Happy New Year
May your year be filled with health, prosperity, and happiness.
Tuesday, December 31, 2002
For our French readers, a recent article of note discussing Delaware as an incorporation State...
Aux Etats-Unis, l'Etat du Delaware fait figure de "business lover"
La Tribune - édition du 23/12/2002
Les avocats de l'Etat du Delaware, aux Etats-Unis, se frottent les mains. Plus les scandales à Wall Street décrédibilisent la "corporate America" aux yeux de l'opinion, plus ils peuvent espérer faire des affaires. En effet, depuis 1899, ce petit Etat de la côte Est (783.600 habitants) s'est fait une spécialité d'attirer les entreprises qui veulent non seulement se créer à moindres frais (75 dollars suffisent pour déposer un dossier d'enregistrement contre plusieurs centaines dans d'autres Etats), mais aussi savoir comment elles seront traitées en cas de litige.
D'autres avantages, en termes de flexibilité laissant la possibilité à une société d'héberger plusieurs types d'activités, aux actionnaires d'avoir le choix de venir ou non en personne aux conseils, ou à la comptabilité de ne pas avoir ses livres de comptes présents physiquement dans le Delaware -, sont ainsi recherchés, sans compter les avantages fiscaux.
Spéc! ialistes du droit. Mais pour les professionnels du Delaware, tel Russell Rozanski, spécialiste des "incorporations" au cabinet Delaware Intercorp. Inc., l'aspect fiscal il n'y a pas, par exemple, de taxe sur les ventes est accessoire. "Notre avantage premier, c'est notre expertise en matière de droit des affaires", explique Lawrence Hamermesh, professeur de droit de l'université de Wydener, à Wilmington. De fait, ajoute Russell Rozanski, "les cas ici sont jugés par une cour spécialisée, la Court of Chancery, dont les juges sont nommés au mérite et non pas élus, et qui ne fonctionne pas avec une quinzaine de jurés n'ayant aucune expérience en matière de droit des affaires et censés pourtant donner leur avis sur des dossiers parfois compliqués".
Du coup, les décisions écrites des juges du Delaware servent de référence pour d'autres cas à travers les Etats-Unis et l'avis de ces experts est recherché. Toute b! onne faculté de droit s'enorgueillit d'avoir des professeurs formés à cette école. Et tout bon avocat d'affaires américain a étudié les cas du Delaware, qui servent de précédents dans le système de jurisprudence américaine.
Certes, la crise économique pèse sur les affaires actuellement. Ainsi, en 2001, seules 39.289 nouvelles sociétés se sont faites enregistrer au Delaware, contre 53.687 en 1999. Il n'empêche, si les spécialistes disent ne pas avoir remarqué une augmentation de leur activité, certaines entreprises, hébergées auparavant dans des paradis fiscaux comme les Bermudes, réfléchissent à un retour aux Etats-Unis. Pour montrer à l'opinion publique qu'elles rompent avec leur passé. Tyco, dont le PDG est inculpé de détournement de fonds, est de celles-là. Si toutefois elle passe à l'acte, elle pourrait bien choisir le Delaware, ou le Nevada, qui offre quelques avantages aussi, comme nouveau port d'attache.
Lysiane J. Baudu, à New York
Aux Etats-Unis, l'Etat du Delaware fait figure de "business lover"
La Tribune - édition du 23/12/2002
Les avocats de l'Etat du Delaware, aux Etats-Unis, se frottent les mains. Plus les scandales à Wall Street décrédibilisent la "corporate America" aux yeux de l'opinion, plus ils peuvent espérer faire des affaires. En effet, depuis 1899, ce petit Etat de la côte Est (783.600 habitants) s'est fait une spécialité d'attirer les entreprises qui veulent non seulement se créer à moindres frais (75 dollars suffisent pour déposer un dossier d'enregistrement contre plusieurs centaines dans d'autres Etats), mais aussi savoir comment elles seront traitées en cas de litige.
D'autres avantages, en termes de flexibilité laissant la possibilité à une société d'héberger plusieurs types d'activités, aux actionnaires d'avoir le choix de venir ou non en personne aux conseils, ou à la comptabilité de ne pas avoir ses livres de comptes présents physiquement dans le Delaware -, sont ainsi recherchés, sans compter les avantages fiscaux.
Spéc! ialistes du droit. Mais pour les professionnels du Delaware, tel Russell Rozanski, spécialiste des "incorporations" au cabinet Delaware Intercorp. Inc., l'aspect fiscal il n'y a pas, par exemple, de taxe sur les ventes est accessoire. "Notre avantage premier, c'est notre expertise en matière de droit des affaires", explique Lawrence Hamermesh, professeur de droit de l'université de Wydener, à Wilmington. De fait, ajoute Russell Rozanski, "les cas ici sont jugés par une cour spécialisée, la Court of Chancery, dont les juges sont nommés au mérite et non pas élus, et qui ne fonctionne pas avec une quinzaine de jurés n'ayant aucune expérience en matière de droit des affaires et censés pourtant donner leur avis sur des dossiers parfois compliqués".
Du coup, les décisions écrites des juges du Delaware servent de référence pour d'autres cas à travers les Etats-Unis et l'avis de ces experts est recherché. Toute b! onne faculté de droit s'enorgueillit d'avoir des professeurs formés à cette école. Et tout bon avocat d'affaires américain a étudié les cas du Delaware, qui servent de précédents dans le système de jurisprudence américaine.
Certes, la crise économique pèse sur les affaires actuellement. Ainsi, en 2001, seules 39.289 nouvelles sociétés se sont faites enregistrer au Delaware, contre 53.687 en 1999. Il n'empêche, si les spécialistes disent ne pas avoir remarqué une augmentation de leur activité, certaines entreprises, hébergées auparavant dans des paradis fiscaux comme les Bermudes, réfléchissent à un retour aux Etats-Unis. Pour montrer à l'opinion publique qu'elles rompent avec leur passé. Tyco, dont le PDG est inculpé de détournement de fonds, est de celles-là. Si toutefois elle passe à l'acte, elle pourrait bien choisir le Delaware, ou le Nevada, qui offre quelques avantages aussi, comme nouveau port d'attache.
Lysiane J. Baudu, à New York
an invitation?
Did Delaware Supreme Court Chief Justice Veasey extend an invitation for a case to challenge an unreasonably high CEO compensation package? Some commentators think so. In a Fortune article, by Jerry Useem, Chief Justice Veasey is credited with offering to break 60 years of legal tradition by allowing Court review of CEO compensation.
Was this just a warning to corporate executives, or will we now begin to police the boardroom? The latter would be a dramatic departure from current law. See, for example, this article from the New York Law Journal about the dismissal of the stockholder derivative suit concerning the severance package for the President of Disney. This brief article shows how the "business judgment rule" has been applied to these cases in the past.
Will it continue?
Did Delaware Supreme Court Chief Justice Veasey extend an invitation for a case to challenge an unreasonably high CEO compensation package? Some commentators think so. In a Fortune article, by Jerry Useem, Chief Justice Veasey is credited with offering to break 60 years of legal tradition by allowing Court review of CEO compensation.
Was this just a warning to corporate executives, or will we now begin to police the boardroom? The latter would be a dramatic departure from current law. See, for example, this article from the New York Law Journal about the dismissal of the stockholder derivative suit concerning the severance package for the President of Disney. This brief article shows how the "business judgment rule" has been applied to these cases in the past.
Will it continue?
Monday, December 30, 2002
sticks and stones
By, and republished with the permission of: Ian Connor Bifferato, Esquire, of Bifferato Bifferatto & Gentilotti, as published in, In Re (The Journal of the Delaware State Bar Association) Volume 26, No. 5, December 2002
It seems like the general public’s fixation with lawyer bashing goes back almost as far the beginnings of our honorable profession. How many times have you been assailed with William Shakespear’s most mis-quoted line from King Henry VI (“The first thing we do, let's kill all the lawyers”) by some misguided guest at a social gathering? Some lawyers are probably tempted to respond by saying “most educated people know that Dick the Butcher’s line from that play comes from a discussion among rebels about how they would have overthrown the government and made themselves lords.” In the end though, most of us come to the conclusion that the irony of that retort would likely be lost in the ensuing discussion, and we simply let the comment slide.
Most Americans have heard the sensationalized story of the lady who received a jury award of 2.9 million dollars after she spilled hot coffee in her lap. When retold completely out of context, that story is generally predicated with some statement along the lines of “the problem with America today is . . ..” I did not even know the real story of Stella Liebeck of New Mexico until relatively recently. Apparently in 1992, Ms. Liebeck, then seventy-nine years old, purchased a small cup of coffee at a McDonald’s drive through. She parked and placed the coffee cup between her knees to remove the lid when the contents of the cup spilled into lap causing third degree burns over 6% of her body, including her inner thighs, pertineum, buttocks, groin and genitals. She was hospitalized for eight days where she underwent skin graft and debridement treatments.
At trial, evidence was presented that McDonald’s company policy required their coffee to be served at 180-190 degrees, just short of boiling, and that in the ten years prior to Ms. Liebeck’s 1992 accident, McDonald’s received at least 700 complaints per week of burns from their coffee. A McDonald’s executive testified at trial that McDonald’s was aware of the danger of serious burns from their coffee, but that they decided not to warn customers or change their stated policy regarding the temperature at which their coffee was served. Ms. Liebeck tried to resolve her claims against McDonald’s prior to retaining counsel for $20,000, probably to help defray her medical expenses. Jurors who were interviewed following the trial claimed that it was the seriousness of Ms. Liebeck’s injuries coupled with the callous attitude of McDonald’s that resulted in their verdict. What about that verdict? The $200,000 in compensatory damages awarded to Ms. Liebeck was reduced to $160,000 based upon a finding of 20% comparative negligence and the 2.7 million in punitive damages, which was apparently based on the company-wide revenue from two days sales of coffee, was reduced by the trial judge to $480,000. Take from these facts what you will, but it doesn’t seem to me to be evidence of a legal system run awry.
Civil litigators are not the only subject of lawyer bashing. Criminal defense attorneys, prosecutors and judiciary alike are most often attacked for “letting criminals run free.” I was recently out of town, sharing a cab with another Delaware lawyer on our way to a hearing. We happened to be talking to each other about the then recent arrests of the snipers in Montgomery County, MD. The cab driver chimed in with something along the lines of “it doesn’t matter anyway. They’ll just plead insanity and some lawyer will have them out on the streets in no time.” The underlying tone of that comment was indicative of the biggest prejudice and misconception in certain segments of our society: lawyers protect the guilty while the innocent suffer. Would it have made a difference to that cab driver if one of us had launched into a dissertation about how the provision of a competent defense to every person put on trial for a crime carrying significant penalties is really intended to protect every innocent person, not the criminals? Probably not.
None of us can ever single handedly take on the task of changing deep rooted mis-perceptions about lawyers. In reality, many people just love to hate lawyers. They do not really know why. No one can ever rationally explain or justify a prejudice. Maybe it is just because it is one of the few remaining prejudices in America that have not finally become morally unacceptable or politically incorrect. In my opinion, at the heart of the matter, every prejudice is really just an irrational means by which people target the intangible frustration and hatred that festers when they feel at a loss to control the things that they do not like about society. Everyone wants someone to blame.
It is difficult to say what we can do to improve the public’s perception of our image. Obviously, not being the stereotype is the first step, but that is rarely a problem in Delaware. Maybe during this holiday season you will not let that “harmless,” but disparaging comment from a distant relative at a family gathering slide without a quick but friendly reality check. One thing that is certain, however, is that we can never tolerate any of our own members acting to exploit or proliferate the irrational misconception that the public carries about our profession. Tolerance of that type of behavior is tantamount to acceptance of the concept that there is something wrong with what we do, rather than something very laudable and necessary.
Derogation of lawyers never sounds so offensive as it does when it comes from one of our own. Perhaps even worse, it is never so accepted as true in the public’s eyes and ears as when it is advertised by a fellow lawyer. As lawyers we are so often vested with the public’s trust that we have become a very highly self-regulated profession to ensure our integrity. As members of the Bar of the Supreme Court of Delaware, we should also be confident that we can trust one another to be honorable.
By, and republished with the permission of: Ian Connor Bifferato, Esquire, of Bifferato Bifferatto & Gentilotti, as published in, In Re (The Journal of the Delaware State Bar Association) Volume 26, No. 5, December 2002
It seems like the general public’s fixation with lawyer bashing goes back almost as far the beginnings of our honorable profession. How many times have you been assailed with William Shakespear’s most mis-quoted line from King Henry VI (“The first thing we do, let's kill all the lawyers”) by some misguided guest at a social gathering? Some lawyers are probably tempted to respond by saying “most educated people know that Dick the Butcher’s line from that play comes from a discussion among rebels about how they would have overthrown the government and made themselves lords.” In the end though, most of us come to the conclusion that the irony of that retort would likely be lost in the ensuing discussion, and we simply let the comment slide.
Most Americans have heard the sensationalized story of the lady who received a jury award of 2.9 million dollars after she spilled hot coffee in her lap. When retold completely out of context, that story is generally predicated with some statement along the lines of “the problem with America today is . . ..” I did not even know the real story of Stella Liebeck of New Mexico until relatively recently. Apparently in 1992, Ms. Liebeck, then seventy-nine years old, purchased a small cup of coffee at a McDonald’s drive through. She parked and placed the coffee cup between her knees to remove the lid when the contents of the cup spilled into lap causing third degree burns over 6% of her body, including her inner thighs, pertineum, buttocks, groin and genitals. She was hospitalized for eight days where she underwent skin graft and debridement treatments.
At trial, evidence was presented that McDonald’s company policy required their coffee to be served at 180-190 degrees, just short of boiling, and that in the ten years prior to Ms. Liebeck’s 1992 accident, McDonald’s received at least 700 complaints per week of burns from their coffee. A McDonald’s executive testified at trial that McDonald’s was aware of the danger of serious burns from their coffee, but that they decided not to warn customers or change their stated policy regarding the temperature at which their coffee was served. Ms. Liebeck tried to resolve her claims against McDonald’s prior to retaining counsel for $20,000, probably to help defray her medical expenses. Jurors who were interviewed following the trial claimed that it was the seriousness of Ms. Liebeck’s injuries coupled with the callous attitude of McDonald’s that resulted in their verdict. What about that verdict? The $200,000 in compensatory damages awarded to Ms. Liebeck was reduced to $160,000 based upon a finding of 20% comparative negligence and the 2.7 million in punitive damages, which was apparently based on the company-wide revenue from two days sales of coffee, was reduced by the trial judge to $480,000. Take from these facts what you will, but it doesn’t seem to me to be evidence of a legal system run awry.
Civil litigators are not the only subject of lawyer bashing. Criminal defense attorneys, prosecutors and judiciary alike are most often attacked for “letting criminals run free.” I was recently out of town, sharing a cab with another Delaware lawyer on our way to a hearing. We happened to be talking to each other about the then recent arrests of the snipers in Montgomery County, MD. The cab driver chimed in with something along the lines of “it doesn’t matter anyway. They’ll just plead insanity and some lawyer will have them out on the streets in no time.” The underlying tone of that comment was indicative of the biggest prejudice and misconception in certain segments of our society: lawyers protect the guilty while the innocent suffer. Would it have made a difference to that cab driver if one of us had launched into a dissertation about how the provision of a competent defense to every person put on trial for a crime carrying significant penalties is really intended to protect every innocent person, not the criminals? Probably not.
None of us can ever single handedly take on the task of changing deep rooted mis-perceptions about lawyers. In reality, many people just love to hate lawyers. They do not really know why. No one can ever rationally explain or justify a prejudice. Maybe it is just because it is one of the few remaining prejudices in America that have not finally become morally unacceptable or politically incorrect. In my opinion, at the heart of the matter, every prejudice is really just an irrational means by which people target the intangible frustration and hatred that festers when they feel at a loss to control the things that they do not like about society. Everyone wants someone to blame.
It is difficult to say what we can do to improve the public’s perception of our image. Obviously, not being the stereotype is the first step, but that is rarely a problem in Delaware. Maybe during this holiday season you will not let that “harmless,” but disparaging comment from a distant relative at a family gathering slide without a quick but friendly reality check. One thing that is certain, however, is that we can never tolerate any of our own members acting to exploit or proliferate the irrational misconception that the public carries about our profession. Tolerance of that type of behavior is tantamount to acceptance of the concept that there is something wrong with what we do, rather than something very laudable and necessary.
Derogation of lawyers never sounds so offensive as it does when it comes from one of our own. Perhaps even worse, it is never so accepted as true in the public’s eyes and ears as when it is advertised by a fellow lawyer. As lawyers we are so often vested with the public’s trust that we have become a very highly self-regulated profession to ensure our integrity. As members of the Bar of the Supreme Court of Delaware, we should also be confident that we can trust one another to be honorable.
Sunday, December 29, 2002
just don't call it "finger printing"
Picture this: You've spent the afternoon filling up a shopping cart with things you want to buy. You pull up to the checkout line, and realize that you've left money, debit cards, and credit cards at home. Do you abandon the cart? Ask someone from the store to keep an eye on it while you rush home to get some cash or a card? Or do you just put your index finger on a finger image reading pad, and your purchase is complete?
A couple of Kroger stores in Texas are experimenting with letting people use finger image technology to make purchases. They don't like using the term finger printing because of the law enforcement image it evokes. Is this a wave of the future? They do have 10,000 participants, but it is still in the testing phase.
Picture this: You've spent the afternoon filling up a shopping cart with things you want to buy. You pull up to the checkout line, and realize that you've left money, debit cards, and credit cards at home. Do you abandon the cart? Ask someone from the store to keep an eye on it while you rush home to get some cash or a card? Or do you just put your index finger on a finger image reading pad, and your purchase is complete?
A couple of Kroger stores in Texas are experimenting with letting people use finger image technology to make purchases. They don't like using the term finger printing because of the law enforcement image it evokes. Is this a wave of the future? They do have 10,000 participants, but it is still in the testing phase.
political web site edits?
A couple of changes to the sites of the National Cancer Institute and the Centers for Disease Control and Prevention have some critics concerned (NY Times, reg. req'd) that the sites have abandoned reliable scientific statements with politically influenced ones:
[later -- more on data disappearing from government web sites, from searchenginewatch, in the December 19, 2002 edition of Searchday.]
A couple of changes to the sites of the National Cancer Institute and the Centers for Disease Control and Prevention have some critics concerned (NY Times, reg. req'd) that the sites have abandoned reliable scientific statements with politically influenced ones:
The National Cancer Institute, which used to say on its Web site that the best studies showed "no association between abortion and breast cancer," now says the evidence is inconclusive.The world wide web presents another issue that political figures will have to address in some meaningful fashion. When web sites become a primary means of disseminating information to the public, what type of oversight will need to included when pages change, and information is revised?
A Web page of the Centers for Disease Control and Prevention used to say studies showed that education about condom use did not lead to earlier or increased sexual activity. That statement, which contradicts the view of "abstinence only" advocates, is omitted from a revised version of the page.
[later -- more on data disappearing from government web sites, from searchenginewatch, in the December 19, 2002 edition of Searchday.]
crafting on the web
The internet is a great entry point for people who want to start businesses online. Small businesses can start out as a hobby, and grow to something larger. I came across a nice article about people who have found some success selling homemade crafts online from the writers of the Wall Street Journal. If this is something that you might want to do, there are a good number of sites that offer help and suggestions. In addition to the groups and message boards indicated in the article, you can check out the classes and resources available from your local Small Business Administration. There is also a very informative, and free, online business course on the pages of My Own Business.
The internet is a great entry point for people who want to start businesses online. Small businesses can start out as a hobby, and grow to something larger. I came across a nice article about people who have found some success selling homemade crafts online from the writers of the Wall Street Journal. If this is something that you might want to do, there are a good number of sites that offer help and suggestions. In addition to the groups and message boards indicated in the article, you can check out the classes and resources available from your local Small Business Administration. There is also a very informative, and free, online business course on the pages of My Own Business.
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