Common law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Tue, 11 Jan 2022 14:48:58 +0000 en-US hourly 1 https://wordpress.org/?v=5.8 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png Common law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 No common law right to start unauthorized vehicles, Georgia Supreme Court judge https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ Thu, 16 Dec 2021 19:04:18 +0000 https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday. Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the trunk […]]]>

ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday.

Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the trunk removed.

The defendants argued on appeal to the Georgia Supreme Court that they had a common right to remove vehicles that entered their property. They also cited the age-old “distress damage doer” doctrine, which recognizes the right of a landowner to contain intruding cattle and keep them until the owner of the animal can be determined and pays. the landowner for damages, according to opinion.

The High Court rejected these arguments, saying that neither this doctrine nor the right to remove intruder vehicles gives owners the right to stop vehicles on their property.

“Indeed, there does not appear to be any legal authority recognizing a common law right to immobilize unauthorized vehicles located on private property and to detain them against the owner’s will until payment is received.” wrote Justice Shawn LaGrua.

Some municipalities in Georgia have ordinances that specifically allow the starting of unauthorized vehicles, but this is not the case everywhere.

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There is more than one way to skin a disloyal cat: The Common Law Duty of Loyalty Claim Saves the Day – Intellectual Property https://prosecutebushcheney.org/there-is-more-than-one-way-to-skin-a-disloyal-cat-the-common-law-duty-of-loyalty-claim-saves-the-day-intellectual-property/ Mon, 13 Dec 2021 08:00:00 +0000 https://prosecutebushcheney.org/there-is-more-than-one-way-to-skin-a-disloyal-cat-the-common-law-duty-of-loyalty-claim-saves-the-day-intellectual-property/ United States: There is more than one way to skin a disloyal cat: the common law duty of loyalty claim saves the day December 13, 2021 Archer and Greiner PC To print this article, simply register or connect to Mondaq.com. We often answer clients’ questions on how best to protect their business interests, including their […]]]>

United States: There is more than one way to skin a disloyal cat: the common law duty of loyalty claim saves the day

To print this article, simply register or connect to Mondaq.com.

We often answer clients’ questions on how best to protect their business interests, including their trade secrets. We do not take a one-size-fits-all approach and the advice we give depends on the needs and circumstances of our clients. We take this approach because companies have three sometimes overlapping, but distinct, means of protection: restrictive covenants (for example, non-compete, non-disclosure, and non-solicitation agreements); statutes; and common law.

It is important for companies to keep this in mind in order to maximize the precautions they can take against employees leaving to take up positions with the competition. In the event that legal action is required, it is important for businesses to make all possible arguments. In some cases, the former employee may not have signed a restrictive covenant. In other cases, the conduct of the former employee may not be covered by applicable law. In these cases, the common law could still provide the protections the business needs. We have already written about the common law obligation of employees to refrain from using or disclosing confidential information and how an employer can potentially prevent an employee leaving the competition from using that information, even in the absence of a non-compete agreement.

A recent New Jersey case in federal court further illustrates how a company can successfully invoke another common law obligation to prevent an departing employee from unfair competition, this time using the duty of loyalty.

In SFX Installation, Inc. v Pimental, 2021 WL 4704964 (DNJ 8 October 2021), the employer has installed specialized laboratory equipment. The former employee worked there for four years, starting as a helper and being promoted to foreman. As a foreman, the former employee had access to the employer’s VPN, which contained information on the company’s prices, offers and proposals, and the company’s storage facility.

While still employed by the company, the former employee secretly formed a new company to compete. He solicited business for his new business by contacting the employer’s clients. He also conducted some business for his new business during his employer’s time, using the employer’s employees and resources. He also posted photos of his work for the employer on his new company’s social media page.

The employee ultimately resigned, citing personal reasons and not mentioning his new business. When the employer learned of the new business from his own clients, he sued for injunction and damages. Since the company did not require the former employee to sign a restrictive covenant, its complaint alleged that the former employee had violated the Defend Trade Secrets Act (“DTSA”) and the New Jersey Trade Secrets Act. (“NJTSA”) and asserted common law allegations of tortious interference with the contract, conversion and breach of the duty of loyalty.

The court dismissed the employer’s claims under the DTSA and NJTSA on the grounds that the employer failed to sufficiently allege that the installation of laboratory equipment was a protectable trade secret, as opposed to general industry knowledge not protectable. In addition, although the former employee had access to the employer’s trade secrets (for example, information on customers, prices and offers), the former employer did not present sufficient evidence that the he former employee actually used them.

However, the rejection of the statutory claims did not end the analysis, as the employer also asserted common law claims. The duty of loyalty prohibits employees from acting against the interests of their employer during their employment. On this point, the employer has sufficiently asserted a complaint. The former employee admitted to soliciting and performing work for the employer’s clients, and that work constituted the majority of the business of the new company.

In addition, the employer alleges that the former employee used the employer’s resources for his new business. For example, the employer presented receipts from EZ Pass and Home Depot showing that the former employee was working and shopping for their new business during the days and times listed on their tally sheet for the employer. He used the company’s cell phone for his new business calls. He used some of the employer’s equipment to perform work for his new business and he advertised his new business by posting photos of the work performed for the employer.

Following the request for a duty of loyalty, the Court granted the employer’s request for a preliminary injunction. This case presents some valuable lessons. First, it shows that it is not necessarily necessary for a restrictive covenant to be in place for an employer to succeed in a case against an unfair former employee. Second, although there is often an overlap between statutory and common law claims, sometimes the conduct of an disloyal former employee can go against the common law without violating a law. It is important that employers are aware of and assert all possible claims when filing a lawsuit. This is especially true where the conduct of the former employee is particularly egregious, as was arguably the case here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Contemporary Common Law Developments in Contract Law: Implications for Reform in Malaysia – Mary Lim | What you think https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ Thu, 09 Dec 2021 00:02:10 +0000 https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1. The Law Revision Commissioner has the primary power and function of reviewing and reprinting all laws […]]]>

DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1.

The Law Revision Commissioner has the primary power and function of reviewing and reprinting all laws passed by Parliament and this includes all laws prior to Merdeka.

Revision is essentially an exercise in updating our laws and keeping in our treasury only those laws that are still in force with a language in tandem with current legislation.

One would have thought that this exercise should be done by Parliament or the legislative assemblies of the respective states since all laws are promulgated by Parliament. Under Law 1, this function of reviewing our laws is left in the hands of the Law Review Commissioner.

Here is an example of the powers of the commissioner. The Commissioner may omit from any revised law, for example:

* Any provision which has ceased to have effect;

* Any preamble or part of a preamble of a law;

* Any adoption clause;

* Any part of a law which can be more conveniently included as subsidiary law.

In this revision exercise, the commissioner can even add a long or short title or modify an existing title; provide or modify tables of contents, consolidate or divide into one or more laws; transfer any provision of one statute to another statute to which that provision more correctly belongs; modify, insert or omit punctuation marks.

There is more; a total of about 24 powers. But, there is a strict prescription to all of these powers.

The Commissioner is expressly informed that the powers conferred “should not be interpreted as implying a power to make modifications or modifications to the substance of a law”.

In 2006, I was appointed Commissioner of Law Revision or CLR as the position is more commonly known. But, I wasn’t just the CLR.

Four years earlier, the CLR had taken on an additional portfolio and had become the Law Review and Reform Commissioner. The Research Unit of the Public Prosecutor’s Office is placed under the supervision of the CLR.

Thus, the task of law reform came under the auspices of the CLR. However, until that date, Act 1 and the appointment of the CLR remain unchanged; and I understand that there is yet another research unit at AGC.

Why am I referring to the office of the CLR and the powers granted under Act 1 to the CLR as we are here this morning on the cases of the Contracts Act 1950 and more specifically, the development of contemporary customary law in Malaysia?

Perhaps its relevance will become clearer when we understand the broader intent of this round of talks.

English commercial law was first introduced into the Straits Settlements through the Civil Law Ordinance of 1878. In 1899, the Contract Act, modeled on the Indian Contract Act of 1872, was adopted. then promulgated.

It applied to the four Federated Malaysian States. This law was later extended to the non-federated Malaysian states through the Contracts Ordinance of 1950.

The contracting ordinance was then revised under the powers that I explained a moment ago. With effect from July 1, 1974, the Contracts Ordinance became the Contracts Act 1950 and constitutes Act 137 of the Malaysia series of laws.

The Indian contract law is said to be in fact “a code of English law”. Our contract law should not be viewed any differently. As a Code, one should be able to find all the answers in its pages.

Yet, as you will hear, the contracting parties have repeatedly called upon our courts to the common law for assistance, for development. For example, our provisions on coercion [section 15 of the Contracts Act] are said to be archaic, disregarding commercial realities and pressures, that economic constraint must be properly recognized.

In the recent decision of Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727, the English courts have even recognized the concept of a lawful act of economic coercion.

Likewise, the concepts or at least the arguments of inequity and unequal bargaining have been left out, namely that our existing article 16 on “abuse of influence” would simply be inadequate to deal with modern quarrels in law and order. conference rooms.

So in Saas Marwi vs. Chan Hwan Hua [2001] 3 CLJ 98, the Court of Appeal suggested that “we should recognize the broader doctrine of unequal bargaining power. We can adopt the English doctrine of unconsciousness in toto ”. The Court of Appeal held that this was a choice available under section 3 of the Civil Law Act 1956. [Act 67].

What about the treatment of illegality as addressed by the Supreme Court in Patel vs. Mirza [2016] UKSC 42 – is it within the scope of article 24? What about the law of restitution, of unjust enrichment?

Does this fall under the law or have we pushed its terms beyond its limits? The recent Federal Court decision in Cubic Electronics Sdn Bhd vs. Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 has satisfactorily terminated the damages position; is it in tandem with the rest of the other common law jurisdictions.

The contracting parties have repeatedly called on our courts to use the common law for assistance, for development.  - Photo by Yusof Mat Isa
The contracting parties have repeatedly called on our courts to use the common law for assistance, for development. – Photo by Yusof Mat Isa

Another example is electronic transactions. If one looked to the requirements of the law on forming a valid and concluded agreement, and by the time one arrives at it, it is more likely than not that the many parties involved in an electronic transaction or a web contract have already clicked and sent a response via the impossible algorithms.

How many of us have really gone through and read the countless terms and conditions before clicking the “I agree” or “I agree” or even “Pay” button? The fear is that this law of the last century will not be able to resolve the disputes that arise from these e-commerce transactions.

There is certainly more.

It is clear and obvious that the law on contracts needs revision, and swiftly. And the revision of the Law on Contracts, a law that regulates and underpins many fundamental aspects of our daily lives, our businesses, our industry, our government and more; cannot be left to the court. Court observations can be challenged as obiter or worse, by carelessness. There are only limits that the courts can model on the facts in order to do justice.

The revision of our law on contractual obligations to take into account and accommodate developments in Common Law must be undertaken in a responsible manner, through agreement and discourse; extensive, in-depth and refined deliberations by appropriate experts; many of whom are already attending this webinar and those to come in the coming days.

This task fits perfectly into the additional function of the CLR, that of reform. But, as I pointed out at the beginning, this task can, with respect, go beyond the powers of the CLR; certainly not as a review exercise, but as a reform project.

In the UK, reform matters are by statute the responsibility of the Law Reform Commissioner. A sitting judge of the Court of Appeal directs this appointment. Sir Nicholas Green is assisted by an independent and permanent secretariat

In fact, just last week the Law Commission “confirmed that existing law in England and Wales is capable of adapting and applying to smart legal contracts, without the need for reform statutory law. The Law Commission notes that in some contexts a progressive development of the common law is all that is needed to facilitate the use of smart legal contracts within the existing legal framework.

We need this. We need an independent legal commission to undertake all the reforms.

Its urgent work will then be able to integrate all the studies and recommendations which, it is hoped, will result from this series for greater confidence in the evolution of our law of contractual obligations; that law and common law can really be ad ditto.

* Datuk Mary Lim Thiam Suan is a judge at the Federal Court of Malaysia and here is her remarks delivered at the Faculty of Law of the University of Malaysia on December 4th.

** This is the personal opinion of the author or post and does not necessarily represent the views of Malaysian courier.


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Judicial deference, liberty and common law https://prosecutebushcheney.org/judicial-deference-liberty-and-common-law/ Wed, 08 Dec 2021 19:48:00 +0000 https://prosecutebushcheney.org/judicial-deference-liberty-and-common-law/ December 8, 2021 2:48 p.m. ET Photo: Getty Images / iStockphoto In treating the advent of judicial review as a “radical development,” Judge Raymond Kethledge’s review of Randy Barnett and Evan Bernick’s “The Original Meaning of the 14th Amendment” (Bookshelf, November 30) is off to a bad start. privileging the right of autonomy over that […]]]>

December 8, 2021 2:48 p.m. ET


Photo:

Getty Images / iStockphoto

In treating the advent of judicial review as a “radical development,” Judge Raymond Kethledge’s review of Randy Barnett and Evan Bernick’s “The Original Meaning of the 14th Amendment” (Bookshelf, November 30) is off to a bad start. privileging the right of autonomy over that of individual freedom. The power of judges to overrule democratic decisions was at least implicit in the Declaration of Independence, where freedom comes first and self-government second, as a means to freedom, but only within our limits. Written constitution as interpreted by our courts. To consider the contrary is to make the majority judge in its own case and to deprive the Constitution of its power to discipline the people.

As I wrote here decades ago (“Rethinking Judicial Restraint,” op-ed, February 1, 1991), Robert Bork, upon whose authority Justice Kethledge relies, overturned that order. He, like Justice Kethledge, was at times an original on unenumerated rights and the authority of judges to recognize them. Because the text of the Ninth Amendment, although broad, is clear. Rights not listed are not to be “denied or denigrated”, which is precisely what judicial deference does to political branches. Rhythm Judge Kethledge, “not counted” does not mean “absent from the written Constitution”. Like privileges or immunities, due process and equal protection, rights not listed are found in the text of the Constitution. If we were to deny or disparage these general texts, as Bork often did, we would be at the mercy of state legislatures that have banned parish school education, interracial marriage, broad forms of economic freedom and more.

Can judges abuse or disregard their authority? They can and have. But the answer to bad judgment is not judicial deference, as Justice Kethledge has recognized elsewhere. It is better to judge, towards which MM. Barnett and Bernick provided a valuable guide.

Roger Pilon, Ph.D., JD

Caton Institute

Washington

Mr. Kethledge’s review could have presented the argument more appropriately as a duel between customary practice, as articulated by the common law, itself based on case law, and formal written law. When Chief Justice Edward Coke, in The case of Dr Bonham (1610), quoted in the review, declared statutory law “void” if it went against the common law, he observed an empirical truth. The statutes that did so have invariably become dead letters even while remaining on the books. The “privileges and immunities” clause of the 14th Amendment was surely intended to honor common law over statutory formalism, a relationship that modern originalists, drawing on the tradition of Roman civil law, sought to reverse.

Em. Teacher. Albion M. Urdank

University of California, Los Angeles

Copyright © 2021 Dow Jones & Company, Inc. All rights reserved. 87990cbe856818d5eddac44c7b1cdeb8

Appeared in the print edition of December 9, 2021 under the title “Judicial deference, liberty and common law”.


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CPS Blotter: man charged after allegedly assaulting his common-law partner https://prosecutebushcheney.org/cps-blotter-man-charged-after-allegedly-assaulting-his-common-law-partner/ Wed, 08 Dec 2021 14:33:56 +0000 https://prosecutebushcheney.org/cps-blotter-man-charged-after-allegedly-assaulting-his-common-law-partner/ Content of the article A 41-year-old Cornwall man faces charges after he allegedly assaulted, suffocated and hit his common-law partner with a piece of clothing on December 7. The unidentified man was taken into custody following a brief scuffle with police and charged with domestic assault, assault with a weapon, assault causing bodily harm and […]]]>

Content of the article

A 41-year-old Cornwall man faces charges after he allegedly assaulted, suffocated and hit his common-law partner with a piece of clothing on December 7. The unidentified man was taken into custody following a brief scuffle with police and charged with domestic assault, assault with a weapon, assault causing bodily harm and resisting police. He was held for a bail hearing. His name was not disclosed as it would identify the victim in the case.

Content of the article

Aggression, OFFENSE

Dana Cayer, 20, of Cornwall, was arrested on December 7 and charged with assault, as well as breach of probation for failing to maintain public order. Police allege that during an altercation with a person they know on the same day, Cayer spat on the man. She was taken into custody, charged accordingly and detained for a bail hearing.

DOMESTIC MALICIOUSNESS, INFRINGEMENT

A 26-year-old man from Akwesasne was arrested on December 8 and charged with domestic mischief, along with two counts of failing to comply with the release order for contacting and being some distance from his ex-girlfriend. Police allege that in the early hours of the morning on Wednesday, the man went to his ex-girlfriend’s residence, despite his conditions, and damaged the door to his residence. He was taken into custody, charged accordingly and detained for a bail hearing. His name was not disclosed as it would identify the victim in the case.


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Common law for commoners https://prosecutebushcheney.org/common-law-for-commoners/ Tue, 16 Nov 2021 08:00:00 +0000 https://prosecutebushcheney.org/common-law-for-commoners/ What can a personal loans be used to? A personal loan is extremely flexible which is why it is by far the most popular kind of loan people require typically. In reality, it is possible to use personal loans for a variety of reasons, but some of the most popular ones are to pay off debts […]]]>

What can a personal loans be used to?

A personal loan is extremely flexible which is why it is by far the most popular kind of loan people require typically. In reality, it is possible to use personal loans for a variety of reasons, but some of the most popular ones are to pay off debts with a higher interest and cover medical expenses, receive funds for emergency situations or home repairs and repairs, pay funeral costs and wedding costs, paying for costs for moving, and so on. https://greendayonline.com/small-personal-loans/

“You are not guilty unless your guilt is proved”

This applies to everyone and not to those who hold public office. In the case of political decision-makers and intermediaries of power The European code or Napoleonic code of conduct is: “We are guilty unless we are cleared”. This burden is on the accused. This also speeds up the process of justice and is then defined as “Justice delay is justice not served”.

I tend to support PM (PM) that accused persons shouldn’t be allowed to participate actively in debates held by the parliamentary committee, they can vote, but not to speak unless they’re being honest.

The president should issue an or executive order to prevent the holder of a public office from speaking when their corruption charges exceed 60 days. There will then be no adjournment. The whole process will be expedited which means that the facts will be brought out.

Unfortunately our common law system has become ineffective in tackling white collar crime across the globe. A majority of prisoners inside our jails are innocent convicts who have committed petty offenses as those who are “gluttonous monsters” get away.

The delays go unpunished and are easy to be adopted by corrupt. Although the current law was intended to protect innocent people but it is not able to challenge those who are powerful in these clauses of protection that are soft and do not safeguard human rights fundamentally.

Prior to the decade of 1970s in which corruption was slowed and the courts were able to provide aid to those who opposed the government. today, the corrupt have succeeded in securing the protection they need.

While the current , ineffective prosecutions are successful in convicting the powerless, they are unable to attract the powerful , who enjoy the luxury of hiring expensive lawyers. While the NAB adheres to what is known as the “Napoleonic codes” for arresting suspects The upper magistracy is governed by common law, which grants relief for those who are powerful, in cases where guilt has to be proved. The courts demand proof that isn’t there.

In the past, there was a loud roar of forklifts parked in the parking lot up to the point that Lahore High Court (LHC) declared that only government employees wearing uniforms were permitted to control public property. In the years since, this unethical procedure has been stopped.

I personally was affected by the incident. My wife’s vehicle was taken away of the Raja Center. Following an investigation, we found out that the vehicle was under police custody. We were required to pay the fine of 200 rupees, that I agreed to pay in exchange for the receipt that was stamped with a stamp, which was not readily available.

As a final concession, it was decided to that “Mohrar” from the station should affix the seal that he had refused which clearly indicated that it was a secret private bribery scheme carried by the government under patronage. In the end, I decided to make use of the power and requested my wife to operate the vehicle that she did.

Only the rich can take the wealth they have gotten without receipts, and they are not liable to be convicted by a judge. They then employ their position to shield their shady actions.

The members of parliament that are accused of being indicted must be cleared within 60 days of being charged , or lose the right to address the public at home. only then can the suffering of the common people be halted.

All he has to do is pass an order from the president to accelerate the stagnant “accountability procedure”. Politics demands an obligation to the country, not a commercial venture as it has since.

Dr. Farid A Malik

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De facto marriage and social security https://prosecutebushcheney.org/de-facto-marriage-and-social-security/ Mon, 15 Nov 2021 19:47:14 +0000 https://prosecutebushcheney.org/de-facto-marriage-and-social-security/ Social security recognizes a de facto marriage if: The couple live in a state where common-law marriage is legal, or did so at the start of the marriage. The couple can show Social Security that they are in such a relationship (more details below). If you meet these criteria, you are entitled to the same […]]]>


Social security recognizes a de facto marriage if:

  • The couple live in a state where common-law marriage is legal, or did so at the start of the marriage.
  • The couple can show Social Security that they are in such a relationship (more details below).

If you meet these criteria, you are entitled to the same spousal and survivor benefits, subject to the same conditions, as a couple who have obtained a marriage license and performed a ceremony.

Social Security regulations list 10 states that currently recognize common law marriage (some by current laws, others by legal precedents): Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Caroline of South, Texas and Utah. The District of Columbia is doing it too. The rules on cohabitation and other criteria for establishing a relationship as a common-law marriage vary considerably from state to state.

Sixteen other states previously recognized such relationships, and if your common-law relationship began while the practice was still legal in your state and met that state’s criteria, Social Security will say so. In most of these states, the question is largely academic; 11 ceased to recognize common-law unions more than 50 years ago. The question may be more relevant if you were married in Alabama (where the practice was banned in 2017), Georgia (1997), Idaho (1996), Ohio (1991), or Pennsylvania (2005).

Once you’ve cleared the state hurdle, it’s mostly a matter of Social Security paperwork. Both common-law partners must complete a “Declaration of Conjugal Relationship” (Form SSA-754) and provide an additional declaration from a blood relative confirming the marriage (Form SSA-753). If your common-law partner is deceased and you are claiming survivor benefits, you must provide your own declaration, one from a blood relative and two from a blood relative of the deceased. Social Security may look for corroborating evidence that the couple considers themselves (or considers themselves) to be spouses, such as mortgage or rent receipts, insurance policies, or bank statements.

If you live in a state that doesn’t recognize common-law marriage, you’re out of luck from a Social Security perspective. The recognition of de facto unions established abroad varies from country to country and may require an opinion from the Social Security legal office; if you are in such a relationship, contact Social Security to inquire about your status.

Keep in mind

  • Children of common-law partners who are both deceased may be eligible for survivor benefits. When applying, they must provide an SSA-753 form of a parent by blood of each parent.
  • The issue of social security benefits for de facto same-sex marriages is legally pending. The emblem of the Supreme Court Oberefell the decision required states to issue marriage licenses to same-sex couples; it did not deal specifically with common-law marriages. How States Apply Oberefell such relationships are dealt with on an ad hoc basis, as the relevant cases (for example, involving divorce or inheritance) are dealt with in state courts.


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Buyer Beware: Federal Common Law of Successor Liability May Create Unexpected Liability Dechert srl https://prosecutebushcheney.org/buyer-beware-federal-common-law-of-successor-liability-may-create-unexpected-liability-dechert-srl/ Wed, 20 Oct 2021 07:00:00 +0000 https://prosecutebushcheney.org/buyer-beware-federal-common-law-of-successor-liability-may-create-unexpected-liability-dechert-srl/ Key points to remember: The Third, Sixth, Seventh and Ninth Circuit Courts of Appeal have recognized the doctrine of successor liability in federal common law for claims brought under certain federal labor and employment statutes, including the Fair Labor Standards. Act, Title VII, the Family and Medical Leave Act. , and the Employees Retirement Income […]]]>

Key points to remember:

  • The Third, Sixth, Seventh and Ninth Circuit Courts of Appeal have recognized the doctrine of successor liability in federal common law for claims brought under certain federal labor and employment statutes, including the Fair Labor Standards. Act, Title VII, the Family and Medical Leave Act. , and the Employees Retirement Income Security Act, among others.
  • Successor liability in federal common law is broader than traditional state concepts of successor liability in that it does not require community of ownership between a predecessor and a successor corporation; substantial business continuity may be sufficient to support the responsibility of the successor.
  • Thus, structuring a transaction as a sale of assets rather than a merger or equity investment may not necessarily be sufficient for an acquirer to evade liability for certain federal claims if the key personnel, assets and general business operations remain the same or substantially similar after the transaction is closed.
  • In Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., No. 20-252 (7th Cir. July 7, 2021), the Seventh Circuit continued to recognize the federal common law doctrine of successor liability, but rejected the idea that it could provide an independent basis for federal jurisdiction over the matter.
  • Counsel for the plaintiffs and others can be expected to test the limits of the doctrine in seeking to apply it to other federal causes of action that “flow” from federal law.

The United States Court of Appeals for the Seventh Circuit recently delivered a remarkable decision in East Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc. on the application of successor liability in federal courts.1 The responsibility of the successor in federal common law is a exception the general rule in virtually all US jurisdictions that the buying company (i.e. the acquirer) in an asset sale transaction does not not assume the liabilities of the selling company (i.e. the acquiree) simply by acquiring ownership of the assets.2 Federal courts of appeal, including the Third, Sixth, Seventh and Ninth Circuits, have provided an exception to this general rule and have recognized that “where liability is based on a violation of a federal labor relations law or employment, a common federal law The law standard of successor liability applied is more favorable to plaintiffs than most state law standards that the court might otherwise consider.3 According to this approach, successor liability can be found even in the context of an actual sale of assets. if (1) the successor has been notified of the claim, (2) there is “substantial continuity in the operation of the business before and after the sale” and (3) the predecessor cannot provide the relief requested.4 Federal courts of appeal have applied this framework to federal labor and employment claims arising from the Fair Labor Standards Act (FLSA),5 Title VII,6 the law on family and medical leave (FLMA),7 and the Employees Retirement Income Security Act (ERISA),8 among others.

As a relevant example, the district court of Prather plumbing held that the availability of successor liability at federal common law was a “close call” for plaintiffs who had obtained a default judgment on the ERISA claims against a target asset-selling company that had ended up with little ‘assets as a result of a sale transaction and brought a separate action against the purchaser of those assets.9 Although the owners of the companies involved in the asset sale transaction were father and son and the son was made aware of the possible liabilities of his father’s company, the district court saw “a grave injustice in imposing a judgment of nearly US $ 300,000 due solely to the purchase of only US $ 25,024 of impaired physical assets ”and ultimately refused to impose successor liability.ten Other courts, however, have balanced the actions the other way around and have imposed successor liability on the buyers of the assets. Indeed, the Seventh Circuit recently underlined that “when the successor company knows the responsibility of its predecessor, knows the precise extent of this responsibility and knows that the predecessor itself would not be able to pay a judgment obtained against it , the presumption should be in favor of the responsibility of the successor.11

In its appeal decision in Prather plumbing, the seventh circuit panel did not reach the equity to impose the responsibility of the successor. Instead, the court considered whether the plaintiffs’ single claim alleging the federal common law doctrine of successor liability constituted an allegation “under” federal law for the purposes of establishing federal jurisdiction over successor liability. question. In a unanimous opinion, the Seventh Circuit concluded that it lacked jurisdiction in the matter, citing the earlier decision of the United States Supreme Court in Peacock c. Thomas, 516 US 349 (1996), where this Court found that an argument for piercing the corporate veil did not provide “federal question” jurisdiction in the absence of an underlying federal cause of action. , such as that arising from federal labor or employment laws.12 Likewise, the Seventh Circuit found that the applicants in Prather plumbing did not allege a breach of ERISA against the asset acquirer, but simply invoked successor liability as a “means of imposing liability on the basis of a cause of action underlying ‘they had previously won against the predecessor company.13 Although the responsibility of the successor “implied federal law[,] . . . it does not necessarily follow that federal law also created a cause of action enforce this doctrine in federal court.14 As such, notwithstanding the fact that the plaintiffs cited ERISA in their declaration of jurisdiction, nothing in this law actually provided for legal action based on successor liability.15 Thus, the Seventh Circuit overturned the district court’s judgment and returned with instructions to dismiss the action for lack of federal jurisdiction.

Although the decision of the Seventh Circuit in Prather plumbing may reduce the potential for successor liability in federal common law by excluding it as a source of federal questioning jurisdiction to bring an action in federal court, this form of liability is indeed present in at least four of the courts of law. federal circuits, including appellate courts that cover major jurisdictions such as Cincinnati, Chicago, Detroit, Los Angeles, Philadelphia, and San Francisco. When conducting due diligence on an acquisition, companies and M&A participants should take note of the potential liability of the successor under federal labor or employment laws, even when a transaction is structured as a sale of assets, if substantial business continuity is an expected result. It is also to be expected that the plaintiffs et al. Will attempt to extend the doctrine of successor liability in federal common law to other federal causes of action which “arise” from federal law. This all serves as a further reminder of the importance of not only performing in-depth due diligence when completing an asset acquisition, but also the importance of seeking adequate representation and collateral coverage (including on matters implied by federal law), as well as remedies for breach.

Footnotes

1) E. Hundred. Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., n ° 20-252, 3 F.4th 954 (7th Cir. 2021).

2) William M. Fletcher et al., Fletcher Cyclopedia of Law of Private Corporations § 7122 (rev. Vol. 2008).

3) Teed v. Thomas & Betts Power Sols., LLC, 711 F.3d 763, 764 (7th Cir. 2013); see also Einhorn v. ML Ruberton Const. Co., 632 F.3d 89, 94 (3d Cir. 2011); Guarantee of pension benefits. Corp. vs. Findlay Indus., Inc., et al., 902 F.3d 597, 609-11 (6th Cir. 2018); Sullivan v Dollar Tree Stores, Inc., 623 F.3d 770, 780-81 (9th Cir. 2010).

4) EEOC c. GKG, Inc., 39 F.3d 740, 747-48 (7th Cir. 1994); see also Teed, 711 F.3d at 765-66.

5) See Ted, 711 F.3d at 765-66.

6) See Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir. 1986).

7) See Sullivan, 623 F.3d at 786-87.

8) See Einhorn, 632 F.3d at 96-100; Pension Fund of the International Union of Upholsterers c. Artistic furniture, 920 F.2d 1323, 1327-28 (7th Cir. 1990).

9) E. One hundred. Illinois Pipe Trades Health & Welfare Fund & Plumbers v. Prather Plumbing & Heating, Inc., n ° 1: 18-CV-01434, 2020 WL 4060766, at * 8 (CD Ill. July 17, 2020).

ten) Identifier. to 10.

11) Ind. Elect. Workers’ Pension Fund v ManWeb Servs., Inc., 884 F.3d 770, 783 (7th Cir. 2018) (emphasis added) (citing Worth vs. Tyer, 276 F.3d 249, 260 (7th Cir. 2001)).

12) Prather plumbing, 3 F.4th at 959-60 (citing Peacock c. Thomas, 516 US 349 (1996)).

13) Username. to 960.

14) Username. (emphasis added).

15) Username. to 961.


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The common law of BVI after a general idea – Litigation, mediation and arbitration https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/#respond Mon, 11 Oct 2021 17:12:07 +0000 https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ British Virgin Islands: The common law of BVI after a broad idea October 11, 2021 Collas Crill To print this article, simply register or connect to Mondaq.com. The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd and […]]]>

British Virgin Islands: The common law of BVI after a broad idea

To print this article, simply register or connect to Mondaq.com.

The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd and Convoy Collateral Ltd v Cho Kwai Chee.

Some key lessons can be learned from the judgment

  1. With respect to service on a foreign defendant of a claim form in which a freezing injunction is the only remedy sought, the Rules of Civil Procedure of the Eastern Caribbean Supreme Court 2000 (the “CE RPCs”) do not provide no power to the courts of the BVI. . Consequently, this apparent limitation of the CE RPC can only be corrected by their amendment.
  2. Reaffirming the jurisdiction of Black Swan (which has since been placed on a statutory basis) and departing from the dicta of the House of Lords in The Siskina, the Privy Council noted that a freezing injunction is not, in actual fact, analysis, incidental to a cause of action, in the sense of a request for substantial relief, or not at all. The essential purpose of a freezing injunction is to facilitate the execution of a judgment or of an order to pay a sum of money, by preventing the assets against which such a judgment could potentially be executed from being processed. so that insufficient goods are available to meet the judgment. Therefore, there is no policy reason to link the grant of such an injunction to the existence of a cause of action.

Summary

The common law of the BVI (and perhaps more generally) on the granting of freezing orders can be stated as follows (by Lord Leggatt at paragraphs 101 and 102):

a) A court having equitable and / or statutory jurisdiction to grant injunctions where it is just and convenient to do so has the power to grant a freezing injunction against a party over which the court has personal jurisdiction. on condition that :

i) the plaintiff has already obtained or has valid arguments for obtaining a judgment or order for payment of a sum of money which is or will be enforceable through the legal process;

(ii) the defendant has assets (or is likely to take actions other than in the ordinary course of business which will reduce the value of the assets) against which such judgment could be enforced; and

(iii) there is a real risk that, unless the injunction is granted, the defendant will treat these assets (or take actions that make them less valuable) other than in the ordinary course of business, such that the availability or the value of the assets are depreciated and the judgment is not satisfied.

b) Although other factors are potentially relevant to the exercise of the discretion to grant a freezing order, there are no other relevant restrictions on the availability in principle of the remedy. Specifically:

i) The judgment need not be a judgment of the national court – the principle also applies to a foreign judgment or other enforceable award in the same way as a judgment of the national court using the powers of court execution.

ii) Although this is the usual situation, there is no requirement that the judgment be a judgment against the Respondent.

iii) It is not necessary that the proceedings in which the judgment is requested have already been initiated nor that a right to institute such proceedings has already arisen: it is sufficient that the court can be satisfied with a sufficient degree of certainty that a right to bring an action will arise and that an action will be brought (whether before the national court or before another court).

The full text of the Privy Council’s decision is available here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Common Law: Mark of the Beast or just another Texas legislative session? New Texas Laws 2021 – Chronicles https://prosecutebushcheney.org/common-law-mark-of-the-beast-or-just-another-texas-legislative-session-new-texas-laws-2021-chronicles/ https://prosecutebushcheney.org/common-law-mark-of-the-beast-or-just-another-texas-legislative-session-new-texas-laws-2021-chronicles/#respond Thu, 07 Oct 2021 11:20:45 +0000 https://prosecutebushcheney.org/common-law-mark-of-the-beast-or-just-another-texas-legislative-session-new-texas-laws-2021-chronicles/ 666 new Texas laws were passed in the 87th Legislative Session. Yes – 666, leaving some to wonder if they could not have let go of one? Apparently not. Most of the new laws came into effect on September 1. Check out some of these new (and sometimes obscure) laws and see if they’ll have […]]]>

666 new Texas laws were passed in the 87th Legislative Session. Yes – 666, leaving some to wonder if they could not have let go of one? Apparently not. Most of the new laws came into effect on September 1. Check out some of these new (and sometimes obscure) laws and see if they’ll have an impact on your life.

Dogs in court: House Bill 1071 permits the presence of qualified installation dogs and / or qualified therapy dogs in legal proceedings. This bill echoes the Courthouse Dogs Act passed by the US Senate in 2019. These laws aim to help stressed witnesses feel able to share their stories.

Buy your alcohol on Sunday morning: Were you refused to buy beer or alcohol on a Sunday morning? For those who find this inconvenience annoying, you have been bailed out. HB 1518 updates Texas blue law by allowing grocery stores, convenience stores, and hotels to extend their alcohol sales hours. People can now buy beer and wine from 10:00 a.m. instead of 12:00 p.m. on Sundays.

National Anthem and Texas Pro Sports: Senate Bill 4 requires that the national anthem be played by professional sports teams that contract with the state.

Do not block an emergency vehicle: Anyone who blocks the passage of an emergency vehicle may be liable to a criminal sanction, which may be an offense or a felony depending on the specific circumstances (HB 9).

No more police strangles: Police officers are now prohibited from using a choke (or similar neck strap) unless it is necessary to avoid injuring the officer. Police officers also have a duty to intervene to prevent another officer from using excessive force (SB 69).

Homeless camping incurs criminal penalties: The city’s policies towards the homeless population have been the subject of massive debate in Austin in recent years. Under Law HB 1925, state law now prohibits homeless camping in public places. Those who break the law could be subject to a Class C misdemeanor with a fine of up to $ 500.

Don’t cut your pecan trees: Just as Texas loves its blue hats (enough to criminalize their picking), it loves its pecans too. House Bill 3289 establishes a civil penalty for violating plant quarantine on pecans. This law further amended the 2001 Pecan Amendment to Section 71.012 of the Texas Agriculture Code which prohibited the slaughter of pecans.

Please submit column suggestions, questions and comments to thecommonlaw@austinchronicle.com. Submitting potential topics does not create an attorney-client relationship, and any information submitted is likely to be included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute or replace legal advice. For advice on your specific facts and circumstances, consult a licensed lawyer. You can contact the Lawyer Referral Service of Central Texas, a nonprofit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.


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