May It Please The Court
Quote of the Day - I never read a book before reviewing it - it prejudices a man so.
MIPTC Book Review: Negotiated Acquisitions of Companies, Subsidiaries and Divisions
If you're looking for a soup-to-nuts guide on acquiring companies and subsidiaries, there's a tried-and-true book for you. Originally published in 1992, and continually updated since then, the Negotiated Acquisitions of Companies, Subsidiaries and Divisions (a two-volume set) provides everything you may need, from the basic structure of the deal to closings, and everything in between. Disclosure here: this book is available through LawCatalog.com, one of MIPTC's sponsors. It's not something that we make much on, but we do get free books to review.
This one is a good resource for transactional attorneys to double-check the cutting-edge legal theories and drafting. According to the promotional material, you'll find everything from "planning transactions and advising boards; general and special provisions of the acquisitions agreement; and special topics, such as LBOs and troubled companies. You'll find everything from basic corporate, tax and accounting considerations to detailed analysis of representations, warranties, covenants and closing conditions. Novices as well as experienced practitioners will benefit from mergers of equals; cash election mergers; fairness opinions; special committees of disinterested directors."
After reading the book myself, I'd have to agree. While no legal treatise can compete with John Grisham or Paul Levine for entertainment, this one is very informative.
Appellate Court Puts Its Foot Down On Local Court Rules That Violate Statewide Mandates
In an effort to standardize court rules across the state, the legislature adopted the California Rules of Court and mandated that they apply in every county. Occasionally, though, a local county will adopt a procedural rule that is inconsistent with one of the state rules. San Francisco enacted rule that shortened the time frame to file motions for summary judgment in certain types of cases to 60 days from 75 days.
While the fifteen days is not particularly troublesome and certainly local courts have some rights to manage their individual calendars, the legislature wasn't kidding when it said that local rules cannot vary state rules. As lawyers, we all count on the consistent application of those rules to conduct our practice. Before this statewide mandate was adopted, it was chaotic at best to practice in different counties, and it made not only the lawyers but also the secretaries crazy to figure out which set of rules applied. In areas of California where there were several counties close together, you would often find as many different rules as there were counties.
To add insult to injury (and I'm dating myself here), it used to be that judges in individual courtrooms within a county were also allowed to have different schedules for hearings and the like. In those days, you may have thought you had the hearing dates right after reading the local rules, only to find out that you were wrong because Judge "I have to have it my way" actually did, and Judge IHTHIMW almost always had a different schedule than even the county-wide mandated time frames.
That's why this case was a welcome read. The appellate courts are enforcing the state mandate to keep procedure consistent. Clients are grateful, too, even though they don't know it. It is much less expensive to practice with one set of procedures than it is to research the rules every time you file something in a different county. One set of rules is a small price to pay for sanity.
It's Hard, And For Good Reason, But Hard To Understand While You Wait For Exam Results
While big firms are paying big salaries, the cutoff minimums for passing bar exam are going up. With another bar exam under the belt of the most recent graduates of law schools across the country, many worry and wonder about the results. The troubling question for many graduates, however, is whether this bar exam will bring them one step closer to those big salaries.
For some, it will not, and also apparently for a few more this year. The cutoff line for passing the bar has risen another five points in most states. Law schools countered that move by offering bar review courses for credit. The ABA, on the other hand, countered by excluding those courses from the minimum hours required to obtain a law degree. Law firms are enacting the two-strikes rule: flunk twice, and you will not be hired.
Law graduates who flunk lament the exam. Some graduates studying for the exam stress themselves out to point that they can't even study.
It's been a long time since I took and passed the exams - two of them - and my perspective is expectedly different than the former and the latter. It was admittedly much the same as I stood staring down those exams. Now, however, I see the reasons. There are three main hurdles to a bar card: the LSAT, getting into and graduating from law school, and then passing the bar. Why?
Law is a service industry, and we are here to provide the service of justice both to those that can afford it and those that cannot. Practicing law is a difficult task that demands exactitude, creativity, respect for the past, a vision for the future, but most of all ... knowledge and the ability to apply it. The hurdles are in the way for a reason. As lawyers, we owe a fiduciary duty to our clients and duties both to the courts and our profession. The hurdles ensure that we meet those duties and provide that service in the finest tradition possible.
No, not everyone is going to pass the bar exam, and not everyone should, even after trying some 74 times (which I believe is the record). Meeting the first two hurdles is not enough. For those in practice, even having met the third hurdle is not enough. Lawyers have continuing education requirements and remain subject to the discipline of the bar. Most important, we continue to learn and service our clients in their best interests, honoring both the profession and the best traditions of the bar.
Yes, law school is hard, and so is passing the bar. When you do, give me a call so I can welcome you to the profession.
Coast to Coast Internet Radio Dives Into The $150,000 First-year Associate Salary
After a few stagnant years, salaries for first-year associates in big law firms are exploding. Starting pay just went up to an incredible $150,000 at some large firms. What is causing this first year salary boom? What do graduating law school students think about this? Who is going to pay for it?
My fellow Coast to Coast co-host and Law.com blogger Bob Amgrogi and I examine the reasons for these new salary heights with expert insight from Melissa Lennon of the Beasley School of Law at Temple University. Melissa is the Senior Director of the Temple Law (Temple University, James E. Beasley School of Law) School Office of Career Planning . Melissa is also a former practicing Attorney at a fairly large firm.
Our show also features Carey Bertolet, who as former commercial litigator, is now the Managing Director of BCG Attorney Search in the New York office, which recruits and advises many large firms on salaries and other issues. She has been recognized as an authority and is frequently contacted to comment on the trends in the legal hiring market.
Our final guest is my son, Michel Ayer, a student at the University of Iowa College of Law, who plans to graduate and start looking for a job next year. He is also a contributing writer for May It Please the Court. Michel won Best Advocate and Best Brief in the Jessup International Moot Court team and is consequently the Captain of Iowa's International Moot Court team. He is also written a Note for the Journal of Corporation Law and is pursuing a Master's degree in Urban & Regional Planning. This show gives an invaluable discussion for all firms looking for new talent and law students looking for jobs.
Who You Gonna Call? Fluffernutter Fights In Federal Court Over Trademark
Fluffernutters were a household staple for me as I grew up in Massachusetts, so much so that my Mother occasionally sends a jar of the main ingredient to me in California because it's not distributed here. There's something about those childhood memories ... especially when you can't relive them where you live now.
A Fluffernutter is a sandwich of peanut butter and Marshmallow Fluff. But not just any kind of marshmallow creme. It has to be Fluff. Although virtually any kind of peanut butter is acceptable, the typical other ingredients we had were Skippy and Wonder Bread. That's it. Plain and simple, with enough sugar (but not fat or cholesterol, I'm pleased to note now) to power a kid through the remainder of the afternoon once school was out for the day.
No, none of these products or companies are sponsors of this blog, and you're probably wondering why I'm writing about food recipes. Well, Durkee-Mover, the company that makes Fluff, alleges that Williams-Sonoma tried to use the name "Fluffernutter" to promote one of its products. Durkee-Mower developed Fluff some 75 years ago and invented Fluffernutters back in 1961, according to the company.
The Lynn, Massachusetts privately-held company, Durkee-Mower, sued Williams-Sonoma today in Boston federal district court over the alleged trademark violation. According to the suit, Williams-Sonoma sold a chocolate-covered peanut butter candy it called a Fluffernutter. I haven't tried the candy, but I bet it's not as good as a real Fluffernutter.
Smoke 'em While You Got 'em. You May Be Paying The Taxes Anyway.
MITPC is not a cigarette smoker, but as an occasional cigar smoker, I'm somewhat sympathetic to these New Yorkers' plight. They bought cheap cigarettes over the internet, and had them shipped to the Big Apple.
As one of those perhaps unintended consequences of the internet - more likely intended - the New Yorkers were able to avoid paying New York city sales tax on the cigarettes. Some $33.5 million before the City realized what they were missing.
Not about to sit still and lose that kind of revenue, the City went after the vendors seeking payment of the tax. One company, eSmokes, claims to be bankrupt, and the AP story linked above notes that calls and emails soliciting comment were not returned. As you can see from the last link, however, the site is still up and running, and contains what is calls legal disclosures essentially claiming that your purchase is point-of-sale in either North Carolina or Kentucky.
The site also encourages you to write to your Congressional representative about a bill affecting taxation of internet cigarette sales, but you don't need to get your pen ready. The bill appears to be stuck in committee.
eSmokes and NYC were able to reach a settlement, however. The internet vendor agreed to give up the names and addresses of everyone in New York who bought cigarettes from them. The City is now sending out collection letters, seeking payment from the buyers, and they claim to have collected some $700,000 so far.
Another tax dodge up in smoke, so to say.
Now Where Did I Put That Railroad Car?
The contract cases on apparent authority and ostensible authority in law school are hundreds of years old, commonly referred to as "black-letter law" because the definitions are so well known. Why then, would CSX Transportation, Inc. litigate a case involving the apparent authority of someone with a corporate email address who welshed on a debt?
Because it involved the internet, where the law is as undefined as the 'net itself.
Let's review the facts. CSX received an email message from Albert Arillotta, who claimed he worked for Recovery Express and used the e-mail address email@example.com (no longer active), which would appear to most people as someone associated with Recovery Express, Inc. It turns out he actually worked for Interstate Demolition & Environmental Corporation, who shared office space with REI.
The Court gives us the pleasure of reviewing the email, and says, "The entire e-mail –- horrendous grammar and all –- is reproduced here:
From: Albert Arillotta [firstname.lastname@example.org]
Subject: purchase of out service railcars
lynn this is albert arillotta from interstate demolition and recovery express we are interested in buying rail cars for scrap paying you a percentage of what the amm maket indicator is there are several locations i suggest to work at the exsisting location of the rail cars. we will send you a brocheure and financials per your request our addressis the following:
Mr. Arillotta apparently gained access to REI's computers and sent an email message to CSX offering to buy railroad cars for scrap. Since that's one of the things that REI does, CSX bit, and bit hard. They set up a deal with Mr. Arillotta, who showed up at their railroad yard with check in hand, and hauled several cars away.
Mr. Arilotta's $116,000 check bounced, and CSX sued REI and IDEC, believing that one of the two companies had reneged on the deal.
The Court's opinion ruled in favor of REI and IDEC, reasoning that a mere email address, even with a proper domain name, does not confer apparent authority on Mr. Arillotta. Judge William G. Young said it was no different than someone who showed up with a business card, company vehicle or used letterhead, each of which taken alone are insufficient to establish apparent authority. For that matter, if he ruled in favor of CSX, the Judge thought he would have been conferring on everyone at the corporation who had an email address the authority to enter into a contract, all the way down to the janitor.
CSX can't find the railroad cars taken by Mr. Arillotta.
You're The Judge: Do You Force A Rape Victim To Watch The Videotape Of The Crime?
Be Careful Before Issuing Your Ruling: You May Let The Defendants Go Free
You make the call.
It's not an easy one. A sixteen-year old, now 20, was gang-raped at a drunken party in Chicago in 2002. She was drunk, too, and apparently unaware of the sexual activity. The gang rape was videotaped, and at the trial of the defendants the tape was entered into evidence this past week.
Not surprisingly, the woman has not watched the tape, and she doesn't want to watch it.
But the defense attorneys want to cross-examine her, and they want her to watch the tape in order to conduct their cross-examination. They have a right to cross-examine her, but the law is unclear whether they have a right to force her to watch the tape. In fact, the issue hasn't come up before. At first the judge in the trial agreed with the defense attorneys and ordered the woman to watch the tape, and then threatened to hold her in contempt and put her in jail when she refused. The judge later reversed his position, and is now not requiring the woman to watch the tape.
Which leaves us with a rather uncomfortable situation for the inevitable appeal, should the defendants be convicted. According to this Chicago Sun Times article by Shamus Toomey, "The question will be: Were they significantly impaired in their ability to cross-examine and impeach the [woman] . . . or to bring out some fact that they couldn't otherwise get," said John Corkery, John Marshall Law School's acting dean, by the judge's ruling not to force the woman not to watch the tape.
You might be tempted to focus on the traumatic effect of watching the tape instead and to the exclusion of the Constitutional rights to confrontation and cross-examine your accuser, but don't be tempted, and don't react with a purely one-sided viewpoint. You're in the position of an appellate judge, and you have to balance these two issues. Which one do you give more weight? Who wins? Can you fashion a remedy where there are no losers?