September 2006

Fiduciary Duty. As a recent case shows, the answer is: it depends.

Assume that you are the attorney for a closely-held corporation (a privately held corporation with a small number of active shareholders), and you have interacted with and provided corporate legal advice to the shareholders over the years. Even though you did not represent them personally, the shareholders placed their trust and confidence in you. A dispute then arises between one of the shareholders (who has a minority position) and the corporation. Can you represent the corporation in this dispute, or do you have a fiduciary duty to the minority shareholder that presents a conflict of interest, and precludes you from the representation?

An article by Massachusetts Bar Counsel written in 2003, Closely Held Conflicts, reviews the case law on this issue (which has developed mostly in the context of motions to disqualify counsel), and sends a clear warning that attorneys who have represented a closely held corporation most likely do owe a fiduciary duty to the shareholders.… Read the full article

This interview, which can be accessed here, provides some fascinating observations on emerging markets and their impact on the world economy. Ms. Woodall notes that emerging markets now represent one-half of world output and world energy consumption. She states:

The integration of China, India and other emerging economies are providing the biggest economic boost in world history, bigger than the industrial revolution. The first decade of 21st century will see the fastest growth ever in average world income.

An extensive series of articles from the September 16, 2006 issue of The Economist, titled A Survey of the World Economy and focusing on emerging markets, can be accessed from this page (lengthy PDF file).… Read the full article

So Much for Early Retirement

by Lee Gesmer on September 26, 2006

Courts. Judge Jack B. Weinstein is a legend in the federal judicial system. A district court judge from 1967 to 1993, he has been on “senior status” (but with a full case load) for the last 13 years. Yesterday, this 85 year old judge issued one of the longest decisions ever published: the 540 page decision certifying a class action in Schwab v. Philip Morris USA, a case alleging that smokers were defrauded into believing that “light” cigarettes were less dangerous than regular cigarettes.

A link to this exhaustive and carefully reasoned decision, which may be the most significant by Judge Weinstein in his forty years on the bench, is here. Proponents of “early retirement” should take a look.… Read the full article

Class Action Crazies Attack Wal-Mart

by Lee Gesmer on September 22, 2006

What were they thinking? David Fish at Collins Law, passed on this case: Acree et al v. Wal-Mart Stores, Inc. (Complaint in pdf format)

This class action lawsuit alleges that Wal-Mart claims that music CDs it sells do not contain explicit language when in fact some of them do. Quoting from the suit:

Wal-Mart violated its practice and policy by allowing CDs to be sold that contained explicit content but that did not contain an ‘explicit content’ or ‘parental advisory’ warning label. This worked to dupe the very consumers who have come to trust and rely on Wal-Mart as a ‘family friendly’ store.

The case was filed in state court in Chicago. Too bad the plaintiffs didn’t file it in PRC, Massachusetts. That would have led to some amusing courtroom scenes.

I’ll let you draw your own conclusions on the merits of this one, but I’m confident that the attorneys who filed this suit have the best interests of the injured class in mind and do not, I repeat do not, have attorney’s fees in mind.… Read the full article