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Concurrent sentence; consecutive sentence; specific performance. A guilty plea is not knowingly and intelligently made, and therefore not voluntarily made, if the defendant did not receive adequate notice of the offense to which he pleaded guilty. A capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. General Insurance; breach of warranty; no exception to the economic loss doctrine for damages to a defective product when an inherent defect makes the product unreasonably dangerous. In re World Com, Inc.; the duty to mitigate damages bars recovery for losses suffered by a non-breaching party that could have been avoided by reasonable effort and without the risk of substantial loss or injury. Administrative Procedures Act allows federal courts to compel agency action unlawfully withheld and unreasonably delayed only for claims involving a specific agency action—a rule, order, license, sanction, or relief—required of agency by law. 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. To go forward on a claim of selective prosecution based on race, the claimant must produce evidence that similarly situated offenders of a different race could have been prosecuted but were not. For speedy trial claims, courts must apply balancing test of conduct of both prosecution and defendant, including length of delay, reason for delay, defendant's assertion of his right, and prejudice to defendant. The fifth amendment privilege against self incrimination is not violated by a requirement that a defendant provide notice of an alibi defense and disclose his alibi witnesses to the prosecution prior to trial. Government failure to assist defense by disclosing impeachment evidence of witnesses is constitutional violation if it deprived defendant of fair trial; material if suppression undermines confidence in outcome. It is not vindictive exercise of prosecutor's discretion, and therefore not violation of due process, to carry out threat to reindict defendant on more serious charges if defendant does not plead guilty to original offense charged. A voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. Dynex Commercial, Inc.; benefit to third party must be written in the contract; court will not create a third party beneficiary contract by implication; no implied contract for third party. 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. 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. Clay Ward Agency, Inc.; assumption of personal liability by a member of an LLC is so antithetical to the purpose of a limited liability company that it must be stated in unequivocal terms. In order for media coverage to infect a trial with unfairness, a juror's preconceived notions of guilt or innocence must prevent him or her from rendering a verdict based on the evidence presented in court. Even when capital defendant family members and defendant himself say no mitigating evidence, lawyer must make reasonable efforts to obtain and review prosecution evidence of aggravation at sentencing phase of trial. Counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial does not render counsel's assistance ineffective when it is reasonable under the circumstances. a defendant can lose his right to be present at trial if, after warning by the judge, he conducts himself in a manner so disorderly, disruptive, and disrespectful of the court that trial cannot be carried on with him in courtroom. Millard Refrigerated Services, Inc.; limitation of liability in a warehouse receipt will limit liability, unless the damage was from the the warehouse's conversion of the goods to its own use. Chase Bank, USA; Unauthorized use of a credit card is use of the card by someone without actual, implied, or apparent authority to make charges, and from which the cardholder receives no benefit. Shell Oil Co.; claim for bad faith price setting; a price in an open price contract is set in good faith if it is commercially reasonable and nondiscriminatory; disparate pricing between jobbers and dealers is not evidence of discrimination Central Washington Refrigeration, Inc. Barbee; Uniform Commercial Code; indemnity actions are governed by separate statute of limitation; implied right of indemnity; separate equitable cause of action; UCC. Certified Packaging Corp.; security interest includes the proceeds from a recovery for decreased value of collateral, and not for loss of use of the collateral; destroyed property; damaged property. 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 Racing Investment Fund 2000, LLC v. 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. capital offense; death penalty; death sentence; voir dire.

Business judgment rule; good faith; directors owe corporation and shareholders duty of good faith; business judgment rule does not save directors from liability for the conscious disregard of the consequences of corporate action. AFSCME Employees Pension Plan; Bylaws may be unilaterally adopted by shareholders when they appropriately relate to corporate processes rather than substantive decisions or Board's fiduciary duties. Stephens; misrepresentation material if substantial likelihood disclosure of omitted fact would have been viewed by reasonable investor as having significantly altered total mix of information made available; proxy. Shareholder Derivative Litig; Plaintiff must show directors knew not discharging fiduciary obligations or directors demonstrated conscious disregard for responsibilities; business-judgment rule; exculpatory clause; gross negligence. Stephens; Shareholder ratification applies only to circumstances where fully informed shareholder vote approves director action that does not legally require shareholder approval in order to become legally effective. Cullman; director is "interested" when he derives benefit from transaction that is not shared with other shareholders but lacks "independence" when his decision about transaction controlled directly or indirectly by another; disinterested. Shareholders Litig; Pre-suit demand excused only if shown that a majority of the members of board of directors is either personally interested, or is so dominated by or beholden to an interested director that discretion sterilized. Sidhu; Gross negligence is conduct that constitutes reckless indifference, or actions that are without the bounds of reason, and constitutes a breach of the duty of care; bad faith; exculpatory clause. Horn; The question of whether director is required to offer business opportunity to corporation before taking advantage of it is determined according to relationship between particular director and corporation; accounting; constructive trust. Consolidated Shareholder Litig; A director who uses inside knowledge to enrich employees while avoiding shareholder-imposed requirements is not acting loyally and in good faith as a fiduciary; business-judgment rule. Inter-Tel (Delaware), Inc; directors' defensive actions; burden is on directors to identify legitimate corporate purpose, and show that actions reasonable relation to purpose did not preclude shareholders from exercising right to vote. Nasser; Implied authority is agent reasonably believes he has, shown by evidence of acquiescence of the principal; actual authority; apparent agency; apparent agent; apparent authority; express agency; implied agency. Prometheus Development Company, Inc; A partnership agreement provision that allows an interested partner to count its votes is manifestly unreasonable under California corporations law; limited partner; limited partnership; ratification. Derivative Litigation; the law presumes directors act on an informed basis, in good faith, and in the honest beliefof best interests of company; business judgment rule; derivative action; duty of good faith; fiduciary duty. new constitutional rules of criminal procedure will not be applicable to those cases that have become final before the new rules are announced. Fruit of the poisonous tree doctrine aplies to Fourth amendment, not Fifth Amendment; although Miranda requires the suppression of an un-warned admission, the admissibility of any subsequent statement turns on whether it was made voluntarily. Beard; capital defendant and family say no mitigating evidence, but defense lawyer must make reasonable efforts to obtain and review prosecution evidence of aggravation at sentencing phase of trial; death penalty. United States; repeated requests to commit a crime and pleas for sympathy establish entrapment; if defendant's criminal conduct arises from the inducement of law enforcement officers, not the intention of the defendant. Heckenkamp; absent clear warnings, connecting a personal computer to a computer network does not relinquish an otherwise objectively reasonable expectation of privacy; warrantless search. Villarreal; individuals have a reasonable expectation that their letters and other sealed containers will not be opened by government agents without a warrant when they are surrendered to a carrier. Spears; Title III of the Omnibus Crime Control and Safe Streets Act of 1996 creates exception to civil liability for aural interception during business use of a telephone extension; scope of exception limited to the business purpose. Missouri; the constitution prohibits the use of visible shackles during the penalty phase of a criminal trial unless the use is justified by an essential state interest specific to the defendant on trial. Washington; out-of-court statements are inadmissible into evidence if defendant has no opportunity to cross-examine speaker, unless witness is unavailable and defendant has prior opportunity to cross-examine the declarant; hearsay. Gant; Police may search vehicle incident to recent occupant's arrest only if arrestee is within reaching distance of passenger compartment at time search or reasonable to believe vehicle contains evidence offense of arrest; stare decisis. Redding; school search permissible if scope of measures adopted is reasonably related to objectives of search and not excessively intrusive; in loco parentis; qualified immunity. Louisiana; A criminal defendant's consent to police-initiated interrogation cannot be presumed involuntary simply because the court previously appointed a lawyer to represent him; preliminary hearing. United States; Although acquittals may preclude retrial on counts on which the same jury hangs, the consideration of hung counts has no place in the issue preclusion analysis for double jeopardy purposes; hung jury. Gant; Police may search vehicle incident to recent occupant's arrest only if arrestee is within reaching distance of passenger compartment at time of search and reasonable to believe vehicle contains evidence of offense of arrest. Michigan; exclusionary rule not apply suppress evidence obtained in violation knock-and-announce rule; exclusionary rule; fruit-of-the-poisonous-tree-doctrine; inevitable discovery rule; no-knock search warrant. Illinois; Whatever warnings suffice for Miranda's purposes will also be sufficient to safeguard the right to counsel in the context of post-indictment questioning; indict; sixth amendment. Constructive possession of controlled substance is established when the defendant is knowingly in a position or has the right to exercise dominion or control over it, and has some appreciable ability to guide its destiny. Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of heat of passion when it is at issue in a homicide prosecution. One who, with full knowledge of the dangers involved, deliberately exposes a person to danger of death or bodily injury is liable for murder upon death of victim. 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. The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their race; compelling state interest test; Equal Protection Clause. New York; A policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be a pretext for racial discrimination; peremptory challenge. Deadly force to prevent felony suspect's escape violates fourth amendment unless officers have probable cause to believe that the suspect presents a threat to the life or safety of the officers or others. Animal Feeds International Corp.; A party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. 8's requirement of short and plain statement of the plaintiff's claim that is simple, concise, and direct; on information and belief. 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. 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. 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. 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. 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. 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. Sturgell; The rule against nonparty preclusion is subject only to certain recognized exceptions: (1) a nonparty may agree to be bound by a judgment, (2) certain substantive relationships..; virtual representation; virtual representation doctrin 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. 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. 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. Target Corp; Spoliation is the destruction or material alteration of evidence or the failure to preserve property for another\'s use as evidence in pending or reasonably foreseeable litigation; mitigation-of-damages doctrine. West LB 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. 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. Tenet Healthsystem Memorial Medical Center, Inc; The Class Action Fairness Act (CAFA) creates a narrow exception to federal jurisdiction and allows the discretionary remand of purely local actions. 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. Warrantless arrest permitted even for a misdemeanor or infraction punishable only by a fine; if an officer has probable cause to believe that a person has committed a very minor criminal offense, the officer may arrest that person without a warrant. Mc Nulty; 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. 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. UBS Warburg LLC; Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents; spoliation. 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. 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. 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. Preventative detention of criminal defendant does not violate substantive due process under fifth amendment nor constitute excessive bail under eighth amendment if clear and convincing evidence defendant presents threat to safety of community. S.; if a party repudiates a contract, the other party is entitled to restitution for any benefit he has conferred on the repudiating party by way of part performance or reliance. Jackson; The Federal Arbitration Act puts arbitration agreements on equal footing with other contracts, and requires courts to enforce them according to their terms; unconscionability challenges. Cendant Mobility Services Corp.; a promise that the promisor should reasonably expect to induce action or forbearance and does is binding if injustice can be avoided only by enforcement of the promise. Morell; even when there is no fraud, there may be mutual mistake; where both parties share a common false assumption about a vital fact upon which their bargain is based, the transaction may be avoided. 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. United States; CERCLA does not mandate joint and several liability; scope of liability must be determined from traditional and evolving principles of common law. Atlantic Research Corp; CERCLA § 107(a)(4)(B) provides Potentially Responsible Parties (PRPs) with a cause of action to recover, from other PRPs, costs voluntarily incurred in cleaning up a contaminated site; contribution. 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. Benguet Consolidated Mining Co.; exercise general jursidiction gives court authority to hear all claims at place of defendant's domicile or place of service, without showing connection between specific claims and forum state. Independent counsel; subpoena duces tecum; ad testificandum. RAM Holdings, Inc.; When the examination of extrinsic evidence does not lead to an obvious, objectively reasonable conclusion, the court may apply the forthright negotiator principle. Donovan; A contract is not enforceable if an essential term is indefinite or a promise to perform is illusory, but may enforce if extrinsic evidence makes more definite and the promise to perform less illusory.

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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.

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