false statements, knowing. Fraud on the market; In a securities fraud case, the plaintiff must establish that the defendant misrepresentations proximately caused the plaintiff economic loss.
Active or Passive Control. Leonard; determining relationship includes reasonable expectation of significant investor control, and not investment contract, courts look beyond formal terms of documents circumstances surrounding relationship. Rule Exemption to B 2. Underwriter Duty to Investors. Dolphin and Bradbury, Inc. Securities and Exchange Commission; Because investors rely on the reputation, integrity, independence, and expertise of an underwriter, the underwriter has a obligation to investigate and disclose material facts.
Is Offering Public or Private. Malouf; Whether an offering is public or private depends on whether the particular class of persons affected by the offering needs the protection of the Act.
Private Securities Litigation Reform Act. National Australia Bank, Ltd. Domestic Transaction Under Exchange Act. Ficeto; a domestic transaction takes place when irrevocable liability is incurred or title is transferred within the United States. SEC; The Securities and Exchange Commission must consider efficiency, competition, and capital formation, and failure makes promulgation of the proposed rule arbitrary and capricious.
WPCS Int'l Inc;A beneficial owner's acquisition of securities directly from an issuer, at the issuer's request and with the board's approval, is a "purchase" of those securities under Section 16 b.
False Statement Under Rule 10b 5. Janus Capital Group Inc. First Derivative Traders; For purposes of Rule 10b-5, the maker of a false statement is the person who has the ultimate authority over the statement, including content and distribution. Duty to Make Disclosure. Aiding and Abetting Proximate Causation. Apuzzo; to hold an aider and abettor liable for securities law violations, must show underlying violation that defendant knew about, provided substantial assistance, by participating, and by action.
New York Joint Board. Alaska Civil Liberties Union v. An employee may not unilaterally disregard an employer directions despite a good faith belief. Don's Super Valu, Inc. At-will employees, terminated in retaliation, wrongful discharge action, public policy exception. Bath Iron Works Corp. Retaliatory discharge, Whistleblowers Protection Act, threaten discriminate against an employee. Compensable time, activity integral and indispensable, Fair Labor Standards Act.
General Dynamics Government Systems Corporation. Mandatory arbitration policy, judicial forum, alternative dispute resolution, arbitration clause. National labor market, interstate commerce, business actions, Occupational Safety and Health Act of , Occupational Safety and Health Administration.
Employers follow company procedures before discharging employees, wrongful discharge, implied covenant of good faith and fair dealing. Non-compete agreements enforced by injunction, employee agreement, geographical scope and duration are reasonable. Citizen speech, public-employee speech, First Amendment, freedom of speech.
Terminate, discharge employee, violating company policy, imminent danger. Indiana Department of Corrections. Employer-administered psychological examinations, unconstitutional searches, The Fourth Amendment, highly personal private information, state action.
Sharp Manufacturing of America. An injury is compensable under workers compensation only if it arises out of and in the course of employment. Employers ban guns from premises, infringing employees constitutional rights, right to bear arms.
Director, Department of Emplyment Security. Employment conditions, voluntarily quit, attributable to employer, action or inaction of the employer.
Department of Employment Security. Diversity policies, racial balance, affirmative action, equal protection, strict scrutiny, suspect classification. Pennsylvania State Police v. Agency principles, harassment of employees, utilize established procedures in workplace, constructive discharge, hostile-environment sexual harassment, vicarious liability.
Workers compensation, benefits not paid for injuries caused by knowing rule violations, explicit employment policy, course of employment.
Available for work, qualified, willing, able, and ready to accept employment, no good cause to refuse. Quik'n Tasty Foods, Inc. Division of Employment Security. The Great Lakes Companies, Inc. Title VII forbids intentional discrimination on the basis of ones religion, affirmative duty, reasonably accommodate any bona fide religious beliefs. Florida Unemployment Appeals Commission.
A single act of misconduct involving dishonesty or a critical offense may disqualify a discharged employee from receiving unemployment benefits. Disparate-impact, Age Discrimination in Employment Act, disparate treatment, age discrimination case. Gary Community School Coporation. Employee benefits plan, unlawful age-based discrimination, Age Discrimination in Employment Act.
Springfield Rare Coin Galleries v. Tri-County Youth Programs, Inc. Sexual harassment, good cause attributable to the employer to quit, hostile environment. Intentional representations, future of plan benefits, act of plan administration giving rise to a fiduciary duty, fiduciary receiver. Department of Human Services. Equal Pay Act, equal skill, effort, and responsibility, and which are performed under similar working conditions, disparate impact, disparate treatment.
States may treat seasonal employees differently for unemployment insurance purposes, Equal Protection, Rational Basis Test. Superior Court; A disclaimer in a standard job application advising an applicant that he or she need not complete certain sections as provided by local law must be clear and conspicuous. Proctor Hospital; Under the cat's paw theory, discriminatory animus of non-decisionmakers can be imputed to decisionmakers only when the non-decisionmaker has a singular influence over the decisionmaker and uses that influence.
Retaliation Claim Basis Opposition. Metropolitan Government Nashville; Under Title VII, an employee may "oppose" unlawful employment practice as required as a condition precedent to a retaliation claim even though opposition is not expressed as a discrimination claim.
Intentional Discrimination By Employer. DeStefano; Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, must have a strong basis to believe disparate-impact liability.
Employers Can Prefer Certain Characteristics. Legal Aid Society; Under the Americans with Disabilities Act and Rehabilitation Act ADA , employers must accommodate requests that facilitate arrival and departure from workplace if no undue hardship on operation employer's business. Fair Labor Standards Act. Common Law Tort Of Intrusion. City of Ontario v. Quon; Even when employee has reasonable expectation of privacy in workplace, government employer does not violate Fourth Amendment when it invades the employee's privacy for a legitimate work-related reason.
Walters; Specific information provided by employer to employee, in course of employment, and for sole purpose of servicing employer's customers, is legally protectable as confidential proprietary information. In re American Housing Foundation, Debtor; After an employer's bankruptcy case commences, an employer is only obligated to pay for unused vacation time if the right to payment is specifically expressed in its employment contract with the employee.
Defined Contribution Plan Individual Remedies. Notice Period For Mass Layoffs. An employer may order a plant closing or mass layoff before the conclusion of the statutory sixty-day notice period if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable.
Benchmark Electronics Huntsville, Inc. Under the Americans Disabilities Act an employer may not conduct pre-offer medical examination or make inquiries of job applicant whether applicant.
Kadlec Medical Center v. A person has a duty to avoid affirmative misrepresentations in referral letters and a duty to disclose omitted information if a fiduciary or confidential relationship exists or a pecuniary interest.
Fiduciary Duty to Employer. Duties of Care and Loyalty. LaCrosse; a partners and joint venturers both owe a duty of care and loyalty to each other. Assumption of LLC Liability.
Clay Ward Agency, Inc. Shareholder Adoption of Bylaws. AFSCME Employees Pension Plan; bylaws may be unilaterally adopted by shareholders only when they appropriately relate to corporate processes rather than substantive decisions and do not otherwise violate the law.
Bank of New York Mellon v. Realogy Corporation; the fact that loans under credit agreements are usually funded in cash does not mean that the word "loan" cannot encompass borrowings funded otherwise. Client Responsible For Actions of Attorney.
McNulty; Ordinarily, the conduct of an attorney is imputed to his client, since allowing a party to evade the consequences of the acts or omissions of his freely selected agent would be inconsistent with system of representative litigation. Mitsubishi Motors Corp; When a lawyer inadvertently receives materials that obviously appear to be subject to attorney-client privilege or otherwise confidential and privileged, the lawyer must immediately notify the sender.
Missing a deadline; what happens if a lawyer misses a deadline; how to punish somebody for missing a deadline; automated docketing software; missing a court filing deadline. CITGO Petroleum Corp; Non-refundable retainer fees and other non-refundable provisions in attorney fee agreements will be upheld if reasonable; sophisticated client; contract is in writing; incurred expenses.
Litigation Hold To Prevent Spoilation. Docketing; docket; automated docketing software; missing a deadline. City of New York; To prevail on a claim for denial of a fair trial due to prejudicial publicity, the plaintiff must establish 1 improper leaks; 2 in fact denied a fair trial; and 3 other remedies were not available or used to no avail.
Lawyer Liability For Misrepresentation. Production Resources Group, L. C; For an attorney statement in the course of representation to form the basis of a misrepresentation claim, the statement must be more than a legal opinion and must relate to actual facts.
In re Grand Jury Subpoena; for person seeking invoke attorney-client privilege prove client affirmatively sought become client; motion to quash; quash; subpoena duces tecum. Missed deadlines; what happens if a lawyer misses a deadline; how to punish somebody for missing a deadline; automated docketing software; missing a court filing deadline. Government Regulation of Candidate Speech. Republican Party of Minnesota v. White; Government regulations suppress speech on basis of content must narrowly tailored to serve compelling state interest; first amendment.
In-house counsel may bring a common-law action for retaliatory discharge resulting compliance with Code of Professional Responsibility provision that represents a clear and definitive statement of public policy. Simultaneous Representation of Adverse Interests. The Florida Bar v. Belleville An attorney has an ethical obligation to ensure that his client does not take unfair advantage of an unrepresented adversary.
Representations By Opposing Counsel. Parties have a right to rely on the representations of opposing counsel as a matter of law. Sweet; plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that plaintiff would have obtained a more favorable result; but-for causation.
In re Primus; when freedom of association is involved, the state must demonstrate a compelling subordinating interest, and that the means employed is closely drawn to avoid unnecessary abridgement of associational freedoms.
Carona; the government may use deception in its investigations in order to induce suspects into making incriminating statements, even if reprensented by an attorney. Alaska Department of Environmental Conservation v.
The EPA authority under the Clean Air Act includes the power to mandate the inclusion of emissions-control designations in pre-construction permits AND the power to determine whether the designations are in accord with the provisions of the Act. When Congress mandates a specific definition of a statutory term, an agency cannot interpret the meaning of the term differently under its regulations.
Only increases in per hour emissions are modifications requires preapproval. When an issue of environmental concern requires a high degree of technical expertise, the court will defer to the informed discretion of the responsible federal agency here, the EPA.
One state cannot pollute a downwind state. Polluters may trade emissions allowances with other polluters in the state, but neighboring states may still petition the EPA for relief under the Clean Air Act. Engine Manufacturers Association v. The Clean Air Act makes state standards governing or enforcing emissions limits preempted for sale or purchase of vehicles; preemption. Navigable waters; The phrase the waters of the United States, as used in the Clean Water Act, includes only those relatively permanent or continuously flowing bodies of water forming geographic features; wetlands are not navigable waters.
South Florida Water Management District v. Miccosukee Tribe of Indians. Moving pollutants between bodies of water may not require a permit. The Clean Water Act requires a permit before a pollutant may be discharged into navigable waters. A plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed only by alleging a physical taking, a total regulatory taking, a Penn Central taking, or a land-use exaction.
Department of Transportation v. Environmental Assessment; when an agency has no ability to prevent a certain effect, the agency cannot be considered a legally relevant cause of such effect; so under NEPA, the agency need not consider these effects in its EA.
Natural Resources Defense Council v. EPA; he Clean Air Act only mandates that residual risk standards provide an ample margin of safety to protect public health, and the EPA is free to determine that existing technology-based standards are ample.
United States; Mere knowledge that spills and leaks occur after the sale of a chemical product is insufficient for concluding the seller "arranged for" disposal of hazardous chemical for CERCLA liability. United States; CERCLA does not mandate joint and several liability; scope of liability must be determined from traditional and evolving principles of common law.
EPA Waiver of Preemption. Central Valley Chrysler-Jeep, Inc. Goldstene; If the California motor vehicle emissions regulations are granted a waiver by the EPA to the Clean Air Act, enforcement is not prevented by the doctrine of conflict preemption or by express preemption.
Duke Energy Corp; A Clean Air Act permit is required for any physical change in, or change in the method of operation of, a major stationary source that would result in a significant net emissions increase of any pollutant.
No Trading of Pollution Credits. EPA; EPA is not properly exercising its duty under the Clean Air Interstate Rule unless it is promulgating a rule that achieves something measureable toward the goal of prohibiting sources within one state from affecting another state.
Fill Material Is Not a Pollutant. Coeur Alaska, In c. Southeast Alaska Conservation Council; The Army Corps of Engineers has the power to issue permits for the discharge of dredged or fill material under 33 U. Center for Biological Diversity v. National Highway Traffic Safety Administration; NHTSA has a duty to assess environmental impacts, including impact on climate change, of rules; enviornmental impact statement.
National Ass'n of Home Builders v. Greenhouse Gasses Are Pollutants. Federal Rule of Civil Procedure 18 provides for unrestricted joinder of claims against an opposing party, severence. Federal Rule of Civil Procedure 20 a permits joinder of plaintiffs if all claims arose out of the same transaction or occurrence and share common questions of law or fact, permissive joinder. Kohl's Department Stores, Inc.
Contribution, implead, impleader, indemnity, indemnification, third-party complaint. California; fruit of the poisonous tree; officers did not have probable cause to stop vehicle, passenger was seized and evidence discovered as result was inadmissible. Rule 27, authorize pre-complaint discovery, file a verified complaint. Federal Rule of Civil Procedure 26 a , automatically disclose all documents and tangible evidence on which it intends to rely at trial, dislosure, motion to compel discovery, protective order.
Movants, protective order, federal rule of civil procedure 30 b 2 , record a deposition by nonstenographic means and is given the choice of the method of recording, absent annoyance, embarrassment, oppression, and undue burden or expense.
A contract may form the basis of a discovery obligation under the federal rules of civil procedure, interrogatory. Expense and burden of certain discovery requests may be shifted to the requesting party, discoverable matter includes both paper and electronic documents. Memorial Hospital at Gulfport. Deposition testimony of an unavailable witness may be introduced at trial, continuance, unavailability.
Rule 56 f , timely respond to a motion for summary judgment, sanctions. Sanctioned, attorney transgressions, preserve the integrity of the judicial process, sanctions.
Time-barred, longer statutory period, claim-preclusive effect of a judgment on the merits in a federal diversity action, claim preclusion, res judicata, statute of limitations. Attorney Conflict of Interest. American Family Mutual Ins. Benguet Consolidated Mining Co.
Helicopteros Nacionales de Colombia, S. Hall; buying products from a different state does not expose buyer to court jurisdiction unless sales resulted in other connections. In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation;. Supplemental jurisdiction; 28 U. First Bancorp; no supplemental jurisdiction formerly ancillary jurisdiction or pendent jurisdiction if plaintiff's state law claims substantially predominate over the federal claims or raise complex or novel issues of state law.
Short And Plain Statement of the Claim. Twombly; sufficient factual allegations required for Fed. Prisoners Must Exhaust Remedies. Bock; prisoners must exhaust their remedies through the prison system before bringing a lawsuit. Spoliation of Evidence of Airbag Defect. Unconscionability Doctrine for Employment Agreement. Countrywide Credit Industries, Inc. Harmless Error Admitting Hearsay Evidence. District of Columbia; doctrine of res judicata, or claim preclusion; final judgment on the merits precludes relitigation between the same parties concerning the same factual transaction.
Failure To Warn Lawsuit. Spoilation and Discovery Obligations. UBS Warburg LLC; corporate counsel has duty to communicate discovery obligations so all relevant information is discovered, retained, and produced; once duty to preserve attaches, identify all sources of discoverable information.
Amount In Controversy Requirement. Allapattah Services; class action, if named plaintiff meets requirement, supplemental jurisdiction over claims in same case or controversy even if claims for less than jurisdictional amount for diversity jurisdiction; Article III. Caddy; Due process is satisfied when the defendant has performed some act or consummated some transaction within the forum or has otherwise purposefully availed himself of the privileges of conducting business in the forum.
Carey; Rule 9 b 's requirement of pleading fraud with particularity must be harmonized with Fed. Withrow; When a party has signaled consent to the magistrate judge's authority to hear a case through actions rather than words, there is little value in strict insistence on an express consent requirement.
In re Peterson; The Seventh Amendment does not prohibit the introduction of new methods for determining what facts are in issue, nor new rules of evidence. Sanderson Plumbing Products, Inc; A discrimination plaintiff's case may be sufficient to submit to the jury if consists of a prima facie case of discrimination and sufficient evidence that defendant's proffered explanation was merely a pretext. Jurors Can Sometimes Question Witnesses. Koenig; Just as questions from the bench can provide insight that helps lawyers make a stronger case, so too can questions from the jury help lawyers tailor their presentations; motion in limine.
Jurors Can Reconcile Inconsistent Verdicts. MGM Grand Hotel, Inc; Where the jury is still available, a district court's decision to resubmit an inconsistent verdict for clarification is within its discretion; comparative negligence; contributory negligence. Rule 60 d Cause Of Action. Walker; The elements of a Rule 60 d cause of action include 1 a judgment that, in equity and good conscience, ought not be enforced; 2 a good defense to the cause of action on which the judgment is founded; 3 fraud, accident.
Final Judgment Rule Usually Applies. Hallock; Collateral order requirements 1 conclusively determine the disputed question, 2 resolve an important issue completely separate from the merits of the action, and 3 be effectively unreviewable on appeal; collateral order doctrine. Rule Against Nonparty Preclusion Exceptions.
Sturgell; The rule against nonparty preclusion is subject only to certain recognized exceptions: National Equipment Rental, Ltd. Szukhent; a contractually designated agent's prompt acceptance and transmittal to named defendants of a summons and complaint, pursuant to authorization contained in the contract, constitutes adequate service. Praxair, Inc; Under Federal Rule of Procedure 15 c , an amendment that changes the party against whom a claim is asserted relates back to the date of the original pleading under certain limited conditions such as related companies.
United Mine Workers v. Gibbs; The exercise of pendent jurisdiction is within the sound discretion of the trial court; primary boycott; secondary boycott; supplemental jurisdiction. Ancillary Jurisdiction Requires Complete Diversity. Owen Equipment and Erection Company v. Kroger; plaintiff in diversity case cannot rely on ancillary jurisdiction to permit amendment to complaint to bring claim against non-diverse third-party defendant; complete diversity; diversity jurisdiction.
Russell; Time limits for filing a notice of appeal are jurisdictional in nature, and the untimely filing of notice, even if filed in reliance on a district court order, deprives the court of appeals of jurisdiction; equitable; habeas corpus.
American Brands, Inc; An appeal as of right may be taken from interlocutory orders of federal district courts granting, continuing, modifying, refusing, or dissolving injunction; consent decree; interlocutory. TREX, Inc; Interlocutory appeals are within court's discretion, and will be granted only when court certifies that each ruling presented for appeal involves a controlling question of law as to which there is substantial difference of opinion. American Tobacco; A district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class; sui generis.
ACLU; statute that suppresses a substantial amount of protected speech is unconstitutional if less restrictive alternatives exist to further the governmental objective; content-based restriction; preliminary injunction.
Du Pont Advance Fiber Sys; Under Federal Rule of Civil Procedure 11, a complaint must not be presented for an improper purpose, such as to harass or to cause unnecessary delay or cost of litigation; contain claims warranted by existing law. Paragon Group, Inc; A defendant's claims against a plaintiff must be asserted as a counterclaim if arise out of the transaction or occurrence and do not require the presence of third parties over whom the court lacks jurisdiction.
Blue Cross and Blue Shield of Kansas, Inc; The burden of proving that a challenged discovery request is relevant is on the party who makes the request, while proving that the request is unduly burdensome rests with the party making the objection. WestLB AG; A court may shift the cost of restoring and searching for relevant information in an electronic form when the party who converts the data into an inaccessible format should have reasonably anticipated a need to produce that data.
United States District Court; Hague Convention is not exclusive means for obtaining evidence located abroad; comity; mandamus. Harris; When opposing parties tell two different stories, and one is blatantly contradicted by the record so that no reasonable jury could believe it, a court should not adopt that version for purposes of ruling on a motion for summary judgment.
PV Holding Corp; When determining a party's domicile, the controlling factors are the party's actual place of residence and the real intention of remaining there as disclosed by the party's entire course of conduct. Derderian; The Multiparty, Multiforum Trial Jurisdiction Act MMTJA requires federal courts to abstain when substantial majorities of all plaintiffs and of the principal defendants are residents of a single state.
State Class Action Lawsuits. Windsor; Settlement is relevant to the certification of a class; however, the class unity requirements of Fed. Iqbal; pleading; facts to support claim; insufficient pleading.
Brent Taylor, Petitioner v. Cruel and Unusual Punishment. Plata; expand interpretation; judicial system takes an active role in the state prison system. Johns-Manville Sales Corporation, et al. Doehr; pre-hearing seizure; only exigent circumstances justify a pre-hearing seizure. Goodyear Dunlop Tires Operations, S.
Butterball, LLC; e-discovery; unduly burdensome electronic discovery request. Nicastro; purposeful contact with state is required to trigger jurisdiction. A; amend pleading; relation back hinges on the knowledge of the party to be added, not the party seeking amendment. City of Irvington; joinder of claims; sever claims; a single transaction may encompass multiple occurrences.
Shutts; minimum contacts are not required for absent class action plaintiffs. Shady Grove Orthopedic Assoc. Rogers; appointed attorney; civil contempt case may not require appointed counsel even if incarceration may be ordered. New York Times; prior restraints on the publication of government information are unlikely when there is no threat to security.
Gender Discrimination Class Action. Dukes; Walmart sex discrimination; class actions require a common claim that can be resolved with one determination. General Jurisdiction Out of State. Goodyear Dunlop Tire Operations, S. Brown; General jurisdiction involves continuous corporate operations within a state; sporadic sales are not sufficient contacts with a forum state.
Friend; Diversity Jurisdiction; a corporation's nerve center is its principal place of business for purposes of diversity jurisdiction. Citibank; racial discrimination in house appraisal; state a claim that is plausible to survive a motion to dismiss for failure to state a claim.
City of White House; Police audiotapes are not as conclusive as videotapes; corroborating evidence. Shady Grove Orthopedic Association v. Community Trust Bancorp, Inc. Community Trust Financial Corp. Defective Consent to Removal. City of Shreveport Police Dept. Amount in Controversy Calculation. Malpractice is a State Law Claim. Minton; legal malpractice cases do not arise under federal law even when the underlying case involved a controversy over the application of federal law. Diversity Jurisdiction Not for Aliens.
Hullin International Trade Co. Kevin Multiline Polymer, Inc. A Deposition is a Deposition. Collins; Discovery depositions may be introduced at trial; Federal Rules of Civil Procedure make no disctiction between discovery depositions and trial depositions. Arbitration Agreements are Enforceable. Concepcion; Federal Arbitration Act will preempt state laws on the unconscionability of contracts if those laws single out arbitration and make private agreements to arbitrate unenforceable.
Safeco Insurance Company; Interpleader exists to resolve inconsistent claims against designated assets based on mutually exclusive theories; resolve claims to the same funds and assets.
Preliminary Injunction Against Public Interest. Natural Resources Defense Council, Inc. Appearance of Bias Matters. Read the fine print; negotiation concession; give and take in a negotiation. Binding arbitration clause; binding mandatory arbitration; American Arbitration Association; binding arbitration provision; binding vs non binding arbitration; ADR; arbitration or mediation or negotiation. Innuendo; pay close attention to legal drafting for alternative meanings.
America's Most Wanted Cartoon. Cameras in the Courtroom. Federal income tax law, rules and procedure; IRS; taxes; tax code; tax forms; ; efile; tax filing instructions; Internal Revenue Service. Law and Order cartoon; celebrity trial; mug shots; celebrity mugshot; celebrity crime photo; celebrity justice photo. Why Bother With Divorce? Voting cartoon; electronic voting; Bush v.
Gore; contested election; election cartoons; election lawsuit cartoon; voting case; hanging chad; disputed election count; judges vote. Ineffective Assistance of Counsel. Judge cartoon; judge and jury; petit jury; hung jury; jury trial; jury duty; jury selection process. Trust company; trustee responsibilities; successor trustee; trustee fees; trustee will; trustee services; personal representative; trustee job.
Inheritance tax; heirs; inherit; living trust; trust amendment; trust agreement; estate planning; legacy; revocable trusts; appropriate age to inherit.
Study for the Bar. Attorney stress; unhappy lawyer; job from hell; purgatory; church cartoon. Happy New Year Cartoon. Wish You a Happy New Year. Original sin image; zero tolerance policy; Constitutional rights cartoon. Settle This Out Of Court. Right to an attorney; call my lawyer; custody; custodial interrogation; need a lawyer. Total release; medical release cartoon; medical malpractice cartoons.
Hiring a lawyer; interviewing for a litigation job cartoon; references; personnel; human resources. Funny graduation cartoons; starting real life; new lawyer; young lawyer; associate; recent graduate. Pet cartoons; negotiate; negotiations; negotiation; settlement conference; ADR. Killing on Wall Street. Dumb criminals news; life insurance fraud; what is insurance fraud; stupid criminals; dumb crimes; stupid crimes; dumbest criminals; stupidest crooks;.
Not Afraid of Divorce. Topic of Expert Testimony. Financial effect of divorce funny image; lawyer advertising cartoon. Update estate plan; update living trust; pour over will; funding powers; certification of trust; funding instructions; trust transfer documents; trustee; trustmaker disability panel; contest provision; amendment to declaration of trust;.
Sample retainer agreement form; legal retainer agreements; retainer fee agreement; attorney retainer contract; lawyer retainer agreement requirements. Federal environmental regualtions; environmental laws; cost to business asscoiated with following environmental regulations and laws and trade theory evidence; EPA; toxic dumping; Envirnmental Protection Agency.
Personal life time management; work home balance; how to balance work and family; too much work or too little work; keeping up the billable hours; overworked. Law firm marketing for attorneys; law firm business development strategy; legal marketing ideas; attorney marketing ideas. Legal marketing; law firm marketing and business development; business development strategy; legal marketing and advertising ethics; attorney marketing strategy.
Prejudicial effect; relevance; relevant evidence; whether the prejudicial effect outweighs the probative value; probative value versus the predjudicial effect. Acceptance to law school acceptance; don't go to law school; law school admissions test; LSAT; applying to law school; admission to law school.
Law firm managing partner salary; becoming managing partner; stressed out lawyers. Legal fees; lawyer percentage fee; contingent fee for attorneys; contingency fee agreement; legal retainer agreement. Increase billable hours; increasing billable hours for lawyers; attorney marketing and business development; rainmaking partner; partnership track; partner material. Last will and testament; wealth protection; living trust; estate planning forms; estate planning trust; administration of trust; the common trust; resignation of trustee; replacement of trustee; trustee's investment powers.
Ethics opinion; ethical obligations of a lawyer; ethical obligation to opposing counsel; ethical duty to opposing attorney; ethically permissable; sexual relationship with opposing counsel. Pour over will; funding powers; certification of trust; funding instructions; trust transfer documents; trustee; trustmaker disability panel; contest provision; amendment to declaration of trust.
Write a will; draft a will; writing a will; draft trust documents; trust plan; last will and testament; how to make a will. Donate to charity; planned giving; charitable donation; give to charity in your will or trust when you die. Foundation board of directors; board of the foundation; Planned giving; charitable giving; family charitable foundation.
Requests for donation; tax deductible donations; donation request letter; how to decide on a charity; too many charities requesting a donation; donor fatigue. Litigator salary; litigator job; aggressive litigator; litigator jokes. Court filing deadline; deadline for filing motions; deadline for briefs; deadline calendar; filing date calendar; pretrail motion deadlines.
Deal lawyer; transactional attorney; corporate lawyer; corporate attorney; managing partner; business attorneys; deal attorneys. Sample engagement letter; CPA engagement letters; lawyer letter of engagement; tax engagement letter; accounting; consulting.
Golf cartoon; multitask; time pressure; quality time for oneself; excuse to play golf; golf excuses; why play golf; get ahead in business by playing golf. Paralegal certification and first paralegal job; paralegal certificate.
What Is A Paralegal. Paralegal programs; paralegal training; paralegel colleges; paralegal courses online;. How To Be a Paralegal. Grade papers; how to grade papers; how to grade a paper; grading papers; how to grade students; buried in exams to grade; buried in papers to grade.
Professor cartoon; law school professor; how to get tenure; make tenure. Automated docketing software; deadline reminders; court deadline; docket clerk; court date; docketing; federal court docket. ZOPA; no zone of possible agreement in negotations; mediators; mediation; three little pigs; wolf. Difficultion negotiation; positional bargaining; positional negotiation; Fisher and Ury; principled negotiation; non-adversarial bargaining; negotiation tactics; negotiation skills; negotiation strategies; negotiaiton techniques.
Negotiate a higher starting salary; negotiating a salary package; negotating job offer; negotiate salary increase; salary and benefits. Negotiation tactics; negotiation skills; negotiation strategies; negotiaiton techniques; positional bargaining; positional negotiation; Fisher and Ury.
Judiciary act, power to declare unconstitutional, appellate jurisdiction, mandamus, original jurisdiction. Martinez; discrimination at public university; First Amendment; expressive activity; pretext.
Department of Public Health. Same-sex partners are entitled to the benefits, liabilities, and obligations of civil marriage; gay rights; due process; equal protection; Massachusetts constitution.
Burning the American flag, freedom of expression, first amendment, symbolic speech. United States; When an average person applying contemporary community standards feels that the dominant theme, taken as a whole, appeals to purient interests, the government can regulate the material as obscene. Environmental Protection Agency, states can sue over global warming, case or controversy requirement.
Damage to the environment. City of Renton v. Zoning ordinances may target secondary effects of speech without offending the first amendment, free speech, content based restriction. Separate but equal doctrine, public education, violates the fourteenth amendment, tangibly equal resources and facilities, segregation. Constitutional standards apply to recounts, clear standards, determine voter intent, recount of votes.
Right to privacy, marital relationship, contraceptives, penumbra, zone of privacy. Citizen "enemy combatant" has due process right to contest his detention, non detention act. Separate but equal accommodations, racial inferiority, the fourteenth amendment, separate but equal doctrine.
Appropriations among school districts, comparative wealth, education is not a fundamental right. Judicial enforcement of racially restrictive covenants constitutes state action, fourteenth amendment. Laws prohibiting physician assisted suicide, terminally ill, mentally competent, patients in extreme pain, right to die.
Fifth amendment, eminent domain just compensation, public purpose, takings of private property, private economic development. School desegregation, Brown v. Board of Education, supremacy clause. Equal protection clause of the fourteenth amendment prohibits racial discrimination. Leesville Concrete Company, Inc. Peremptory challenge; Batson challenge, state action, voir dire, exlude black jurors. City of Richmond v. Affirmative action; strict scrutiny, race based compensation incentive, state actor.
Gerrymandering; reapportionment; strict scrutiny; voting rights act, odd shaped voting districts. Railway Express Agency, Inc. Sex suspect classification, similarly situated members of different sexes.
Public university gender classification requires exceedingly persuasive justification. City of Cleburne v. Fifth amendment; double jeapordy clause; concept of ordered liberty. The Fourteenth Amendment guarantees an individual the right to make a contract affecting his or her personal business. Penn Central Transportation Company v.
City of New York. Eminent domain clause; takings clause, landmark, payment of just compensation. South Carolina Coastal Council. Eminent domain clause; takings clause, nuisance, regulation, payment of just compensation. Tahoe Sierra Preservation Council, Inc. Tahoe Regional Planning Agency. Moratorium on develepment as eminent domain clause; takings clause, payment of just compensation. Reapportionment; dilution of representation, equal protection clause.
Edgewood Independent School District v. Privileges and immunities clause; welfare benefits, length of residency. Actual controversy, actual dispute, declaratory judgment, nullification, per legem terrae, ripeness. Complete ban on abortions violates the right to privacy, state, abortion laws, viable zone of privacy.
Planned Parenthood of Southeastern Pennsylvania v. Restrictions on abortions cannot unduly interfere with a woman's right to choose, judicial bypass, substantive due process, undue burden test. Board of Regents v. Due process, contract rights, property interests, procedural due process. A hearing, termination of social security disability benefits, terminating disability benefits; administrative procedures, due process, entitlement.
City of Saint Paul. Fighting words may be prohibited, ordinance, target race, color, creed, religion, or gender violates the first amendment, content based restriction, defamation, fighting words, libel. The first amendment does not protect speech aimed at influencing the american public against the war the government is trying to wage.
Speech advocating social change is protected by the first amendment, speech that advocates violence but does not incite immediate use of force or violence. New York Times Company v. A public official may receive damages only for malicious libel, showing of actual malice, defamation. Illegally obtained information, matter of public significance, chilling effect, intervenor. Distribution of obscene material, the first amendment, sexually explicit material, prurient interest, lacks serious literary, artistic, political, or scientific value, obscenity, pornography.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. The first amendment protects some commercial speech, flow of commercial information.
Contributions to political campaigns are protected as speech, limits on campaign contributions, limits on campaign expenditures, the first amendment. The first amendment prohibits denying access to a traditional public forum, sidewalks, forums for public expression, designated public forum. Noise ordinances advance a substantial government goal, limit speech, protect a legitimate government interest, content based, foreclose alternate avenues of communication; least restrictive intrusive.
International Society for Krishna Consciousness, Inc. An airport terminal is not a public forum, regulations prohibiting solicitation for donations and religious leafleting. Funding, abortion counseling programs, violate the first amendment. Legal Services Corporation v. Federal grant money, challenge welfare laws, the first amendment, legal assistance, welfare recipients. Hazelwood School District v. Schools may exercise editorial control over student speech in school sponsored activities, the first amendment.
Womens Health Center, Inc. Injunction, the first amendment protection, narrowly tailored, prior restraint. Board of Airport Commissioners v. Jews for Jesus, Inc. Overbreadth doctrine, a resolution that prohibits all conduct or speech protected by the first amendment is unconstitutional. Board of Directors of Rotary International v. Rotary Club of Duarte. Private association, denial of membership to women, unruh act to the california rotary clubs, the right of expressive association, the first amendment.
Employment Division Department of Human Resources v. Free exercise clause, unemployment benefits, peyote, unemployment compensation, state criminal statute, religious ritual. Government reimbursement to facilitate transportation of students to school does not violate the establishment clause. Prayers at commencement exercises violate the first amendment, state endorsement of religion. School voucher program, religious affiliated schools, vouchers to parents, not violate the establishment clause of the first amendment.
Congress power to enact legislation to carry out its powers, constitutional authority, pass legislation, establish a national bank that is exempt from state taxing powers.
The constitution's grant of authority to regulate commerce among the states must necessarily include the ability to regulate navigation; commerce clause; dormant commerce clause; supremacy clause. Intrastate components of interstate commerce fall within the commerce clause, ability to regulate certain intrastate activities.
Heart of Atlanta Motel v. Racial discrimination has an economic impact and so may be regulated by congress under the commerce clause. Enact school gun possession laws, connected with interstate commerce, congressional interference in a purely local concern. The Civil Rights Cases. The civil rights act was intended to protect the legal and civil rights of all citizens. Alfred H Meyer Company. Congress has the authority to prohibit private discrimination in order to give full effect to the provisions of the thirteenth amendment.
State voting requirements cannot conflict with federal provisions, federal voting rights act. City of Rome v. Congress has the right to prohibit unintended effects of practices that do not alone violate the 15th amendment, prohibit voting practices, discriminatory purpose, discriminatory effect when applied. City of Boerne v. The religious freedom restoration act rfra exceeds congress' power under the fourteenth amendment and violates principles necessary to maintain separation of powers and a federal state balance.
Congress may not regulate non economic, violent criminal conduct based solely on an assertion that the conduct has a negative impact on interstate commerce. Congress may condition payments of federal funds to states on their passage of laws restricting alcohol sales, spending power, twenty first amendment. Treaties, superior to state laws, federal laws and regulations enacted pursuant to a validly entered treaty take precedence over the laws of the individual states. San Antonio Metropolitan Transit Authority.
State and local government employers are subject to the FLSA, application of the Fair Labor Standards Act to local government employers does not violate the tenth amendment.
Congress cannot impose a regulatory process on the individual states in violation of the tenth amendment, forcing individual states to comply with nationwide regulations. Congress may not compel state and local law enforcement officers to administer the brady act, federal law that requires a particular action by a state or local officer. States may not exercise regulatory power delegated to congress simply because congress has failed to act, absence of congressional action to regulate commerce.
City of Philadelphia v. Restrict the flow of waste, landfills, states may not regulate commercial activity within their borders in such a way as to favor state interests.
State regulations having a direct impact on interstate commerce must be justifiable as a safety concern. Mayor and Council of Camden. Municipal ordinances that discriminate based on local residency may violate the privileges and immunities clause, municipal residency requirements have interstate effect. Youngstown Sheet and Tube Company v.
Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss. General damages compensate the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium , disfigurement, loss of reputation, loss or impairment of mental or physical capacity, hedonic damages or loss of enjoyment of life, etc.
Judges in the United Kingdom base the award on damages awarded in similar previous cases. General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury following the tort of negligence by the defendant , or the tort of defamation.
Speculative damages are damages that have not yet occurred, but the plaintiff expects them to. Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably likely to occur.
Statutory damages are an amount stipulated within the statute rather than calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine the value of the harm to the victim.
Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are different from nominal damages, in which no written sum is specified. Nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin.
Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech. Contemptuous damages are a form of damage award available in some jurisdictions. They are similar to nominal damages awards, as they are given when the plaintiff's suit is trivial, used only to settle a point of honour or law.
The key distinction is that in jurisdictions that follow the loser-pays for attorney fees, the claimaint in a contemptuous damages case may be required to pay his or her own attorney fees. Court costs are not awarded. Generally, punitive damages , which are also termed exemplary damages in the United Kingdom , are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.
Punitive damages are awarded only in special cases where conduct was egregiously insidious and are over and above the amount of compensatory damages, such as in the event of malice or intent. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
In England and Wales , exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v. Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.
Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public. Some jurisdictions recognize a form of damages, called, aggravated damages, that are similar to punitive or exemplary damages. Aggravated damages are not often awarded; they apply where the injury has been aggravated by the wrongdoer's behaviour, for example, their cruelty.
In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. Doyle and Wright define restitutionary damages as being a monetary remedy that is measured according to the defendant's gain rather than the plaintiff's loss.
In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake , for the publication of his book, were awarded to the British Government for breach of contract.
The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear. The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.
In addition to damages, the successful party is entitled to be awarded their reasonable legal costs that they spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial unless the parties agreed in a contract that attorney's fees should be covered or a specific statute or law permits recovery of legal fees, such as discrimination.
The quantification of personal injury is not an exact science. In English law solicitors like to call personal injury claims as "general damages" for pain and suffering and loss of amenity PSLA. Solicitors quantify personal injury claims by reference to previous awards made by the courts which are "similar" to the case in hand.
The guidance solicitors will take into account to help quantify general damages are as hereunder:. The age of the client is important especially when dealing with fatal accident claims or permanent injuries. The younger the injured victim with a permanent injury the longer that person has to live with the PSLA. As a consequence, the greater the compensation payment.
In fatal accident claims, generally the younger deceased, the greater the dependency claim by the partner and children. Solicitors will consider "like for like" injuries with the case in hand and similar cases decided by the courts previously.
These cases are known as precedents. Generally speaking decisions from the higher courts will bind the lower courts. Therefore, judgments from the House of Lords and the Court of Appeal have greater authority than the lower courts such as the High Court and the County Court. A compensation award can only be right or wrong with reference to that specific judgment. Solicitors must be careful when looking at older cases when quantifying a claim to ensure that the award is brought up to date and to take into account the court of appeal case in Heil v Rankin  Generally speaking the greater the injury the greater the damages awarded.
This heading is inextricably linked with the other points above. Where two clients are of the same age, experience and suffer the same injury, it does not necessarily mean that they will be affected the same. We are all different. Some people will recover more quickly than others. The courts will assess each claim on its own particular facts and therefore if one claimant recovers more quickly than another, the damages will be reflected accordingly.
It is important to note here that "psychological injuries" may also follow from an accident which may increase the quantum of damages. When a personal injury claim is settled either in court or out of court, the most common way the compensation payment is made is by a lump sum award in full and final settlement of the claim.
Once accepted there can be no further award for compensation at a later time unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos related injuries. From Wikipedia, the free encyclopedia. For other uses, see Damages disambiguation. The examples and perspective in this article deal primarily with common law and do not represent a worldwide view of the subject.
You may improve this article , discuss the issue on the talk page , or create a new article , as appropriate. November Learn how and when to remove this template message. American rule attorney's fees and English rule attorney's fees. The examples and perspective in this section may not represent a worldwide view of the subject.