Delaware Supreme Court Allows Shareholders Access to Corporation’s Attorney-Client Privileged Documents
August 13, 2014 —
Marc S. Casarino and Lori S. Smith – White and Williams LLPDelaware corporations may be required to turn over internal documents of directors and officers, including those of in-house counsel, where the factors enumerated in Garner v. Walfinbarger, 430 F.2d 1093 (5th Cir. 1970) weigh in favor of disclosure. In a July 23, 2014 decision of first-impression, the Delaware Supreme Court ruled in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, that the Garner doctrine applies to plenary shareholder/corporation disputes, as well as to books and records inspection actions under Section 220 of the Delaware General Corporation Law. The Garner doctrine provides that a shareholder may invade the corporation’s attorney-client privilege in order to prove fiduciary breaches by those in control of the corporation upon a showing of good cause. The non-exhaustive list of factors by which a finding of good cause should be tested are:
“(i) the number of shareholders and the percentage of stock they represent; (ii) the bona fides of the shareholders; (iii) the nature of the shareholders’ claim and whether it is obviously colorable; (iv) the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; (v) whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; (vi) whether the communication is of advice concerning the litigation itself; (vii) the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; and (viii) the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons.”
Reprinted courtesy of
Marc S. Casarino, White and Williams LLP and
Lori S. Smith, White and Williams LLP
Mr. Casarino may be contacted at casarinom@whiteandwilliams.com; Ms. Smith may be contacted at smithl@whiteandwilliams.com
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Insurer's Refusal to Consider Supplemental Claim Found Improper
June 17, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventy Circuit reversed the district court's finding that the insurer had properly rejected the insured's supplemental claim. Great Lakes Ins. SE v. Concourse Plaza A Condomiium Association, Inc., 2024 U.S. App. LEXIS 8958 (11th Cir. April 15, 2024).
On September 10, 2017, Hurrican Irma struck Concourse Plaza's building, causing wind and water damage. Great Lakes sent a adjuster to inspect the property. The adjuster found damages to the building were $31,035.21, well below the policy's deductible. Accordingly, Great Lakes advised that the net amount of the claim was zero.
Concourse Plaza responded on September 4, 2020, just shy of three years after the cliam accured. Concourse Plaza disputed the damages estimate, but did not include a competing estimate. The letter said an estimate was being prepared and Great Lakes should consider the letter as notice of the intent to pursue additional benefits for the loss pursuant to the policy's notice provisions and Florida law.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Engineer and CNA Dispute Claim Over Dual 2014 Bridge Failures
December 15, 2016 —
Scott Van Voorhis – Engineering News-RecordAn engineering company whose error led to two pedestrian bridge collapses in North Carolina in 2014 that left one worker dead and caused costly damage contends it is being unfairly denied $2 million in potential insurance coverage by its carrier due to what it claims is an “ambiguous” wording of the policy.
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Scott Van Voorhis, Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018
January 02, 2019 —
Richard H. Glucksman, Esq., David A. Napper, Esq., & Lana Halavi – Chapman Glucksman Dean Roeb & BargerIntroduction
Data breaches and social media hacks are becoming increasingly common stories on the news cycle. Meanwhile, companies have made fortunes on unsuspecting individuals by selling information gathered on the user. Every internet user has wondered why a pop-up ad or banner on an unrelated website relates to something you purchased or searched for "that one time. The California legislature has decided to return some power back to the people with the California Consumer Privacy Act of 2018. California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.
The California Consumer Privacy Act of 2018
On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act of 2018 ("the Act"). The California Legislature eagerly passed the Act, which comes into effect on January 1, 2020, granting broad new privacy rights to "consumers" and enforcing requirements on the protection of their personal data allowing consumers the right to take back control of their personal information.
A "consumer" is defined as a "resident of California as defined by California's personal income tax regulations. "Personal information" pursuant to the Act is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." Personal information is generally recognized in California as information that can identify a specific individual. The Act also includes information that can be used to identify a household.
Provisions of the Act
Pursuant to the Act, consumers are given the right to know upon request if their personal information is disclosed, and to whom it is disclosed, the right to know what personal information has been collected about them by a business, the right to object to the sale of their personal information, the right to obtain data collected about them, the right to require businesses to obliterate their personal information, and the right to be given equal service and pricing from businesses, including equal prices and quality of goods or services. The Act forbids discrimination by businesses against consumers for exercising their privacy rights pursuant to the Act.
Businesses are, however, permitted to charge different prices or provide different quality of service to consumers if the difference is "reasonably related to the value provided to the consumer by the consumer’s data." Additionally, businesses must allow consumers to exercise their rights by providing to consumers toll-free telephone numbers and/or websites to request such information or privacy. If a consumer sends a verified request for information to a business, the business subsequently has 45 days to give the consumer the requested information from the preceding 12 months with no charge to the consumer.
Who Must Comply with the Act
The Act will apply to for-profit businesses that do business in the State of California, deal with personal information of California residents, and either·(1) have more than $25 million in annual gross revenues, or (2) receive or disclose more than 50,000 California residents' personal information, or(3) derive 50% or greater of California residents' annual revenues from selling their personal information.
Who is Exempted from Compliance with the Act
A for-profit company, a small company, and/or a company that does not derive large amounts of personal information and does not share a brand with an affiliate covered by the Act is exempted from complying with the Act. Additionally, a company is exempted from compliance with the Act "if every aspect of . . . commercial conduct takes place wholly outside of California," meaning: (1) the personal information was collected from the consumer while they were outside California, (2) no sale of their personal information took place in California, and (3) there was no sale of personal information that was collected while the consumer was in California.
Impact
According to 2017 estimates, California's population totaled approximately 39 million people. Clearly the Act will affect an incredibly large amount of people considering it concerns the most populous state in America. The California Consumer Privacy Act of 2018, which is being compared to the EU General Data Protection Regulation for its all-encompassing method and resilient privacy protections is also speculated to have an impact on businesses throughout the nation and around the world. While the costs will likely go up for companies to do business in California, the transparency and trust earned by business and gained by consumers in this new landscape could potential overcome the initial costs to provide these required services. Perhaps most importantly however, is if California consumers decide to take advantage of the new protections, they will no longer have to wonder what for-profit businesses are doing with their data.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
David A. Napper and
Lana Halavi
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Carwash Prosecutors Seek $1.6 Billion From Brazil Builders
February 26, 2015 —
Sabrina Valle – Bloomberg(Bloomberg) -- Some of Brazil’s biggest building companies were targeted for the first time in an investigation into alleged kickbacks at Petroleo Brasileiro SA, with prosecutors seeking 4.47 billion reais ($1.6 billion) in compensation.
Federal prosecutors in Parana state accused Camargo Correa, Mendes Junior, OAS, Galvao Engenharia, Grupo Engevix and Sanko of diverting public funds and called for them to be banned from new state contracts, the prosecutors said in an e-mailed statement Friday.
The allegations -- called acao de improbidade in Portuguese, or misconduct action -- mark the first time companies have been singled out in connection with Brazil’s biggest-ever corruption scandal, in which Petrobras executives are accused of accepting bribes from a cartel of builders. Until now, only individuals have been accused of wrongdoing. Executives from companies including OAS and Camargo Correa have been jailed since November as part of the first sweep against contractors in the case known as Carwash.
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Sabrina Valle, BloombergMs. Valle may be contacted at
svalle@bloomberg.net
Real Estate & Construction News Roundup (7/10/24) – Strong Construction Investment in Data Centers, Increase Use of Proptech in Hospitality and Effects of Remote-Work on Housing Market
August 05, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, renters stay in their units longer, GenAI change how commercial real estate operates, and banks continue high exposure due to commercial real estate.
- Strong investor interest, particularly in opportunistic and value-add segments, signals a strong market for construction firms specializing in high-yield projects. (Sebastian Obando, Construction Dive)
- A growing number of renters are staying in their units for longer periods of time than they did a decade ago with over one-third of U.S. renters have lived in the same apartment for more than five years. (Mary Salmonsen, Multifamily Dive)
- Several U.S. regional and mid-sized banks continue to face the squeeze from high exposure to the commercial real estate sector that has been shaken by higher-for-longer interest rates and empty office buildings. (Reuters)
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Pillsbury's Construction & Real Estate Law Team
Client Alert: Catch Me If You Can – Giorgio Is No Gingerbread Man
November 26, 2014 —
Steven M. Cvitanovic, Jesse M. Sullivan, & Colin T. Murphy - Haight Brown & Bonesteel LLPIn Giorgio v. Synergy Management Group, LLC (2014) Case No. B248752, a California Court of Appeal held in an opinion published on November 6, 2014, that the Los Angeles County trial court did not abuse its discretion in permitting service by publication on Defendant John Giorgio ("Giorgio") after numerous attempts to find his current address produced a single address in Los Angeles from which mailed service was returned. The Court ruled that publication in a Los Angeles newspaper was proper because Plaintiff had a reasonable belief that service by publication in that county was most likely to give actual notice to the party to be served.”
In this intentional tort action, Synergy Management Group, LLC ("Synergy") alleged in its Complaint that Giorgio converted assets of Synergy's assignor by submitting false expense reports which resulted in the misappropriation of the assignor's assets. Synergy personally served Giorgio with the original Complaint at a North Carolina airport and Giorgio failed to respond. Synergy subsequently filed a First Amended Complaint and attempted service via an address in the Netherlands. Again, Giorgio did not respond. Synergy then filed a request for entry of default against Giorgio which was entered that day.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Steven M. Cvitanovic,
Jesse M. Sullivan and
Colin T. Murphy
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Mr. Sullivan may be contacted at jsullivan@hbblaw.com; and Mr. Murphy may be contacted at cmurphy@hbblaw.com
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Use of Dispute Review Boards in the Construction Process
December 27, 2021 —
Sarah B. Biser - ConsensusDocsDispute Review Boards: Overview
Problems, disagreements and claims arise in most large and complex construction projects regardless of the project delivery method. These disputes can and do delay and significantly increase the cost of the project. Dispute Review Boards, also known as Dispute Resolution Board, Dispute Board, Dispute Avoidance Board or DRB, are often found in large construction projects to assist the parties to minimize, resolve or avoid disputes and mitigate adverse impacts to projects. To date, over $270 billion worth of construction projects have used the dispute review board process to avoid numerous disputes and achieve significant savings.[1]
Unlike mediation and arbitration, a DRB is convened at the very beginning of the project and conducts regular meetings and visits at the project site throughout, allowing the DRB to discuss, observe and monitor construction, progress and potential disputes. At these meetings, DRB members become familiar with many of the facts and acquaint themselves with the job site personnel. If a dispute is submitted to them, the panelists have a great deal of knowledge about the circumstances of the problem to aid them in reaching their recommendations or conclusions. DRBs also encourage open and honest communications among or between the parties during the project, which in turn, encourages avoidance or resolution of disputes before they become formal claims. In short, the DRP process involves real-time discussion of the dispute with highly qualified people who know the particular project from day one and can provide recommendations on how to resolve disputes.
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Sarah B. Biser, Fox Rothschild LLPMs. Biser may be contacted at
sbiser@foxrothschild.com
