The Lawletter Blog

CRIMINAL LAW: Punitive Effect of Retroactive Application of Sex Offender Registration Requirements

Posted by Mark Rieber on Fri, Feb 27, 2015 @ 15:02 PM

The Lawletter Vol 39 No 12

Mark Rieber, Senior Attorney, National Legal Research Group

      Typically, the courts find that the retroactive application of sex offender registration statutes does not violate the Ex Post Facto Clause, because such statutes are found to be nonpunitive. See, e.g., Smith v. Doe, 538 U.S. 84 (2003). Recently, however, the Supreme Judicial Court of Maine held that particular amended provisions of the Maine Sex Offender Registration and Notification Act ("SORNA"), as applied to Doe, the registrant in the case before it, Doe v. Anderson, 2015 ME 3, 2015 WL 149030 (not yet released for publication), were punitive and that their retroactive application to Doe violated the bill of attainder clause in the state constitution. The amended statutory provisions at issue in Doe were a retroactively added list of offenses to which SORNA applied, including the offense for which the registrant had been convicted, and an amendment that changed the triggering event for a duty to register: That duty no longer required a court determination but only a simple notification from the court or one of the named agencies.

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Topics: criminal, retroactive application, sex offender, registration requirements

CORPORATIONS: Minority Shareholders—Appraisal Rights

Posted by Timothy J. Snider on Wed, Feb 25, 2015 @ 15:02 PM

The Lawletter Vol 39 No 12

Tim Snider, Senior Attorney, National Legal Research Group

     Typically, the circumstances under which a minority shareholder in a corporation may compel appraisal and purchase of his shares by the corporation is made explicit by statute. Occasionally, however, a case tests the outer boundaries of a shareholder's appraisal rights. In Fisher v. Tails, Inc., Record No. 140444, 2015 WL 103679 (Va. Jan. 8, 2015), Tails was organized as a Virginia corporation to operate as a regional franchisee of RE/MAX LLC, a Delaware limited liability company ("LLC"). On August 9, 2013, Buena Suerte Holdings, Inc., another affiliate of RE/MAX, and Tails signed a "Plan of Reorganization and Purchase Agreement" in which Tails would be sold to Buena Suerte in four steps. First, Tails would become a Delaware corporation, changing its state of incorporation from Virginia to Delaware pursuant to Virginia Code § 13.1-722.2 and Delaware Code title 8, § 265. Second, Tails would merge with and into a newly formed Delaware LLC, Tails, LLC. Tails, LLC, would be a subsidiary of a newly formed holding company, Tails Holdco, Inc. (Holdco), and Holdco would hold all of Tails, LLC's membership interests. Third, Holdco would cause Tails, LLC, to amend and restate its LLC agreement to remove certain LLC provisions. Finally, Holdco would sell Buena Suerte all of its membership interests in Tails, LLC.

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Topics: corporations, minority shareholders, appraisal rights

PROPERTY: Is an Oil and Gas Lease Subject to the Implied Covenant of Good Faith?

Posted by Gale Burns on Mon, Feb 2, 2015 @ 13:02 PM

The Lawletter Vol 39 No 11

Alistair Edwards, Senior Attorney, National Legal Research Group

     It is well established that an oil and gas lease can be subject to certain implied covenants or duties. These can include, for example, the implied covenant or duty of the lessee to reasonably develop the leased property, to use reasonable care and due diligence in its operations, to act as a reasonably prudent operator, and to market. However, few courts have explored the issue of whether an oil and gas lease is subject to the basic implied covenant of good faith and fair dealing traditionally found in contracts.

     Recently, in Yoder v. Artex Oil Co., 2014-Ohio-5130, 2014 WL 6467477 (Ct. App.), the Ohio Court of Appeals held that an oil and gas lease is subject to the implied covenant of good faith and fair dealing found in contracts. To support its conclusion, the court relied on several secondary sources, as well as Ohio law. The court explained:

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Topics: oil and gas lease, . Right to Farm Act did not bar nuisance claim, good-faith covenant, implied duties

FAMILY LAW: Modification of Alimony Agreement

Posted by Gale Burns on Mon, Feb 2, 2015 @ 13:02 PM

The Lawletter Vol 39 No 11

Sandra Thomas, Senior Attorney, National Legal Research Group

     The Appeals Court of Massachusetts has affirmed a trial court's dismissal of a complaint filed by a former husband seeking to decrease or terminate his alimony obligation because he had reached "full retirement age," defined under Massachusetts statute as "the payor's normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program," i.e., Social Security. Lalchandani v. Roddy, No. 13-P-1988, 2014 WL 7447305, at *4 n.6 (Mass. App. Ct. Jan. 5, 2015) (quoting Mass. Gen. Laws ["M.G.L."] ch. 208, § 48 (inserted by St.2011, c. 124, § 3)).

     The parties divorced in 1992 after more than 20 years of marriage. The separation agreement entered into between the parties was incorporated, but not merged, into the judgment of divorce and thus retained independent legal significance. Included in the agreement was a provision that the husband would pay $4,333.33 per month to the wife as alimony until the death of either party or the wife's remarriage. The agreement allowed the parties to modify its terms by written agreement. In 1996, the wife filed a complaint for contempt against the husband for, among other things, unpaid alimony.

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Topics: family law, modification of alimony agreement, Social Security impact

CORPORATIONS: Does the Business Judgment Rule Apply to Corporate Officers?

Posted by Gale Burns on Wed, Jan 28, 2015 @ 09:01 AM

The Lawletter Vol 39 No 11

Paul Ferrer, Senior Attorney, National Legal Research Group

     In a classic formulation, the "business judgment rule" is defined as "a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company." Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (emphasis added), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000). The business judgment rule plays a crucial role in protecting corporate directors from liability for business decisions, because "[a]bsent an abuse of discretion, th[eir] judgment will be respected by the courts" and the burden to establish facts rebutting the presumption is on the party challenging the decision in question. Id.

    The question of whether the business judgment rule should also apply to protect business decisions made by corporate officers has been the subject of much academic debate. See generally Amitai Aviram, Officers' Fiduciary Duties and the Nature of Corporate Organs, 2013 U. Ill. L. Rev. 763, 766 & n.15 (2013) (collecting articles). However, the issue has not been addressed in many cases. In those cases in which the question has been presented, the courts have given the issue little attention in consistently holding that the business judgment rule does not apply to corporate officers.

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Topics: business law, corporations, corporate officers, business judgment rule

ATTORNEY-CLIENT: Attorney's Fees Awards for Prevailing Civil Rights Plaintiffs Under 42 U.S.C. § 1988—The Special Circumstances Exception...

Posted by Gale Burns on Wed, Jan 28, 2015 @ 09:01 AM

The Lawletter Vol 39 No 11

John Stone, Senior Attorney, National Legal Research Group

     "Occupy Wall Street" protestors brought an action under 42 U.S.C. § 1983 against the City of Austin, Texas, challenging on First Amendment and Due Process grounds the City's policy of issuing criminal trespass notices to protestors on city property. They sought nominal damages and declaratory and injunctive relief. After a bench trial, the U.S. District Court for the Western District of Texas granted declaratory and injunctive relief to the protestors but denied their motion for attorney's fees and expenses under 42 U.S.C. § 1988. The protestors appealed the attorney's fees ruling to the Fifth Circuit.

     The Fifth Circuit reversed and remanded for entry of an order awarding the protestors fees in an appropriate amount. Sanchez v. City of Austin, No. 13-50916, 2014 WL 7234728 (5th Cir. Dec. 18, 2014). The error leading to the reversal was the district court's having used the allegedly limited nature and scope of the injunctive relief obtained by protestors and the allegedly limited injury to their rights as relevant factors when determining whether "special circumstances" warranted denial of § 1988 attorney's fees, even though the protestors had been prevailing parties.

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Topics: attorney’s fees, criminal trespass, 42 U.S.C. § 1988, Occupy Wall Street

EMPLOYMENT LAW: Keeping Employment Policies Apace with Developments in Same-Sex Marriage and Gender Identity Discrimination

Posted by Gale Burns on Mon, Dec 29, 2014 @ 13:12 PM

The Lawletter Vol 39 No 10

John Buckley, Senior Attorney, National Legal Research Group

     A periodic review of employment policies for changes in the law is always prudent. In light of the rapidity of recent developments, however, including marriage rights of same-sex couples and prohibitions against discrimination based on sexual orientation and gender identity, counsel for employers face an unprecedented challenge keeping workplace policies compliant in a changing legal landscape.

     Same-sex marriage rights. Recent legislative and judicial developments related to same-sex marriage rights impact workplace rights involving benefits, leave time, and related issues. An employee's same-sex spouse may be entitled to coverage under employer-provided health insurance plans and have rights as the alternate payee, beneficiary, and/or survivor in employee pensions and other retirement benefits. Upon divorce, an employee's spouse may recover an interest in the portion of the employee's pension or other retirement benefit that accrued during the marriage. Upon an employee's death, the surviving spouse may be entitled to receive any wages due the employee. Similarly, under federal and many state laws, an employee is entitled to paid or unpaid leave time to care for a spouse with a serious medical condition or a spouse who is a military servicemember or veteran. Thus, it is essential for employment policies to reflect the current legal definition of "spouse" under federal law and in the employer's particular state(s) of operation.

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Topics: employment law, employment policies, compliance

CIVIL PROCEDURE: Notice—Use of the Internet

Posted by Gale Burns on Mon, Dec 29, 2014 @ 13:12 PM

The Lawletter Vol 39 No 10

Charlene Hicks, Senior Attorney, National Legal Research Group

     The provision of notice solely by publication of an impending legal proceeding affecting an individual's property rights has long been unpopular with the public and disfavored by the courts. To ameliorate the harshness of publication notices and to comply with the intended recipient's right of due process, state and federal courts generally require the party charged with giving notice to first take reasonable steps or make diligent efforts to locate the intended recipient's current address. The question then arises as to what type of investigation is legally required to fulfill the sending party's notice obligations. In this regard, some courts have recently been asked whether such investigatory obligations include the performance of an Internet search for the intended recipient's current address.

     This question is clouded by the admonition of the U.S. Supreme Court in Jones v. Flowers, 547 U.S. 220 (2006), that a party charged with providing notice need not conduct an open-ended search to locate the intended recipient's current whereabouts. It is unclear whether an Internet search amounts to an open-ended search rejected by Jones.

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Topics: civil procedure, investigatory obligations, Internet search, notice by publication

TORTS: Defamation—Absolute Privilege—Statements to Media

Posted by Gale Burns on Mon, Dec 29, 2014 @ 12:12 PM

The Lawletter Vol 39 No 10

Fred Shackelford, Senior Attorney, National Legal Research Group

     Joining numerous other courts that have addressed the issue, the Nevada Supreme Court has considered for the first time whether a litigant's statements to the media regarding litigation are protected by an absolute privilege. In Jacobs v. Adelson, 325 P.3d 1282 (Nev. 2014), a wrongful termination claim was brought against a former employer and its chief executive officer, Sheldon Adelson. The case attracted widespread media attention, and during its course, Adelson was quoted in a Wall Street Journal article as follows: "We have a substantial list of reasons why Steve Jacobs was fired for cause and interestingly he has not refuted a single one of them. Instead, he has attempted to explain his termination by using outright lies and fabrications which seem to have their origins in delusion." Id. at 1284.

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Topics: torts, defamation, absolute privilege, statements to media

PENSIONS: What Severance Contracts Are Subject to Federal ERISA Law?

Posted by Gale Burns on Wed, Dec 24, 2014 @ 10:12 AM

The Lawletter Vol 39 No 10

Matt McDavitt, Senior Attorney, National Legal Research Group

    While many employers create severance contracts as incentives for employees to remain during mergers or sales of the company, few employers realize that some severance agreements are governed by the Employee Retirement Income Security Act ("ERISA") and that federal ERISA law preempts state law when such severance contracts are introduced during litigation.

     However, not all employer severance contracts are subject to preemption by federal ERISA law. The ERISA statutes do not define which severance agreements are governed by federal law; fortunately, a line of federal case law has clarified how this determination is made.

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Topics: ERISA, pensions, severance contracts

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