Risk Management – We Really Haven’t Gotten As Far As I Would Have Thought – My Suggestion: Government, Nonprofits, Education, Healthcare, Etc., Should Be Leaders

Risk management or the need for a business to have and implement risk management processes is obvious, or at least in my view it is. Of course, each business is different and risk management will vary from business to business. Thus, a recent article in the Journal of Accountancy (see link below) was disappointing – assuming the article is correct, in terms of recognizing the need for and implementing risk management processes we really haven’t gotten nearly as far as I would have hoped, or expected, or thought. Perhaps that is so because, although the need for risk management processes is obvious or intuitive, or in my view it should be obvious or intuitive, you have to actually schedule and spend time to perform risk management – you have to make a conscious decision to evaluate, design and implement appropriate risk management processes – and I find that in business (including governmental entities, nonprofits, public companies, and private businesses), except for actions or tasks that must specifically and directly be performed to design, produce, and market a product or service, people generally only perform a task or take an action, especially when they do not view that task or action as being directly tied to the making or marketing and offering of the product or service:

(1) If required to do so by law, regulation, rule or similar requirement, or

(2) If required or expected to do so by the consumers, or important or influential stakeholders or organizations, or the community or public, or

(3) Pursuant to the personal values, beliefs, morals or expectations of the business itself or of the person performing the task or action.

I follow articles and posts written by several very experienced and influential risk management and enterprise risk management professionals and organizations. Thus, information in the recent article in the Journal of Accountancy about the status of risk management took me by surprise as it indicates or at least suggests that the development and implementation of risk management processes is across the board less than I had assumed. At this point, knowledge and implementation of risk management or enterprise risk management processes should be well-recognized, accepted, and implemented, not only at public companies, but also at governmental entities, nonprofits, and private businesses. Here is the link to the Journal of Accountancy article: https://www.journalofaccountancy.com/issues/2018/sep/risk-oversight-can-inform-audits.html

Below in this blog post I have inserted six snapshots of information from the article. Although the article is less detailed than I would have wished, in terms of risk management, I would have expected not only much greater implementation of risk management processes, but also I would have expected that accountant auditors already would be taking the entity’s risk management processes, or lack thereof, into consideration. I have to say that the lack of progress in this regard seems ridiculous. 

What actions are required to bring about or achieve increased or even universal acceptance of the need to evaluate, design and implement risk management processes? Only time will tell. One answer is more laws, regulations, or rules mandating more broad and specific risk management requirements. That might be one of the solutions, and I can certainly see the need for more specific mandated risk management requirements and processes in certain high-risk situations, or in certain situations where there is potential significant risk to an innocent third-party (such as a consumer or employee) and where that risk is controlled or can be controlled only by a third party such as a manufacturer or employer. 

The typical approach is to enact more laws, regulations, or rules mandating more broad and specific risk management requirements. Let me suggest another answer or solution. For the most part a business only has responsibilities to its shareholders (and sometimes to prospective shareholders), and, in appropriate circumstances, such as product liability or environmental contamination as examples, there can also be legal responsibilities to not cause harm to other people.

However, other entities exist which have responsibilities and perhaps influence that are broader, such as, for example, governmental and nonprofit entities and organizations. Let me suggest that although enacting more broad and specific risk management requirements on public companies is one approach to bring about increased risk management processes and activities, and perhaps that approach is necessary, a more or equally constructive approach is to educate the public at large and other stakeholders, and to lead by example, particularly in the context of governmental entities which enact and impose specific risk management requirements upon others.

Thus, I suggest that governmental entities lead by example, and that they not only evaluate, design and implement their own risk management processes, but then also report to the public what the governmental entity is doing in the context of risk management evaluation, design and implementation, thereby creating a heightened awareness and expectation level for all, including for governmental entities, public companies, nonprofits, and private businesses.

I referenced above governmental entities and nonprofits as having responsibilities and perhaps influence that are broader and that can exceed those of businesses in general. That is, both governmental entities and nonprofits have responsibilities that are for the broader public benefit.  And there are other institutions and industries or professions – for example, influential institutions or entities such as mid- and higher-level education, the media and the press, and medical or healthcare institutions and entities – each of which can and should be a leader, and can enhance or heighten the public’s awareness and expectations about risk management and risk management processes, in addition to evaluating, designing and implementing their own risk management processes. It seems to me that this is a clear win all around for everyone. We just need some influential people and organizations to run with it. Are there any that are willing and interested in doing so? The alternative might be increased mandatory requirements or lawsuits. Risk management processes also are worthwhile to reduce liability and legal damages exposure. 

The following are six snapshots from the Journal of Accountancy Article, several times the words “some” and “may” are used – it is time to get past the “some” and “may” and use words that indicate and evidence definite and universal expectation and acceptance of the evaluation, design and implementation of risk management processes for public companies, governmental entities, nonprofits, and private businesses:

Snapshot 1:

Journal of Accountancy Sept 1 2018 article snapshot 1 Snapshot 2:

Journal of Accountancy Sept 1 2018 article snapshot 2

Snapshot 3:

Journal of Accountancy Sept 1 2018 article snapshot 3

Snapshot 4:

Journal of Accountancy Sept 1 2018 article snapshot 4

Snapshot 5:

Journal of Accountancy Sept 1 2018 article snapshot 5

Snapshot 6:

Journal of Accountancy Sept 1 2018 article snapshot 6

Best to you, David Tate, Esq. (and California CPA (inactive)), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com),

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, trade secrets, IP, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles,

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

 

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Patenting for Start-Ups and More – Forwarding by Robert Hayden

I have provided a link below to a worthwhile, i.e., useful, article by Robert Hayden of the Royse Law Firm about patenting for start-ups. Read it if you are an early-stage or small to mid-size business, or if you simply have not been in tune with protecting your intellectual property rights and value. If you are not up to speed on this, you should be.

Here is the article link: https://rroyselaw.com/intellectual-property/agtech/patenting-for-start-ups/

Contact Robert, or me, if you need help with IP issues.

Best to you, David Tate, Esq. (and California CPA (inactive)), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, trade secrets, IP, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Is Elon Musk needling the SEC – if so, is it actionable, unwise?

I have provided below links to two articles from yesterday, about new comments by Elon Musk in which he possibly needles the SEC or the recent claims against him. The articles assert that there was also a drop in Tesla stock price.

Is there a correlation between the comments and the Tesla stock price? There could be, but that question requires additional evaluation and evidence.

Are the comments actionable, i.e., unlawful? At this point I would say, most likely, no they are not directly actionable.

Are the comments indirectly actionable or could they cause an action to be brought in an indirect manner? Perhaps – consider that the board has a responsibility to take actions that are for the benefit of the company and its shareholders – There already is a red flag that Mr. Musk is prone to making public comments some of which can reflect negatively upon himself, or upon Tesla, or upon the Tesla stock price. At law the board, and probably one or more committees of the board possibly including the audit committee, have a responsibility, and a risk management responsibility, to take action to address, prevent, and remedy significant risks in certain circumstances. It is my understanding that the SEC also noted lapses by the Tesla board. Could an action, or a new action be brought against Tesla and its board for failure of oversight and action? I would say, yes, quite possibly so.

Are the comments unwise? In my view, I would say yes, definitely. Ask, what is to be gained by the comments that will benefit Tesla or its shareholders? Nothing that I can see. Additionally, the settlement with the SEC is not yet Court approved. The comments certainly don’t help the settlement approval process – the comments don’t help with the Court or with the SEC.

The Tesla board really needs to take action and get on top of this. Is the board willing to do this? Is the board sufficiently independent? Are any board members going to resign out of frustration or the board’s inaction? Is the board going to speak up, and possibly address these issues publicly? My view is that Mr. Musk needs to be helped with this. 

Below are the links to the two articles:

https://www.yahoo.com/news/teslas-musk-mocks-sec-judge-demands-justify-fraud-010454646–finance.html

https://techcrunch.com/2018/10/04/elon-musk-is-trolling-the-sec-on-twitter/?yptr=yahoo

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Board understanding of culture and mood are pretty low – per NACD materials

Below I have provided a snapshot from NACD promotional materials that I received – the materials are Benchmark Your Board, with which I tend to agree, if the benchmark evaluation is done with meaningful detail, evaluation, and recommendations, and if the board then takes action to improve the board, and all levels of the organization. I find all of the statistics from the materials (see below) of interest; however, for the purpose of this blog post I am focused on the corporate culture section – earlier this year corporate or business or nonprofit or organization culture was heavily in the news, but these things tend to pass.

I don’t hear as much about culture now. But in my view, culture and values need to stay in the news as they are one of the keys to how the entity (i.e., the people in the entity) act or behave, and perform.

Notice, according to the materials, 87% of directors say that their boards have a high understanding of the tone at the top, but is that true and what does that really mean; only 35% of directors say that their boards understand the mood in the middle, whatever that means, but nevertheless, the percentage is very low; and only 18% have a high understanding of the buzz at the bottom, again whatever that means, but the percentage is very low. These seem like failing grades, evidencing, in addition to other things, that board members need get out and visit and mingle at the facilities more.

NACD Benchmark Your Board promotion stat. page

And here are additional materials from prior posts:

Organization Culture Compass Circle

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights; and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Elon Musk / Tesla – purported SEC settlement, but corporate governance and board member judicial independence questions also remain

To say the least, it must have been a stressful couple of months for Tesla board members – how do you get your undisputed CEO leader and visionary to control himself, to take care of his mental and physical health, stop doing stupid or ill-advised things and making stupid or ill-advised public communications, and stop causing self-inflicted wounds? Or, at this point, how much do you need Mr. Musk to be the CEO of Tesla – can’t some other person take the helm – someone who is better qualified to build cars, and who also is an electric/battery power visionary? And where was the board in all of this? Well . . . we don’t know because they were silent to the public.  

You might have heard the news that the SEC filed suit against Mr. Musk last week as a result of an ill-advised and possibly unlawful public comment that he made. Yesterday (Saturday) I read two articles about possible settlement or actual settlement with the SEC. The following earlier-in-the-day article represents that Mr. Musk had rejected a settlement offer made by the SEC.  But please be aware that I never simply accept a news or other article as being correct – the article might be correct, or some of it might be correct, or none of it might be correct, you can be reasonably certain that the article is not entirely complete, and I also watch for the adjectives used and the opinions and conclusions reached as opposed to facts and whether or not those facts are supported with objective, credible evidence and sources. Thus, although I am using articles below, I am not representing or suggesting that they are correct or entirely correct. 

I found the first, earlier-in-the-day article interesting because of its discussion about the terms (presumably only some of the terms) of settlement purportedly offered by the SEC, and more interesting for the purported reasons why the settlement offer was rejected. The reasons for rejection, for example, do not include whether or not acceptance of the settlement would be in the best interests of Tesla and its stockholders. The reasons suggest that the settlement was rejected based on reasons personal to Mr. Musk, the reasons suggest a desire to maintain and not lose board control, and the reasons suggest a lack of board member involvement in whether or not the settlement should be accepted, and a lack of board member active diligent governance, oversight, and independence. Of course, obviously there are additional facts about which we are not aware.

In terms of board member independence, I am talking about possible lack of judicial independence, not independence as defined by stock exchange or similar rules, or whether or not the board member is an officer of Tesla. Board member judicial independence is an evolving and increasingly important attribute and evaluation – for example, does the board member truly diligently and prudently evaluate the issues at hand in the best interests of the stockholders and the company, and make decisions that are independent of the director’s self interests and independent of the director’s relationships with the executive officers and with the other directors. As you might be aware, judicial independence, for example, also takes into consideration business, financial, social, family, and friend interactions, relationships, and influences or pressures.

The following is the earlier-in-the-day article representing that settlement with the SEC was rejected and at least some of the purported reasons for the possible rejection – see a picture from the earlier-in-the-day first article below or  Click Here For Article

Musk reportedly doesn't settle with SEC

A later-in-the-day article then represented that settlement with the SEC had been accepted, and at least some of the purported terms of the settlement. I would view acceptance of the purported settlement as a good decision in the right direction for Tesla and its stockholders, and also for Mr. Musk. I will be interested in hearing who the two new directors will be, the process for and who nominates/selects the new directors and what Mr. Musk’s involvement will be in that process, and who the independent directors will be and whether they will be and are judicially independent as they should be judicially independent after taking into consideration that matters, issues and people over which they will have specific oversight and responsibility. See a picture from the later-in-the-day second article below or Click Here For Article

Musk reportedly settles with the SEC

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights; and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers, witness credibility, evidence, burdens and presumptions, and due process in a time of 24/7 argument, opinions and accusations

This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers or perpetrators, witness credibility, burdens of proof, presumptions, veracity of evidence, etc., are all needed in this time of 24/7 social argument, opinions and accusations – due process

For the most part discussions about due process are significantly lacking in this time of 24/7 social argument, opinions and accusations. And as a result, what you end up with are largely subjective arguments and opinions, based sometimes on evidence that appears solid but often based on incomplete facts or assertions, speculation, hyperbole, misinformed or uninformed or unqualified speakers or storytellers, or constructive misrepresentations or fraud.

Whereas, and for good reasons, there are rules to be followed as guideposts in a court of law, clearly that is not true in the case of 24/7 social argument, opinions and accusations. This would be a good time for renewed emphasis on rules and techniques for debate, and legal rules of evidence, burdens of proof, presumptions, rights of alleged victims and rights of alleged perpetrators, in addition to professionalism in journalism (such as the Society of Professional Journalists Code of Ethics  https://www.spj.org/ethicscode.asp).

For example, as general principles:

1.  An alleged victim has to prove his or her case the specified claims of wrongdoing with credible evidence;

2.  An alleged wrongdoer or perpetrator is entitled to know the specific claims and evidence that are asserted against her or him;

3.  An alleged wrongdoer or perpetrator is presumed innocent of the claims made, and is entitled to present her or his case and defenses to the specific claims with credible evidence, and to present evidence to rebut or impeach the alleged victim and his or her specific claims and evidence (and yes, the alleged wrongdoer can become a victim if the allegations made are unfounded); and

4.  Unless there is a law or legal principle that switches the burden of proof, the standard is that the alleged victim is the party who is first required to establish his or her case and specific claims with credible evidence, and, generally, an alleged wrongdoer or perpetrator is not required to establish her or his case or defenses to the specific claims until the alleged victim first sustains his or her burden of proof.

If a party, including an alleged victim or an alleged wrongdoer or perpetrator, presents weaker or less satisfactory evidence when it is within the power of that party to produce stronger and more satisfactory evidence, there is or can be a presumption or an inference that the evidence offered should be viewed with distrust.

In addition to the actual evidence presented (testimony and documents), the credibility of witnesses and evidence (testimony and documents) is of key importance.

See, for example, California Evidence Code §780:

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of her or his testimony at the hearing, including but not limited to any of the following:

(a) Her or his demeanor while testifying and the manner in which she or he testifies.

(b) The character of her or his testimony.

(c) The extent, including causes and symptoms, of her or his capacity or impairment to perceive, to recollect, or to communicate any matter about which she or he testifies – including, for example, the passage of time since the date of the alleged incident, and, in most situations, evidence of a witness’s mental or emotional stability or instability.

(d) The extent of her of his opportunity to perceive any matter about which she or he testifies.

(e) Her or his character for honesty or truthfulness or for dishonesty or untruthfulness.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by her or him that is consistent with her or his testimony at the hearing.

(h) A statement made by her or him that is inconsistent with any part of her or his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by her or him.

(j) Her or his attitude toward the action in which she or he testifies or toward the giving of testimony.

(k) Her or his admission of untruthfulness.

See also Federal Rules of Evidence Rules 402, 608 and 613.

The failure to report an alleged occurrence or to communicate about an alleged occurrence also could imply that an event did not occur or occurred differently and could in that manner attack the witness’s credibility and truthfulness; however, generally the opportunity exists to explain the failure to report or to communicate about an alleged occurrence, and that failure does not create a presumption or an inability to testify, unless, perhaps, there is a requirement that the witness report the occurrence, which in that instance, also could present a per se violation of law. 

Thanks for reading. David Tate

 

 

Ohio State University Urban Meyer investigation report and other information

The following is a re-post from http://workplacelawreport.com

I have provided below a link to a Yahoo.com Sports article about the events and investigation relating to Zach Smith, Urban Meyer, and Athletic Director Gene Smith, and a link to the investigation report and other documents provided by Ohio State University (which was also included as a link in the Yahoo.com Sports article).

I find this information fascinating, although I have only had time to skim some of the materials. It is fascinating for the fact that Ohio State included not only the investigation report, but also employment file documents. Although I have no way of knowing if Ohio State has been fully transparent, objective and independent in its investigation, the University certainly has gone to some length.

I am primarily interested in the investigation and the resulting report, and I will be providing additional comments about those matters in other posts.

I do note, however, something from the Zach Smith personnel materials – his 2017 Ohio State Football Assistant Coaches’ Performance Review (Public Record) under the “General” category “#27. Understands and adheres to University core values” has a “4” rating (meets expectations) which should be sufficient in most situations, but specifically does not contain a “5” rating (exceeds expectations), and I am wondering why it is a “4” and not a “5” – from what I have seen of Ohio State University, I would have expected that the University would have required a “5” rating, or included a comment that category #27 will be improved to a “5” rating. But, I’m also looking at this in hindsight which is a view that can be problematic and subject to error or misunderstanding.

Thanks for reading. More to follow. David Tate, Esq. 

Yahoo.com Sports article link:

https://www.yahoo.com/news/top-takeaways-ohio-states-urban-meyer-investigation-report-040137276.html

Link to the Ohio State University website page (provided in the Yahoo.com Sports article), containing documents pertaining to Zach Smith (including his personnel file), Urban Myer, and the report following investigation:

https://news.osu.edu/public-records-related-to-the-investigation-into-allegations-involving-urban-meyer/