Martin Russo’s comments on The News Journal: Giuliani blasts Delaware court for decision in lover’s spatApril 26, 2016
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Giuliani blasts Delaware court for decision in lover’s spat
Jeff Mordock, The News Journal
1 hour ago
The News Journal/ROBERT CRAIG
Delaware Chancery Court Chancellor Andre Bouchard ordered the sale of a translation software company because its owners have been fighting.
A bitter break-up involving former college sweethearts might spell the end of a successful New York company after a Delaware court issued a unique ruling.
The Delaware Court of Chancery ordered the sale of a translation software business after years of bickering between the once-engaged owners has impeded the thriving company’s ability to function. Some have been critical of the decision, including former New York Mayor Rudy Giuliani, who heard about the case from a mutual friend not involved in the litigation.
“It appears to be a very intrusive ruling in terms of the free market,” Giuliani told The News Journal. “I hate to see the government, including courts, sharing in the control of a private business.”
Phillip Shawe and Elizabeth Elting founded TransPerfect Global Inc. in 1992, while rooming together in a New York University dormitory, according to court documents. In 1996, the couple became engaged, but Elting called it off after a year and married someone else. Elting alleged in legal filings Shawe reacted poorly to the breakup by hiding under her bed and refusing to leave for at least a half hour.
Despite a relationship that was sometimes acrimonious, Shawe and Elting transformed TransPerfect from a dorm room start-up into a major player in the global translation services market. The New York company has grown into an international corporation with 92 offices in 86 cities across the globe, employing 3,500 full-time workers and operating a network of 10,000 translators, editors and proofreaders deciphering more than 170 different languages.
Victor J. Blue/Bloomberg
Rudy Giuliani is one of the harshest critics of Andre Bouchard’s decision ordering the sale of a translation software company.
TransPerfect’s profits had grown every year and more than doubled between 2008 and 2014. Last year, the company, a Delaware corporation, posted record revenue of $505 million, its 23rd consecutive year of increased profits, TransPerfect announced in a January news release.
Squabbling between Shawe and Elting became a weekly, if not daily occurrence, according to court papers. Elting owned half the company, while Shawe held 49 percent. Shawe’s mother, Shirley, owned the remaining 1 percent and always voted with her son, according to legal documents, creating a deadlock on corporate decisions.
The owners fought over hiring employees, purchasing companies and worker raises. Such disputes resulted in Shawe and Elting exchanging expletive-laden emails, the court said in its opinion. Elting once ended a meeting by dumping water on Shawe.
In a 2014 incident, Shawe refused to leave Elting’s office despite her repeated requests and he blocked her from closing the door by putting his foot in it, the court said in its opinion. Elting tried to move the door while Shawe’s foot was still in the door. Later, Shawe filed a domestic incident report accusing Elting of pushing him and kicking him in the ankle. Shawe identified Elting as his ex-fiancèe, 17 years after their engagement ended, so the matter would be treated as a domestic violence incident and require her arrest, according to the court documents.
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The charges against Elting were dropped, but a civil suit filed by Shawe is still pending before the New York Supreme Court. Elting has filed counterclaims in the same lawsuit.
“I don’t think a Hollywood screenwriter could come up with a script like this,” said Peter Mahler, an attorney with Farrell Fritz, a New York law firm. “It’s hard to believe we will see a company with this kind of financial success and this history.”
In May 2014, Shawe and Elting filed four separate lawsuits against each other, three in Delaware and one in New York. The Delaware cases were eventually consolidated before Chancery Court Chancellor Andre Bouchard. The chancellor was tasked with deciding between Elting’s request to dissolve the company or Shawe’s demand the court force one owner to buy out the other.
Bouchard decided to appoint a custodian to shop the company to a new buyer. In his opinion, Bouchard said the feud was hurting employee morale and causing “irreparable harm” to the company. The chancellor based his ruling on testimony from employees who called the dysfunction between Shawe and Elting “detrimental to the company” and “the biggest problem the company faces.”
Giuliani is one of the harshest critics of Bouchard’s decision, claiming a sale will depreciate TransPerfect’s value. Shawe’s attorney, Martin P. Russo of New York law firm Gusrae, Kaplan Nusbaum, also blasted the ruling, calling the sale of TransPerfect, “draconian.”
“This is a dangerous message Delaware is sending to companies,” Russo said. “It infringes upon the rights of individuals who create companies to be free of government interference.”
Elting’s attorneys, including Kevin Shannon of Wilmington law firm Potter Anderson & Corroon and Philip Kaufman of Kramer Levin Naftalis & Frankel, a New York firm, did not respond to multiple requests for comment.
Delaware legal experts say Bouchard correctly applied Delaware law. Section 226 of the state’s General Corporation Law grants the Chancery Court the authority to dissolve or order the sale of a business if its directors are at loggerheads and the disputes are creating “irreparable harm” to the company.
“If the two parties are deadlocked and the company can’t operate, what other remedy is there?” said Charles Elson, a professor of corporate governance at the University of Delaware. “This has been a staple of corporation law for decades.”
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Lawrence Hamermesh, who teaches corporate law at Delaware Law School, said the appointment of a custodian does not necessarily mean the company will be disposed of in a fire sale. A custodian, he said, will work to ensure an orderly transaction that creates fair value for both sides.
Those who oppose Bouchard’s decision charge the chancellor did not properly apply Section 226. They question how the chancellor could reject Elting’s request to dissolve TransPerfect because the directors’ conduct did not warrant such a remedy. However, he concluded their behavior was so bad it required the sale of TransPerfect.
“The opinion is very, very contradictory,” Giuliani said. “[Bouchard] concludes the behavior isn’t that egregious and doesn’t require equitable dissolution, but it is bad enough for a sale.”
Elson countered the sale order should be viewed not as a final order, but rather a threat to force the parties to work together or risk losing their business.
“The dissolution remedy has been controversial for a long time,” he said. “But a successful business will rarely get sold.”
Russo charged, however, that the testimony of employees complaining about TransPerfect’s morale did not rise to the level of irreparable harm. Shawe’s attorney said that conclusion was based only on a small number of employees.
“Here is a profitable company with strong reputation and goodwill,” Russo said. “[Bouchard] didn’t have customers testifying their relationship with TransPerfect was damaged. The only evidence he had was some company employees saying it hurt morale.”
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Legal experts agree the dispute between Shawe and Elting highlights the need for corporations to create an airtight agreement for resolving director deadlocks. Such agreements, considered standard in the formation of a business, could have prevented the owner’s battle from reaching the courtroom.
“This case took me by surprise,” Mahler said. “I can’t remember a decision dealing with a company with such magnitude and profits where they didn’t realize to bring in lawyers and put together an agreement to avoid the situation that occurred here.”
The case is moving ahead this week. On Wednesday, Bouchard will hold a hearing on the recommendations of the custodian, Skadden Arps Slate Meagher & Flom attorney Robert Pincus, on how to best sell TransPerfect. Pincus’ recommendations are currently sealed but Shawe and Elting have been given an opportunity to comment on whether they will accept his proposal.
If Shawe and Elting oppose Pincus’ plan, Bouchard will decide if it is in TransPerfect’s best interest to green light the sale and issue an order. At that point, if either Shawe or Elting disagree with Bouchard’s order, they can file an appeal with the Delaware Supreme Court.
For now, Pincus is resolving any disputes that arise between TransPerfect’s owners while the company’s future hangs in the balance.
“The case is unusual, but it is also sad,” said Mahler.
Contact Jeff Mordock at (302) 324-2786, on Twitter @JeffMordockTNJ or email@example.com.
Martin Russo’s firm Gusrae Kaplan Nusbaum was named to the honor role of the most feared litigation firm for the third year in a row. Gusrae is by far the smallest firm on the list and did not pay for this acalade. Check out link: http://www.bticonsulting.com/
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Attorneys who are not residents of New York must maintain a physical office in the state in order to practice law here, the state Court of Appeals ruled March 31.
The number of securities class-action lawsuits alleging accounting fraud jumped 47% in 2014, even as the overall number of securities class actions was little changed, according to a new report from Cornerstone Research issued Tuesday.
The increase stems partly from a similar jump in accounting-fraud enforcement cases brought by the Securities and Exchange Commission as it renewed its focus on financial-reporting and disclosure issues in 2014 after several years of focusing on other matters.
The numbers show 69 new securities cases with accounting allegations filed in 2014, up from 47 in 2013. There were 170 total new securities class action filings in 2014, up only slightly from 166 the previous year.
The jump in accounting lawsuits mirrors a 46% increase in SEC accounting-fraud enforcement actions in the fiscal year that ended last Sept. 30, the first year-over-year increase in SEC accounting cases since 2007. The agency has said publicly over the past year or two that it’s paying more attention to accounting fraud, after several years of concentrating on misconduct related to the financial crisis.
Accounting lawsuit filings involving restatements of financial statements hit a seven–year high, at 42% of accounting cases. Cornerstone noted that the severity of stock-price drops surrounding restatements also increased in 2014, potentially encouraging investors to file such cases.
Of the securities class-action settlements reached during the year, 70% were in cases involving accounting allegations, according to the report, the highest level since 2010.
The law exists to keep everything organized, systematic and integrated. The government has assumed the duty to ensure that no one suffers unfair and unjust treatment at the hands of any medical practitioner, provider or drug manufacturer or importer. Towards this, there are numerous rules, regulations and common law issues imposed as well as many compliance requirements that have been put in place by the government. These are intended to ensure that there are no unjust or unfair practices carried on by anyone.
Compliance is about following a particular set of rules such as a standard, a policy or a set of regulations and laws. There is always a need for strict compliance norms so as to avoid corporate scandals and breakdowns. Usually adherence to these compliance norms and procedure requirements, with the help of a compliance attorney, is necessary and if not followed, will have the potential to attract civil, administrative or criminal penalties. It has been time and again decided in the courts of law that tight personal responsibility on the part of top management is extremely essential to achieve and maintain harmony in the day to day business administration of a medical practice, hospital or any other healthcare provider.
Whistle blowing is the act of bringing to light any unjust practices or wrongful practices being followed by the powers to be in any entity and who have failed to comply with the set of norms and regulations for that entity. This is usually achieved by the person intending to file such a claim with the help of a whistle blower lawyer. Corporations are supposed to work within the legal framework provided by law. There are compliance officers and sometimes, even in house compliance attorneys appointed to see to it that legal compliance standards are up to date. However, there are still instances where the corporations or medical practitioners fall short, and then someone files a claim for non-compliance.
When a person has some proof of alleged wrong-doing or non-compliance on the part of a corporation, healthcare provider or practitioner, a suit is filed in a court of law. A lawyer sees to the drafting and the filing of the complaint based on what evidence is brought to light. A compliance lawyer is also extremely useful to entities who want to ensure that they adhere to the compliance norms set out by the authorities. They manage a gamut of work from drafting and implementing the company policies, reviewing documents and business practices for policy compliance as well as legal compliance. Additionally, they provide compliance training and other information and much more. Compliance functions and compliance norms differ from industry to industry, but there is no denying the fact that the focus on compliance is only increasing day by day. The attorneys can work individually or with other attorneys in a firm or can work as in house attorneys for entities.
With rules and regulations governing every facet of activity in an entity, its operations become complex. Compliance with all applicable rules and regulations ensures smooth running of the entity.
If you are a party to a contract that has been breached, you have the potential to recover several different types of damages. Since contracts represent the basis of most business transactions, the threat of damages for breaching these agreements is necessary. Damages are the monetary awards provided to a party that has been wronged as a result of a breach of contract. With the help of an experienced attorney, parties who’ve suffered contract breaches can put up legal fights to obtain such damages.
The most common type of damages that result from a breach of contract are compensatory damages. This is money awarded to the party wronged by the breach to compensate for their financial losses. The intent of compensatory damages is to make the wronged party “whole again”. Under the umbrella of compensatory damages are expectation damages and consequential damages. Expectation damages are meant to provide the compensation that the wronged party was supposed to receive from the contract. The contract’s language typically shapes these damages. If the contract’s wording is unclear, market values will determine the amount of expectation damages.
Consequential damages are meant to reimburse the wronged party for the indirect damages that he has suffered. As an example, a business will lose profits if a key machinery or parts are not delivered and goods can’t be created. Yet in order to recover consequential damages, the wronged party must prove that harm has occurred that stems directly from the breach. It must also be proved that both parties could have reasonably foreseen this harm when they signed the contract. Oftentimes, this is quite challenging and business owners must rely on the legal knowledge of skilled attorneys.
Liquidation damages can also result from a breach of contract. These are damages that are specifically detailed in the contract itself. Usually, there is language in the contract that determines a fair estimates of damages in the event of a breach of contract. Punitive damages are meant to punish the party that breaches and dissuade him from breaching again in the future.
Nominal damages are awarded when the injured party does not suffer a monetary loss. The presiding judge uses these damages to express his opinion that the winning party is indeed correct. These are most often awarded in tort cases that overlap with breach of contract cases.
Restitution is considered to be an equitable remedy provided to prevent the party that committed the breach from becoming unjustly enriched. As an example, company A delivers a pallet of bulk candy to company B. Company B fails to pay, so company A is entitled to restitution in the amount of the candy that was delivered but not paid for.
The mergers and acquisitions industry has been booming for decades but the statistics show that about half of all mergers subsequently fail. Companies routinely miss or flat out overlook red flags that should have been noticed before the actual merger. When it is time for a business to exit a professional relationship. There are a number of potential legal pitfalls. Funds must be divided, property returned and legal agreements must be in place before a clean and permanent exit can be made. There are too many potential legal disasters for you to navigate the separation process by yourself.
Fortunately, lawyers are ready and willing to help companies that have endured a failed merger. Sometimes it is difficult to get the business back on track and operating as designed after a failed connection. There are plenty of legal challenges and bureaucratic rules that the business must comply with in order to return to the former status and resume activity.
Whether your business failed to integrate, if the merger was poorly thought out or if you sacrificed too much for the sake of growth, your business deserves a chance to rebound. Sometimes, mergers are a necessary evil. They force you to assess the market, take note of the competition and attempt to develop a partnership. There are risks involved with the potential for an increased share of the marketplace. There is always the possibility that the merger won’t last.
An attorney will help you pick the proper structure for your business after the separation. You will have a savvy legal mind at your disposal to discuss the subtleties of financial integration with other merger prospects. Your attorney will advise you about tax issues that are raised with different business structures. Your attorney will also help you with all the difficulties involved with changing back your retirement plan and other accounts to their pre-merger status. He’ll provide you with information about all sorts of “poison pills” for potential deals.
A lawyer also has access to a number of professionals in the field of mergers and acquisitions. Lawyers typically lean on advisers in the form of consultants and accountants who provide advice about potential agreements with other businesses. He’ll secure a relationship with an adviser who has the right incentives and use him as a vital resource to evaluate potential deals that arise in the future.
Read the full article on Law360, including Martin Russo’s take on the recent investigations: http://www.law360.com/articles/595505
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