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Depending on perspectives, the California Supreme Court is famous (or infamous) for its rulings and is nationally influential. Accordingly, its useful to keep an eye on changes. Most recently, Joshua Groban, age 45, was confirmed to the court.  He is a long time senior advisor to Governor Brown and was involved in the selection of over 600 judges for the state. His private practice career was at Munger Tolles and then Paul Weiss, as described in a December 21, 2018 post at LAW360. His confirmation  gives Democrats a majority on the state high court for the first time in decades.

In addition, California Chief Justice Tani Cantil-Sakauye “dropped” her Republican Party registration, but did not register as  a Democrat, as explained in a December 14, 2018 LA Times article. The Chief Justice is becoming a force, and was appointed to the courts by Republican governors; Governor Schwarzenegger appointed her to the high court in 2010, according to a May 28, 2017 article in the LA Times.

 

Weekend reading led to an interesting, long form story on the private, automated and apparently  arbitrary and capricious world of  “law” in the Amazon marketplace; see this December 19, 2018 article in the Verge. If one assumes the article is accurate, it seems Amazon is yet another company that disregards existing law (e.g. Uber, Lyft) and just plunges ahead until someone stops it. That conclusion is reinforced by thinking back to Amazon’s many years of refusing to collect sales tax.

Two paragraphs are pasted below to whet the appetite for more:

“Amazon is far from the only tech company that, having annexed a vast sphere of human activity, finds itself in the position of having to govern it. But Amazon is the only platform that has a $175 billion prize pool tempting people to game it, and the company must constantly implement new rules and penalties, which in turn, become tools for new abuses, which require yet more rules to police. The evolution of its moderation system has been hyper-charged. While Mark Zuckerberg mused recently that Facebook might need an analog to the Supreme Court to adjudicate disputes and hear appeals, Amazon already has something like a judicial system — one that is secretive, volatile, and often terrifying.

***

And what’s a seller to do when they end up in Amazon court? They can turn to someone like Cynthia Stine, who is part of a growing industry of consultants who help sellers navigate the ruthless world of Marketplace and the byzantine rules by which Amazon governs it. They are like lawyers, only their legal code is the Amazon Terms of Service, their court is a secretive and semiautomated corporate bureaucracy, and their jurisdiction is an algorithmically policed global bazaar rife with devious plots to hijack listings for novelty socks and plastic watches. People like Stine are fixers, guides to the cutthroat land of Amazon, who are willing to give their assistance to the desperate — for a price, of course.”

Interesting times ahead. Presumably some group with litigation funding will take on Amazon using due process and antitrust law. Or, maybe not.

It’s certainly been interesting to watch the last several years of opinions from the Delaware Supreme Court. A July 2018 opinion adds to the list of interesting opinions because it limits the circumstances under which business judgment deference will be allowed. The opinion is Elizabeth Morrison v. Ray Berry et. al., which was first issued on July 9, 2018, and then revised on July 27. The opinion is drawing ample commentary from corporate lawyers and litigators. For example, the comments below are the introduction to a commentary from Cooley on August 7, 2018. Also tote the emphasis of the authors regarding the burden of proof:

“In Elizabeth Morrison v. Ray Berry et. al., (dated July 9, 2018), the Delaware Supreme Court reversed the Delaware Chancery Court’s dismissal of deal litigation based on obtaining a cleansing vote under Corwin/Volcano because the defendants failed to show “as required under Corwin” that the vote was fully informed. The deal litigation arose from the sale of The Fresh Market to a private equity buyer through a cash tender offer that involved The Fresh Market’s founder and his son, who owned collectively 9.8% of The Fresh Market shares, rolling over their equity. The plaintiffs contend that the founder and his son teamed up with the private equity buyer to purchase The Fresh Market at a discount by inducing the board to run a process that gave the private equity buyer an improper bidding advantage. The plaintiffs used a Delaware General Corporation Law Section 220 books-and-records demand and then Section 220 litigation to seek and obtain board minutes and emails with the founder’s counsel that the plaintiffs then used as evidence in the post-closing fiduciary duty case. The Delaware Supreme Court found that a reasonable stockholder would find the following information that was not included in the Schedule 14D-9 to be material, and therefore, the tender was not fully informed and the business judgment rule was not invoked:”

 

How much disclosure of deal dirty laundry is necessary in order to fully inform a Corwin/Volcano cleansing vote?

Today, law firms are businesses, not genteel partnerships. The point is highlighted by the fact that over the last 3 years, four UK law firms sold themselves through IPOs on UK stock markets and a fifth is about to do the same, as is highlighted by a June 4,  2018 article in the Financial Times.  Here’s the opening section:

“A fifth UK law firm is to float on the London Stock Exchange as signs grow that momentum for IPOs is building in a sector that has clung to a partnership model for centuries. Knights, a regional firm with revenues of £35m in the year to April 2018, announced on Monday its intention to list on the London Stock Exchange, in an IPO expected to value the business at £100m. The announcement comes only weeks after Rosenblatt Solicitors announced its own flotation, which raised £43m. These followed two more IPOs last year: Keystone in November and Gordon Dadds last July. The first UK law firm to float was Gateley, in June 2015. Gateley’s market cap has almost doubled since, from £100m to about £190m, according to Bloomberg figures.”

As work continues to change, it seems more and more cases are litigated to define when a person is an employee. The UK Supreme Court recently provided an an answer that deemed a person an “employee,” despite arguments to the contrary. The UK Supreme Court blog covered the case in a helpful June 13, 2018 post, with abundant links to the opinion, the press summary and the argument. The case happened to involve a plumbing and heating engineer, which brings to mind the possible implications of the ruling for tort law, worker’s compensation and insurance purposes.

“When Maolra Seoighe entered a Dublin courtroom to be tried for murder, his name was recorded as Myles Joyce.

The change was a translation from his native Irish, or Gaelic, into English — a language Mr. Joyce did not speak. So he couldn’t understand the words of the defense lawyer, the judge or the jury members who decided he was guilty in November 1882, and he was hanged the next month.

But evidence soon emerged suggesting that Mr. Joyce was innocent, just as he had been saying in Irish all along. Now, 136 years after his death, he has been officially pardoned.”

Quite the story, and there also is a book. See this April 6, 2018 NYT article for more specifics after the quote above.

For business lawyers, it’s helpful to keep in mind the big picture view of changes in Delaware corporate law. With that in mind, this post highlights a new article with a view of that sort. It’s available online at SSRN, as described and linked below. The article is related to a talk reviewing Delaware law.   News of the article arrived via a March 5, 2018 post by Francis Pileggi at his Delaware Corporate and Commercial Litigation Blog.

Delaware’s Retreat: Exploring Developing Fissures and Tectonic Shifts in Delaware Corporate Law
Vanderbilt Law Research Paper No. 18-17

65 Pages Posted: 22 Feb 2018 Last revised: 27 Feb 2018
James D. Cox
Duke University School of Law

Randall S. Thomas
Vanderbilt University – Law School; European Corporate Governance Institute (ECGI)

Date Written: December 1, 2017

 

SCOTUSblog includes a February 16, 2018 announcement of two interesting events as to predicting outcomes at SCOTUS. The entry is pasted below in full since the point seems to be to spread the word.

_______________________________________________________________________________

“Event announcement: The Supreme Court and wisdom of the crowds

On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.

Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.”