Nonprofit Board Disruption – Forwarding From Dr. Eugene Fram, With A Few Of My Comments

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

I have provided below a link to an article by Dr. Eugene Fram titled “Nonprofit Board Disruption – A Board Member’s Reflections. Gene’s discussion is very pertinent in this time of disruption, including personal, physical, and economic disruption, and perhaps sometimes also with related mental or emotional discomfort.

The term “disruption” has different meanings, i.e., there are different levels and types of disruption. For example, there can be disruption in the sense that something isn’t going as planned, which might also be viewed as something that is disruptive in the context of the ongoing operational risk management which all nonprofits should be doing as a matter of ongoing business. But, of course, disruption such as the type that we are currently seeing and experiencing can also be debilitating or result in a shake-up of the entity or of the industry short-term or long-term.

Reaching answers, and decision making right now aren’t easy. As Gene writes, sometimes disruption is worked through, but sometimes not. Different people have different skill sets, personalities, levels of experience, and communication abilities or propensities. It can be hard to keep board members, the CEO, and perhaps other stakeholders on a constructive and successful path. If it becomes necessary, sometimes it can be beneficial to get help from people who can assist or facilitate with the process.

Immediately below is the link to Dr. Fram’s discussion:

Nonprofit Board Disruption—A Board Member’s Reflections

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

Tesla Files Complaint v. Alameda County – Should More Businesses Also File Their Complaints – Are Settlements Possible?

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

The following is a link to a copy of Tesla’s Complaint against Alameda County in which Tesla challenges Alameda County’s ongoing business limitation order as it applies to Tesla and the business that Tesla operates as that business is described by Tesla: Tesla v Alameda County Complaint copy. Tesla’s Complaint is brought only on behalf of itself and is fairly limited in the claims and arguments that are asserted.

On a procedural basis Tesla could have brought its current claims and also could have challenged the County on additional alternative grounds such as, for example, every business operates under its own facts and circumstances, different businesses have different COVID-19 risks, and different businesses can or might be able to address those risks in different manners that are as effective, such as, for example, grocery stores which have been allowed to be open and have workers. At this point Tesla also has accepted or at least has not challenged the orders from the Governor or whether the Governor has the authority to issue those orders. In the alternative however, Tesla can also challenge the actions of the Governor – for example, also argue that the Governor’s actions are a violation of the Fourteenth Amendment to the U.S. Constitution, or are arbitrary, or are speculative, or are not based on verifiable facts or evidence, or cannot be applied the same to the different counties in the State or different businesses throughout the State each of which counties and businesses has its own set of facts and circumstances.

Each plaintiff must evaluate which claims to allege that it believes will put it in the best position to succeed in its objectives and to prevail. It might well be that Tesla really would simply prefer to reach a resolution with Alameda County that will allow Tesla to open and operate its entire factory or perhaps only certain most important parts of the factory. There might well be more issues at stake for Alameda County – currently as Tesla’s operations are limited, what does Tesla have to lose by filing its Complaint? The County, however, has had its authority and actions challenged and could lose or partially lose on both accounts not just with respect to Tesla but also perhaps with respect to other businesses. On the other hand, based on Tesla’s pleadings, what if the Court does not view the Governor’s order as being the law of the land, or as limiting the specific actions that Alameda County took and ordered, or what if the Court is of a view that gives deference to governmental actions particularly when it can at least be argued that those actions involve widespread public health and safety circumstances, or what if the Court doesn’t view the County’s actions as being taken without at least some sufficient reasonable basis, or what if the Court is of a view that the County should be given an opportunity to tweak, modify or remedy its actions or orders, or what if the Court disagrees with Tesla’s description of its operating business as being (solely?) solar and batteries? There are good reasons for Alameda County and Tesla to both try to the extent possible to resolve this dispute – at least at this point Tesla’s Compliant is written only on behalf of itself and not on behalf of all businesses or on behalf of all businesses that are similarly situated, which in theory makes settlement between the two parties less complicated, but also keeps the option and threat of possible amendment viable.

I am not writing this post to evaluate Tesla’s claims, nor can I based on the information that I have. However, I have previously written that I would have expected and I believe that we should expect to see from the various governmental entities detailed explanations wherein they in detail argue or persuade that they have the legal authority to take the actions that they have taken. Tesla does in part discuss this in its Complaint with respect to Alameda County. The following is a link to my prior post in which I discuss some of these topics and in that post I have included a link to an eight page paper in which the authors discuss legal aspects of state powers to order isolation, quarantine, health and inspection laws to interrupt or prevent the spread of disease – click on the following link for my prior post: https://wp.me/p75iWX-uf

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

California Department of Public Health Monitors Some Nursing Home Resident COVID-19 Reporting – What Does It Mean, Do They Investigate, Prosecute?

I have provided below two snapshots from the California Department of Public Health’s website discussing and disclosing some information pertaining to nursing home resident COVID-19 cases and deaths, as reported to the Department by the nursing homes themselves. I took both snapshots today, May 9, 2020. I have also provided below a link to the Department’s website page pertaining to nursing home residence COVID-19.

The first snapshot contains the Department’s top-of-the-page introductory paragraphs, indicating that the information provided by the nursing homes is as of May 7, 2020, and describes how that information is reported. The second snapshot is a random snapshot of some of the information that is provided by the Department in the chart of information further down the Department’s page. Note that the actual chart does contain an additional column to the left which provides the name for each nursing home that is listed – I left that information off because it is not related to the purpose of this post, and because you can also find that information yourself if you would like.

Nursing home resident care, processes and procedures, risk management, and reporting are always of absolutely key importance, and are of even more deadly importance in this COVID-19 time. You will also find other prior elder care and nursing home related posts on this blog.

As indicated in the first snapshot, the information that the Department has and provides only is information that is reported by the nursing home facilities themselves to the best of each nursing home’s knowledge. The Department does not discuss the actual criteria or evaluation processes were used by each nursing home, the extent to which the information that has been provided is reliable, whether reliability is evaluated, or how reliability is evaluated if in fact it is. Thus, I would have to assume that the information is not comparable as between different nursing homes. And I would also have to assume that some of the information that has been provided is not accurate or does not satisfy whatever reporting requirements the Department communicated.

Regarding evaluation of compliance programs the U.S. Department of Justice Criminal Division, just as an example, lists three primary criteria, plus subparts:

I.  Is the Corporation’s Compliance Program Well Designed?

II.  Is the Corporation’s Compliance Program Being Implemented Effectively?

III.  Does the Corporation’s Compliance Program Work in Practice?

It would be legitimate to ask the above three questions of each nursing home and of the Department of Public Health with respect to resident care, processes and procedures, risk management, and reporting in this COVID-19 time. The following is a link to an earlier post discussing the Department of Justice’s guidelines for its evaluation of compliance programs: https://wp.me/p75iWX-nb

The first snapshot is provided immediately below. Snapshot two and comments about snapshot two are provided following the first snapshot.

Below is the second snapshot. As I have stated above, the actual chart on the Department’s page contains an additional column to the left which provides the nursing home’s name. Let’s look at the chart. First I noticed that while most nursing homes have provided information, throughout the chart and in the snapshot below, there are facilities for which the information is N/A, or, in other words, there is no information provided. I do not know why there is no information provided, but if I was the Department I would want to investigate the reason for each such facility, and most likely report the reason. And for each such facility I would also need to decide how to proceed on the issue of reporting and there being no information. Of the sixteen facilities in the snapshot below, two are N/A, which is 8% based on a random sampling.

Many nursing homes report no COVID-19 cases or deaths, which is good, but only if the information is reliable. The first column in the snapshot below lists the county in which the nursing home is located, the second column lists confirmed health care worker COVID-19 cases reported that day (May 7, 2020), the third column reports confirmed resident COVID-19 cases reported that day, the fourth column reports confirmed health care worker COVID-19-related deaths cumulative, and the fifth column lists confirmed resident COVID-19-related deaths cumulative. For unknown reason if there are occurrences but those occurrences are less than 11, the actual number of occurrences is not listed. You can view the information provided yourself and reach your own opinions. If you have a loved one in a nursing home you should also ask the facility the questions for which you want information.

You might also be interested, the following is a link to a recent short blog post about family councils: https://wp.me/p1wbl8-w0.  And you can find the Department’s COVID-19 page at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/SNFsCOVID_19.aspx.

Best to you, Dave Tate, Esq. (San Francisco and California)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

 

 

 

This is the type of legal analysis and authority that I would expect to see for the stay in place and other orders relating to COVID-19 and the coronavirus situation . . . .

I have provided below a link to a 2005 article (and a first page snapshot – the article is 8 pages) in which the authors discuss legal aspects of state police powers to order isolation, quarantine, health and inspection laws to interrupt or prevent the spread of disease. Note that the article is only the opinions of the authors, I am sure that additional legal authorities exist that the authors have not cited, the article is not directed to California where I am located, or to the county or city where I live, the article is from 2005, which is fairly recent in the context of legal discussions but likely there are additional relevant legal authorities subsequent to 2005, and, as commented below, every such situation and location must be separately evaluated and justified.

Why am I posting this? Plain and simple, because I am a lawyer, I am interested in laws and processes relating to responsibilities, rights, authority, decision making, governance, and risk management, and this is the type of discuss and justification that I would expect to see and that I would hope to see when governmental entities or authorities issue an order or pass legislation, but I am not seeing this type of discussion and justification in the circumstances of the current various different stay at home and other orders and police actions. I simply want to see these discussions as part of the process for all such orders and actions.

People who know me know that I am not turning political – I’m just being a lawyer on this.

Without a doubt, the federal government has police, safety, and public health powers, and individual states also have police, safety, and public health powers although state powers will vary from state to state based on their individual constitutions and other authority including case law interpretation and precedent. And as we are also seeing county and local city or town orders and actions, a similar analysis would also need to be performed for those orders and actions. But every such situation is different including the applicable law, the factual circumstances including the reasonably known and verifiable risks to the individual public that are at issue, the rights that are at stake and that are being limited, and the orders or legislation or other actions that are proposed, ordered or enacted. Thus, I would expect such a discussion for each and every order, legislative act, or action.

There are serious and very important responsibility, right, and legal authority issues at play here. California, for example, has a fairly long Constitution with strong individual rights, which is the way that it should be; on the other hand, there is no doubt that the federal government, and the State of California both have some authority to legislate or order actions to protect the public health and safety. But there needs to be an evaluation of the actions being taken or proposed in light of the identifiable rights that are involved, the limitations on those rights, the actions being taken or proposed, the stated reasons for the actions that are being taken or proposed, the actual reasonably known, identifiable, and verifiable risks and risk management issues that are at issue with respect to the individual public and the public at large in a particular location, and the legal authority of the entity enacting the legislation or issuing the order or taking the action. And I am not seeing these types of legal discussions. I should add that while citing a particular law, statute or regulation as authority for the actions being taken is helpful and should be required, I would also say that simply providing a citation without also citing the specific factual support (i.e., the evidence being relied upon, and not just “science”) for the decision being made and the action being taken is a rather vague and speculative approach.

Different courts at different times have evaluated government actions in these situations by different criteria, for example varying in approach between on the one hand giving deference to government actions, but on the other hand limiting the actions based on the legal authority that the governmental entity possesses, the nature and importance of the rights that are involved, and whether the actions or limitations that are imposed are the reasonably least restrictive and justified under the circumstances.

The following is a link to the eight-page article. Note that the discussion in the article isn’t the answer in the current situation that we are seeing because it isn’t written for the current situation, it doesn’t cite all relevant legal authorities, and the current situation will vary from state to state and location to location (e.g., county, city or town, etc.) within each state, but the article is the type of legal discussion and evaluation that we should be seeing and that I would expect and wish to see from the ordering, enacting or enforcing entity, but that I am not seeing. Here is the article link, followed by a snapshot of part of page one from the article:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/

 

Best to you, Dave Tate, Esq. (San Francisco and California)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

One possible definition of “Governance” . . . .

One possible definition of “Governance” – from the softer side of my blogging:

“Of or relating to an entity, organization, group, or person’s authority and exercise of authority, leadership, decision-making, ability to communicate and communications, accountability, transparency, expertise, availability to be questioned or challenged, open-mindedness, and trustworthiness, and processes, style and optics relating thereto.”

Governance also is situational and transitional, and depends on the particular facts and the optics at hand.

Best to you, Dave Tate, Esq. (San Francisco and California)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

Caremark claims; CAMS; audit committees – forward from thecorporatecounsel.net plus my comments

Below is a link to a bit that I was reading this morning from thecorpratecounsel.net.

Another Caremark Claim Survives Motion to Dismiss

In a short space the discussion covers three matters that I find noteworthy. In Hughes v. Hu the Court denied a motion to dismiss the claims alleging that the directors, more specifically the audit committee members, failed to satisfy their director fiduciary duties, also sometimes referred to as Caremark duties or claims. Now, if you read the Court’s opinion, the alleged breaches of duty, if they are found to be true as alleged, are pretty egregious indicating obvious red flags that were ignored including possible lack of sufficient expertise to perform required duties and responsibilities. I don’t expect there to be a new run on cases in which Courts start allowing a significant increase in Caremark type cases to proceed. However, I do believe that we have already entered into the beginning stages of an era or period of time when the expectations that investors and the public have of officers and directors are increasing and have increased (witness the development of interest in ESG, for example). Whether or not those increasing expectations correspond into legal duties and responsibilities is yet to be seen, and there will be ebbs and flows – nevertheless, however, and right or wrong, through social media those expectations and perceived breaches thereof will impact the reputations of and perceptions about the business and the people who are involved and who are simply alleged to be involved.

The discussion also discusses CAMs, and audit committees, both of which I have covered and will continue to cover. CAMs, or critical audit matters are new, of course, and at this early stage we don’t really know much about how they will develop in time. CAMs are written by the auditor in the auditor’s view, or at least they are supposed to be. And CAMs are also discussed with the audit committee, and others. I believe that most likely CAMs will increase in importance over time and that there will be a push for auditors to say more and provide more auditor disclosure and evaluation. But we’ll see . . .

Best to you, Dave Tate, Esq. (San Francisco and California)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

Getting out of, or delaying, or modifying contracts as a result of COVID-19 and/or government actions – what we are seeing: force majeure clauses, impossibility, commercial impracticability, frustration of purpose, bankruptcy, or other possibilities

A lot of businesses are looking at getting out of, or delaying, or modifying contracts as a result of COVID-19 and/or government actions.

Typical legal arguments for doing so include: force majeure clauses, impossibility, commercial impracticability, frustration of purpose, bankruptcy, or other possibilities.

Each contract and situation is unique, and has to be separately evaluated. For example, this morning I read an article about Hollywood studios starting to enforce force majeure clauses. But force majeure clauses are just one of the possible issues to evaluate, and each force majeure clause and it’s wording has to be considered and evaluated in light of the particular factual situation, jurisdiction, venue, and applicable state law.

The following are two additional related blog post links, one discussing possible additional contract related issues at https://wp.me/p75iWX-sK, and one discussing possible insurance and insurance coverage related issues at https://wp.me/p75iWX-sV.

You will also find additional posts about the above topics, critical audit matters, and going concern issues on this blog http://auditcommitteeupdate.com

Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *