Litigation & Trial

>floats the idea of defaming and slandering Matt Damon under the guise of fictionalization. She makes an excellent point-- Matt wouldn't put up with that. But it seems like Matt Damon would have to put up with it. What could Matt realistically do? Filing a lawsuit would probably go nowhere. See the informal "small penis" rule by fiction writers: https://en.wikipedia.org/wiki/Small_penis_rule The 2010 film "The Social Network" didn't even bother with fictionalized names and made Mark Zuckerberg look bad but he didn't sue. One legal opinion thinks MZ didn't have an easy case of defamation which would make the lawsuit a waste of time: https://www.litigationandtrial.com/2010/07/articles/the-law/for-non-la…

the blog links through to this article, which I found quite insightful: http://www.litigationandtrial.com/2011/07/articles/series/special-comm…

It might be technically true that some deviation from maximizing investor return is not strictly against the law However, there are several legal opinions that complicate this interpretation. I recommend you read the case eBay v. Newmark that very much complicates this. Here is a nice summary: https://www.litigationandtrial.com/2010/09/articles/series/special-com… You might also look at Dodge v. Ford Motor Company one of the more in-famous cases supporting/complicating the shareholder value "requirement". In it's opinion, the Michigan Supreme Court in-famously states: "A business corporation is organized and carried on primarily for the profit of the stockholders." Both cases deal with companies will very small numbers of shareholders where minority shareholders successfully litigated based on some argument that the majority had a responsibility to maximize their minority returns.

> We don't like the outcome, therefore we question whether the jury knew what they were doing? Actually, that's pretty much exactly it. An appellate court is capable of ruling a jury finding as contrary to the weight of evidence. It's basically a mistrial ruling -- that the jury did not perform as required -- and therefore permits a retrial. It's a pretty rare occurrence, though. EDIT: This seems to be a good review: http://www.litigationandtrial.com/2012/04/articles/trial/contrary-to-t… Specifically: "Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." So, the basic argument from Oracle could go something like, "The jury did not properly weight the fact that the copy was performed for commercial reasons and therefore cannot be fair use."

Mr Kennerly, I feel you're being a little disingenuous here. A couple of days ago (before the police involvement) you mentioned this story in another article on your blog(http://www.litigationandtrial.com/2010/04/articles/series/special-comm… saying Gawker Media, publisher of Gizmodo, paid $10,000 to the "finder" of a "lost" prototype iPhone. ($10k was the original rumor about the sum paid). Now, if I may paraphrase, you're saying 'all this for a single phone that is going to be sold to millions anyway? pfff.' But you know it's a prototype, if you've followed the story closely, you know that Gawker did publish "more than information the appearance of the phone": http://gizmodo.com/5520876/the-next-iphone-dissected - such things are not readily ascertainable by proper means, so I don't think IDX v Epic systems is a good comparison. You say there are 'thousands of businesses [that have been wronged] and yet Apple [...] gets preferential treatment.' I can't agree. A quick search of justice.gov for the terms ''economic espionage' arrested' - a different jurisdiction, to be sure, but a similar kind of enforcement - yields over 100 cases of the police power being used on behalf of companies' intellectual property - and as we both know, a comprehensive search through legal databases would turn up many more. We both know that IP theft or misappropriation isn't about the physical devices, DVDs or sheets of…

Some owners of private companies don't see the goal of the company as profit maximization - eg SpaceX. With a public company there's always going to be a shareholder to sue you for not maximizing profit. https://www.litigationandtrial.com/2010/09/articles/series/special-com…

The language is fuzzy enough that it depends on how good and/or persistent your lawyers are. Coincidentally, a different photographer's photo of Miles Davis caused a copyright stink over an chiptune tribute album's artwork about a decade ago: https://www.litigationandtrial.com/2011/06/articles/attorney/trademark…

> of course, yes! As long as it stays within the boundaries set by the law. This, it's even mandated by law to appease shareholders by making as much money as possible. Google changing their ways might just increase the number of shareholder x company lawsuits their legal team has to sort out. https://www.litigationandtrial.com/2010/09/articles/series/special-com…

It is their legal obligation. https://www.litigationandtrial.com/2010/09/articles/series/special-com… Imagine you invested money into some enterprise that promised you a share of the profits it will attempt to gain. If that enterprise never actually attempted to turn a profit, it would effectively be fraud. Now let's imagine they do give you a share of the profits, but the enterprise spends most of its income on frivolous and unnecessary expenses and therefore the profits are very small, that would still effectively be fraud. Therefore, the provision is to maximize value. It is the basic responsibility of anyone running a public company. Of course this is all fuzzy and you do have a lot of leeway in justifying expenses/investments, but the principle remains.

> there is no "legal duty to maximize profits". For publicly traded companies, there is: https://www.litigationandtrial.com/2010/09/articles/series/special-com…

My lawyer said that's not the case, at least in my state. LLCs protect against criminal and contractual liabilities, but not tort liabilities. I google'd it since I couldn't remember his exact legal reasoning, this blog post just about sums it up: https://www.litigationandtrial.com/2009/05/articles/attorney/automobil… Certainly better than nothing, but I was personally not concerned with criminal/contractual liabilities

I tried to find a source for this, but just ended up bewildered. There seems to be a lot of conflicting information on this. For example: https://www.litigationandtrial.com/2010/09/articles/series/special-com…

Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case, in a civil case a negative inference can be drawn. http://www.litigationandtrial.com/2013/04/articles/attorney/pleading-t…

I am not a lawyer but it would seem that the ebay v. craigslist ruling would have the same effect. http://www.litigationandtrial.com/2010/09/articles/series/special-comm…

>Sure, you can sue for breach of fiduciary duty, but that duty does not include no-holds-barred maximization. That depends on what you mean by "no-holds-barred". If the company is giving up potential income they had better be able to explain the reason, otherwise it is a breach of fiduciary duty. Of course they're not allowed to do anything illegal, and you can probably get away with saying "this would give us bad PR". But "we don't enforce our patents because we think patents are stupid" is definitely a breach of fiduciary duty. See here: http://www.litigationandtrial.com/2010/09/articles/series/special-comm…

No, but they're meant to have a good faith belief that they can actually make the case. http://www.litigationandtrial.com/2011/07/articles/series/special-comm… examines in some detail why they probably don't.

That escalating series of tactics arguably did not include any federal crimes. I refer you to Max Kennerly's analysis, under the section "Did Aaron Swartz Really Commit Any Crimes?" http://www.litigationandtrial.com/2011/07/articles/series/special-comm…

Hospital Sues Health Insurance Company For Cheating Patients Out of Emergency Care http://www.litigationandtrial.com/2009/07/articles/litigation/news/hos…

> And it is a fiction. It's funny, that I came into the thread to make the same point to an extent. The problem is that it is a fiction but that fiction has become law [0]. I honestly don't know the legal system well enough to know how this gets fixed but in the interim it seems a slightly to strong effort in navel gazing to talk about how its incorrect without acknowledging that it is. It is unfortunate that such transitions happen so consistently in management. The field seeks to be treated as a science (in the paradigm sense) despite not having the basic philosophical characteristics. Findings in physics may change what I look for in future physics experiments but observing a phenomenon isn't going to change it (and grant me some grace...we aren't talking about quantum). In management, the observations are the behavior of humans and the results inform human practice. That makes research management and practice inseparable, no matter how much they want to be science. However, that is ignored an an attempt to take a scientific stance. The result even affects pedagogy with techniques designed to communicate the development of critical thinking through engagement of multiple perspectives is usurped over time into just teaching the current 'rules' of business [1]. [0] https://www.litigationandtrial.com/2010/09/articles/series/special-com… [1] Bridgman, T., Cummings, S., &…

One thing to note here is that this isn't an out-of-the-blue abstract argument, but applies reasoning in recent cases addressing government officials use of social media outlets and the First Amendment. Obviously, Trump is higher profile than any of the officials in previous cases, but this is a potentially significant, developing area of law in the intersection of government and technology that reaches more than just Trump's Twitter account. Original letter (with citations to legal precedent): https://www.documentcloud.org/documents/3859469-White-House-Twitter-Le… Original Knight Institute release: https://knightcolumbia.org/news/knight-institute-demands-president-unb… Additional legal analysis on the issue (written before and independently of the Knight Institute letter, but updated in light of it): http://www.litigationandtrial.com/2017/06/articles/attorney/free-speec…

And even besides that, shareholders' ultimate interests are not served if their companies behave in ways that are destructive to the societies in which they live. Unless the destruction occurs outside of the realm (spatial or temporal) of the shareholders, in which case the destruction can rightfully be modeled as an externality and ignored. I don't know where this idea that "companies are required or expected to make as much profit as legally possible" came from Started with Dodge v. Ford Motor Co.: http://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co. This was somewhat superseded by Shlensky v. Wrigley: http://en.wikipedia.org/wiki/Shlensky_v._Wrigley This in turn is arguably superseded by eBay v. Newmark: http://www.litigationandtrial.com/2010/09/articles/series/special-comm… Please stop enabling this behavior by spreading this incorrect and just plain wrong idea. It's more dangerous to assume that corporations can be held to task than it is to assume that they are amoral profit-seeking entities. Only in the former case are you unpleasantly surprised if you're wrong.