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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.
Without red flags, directors have no reason to suspect wrongdoing; does stockholder complaint create a reasonable doubt that board of directors could have properly exercised its independent and disinterested business judgment in responding. P.; Under section 36(b) of the Investment Company Act, a financial adviser has a fiduciary duty and owes an obligation of candor in negotiation, as well as honesty in performance, but not for negotiating own salary. Jordan; The proper remedy for a freeze-out is to restore the minority shareholder as nearly as possible to the position she would have been in had there been no wrongdoing; close corporation; dividend; injunction. Antinora; The general rule of partnership law is that, in the absence of an agreement, the law presumes that partners and joint adventurers intended to participate equally in the profits and losses of the common enterprise. Superior Court; In forming a partnership, the partners obligate themselves to share the risks and benefits and carry out the enterprise with the highest good faith toward each other; fiduciary. 55 Perry Co; Partnership law provides that, subject to any contrary agreement between the partners, no person may become a member of the partnership without the consent of the other partners. Dreifuerst; Unless otherwise agreed, partners who have not wrongfully dissolved the partnership have a right to wind up the partnership and force a sale of the partnership assets; partnership at will. Cuban; Insider trading liability under the misappropriation theory is premised on the undisclosed use of confidential information for personal benefit, in breach of a duty not to do so. Procedural rules usually do not apply retroactively. absent a showing of cause and prejudice attendant to a state procedural waiver, a federal habeas corpus review of a waived objection to the admission of a confession at trial is barred. Qualified immunity does not apply to deprivation of constitutional rights; coercive police interrogation resulting in statements not used at trial violates Constitution only if interrogator's conduct shocks the conscience. A criminal defendant's initial appearance before a judicial officer triggers the attachment of the Sixth Amendment right to counsel. Burden of persuasion; burden of production; insanity; mens rea; voluntary. Due process does not require the prosecution to disprove all affirmative defenses that may be available to defendant, so long as it has proven guilt beyond a reasonable doubt. Deliberate first- degree murder; intent; second-degree murder.
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.
Certifying a corporation's financial condition, question for the jury, fairly presented the financial condition of a corporation, generally accepted accounting priniciples, generally accepted auditing standards, material, materiality. Superior Court; A disclaimer in a standard job application advising an applicant that he or she need not complete certain sections as provided by local law must be clear and conspicuous . Proctor Hospital; Under the cat's paw theory, discriminatory animus of non-decisionmakers can be imputed to decisionmakers only when the non-decisionmaker has a singular influence over the decisionmaker and uses that influence. Metropolitan Government Nashville; Under Title VII, an employee may "oppose" unlawful employment practice as required as a condition precedent to a retaliation claim even though opposition is not expressed as a discrimination claim. De Stefano; Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, must have a strong basis to believe disparate-impact liability. Schneider National, Inc.; An employer is free to decide that some physical and mental characteristics that do not constitute an impairment are more or less preferable and may make individual employees more or less suitable for the job. Legal Aid Society; Under the Americans with Disabilities Act and Rehabilitation Act (ADA), employers must accommodate requests that facilitate arrival and departure from workplace if no undue hardship on operation employer's business. Walters; Specific information provided by employer to employee, in course of employment, and for sole purpose of servicing employer's customers, is legally protectable as confidential proprietary information. Search of passenger compartment of automobile is permissible if officer has reasonable belief, based on specific and articulable facts and rational inferences from facts, that suspect is dangerous and may gain immediate control of weapons. The determination of whether a sale of collateral was commercially reasonable requires a consideration of the totality of the circumstances surrounding the sale.
Initio Partners; In corporate litigation, the court may order the payment of counsel fees and related expenses to a plaintiff whose efforts resulted in the creation of a common fund or the conferring of a corporate benefit. Elevator Co., Inc.; Benefits accruing for services rendered prior to the bankruptcy petition ordinarily relate back to the date of the services but "retiree benefits" under the Bankruptcy Code have a priority claim. De Wolff, Boberg & Associates, Inc.; Although no remedy is available for individual injuries in defined contribution plan, individuals may recover for fiduciary breaches that impair the value of plan assets in the participant's individual account. Sixth amendment confrontation clause demands, for an out of court statement to be admitted into evidence, the witness must be unavailable and defendant must have prior opportunity to cross examine the declarant. The confrontation clause is not violated by the admission of a nontestifying codefendant confession, with proper limiting instruction, when the confession is redacted to eliminate defendant name and any reference to her existence. Under the fifth amendment, a prosecutor may not comment on a defendant s decision not to testify at his trial and the court may not instruct the jury that the defendant's silence is evidence of his guilt. The fifth amendment protection against double jeopardy bars trial of an acquitted defendant on another charge unless the prior acquittal was based on evidence other than that involved in the second prosecution. Person who has been held in criminal contempt for committing criminal offense may not be criminally prosecuted for committing underlying offense if prosecution for the criminal offense does not require proof of different facts. A penalty will implicate the double jeopardy clause only if there was a legislative intent that the penalty be criminal in nature and if the statutory scheme is so punitive as to make the remedy criminal. A judge may not increase a sentence beyond the maximum allowed for an offense based on facts not proven at trial or admitted as a part of the guilty plea. In order to challenge a death sentence on the basis of racial discrimination, a defendant must show either a discriminatory purpose in his case or a discriminatory purpose in enacting or maintaining the death penalty. Under the eighth amendment, bail must be reasonably fixed to ensure a defendant will appear at trial based on the specific facts of the crime charged and not the character of the crime. If have probable cause to believe automobile contains articles that they may be entitled to seize, may search the vehicle pursuant to lawful arrest, without warrant, or impound vehicle into police custody to search at later time. Voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against the latter at a criminal trial. A secured party may not recover a deficiency judgment if sale of the collateral was commercially unreasonable, but the debtor may recover damages for the creditor's failure to comply with legal requirements for a sale. In re Toshiba America HD DVD Marketing and Sales Practices Litigation; express warranty is not created by mere puffery; a statement about future performance may create express warranty if it is an affirmation or representation.
Traditional Baking, Inc.; clients are the principals, the attorney is an agent; under law of agency, principal is bound by agent's deeds, except attorney misconduct outside the scope of employment. 8(a)(2) short and plain statement of the claim showing that pleader is entitled to relief, give the defendant fair notice of claim and grounds upon which it rests. General Motors Corp.; sanctionable spoliation is destruction or material alteration of evidence or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation; manufacturer opportunity to inspect Harnden v. Darue Engineering & Manufacturing; federal forum for federal tax litigation sufficiently substantial for exercise of federal question jurisdiction; federal title law; division of labor between state and federal courts United Oil Co. Parts Associates, Inc.; may obtain discovery regarding any matter, not privileged, relevant to claim or defense; other lawsuits regarding similar products relevant to a defendant's failure to warn; indemnify; indemnity agreement. UBS Warburg LLC; corporate counsel has duty to communicate discovery obligations so all relevant information is discovered, retained, and produced; once duty to preserve attaches, identify all sources of discoverable information. Injury in fact and redressability must be established even under a federal statute conferring a private cause of action, private right of action, standing, personal injury, public, injury in fact. Federal cigarette advertising regulations preempt conflicting state regulations, congress expressly preempts state or local action, conflicting state regulation must yield to federal law, supremacy clause. Seelig, Inc., Barriers to commercial traffic between states, direct or indirect, violate the Commerce Clause when purpose and effect of such barriers is to suppress or mitigate the consequences of competition between states. Oneida-Herkimer Solid Waste Management Authority; Laws that favor government operations, but that treat all private businesses equally, do not violate the Commerce Clause; dormant commerce clause. Police dog; drug dog sniff luggage; K-9 dog; investigative detention; when officer's observations lead him reasonably to believe that luggage contains narcotics, officer may detain luggage briefly to investigate circumstances that aroused his suspicion. when police investigation is no longer general inquiry into unsolved crime but focuses on particular suspect in police custody, must allow opportunity to consult with lawyer or warn of absolute constitutional right to remain silent. These grounds are extreme such ascorruption, fraud, partiality, misconduct, etc. William and Martha Messerly; as-is clause may defeat grant of rescission for mutual mistake relating to a basic assumption that materially affects the parties' agreed performance.
Allapattah Services; class action, if named plaintiff meets requirement, supplemental jurisdiction over claims in same case or controversy even if claims for less than jurisdictional amount for diversity jurisdiction; Article III. Three branches of government; grant of executive authority cannot be overridden by a congressional veto, once congress has acted to vest authority in an administrative agency, it cannot act to overturn the action of that agency in the absence of further l Sequestration, budget appropriations cannot be delegated to a legislator the delegation of executive functions to a legislative administrator violates the constitutionally imposed doctrine of separation of powers. When officers have reasonable suspicion that person has committed crime or is about to commit crime, they may temporarily detain individual for questioning no longer than necessary to serve purposes of stop. Mattel, Inc.; The FAA provides the exclusive grounds for expedited vacatur and modification of arbitration awards. American Ash Recycling Corp.; The bargain theory of consideration does not actually require that the parties bargain over the terms of the agreement; rather, a promise and a reciprocal conventional inducement.
Caddy; Due process is satisfied when the defendant has performed some act or consummated some transaction within the forum or has otherwise purposefully availed himself of the privileges of conducting business in the forum. Executive privilege does not shield the president from the judicial process, recognized claim of privilege, due process considerations, criminal trial, executive immunity, in camera inspection, speech or debate clause. Bush; In cases of undue delay, federal courts may entertain an enemy combatant's habeas corpus petition even before the Combatant Status Review Tribunal has had a chance to review his status. EPA; Standing; A litigant Congress has accorded a procedural right to protect his concrete interests (right to challenge agency action unlawfully withheld) can assert that right without meeting standards for redressability and immediacy. City of Chicago Individual self defense is the central component of the Second Amendment right to keep and bear arms and is deeply rooted in the nation's history and tradition. Homeless living in vehicle still subject to the automobile vehicle search exception to the warrant requirement; warrantless searches of readily movable vehicles are not unreasonable when probable cause supports the search. Lake Shore Investors; damages for tortious contractual interference may include pecuniary loss of the benefits of the contract; consequential losses; emotional distress and actual harm to reputation, and punitive damages.
Darue Engineering & Manufacturing; The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction. Carey; Rule 9(b)'s requirement of pleading fraud with particularity must be harmonized with Fed. Difficultion negotiation; positional bargaining; positional negotiation; Fisher and Ury; principled negotiation; non-adversarial bargaining; negotiation tactics; negotiation skills; negotiation strategies; negotiaiton techniques. United States; When an average person applying contemporary community standards feels that the dominant theme, taken as a whole, appeals to purient interests, the government can regulate the material as obscene. Noise ordinances advance a substantial government goal, limit speech, protect a legitimate government interest, content based, foreclose alternate avenues of communication; least restrictive intrusive. Williams; An award of punitive damages based on a desire to punish the defendant for harming persons not before the court is an unconstitutional taking of property without due process. Carhart; Laws that place restrictions on abortion that express respect for the life of the unborn are valid, if laws do not unduly burden a woman's right to obtain an abortion; as-applied challenge; overbreadth doctrine; void for vagueness. Marion County Election Board; Evenhanded restrictions on the right to vote that are related to voter qualifications and that protect the integrity and reliability of the electoral process are valid. Gonzales; An individual who has obtained a restraining order against another does not have a constitutionally protected property interest in the enforcement when there is probable cause to believe it was violated. Forum for Academic & Institutional Rights, Inc; Conditioning the receipt of federal funds on allowing military recruiters to have access to a college campus does not violate the First Amendment; freedom of association. Sorrell; Limits on campaign contributions may not be set so low as to magnify the advantages of incumbency and prevent a candidate from raising sufficient funds to mount an effective campaign; stare decisis. In re Marriage Cases; gay rights; impermissible to treat gay individuals and same-sex couples any differently than heterosexual individuals and opposite-sex couples; compelling-state-interest-test; strict scrutiny; suspect class. Black; A state statute banning cross burning with the intent to intimidate another person is not unconstitutional, but the establishment of criminal intent from the prohibited act itself violates the First Amendment; content-based restriction. Hibbs; State governments are liable for money damages for interfering or restraining state employees' exercise of their rights under the Family and Medical Leave Act of 1993. EPA; For standing, a litigant must ordinarily demonstrate it has suffered concrete and particularized injury that is either actual or imminent, fairly traceable to defendant, and a likelihood that a favorable decision would redress injury Boumediene v. Search incident to lawful arrest does not include the search of a house when the arrest occurred outside of the house; search must be substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest.
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.
Administrative Prodecure Act National Park Hospitality Ass'n v. Ahmanson & Co.; Majority shareholders have a fiduciary responsibility to the minority and to the corporation to control the corporation in a fair, just, and equitable manner. Under the safe-harbor provision of 27A of the Securities and Exchange Act, forward-looking statements must be accompanied by meaningful cautionary statements that adequately identify important factors that could cause actual results to differ. SEC; The Securities and Exchange Commission must consider efficiency, competition, and capital formation, and failure makes promulgation of the proposed rule arbitrary and capricious. accused who expresses a desire to deal only through counsel does not waive that right merely by responding to further police-initiated questioning unless accused initiates further communication. A security interest may attach if the debtor has rights in the collateral, but there is no requirement that the debtor own the collateral.Tags: Adult Dating, affair dating, sex dating