Defenders of Justice

09.09.2010
Motorists should always be on the lookout for road objects or hazards that may cause or lead to accidents. Even warning signs and traffic cones placed in the middle of the road can cause an accident if motorists were unable to avoid hitting them.In fact, a motorcyclist recently died when he lost control of his vehicle after hitting a road crew’s orange traffic cones in Fair Oaks. According to reports, the man was identified as Todd Jacob Stahl, 45, from Orangevale. He was moving northbound along Sunrise Boulevard near Sunset Avenue when he approached the orange cones and warning signs. The cones were placed in the roadway to inform all motorists that a Sacramento County crew is conducting sewage work along the right lane.Stahl’s vehicle went out of control when he struck one of the cones, said reports.He sustained fatal injuries after he was ejected from the motorcycle. The vehicle then crashed into a parked truck along the closure area.

TheCorporateCounsel.net Blog

04.09.2010
FINRA's Papilsky Rules Updated Last month, the SEC approved new FINRA Rule 5141, which will replace the current NASD rules collectively referred to as the "Papilsky" rules. As noted in this alert from Latham & Watkins, the new rule will simplify and eliminate some provisions of the Papilsky rules, which seek to prevent broker-dealers participating in fixed price securities offerings from offering to favored clients any securities at a price that is at a discount to the public offering price. The Papilsky rules originally came about as a result of the decision in Papilsky v. Berndt, which was a case where a shareholder of an investment company brought a derivative suit against the directors of the investment company and its advisor, alleging violations of fiduciary duties in failing to "recapture" brokerage commissions, underwriting commissions and tender offer fees for the investment company and its shareholders. The court held that, in the absence of an SEC or self regulatory organization rule to the contrary, recapture of the commissions and fees was legal and therefore the failure of the advisor to bring the potential for recapture to the attention of the independent directors of the fund constituted a breach of fiduciary duty. In the wake of this decision, the SEC and NASD worked to clarify the regulatory position on such "recapture" and other arrangements, resulting in NASD Rules 2730, 2740 and 2750. The new Rule 5141 continues to prohibit FINRA members from selling securities in fixed priced offerings at other than the public offering price. FINRA intends to issue a Regulatory Notice announcing approval of the rule and announcing an effective date, which must take place within 90 days of SEC approval. The effective date will be no more than 180 days following the Regulatory Notice. The change to the Papilsky rules will require some changes to underwriting agreements to reflect the new requirements specified in Rule 5141. More FINRA Stuff: IPO Allocations FINRA recently filed an amendment to its proposal to amend FINRA Rule 5131 with the SEC. The rule changes seek to regulate conflicts-of-interest and other abuses in the allocation of securities in initial public offerings. The SEC Is expected to publish the proposal for comment very soon. Is a CEO Pledge of Allegiance the Answer? The SEC has taken the very admirable step of opening up the comment process on Dodd-Frank Act implementation ahead of time, and hopefully the pace at which comments are submitted will increase, given that the SEC is going to need to act very soon on many of the rules it needs to implement. With respect to the corporate governance and compensation provisions of the Act that affect public companies, it seems that probably the first rulemaking out of the box (other than proxy access adoption) will be rule proposals to implement Say-on-Pay, Say-on-Frequency and Say-on-Parachutes. In order to have those rules in place for the proxy season, we would expect to see proposals within the next 30 days or so. It seems likely that those rule proposals will look much like the implementing rules adopted for the TARP Say-on-Pay votes, with additional rules necessary to address the quirks of the Dodd-Frank Act, such as the Say-on-Frequency vote (or rather should I say "poll," because it sounds like that is how it will be structured). Some comments have already trickled in, including this note from an experienced investor who has a truly novel idea in these times of many recycled ideas: require CEOs to swear to protect and defend the interests of the company along with an annual certification as to their fairness, honesty and integrity. You never know, this one might get some traction. - Dave Lynn

California DUI Attorney

30.06.2010
Newswire Release for June 3, 2010California DUI attorney Rick Mueller twits and blogs some recent drunk driving criminal defense lawyer victories: * Underage drinker stopped for no front license plate by local San Diego County Sheriff's Deputy, displays red, watery and bloodshot eyes, fails pen test, admits drinking, changes the amount ingested, fails all field sobriety tests, blows twice over the legal limit and provides blood sample also over the legal limit. Arrested for DUI. License also restricted. * Asian man fails to stop at red light, a violation of the California Vehicle Code. Before San Diego CHP arrests him for DUI, CHP notices bloodshot & watery eyes, odor of alcoholic beverage, unsteady gait, slurred speech and unsatisfactory field sobriety test performance. Blood test result over .08%. Issue regarding proper blood draw as officer provided no testimony that blood was mixed with required anticoagulant and sodium fluoride preservative. * Inoperable right headlight leads to stop and DUI arrest by San Diego Police Department. DUI symptoms noted. DUI field tests not satisfactorily performed. Admits drinking alcohol. Both PAS tests over .08%. .10% both times on Intoxilyzer breath machine. All charges dropped. * Driving on a suspended license and without insurance, out-of-county saleswoman stopped for failure to maintain lane in San Diego county. Blows .19% & .21%. Fails tests. Arrested for DUI, etc. Convicted of reckless driving, everything else dropped. Small fine, only twenty AA meetings and no license penalty.For more victories in California DUI cases visit this updated website.

Business and Technology Law

29.06.2010
On May 26, 2010, in the case of Crispin v. Christian Audigier, Inc. (C.D. Cal. Case No. No. CV 09-09509), Judge Margaret Morrow of the U.S. District Court of Central California issued a ruling in a copyright suit concerning, in part, the discoverability of private messages sent between users on MySpace and Facebook. This decision marks one of the first examinations of the applicability of federal e-discovery rules to social media site content. In her decision, the judge reversed a magistrate judge’s finding that private messages sent between users over social networking sites are public communications and quashed subpoenas that had been issued in an attempt to obtain copies of those messages. Elaborating on the differences among the various messaging options offered by social networking sites, Judge Morrow found that messages sent between users via Facebook and MySpace private messaging systems are no different than e-mail under the Stored Communications Act. Under the Act, a third-party company storing private electronic data is not required to turn over the private information unless presented with a federal criminal law warrant. However, the judge limited her decision to private messages sent on social media sites and left unanswered other questions, such as the issue of discoverability, through subpoena, of semi-private postings on user walls visible only to a select few. Increasingly, courts will be asked to interpret outdated discovery rules against new technologies and heightened public concern over online privacy. Following the recent furor over Facebook privacy settings in the press, we expect to see a court take on the task of a comprehensive examination of social media privacy concerns with respect to electronic discovery, similar to Judge Shira Scheindlin’s Zubulake opinion on general e-discovery issues, before the Supreme Court and Congress undertake revisions to the Federal Rules.