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Marshall; bankruptcy judges are not constitutionally vested with jurisdiction to decide state common law claims against an entity that is not otherwise part of the bankruptcy proceedings; Northern Pipeline; Norberg. Ickes; the border search doctrine is not subject to a First Amendment exception; the government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border Employee handbooks; employee manual; human resources; anti-fraternization policy; workplace romance; non-fraternization policy; anti-fraternization policies; employee rights; dating a coworker; coworker relationships; employment lawyer. 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. Makor Issues & Rights, Ltd.; Private Securities Litigation Reform Act survives motion to dismiss only if reasonable person would deem inference of scienter cogent and at least as compelling as any opposing inference; scienter. Criminal defendant due process rights are violated if the prosecutor charges defendant with a more serious crime after defendant exercises statutory right to challenge conviction for less serious offense arising from the same conduct. a criminal defendant in federal court is not entitled to a dismissal of the indictment because the prosecutor failed to present to the grand jury substantial exculpatory evidence. no need for severance exists until a defendant makes a convincing showing that he has both important testimony to give concerning one count and a strong need to refrain from testifying on the other. A bank or other institution that receives a check for deposit has a duty to exercise due care to make sure that the depositor is the intended recipient of the funds. What is ethical; business ethics; ethical issues; ethics requirements; ethical responsibility; ethical standards; attorney ethics and professional responsibility; legal ethics; mandatory ethics CLE; ethics class; ethical businesses. Energy Systems, Inc.; mere congregation of a corporation's directors in same room does not necessarily result in a board meeting, and does not obviate the need for adherence to corporate bylaws and General Corporation Law. 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. 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. Private Securities Litigation Reform Act; Connect the inferences fraud Rule 10b-5. 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. Despite a claim of innocence, the fifth amendment protection against self-incrimination is available to all those who have reasonable cause to apprehend danger from a direct answer. Perjury; criminal defendant is not deprived of the effective assistance of counsel when his lawyer admonishes him not to give perjured testimony and threatens to disclose to the court any false testimony the defendant may give. Beneficial owner; rights offering; stockholders have records inspection rights after corporation merger; neither record holders nor beneficial holders need have an actual economic interest in stock to have inspection rights. Investment Co; A limited partner who is not also a general partner is not liable for the obligations of the limited partnership unless he takes part in the control of the business. Jerez; Under Utah law, documents that provide for the acquisition, mortgage, or disposition of property of the LLC are binding on the LLC if they are signed by a manager; limited liability company. In imposing new sentence upon defendant whose original sentence has been set aside, trial judge may consider events subsequent to first trial and may impose sentence that is greater or less than original sentence. Habeas corpus; ineffective assistance of counsel; nolo contendere. establishes a bank's standard of care for the processing of checks but does not preempt common law tort claims regarding communications about the processing of checks. IPO; initial public offering; when the board of directors cannot be expected, due to self interest, to determine whether to initiate legal proceedings against the corporation, it would be futile for the shareholders to make a demand before filing suit. An appellate court should not review a district court sentencing departure decision de novo but instead should ask whether the sentencing court abused its discretion. The manifest necessity requirement, which authorizes granting a mistrial in a criminal case and precludes the defendant from successfully raising a plea of double jeopardy, is met when the indictment is insufficient to charge a crime. Continuing offense; separate and distinct offenses, even if of the same nature, do not constitute a continuing offense, such as two sales of narcotics to the same purchaser, but at different times. A review of the sufficiency of the evidence to support a criminal conviction requires a determination as to whether the record evidence could reasonably support a finding of guilt beyond a "reasonable doubt" standard. Maliciously requires a showing that the defendant acted with an actual intent to cause the particular kind of harm done or that the particular kind of harm might result from his actions. Jury instructions that, by conclusive presumption or misleading directions, shift the burden of proof on an essential element of the crime to the defendant violate the Due Process Clause. When common sense and experience suggest defendant must have known or been aware of a high probability of existence of a fact, the jury may infer his knowledge as element of crime charged. Application of simple negligence standard in criminal proceedings does not violate Due Process Clause; governmental interests deterring similar future conduct outweigh infringement personal freedom. When, by statute, recklessness is established without existence of actual danger, defendant may not escape liability because he was without power to cause danger to his victim. Unconsciousness is an affirmative defense requiring defendant to prove beyond reasonable doubt that mental element of crime is negated by his unconsciousness. To establish first-degree murder, premeditation must be proved by evidence that defendant considered his decision to kill for some period of time before act of killing. When Congress mandates a specific definition of a statutory term, an agency cannot interpret the meaning of the term differently under its regulations. Twombly; sufficient factual allegations required for Fed. Judicial impartiality is not a compelling enough interest to justify suppressing candidates views, government regulations that supress speech on the basis of its content must be narrowly tailored, first amendment. Nontestimonial evidence obtained as a result of a defendant s voluntary statement given without the benefit of miranda warnings need not be excluded at the defendant's trial; fruit of the poisonous tree doctrine. Crossmedia Services, Inc.; when a benefit is offered subject to stated conditions, and the offeree takes the benefit with knowledge of the terms of the offer, the taking constitutes acceptance of the terms. 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. 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. CERCLA authorizes contribution for environmental cleanup costs from other responsible parties only when the party seeking contribution has been sued under CERCLA 106 or 107(a). 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. Jayco, Inc.; summary judgment testimony usually form of an affidavit or sworn statement even if a court's consideration of inadmissible evidence is in error, such error is harmless it if does not affect any party's substantial rights. Eminent domain, inverse condemnation, just compensation, ripeness, taking, environmental concerns justify limitations on development, when a regulation denies all economically beneficial or productive use of property. Eminent domain, just compensation, public purpose, takings of private property for use by other private citizens pursuant to a carefully considered economic development plan intended for a public purpose are valid under the Fifth Amendment. Heller; Words and phrases in the Constitution are to be interpreted according to their normal and ordinary meanings as understood when the provision in question was adopted; second amendment. Freedom from Religion Foundation; Taxpayers have standing to bring Establishment Clause challenges to a federal expenditure only if that expenditure is made pursuant to an explicit congressional authorization; establishment clause. Raich; Medical marijuana; Prescription marijuana; THC; Congress may regulate intrastate activity if there is a rational basis for concluding that the activity may have a substantial effect on interstate commerce; necessary and proper clause. Georgia; The enforcement power in the Fourteenth Amendment gives Congress the power to create a private right of action for violations of the Amendment; Americans with Disabilities Act; sovereign immunity. CSuspicionless drug testing of public school students involved in extracurricular activities is reasonable means of furthering schools interest in preventing and deterring drug use. If law enforcement officers have reason to believe individual giving consent to search has authority over premises to be searched, then entry will be validated even if it is later determined that person did not have authority to consent. Indigent misdemeanor defendant is entitled to appointed counsel at criminal trial when suspended sentence of imprisonment may later be enforced upon revocation of probation. Criminal defendant does not have constitutional right to appointed counsel to assist in pursuing discretionary appeal in state court or petition for certiorari in supreme court of united states. For purposes of Miranda, interrogation occurs when police either expressly question suspect in custody or engage in any actions or dialogue that police should know is reasonably likely to elicit incriminating response from suspect. Ed Stefanko; Contract provisions requiring the issuance of an injunction are not binding on the trial court; granting or denying a preliminary injunction rests within the trial court's equitable discretion, Hall Street Associates, L. Disbar for alcohol abuse; attorney substance abuse; attorney ethics violation; ABA Model Rules of Professional Conduct; lawyer legal ethics and professional responsibility; CLE; Continuing Legal Education. 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. 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. peremptory challenge; batson challenge; strike in camera. Professional ethics; ethics lawyer; lawyer ethics; legal ethics issues; attorney substance abuse and drug addiction; attorney ethics violation; ABA Model Rules of Professional Conduct; lawyer legal ethics; Mandatory Continuing Legal Education. The admission at trial of hearsay statements does not violate confrontation clause as long as declarant is unavailable and statements are sufficiently reliable, based either on firmly rooted hearsay exception or other showings of trustworthiness.
Under Communications Act of 1934, the Federal Communications Commission (FCC) regulates interstate telephone communications using a traditional regulatory system similar to what other commissions regulating other common carriers. Mukasey; An immigration judge's credibility determination must be based on specific, cogent reasons that bear a legitimate nexus to the findings; asylum and protection; Convention Against Torture; Board of Immigration Appeals . Sale of securities falls under 10(b) of the Securites and Exchange Act of 1934; section 10(b) forbids the use of any manipulative or deceptive device or contrivance relating to the sale of a security that is misleading or operates as a fraud or deceit. The Chase Manhattan Bank; Boilerplate successor obligor clauses do not permit assignment of the public debt to another party in the course of a liquidation unless to a single purchaser. RJR Nabisco, Inc.; When there is no express covenant restricting the incurring of new debt, and no perceived direction to that end from the express covenants, the court will not imply a covenant. Bolger; A derivative action that alleges only a breach of the duty of care, and not a breach of the duty of loyalty, does not require separate legal representation of the corporate plaintiff and the management defendants. RCO AG Credit, Inc.; When the court requires a plaintiff in a derivative action to post a bond for the defendant's anticipated attorney's fees and costs, the defendant may not recover costs or fees greater than that bond. Oak Industries, Inc.; The relationship between a corporation and its bondholders is contractual in nature, and the rights and obligations of the parties will be spelled out in the documentation of that relationship. Allied Artists Picture Corporation; When and in what amounts dividends will be declared rests in the honest discretion of the directors, assuming the absence of fraud or a gross abuse of discretion. Delaware corporate law authorizes the indemnification of an officer's legal expenses when the officer has been successful in the underlying proceeding, as well as the advancement of expenses in pending proceedings. Goodyear; a shareholder derivative action must state with particularity any effort made by the plaintiff to obtain the desired action from the directors and the reasons for not obtaining the action or making the effort. Shareholder Litigation; to obtain a preliminary injunction, must demonstrate (1) a reasonable probability of success on the merits, (2) will suffer irreparable harm, and (3) the balance of the equities Nixon v. China Media Express Holdings, Inc.; shareholder may inspect the books and records of a corporation to investigate fraud and mismanagement, and the ability of the board to act independently and in good faith. In re MFW Shareholders Litigation; business judgment rule standard of review applies to controlling stockholder merger if procedural safeguards followed; majority of the minority stockholder approval. Imposition of death sentence for murder in the first degree is not void under due process clause solely because trial court considered additional information from probation department and other sources. Right to a jury trial is not violated by pennsylvania mandatory minimum sentencing act. Moore; The Sixth Amendment requires reasonable competence in representing the accused, but substantial deference must be afforded to counsel's judgment. Habeas corpus; per curiam; opinion; vagueness doctrine; void for vagueness. Court broad construction of a state criminal statute provides fair notice that statutory language will encompass conduct related to that forbidden by the statute. The EPA may consider both the health effects of pollution and the cost of abating it when determining whether a state SIP fails to comply with the Clean Air Act. 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. 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. 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. National Highway Traffic Safety Administration; NHTSA has a duty to assess environmental impacts, including impact on climate change, of rules; enviornmental impact statement. Defenders of Wildlife; Endangered Species Act § 7(a)(2)'s application limited to actions in which discretionary federal involvement or control, and thus it does not apply in the context of mandatory EPA actions. Punitive damages awards must be weighed against the compensatory damages; reprehensibility of the defendant's conduct, disparity between actual harm caused and amount of the punitive damages awarded. Content based restriction, prior restraint, requiring permits for all public assemblies does not infringe on the freedom of speech, content neutral regulation of access to public property, provides adequate standards. Fourth amendment; right against self incriimination. The fifth amendment does not prevent compelled disclosure of client materials disclosed to an attorney where the materials would not be privileged in the hands of the client. The privilege against self incrimination protects against being compelled to provide information to a grand jury about the existence of sources of potentially incriminating evidence. 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. Only increases in per hour emissions are modifications requires preapproval. 1367; if federal court has jurisdiction over a federal claim, it has supplemental jurisdiction over state claims so related to original jurisdiction that they form part of the same case or controversy. 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. The collective rights interpretation of the second amendment is affirmed; right to maintain an effective state militia and does not establish an individual right to own or possess firearms for personal use, right to bear arms. Clarkstown, ordinance that discriminates against interstate commerce in favor of local business or investment is per se invalid, unless municipality demonstrates it has no other means to advance a legitimate local interest. An in court identification of a defendant by a witness must be excluded from evidence if it is based solely on a pretrial identification that was obtained without notice to and participation by defense counsel. The compulsory production of private books and papers subject to forfeiture compels owner to be witness against himself and is equivalent to an unreasonable search and seizure. La Salle II, LLC; the doctrine of impossibility of performance excuses performance if objectively impossible due to destruction of the subject matter of the contract or by operation of law. The Reform Act provides a three-part process for identifying the lead plaintiff in a class action lawsuit: notice; greatest financial stake in the outcome of the controversy; Rule 23 requirements of typicality and adequacy. The substantive fairness of a class action settlement and attorney's fees depends on: (1) the complexity, expense, and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the extent of discover If a board is pursuing a merger for strategic reasons, it may decline to entertain a competing bid that may yield a higher short-term gain for its shareholders in favor of a merger that ensures greater long-range gains. Delaware General Corporation Law 144 provides a safe harbor for interested transactions if the material facts as to the director\'s relationship or interests as to the contract or transaction are disclosed or are known and majority of disinterested direct Abry Partners V, L. One who inflicts an injury upon another that results in death cannot avoid liability because the victim could have taken better care of himself or herself. 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. Ikanos Communications, Inc.; management has duty to make disclosure when a trend, demand, commitment, event, or uncertainty is both presently known and reasonably likely to have material effects on registrant. 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. In re Novartis Wage & Hour Litigation; Per the Fair Labor Standards Act (FLSA) overtime-pay exemption, "outside salesmen" facilitate the transfer of title to goods; "administrative employees" exercise discretion and independent judgment. Hillsides, Inc.; violation of common law tort of intrusion is intentional intrusion into a place, conversation, or matter plaintiff has a reasonable expectation of privacy, in a manner highly offensive to a reasonable person. 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. 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. Residential visitors, who are on the premises for only a short time and who claim no connection to the host other than to transact business, have no legitimate expectation of privacy in the premises under the fourth amendment. Fruit of the poisonous tree doctrine; independent source rule; the fourth amendment prohibits use of evidence obtained by an illegal search and seizure, and evidence obtained as a result of that constitutional violation unless independent source.