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Archive for 2007
Tuesday, November 6th, 2007
We have represented clients alleged to have been involved in a “theft of a corporate opportunity.” As most people know, “a corporate officer or director is under a fiduciary duty of individual loyalty, good faith and fair dealing in conducting corporate business.” Racine v Weisflog, 477 N.W.2d 326, 329 (Wis App., 1991). One of the primary duties is that a corporate officer cannot divert assets of the corporation and use them for the officer’s personal advantage.
In Hawaii, the “corporate opportunity” doctrine has been explained as follows:
If there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from it nature, in the line of the corporation’s business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.
Lussier v Mau-Van Development, Inc., 4 Haw.App. 359, 368 (Hawaii App., 1983)(Citing Guth v Loft, Inc., 5 A.2d 503, 511 (Del.Ch., 1939).
If an officer or director diverts a “corporate opportunity” for his or her own personal gain, then such action may constitute a breach of the officer or director’s fiduciary duty to the corporation (ie. the duty of loyalty). The damages for such breach may include, (i) recovery of any profits earned (usually with the imposition of a constructive trust on the property taken), (ii) compensatory damages, and/or (iii) injunctive relief.
Tags: Breach of fiduciary duty, Business Opportunity, Commercial Litigation, corporate opportunity, Hawaii, Honolulu, Kauai
Posted in Commercial Litigation | Comments Off on Theft of a Corporate Opportunity
Saturday, October 13th, 2007
We are very proud to announce that attorney Effie Steiger has passed the Hawaii bar. Effie is already a member of the Nevada bar and moved home to Honolulu this past summer. We are very excited to have Effie working with us. Like everyone else in this office, the focus of Effie’s practice will be Civil litigation, primarily commercial and real estate litigation.
Congratulations Effie. We expect great things from you in the future.
Friday, October 5th, 2007
A case is started by filing by a Complaint. The party filing the Complaint is called the Plaintiff. In certain cases, a Plaintiff may decide to change his initial Complaint. There are many possible reasons that a Plaintiff may change or “amend” the Complaint (ie. the discovery of new evidence, a change in law, or even correcting a simple mistake). Hawaii Courts have specific rules for amending a Complaint. A Plaintiff may amend her Complaint once any time before an Answer or “responsive pleading” is served. Haw. R. Civ. P.15(a). However, if the amendment is sought after the Answer is filed, the Plaintiff must either obtain (i) written consent from the opposing party or (ii) permission from the Court.
Fortunately, that permission or “leave”, as it is referred to in the rules, is to be “freely given when justice so requires.” Haw. R. Civ. P.15(a). See also Hirasa v. Burtner, 68 Haw. 22, 26, 702 P.2d 772, 775 (1985) (stating same). A request for leave to amend may be made at any time. Kahalepauole v. Associates Four, 8 Haw. App. 7, 14, 791 P.2d 720, 724 (1990). Moreover, it is appropriate to grant the requested leave so long as there has been no undue delay, bad faith, or dilatory motive on the part of the movant, nor undue prejudice to the non-moving party. Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 555 P.2d 1193, 1198 (1976).
Both State and Federal Courts have recognized the generous standard in Rule 15 (a). In addition, the Ninth Circuit has held that the policy of favoring amendments should be applied with “extreme liberality.” United States v. Webb, 644 F.2d 977, 979 (9th Cir. 1981). The purpose of this policy is primarily because the Courts favor giving a Plaintiff the opportunity to “test his claim on the merits” Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, a party should be given his “day in Court”, rather than limiting Plaintiffs claims through overly restrictive pleading rules.
Tags: Amending Complaint, Amendment of Complaint, Civil Procedure and Trial Practice, Filing Complaint, Haw. R. Civ. P.15 (a), Hawaii, Honolulu, Kauai, Maui, Oahu
Posted in Civil Procedure and Trial Practice | Comments Off on Amending a Complaint in Hawaii
Wednesday, October 3rd, 2007
On October 1, 2007, we celebrated the ten year anniversary of the opening of this law office. When I was working as an associate for a New York law firm, it was my dream to open my own boutique office. This office is the culmination of that dream. Of course, when I was practicing law in New York City, I never imagined that twenty years later my boutique office would be in Honolulu, Hawaii. For this fact, I am especially thankful.
I am also grateful for my friend and office manager, Warren Fabro. Warren started this office with me in 1997, and has been working with me since the Bank of America litigation with the late David Schutter, Esq.. I am thankful to Warren, both for his friendship and hard work. I know that my personal success is, in large part, the result of our collective effort. As we approach our second decade, this office will continue to provide excellent, personalized service to our clients. Although we will grow in the next ten years, this office will remain near its current size, since I intend to be actively involved in all of my clients’ cases.
Finally, I wish to thank all of the clients who trusted me to handle their affairs during the first ten years of this office. I know that there are many options available to you in my profession. I am always humbled by the faith that you place in me. I look forward to working with you all in the next decade.
Friday, September 28th, 2007
Today we had a hearing concerning diversity jurisdiction. In general, federal courts only have jurisdiction over two types of cases; (i) cases concerning a federal question (meaning that the case is based on federal law), and (ii) diversity cases. § 28 U.S.C. , § 28 U.S.C. .
For the federal court to have diversity jurisdiction over a case there must be two elements met; (i) the controversy must “exceed the sum of $75,000, exclusive of interests and costs” and (ii) be between “citizens of different states” or “citizens of a State and citizens or subjects of a foreign state” § 28 U.S.C. . Diversity of the parties requires that the plaintiffs and the defendants are from different states or countries. None of the plaintiffs can be “domiciled” in the same state or country of any of the defendants. Therefore, the threshold question in many cases become how do you determine a person’s “domicile.”
There are two things that are required in determining a person’s domicile, (i) where the person is residing and (ii) whether the person intends to live there. Many factors can come into play like “current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver’s license and automobile registration, and payment of taxes.” Lew v Moss, 797 F2d 747, 749-750 (C.A.9., 1986). If the facts show that a person lives in a state or country and intends to stay there by meeting some of the factors mentioned above then that person will be deemed to be a domicile of that place for the purposes of determining diversity jurisdiction. If you are a plaintiff and your “domicile” state is not the same as any of the defendants (and your claim meets the jurisdictional minimum of $75,000), then the federal court likely has jurisdiction to hear your case.
Tags: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury | Comments Off on Diversity Jurisdiction In Hawaii Federal Court
Wednesday, September 26th, 2007
Our practice on Kauai continues to grow. We have been retained by a family whose property on the island of Kauai was severely damaged by the Ka Loko Dam flood. Prior to the flood, our clients’ home was surrounded by a lush tropical oasis. Beautiful landscaping nestled their spacious home from outsiders creating the ideal Kauai sanctuary.
Then, on March 14, 2006, the Ka Loko Dam breached, and almost 400 million gallons of water, 1.6 million tons, rushed down from the reservoir above towards Kilauea Bay, wiping out everything in its path, including trees and buildings. Most tragically, seven people lost their lives.
Our clients lost their home’s beautiful idyllic landscape in a matter of seconds. What was once an area flourishing in island vegetation was replaced with dirt and rubble. The massive trees and beautiful native plants on the property were uprooted and swept away with the rest of the landscape.
We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.
Tags: Hawaii Real Estate Litigation, Kaloko Dam, Kaloko Dam Breach, Kaloko Dam Settlement, Kauai, Personal Injury, Philip R. Brown, Plueger
Posted in Hawaii Real Estate Litigation, Personal Injury | Comments Off on The Kaloko Dam Case
Wednesday, July 25th, 2007
For the last few weeks, attorney Effie Steiger has been on a break from this office as she studied for the Hawaii State Bar exam. Although Effie is licensed to practice law in Nevada, Hawaii law requires that she take our bar exam before may appear in a Hawaii state court. So yesterday and today, Effie has been busy taking the Hawaii State Bar exam. I am positive that Effie will pass, and look forward to her return to the office later this week.
Once she is a Hawaii attorney, we expect to see great things from Effie Steiger in her career.
Friday, June 29th, 2007
Choosing the right Hawaii personal injury lawyer is one of the most important decisions a client will make when seeking compensation for injuries.
If you are searching for a personal injury lawyer in Hawaii, there are certain factors you should look for to make sure that you choose the personal injury lawyer that is right for you:
Select an attorney that is experienced with personal injury cases. By choosing a lawyer that is experienced in personal injury claims, you can be sure that he or she they will know how to handle your case. Not all attorneys are familiar with the nuances associated with civil litigation and personal injuries.
Select a lawyer with an effective track record. Make sure your attorney is capable of taking your case to trial. Not all personal injury attorneys are trial attorneys. I believe that the best way to obtain compensation for your injuries is to prepare your case for trial. If the defense attorney does not respect your counsel (and understand that you are ready and willing to go to trial), they will likely not negotiate in good faith.
Your personal injury lawyer should have many years of experience handling a wide variety of cases.
Select a personal injury lawyer that is in good standing with the Hawaii bar. You can visit the Hawaii State Bar Association (www.hsba.org) to confirm that the attorney you are considering is in good standing.
Make sure your attorney has malpractice insurance. It is your right to know whether your attorney has adequate malpractice insurance. If you ask your potential attorney whether he has this insurance, and he refuses to respond, simply hire another attorney.
Make sure that your personal injury attorney will take control of your compensation requests. Accident victims need time to heal. They should not be distracted by the “red tape” generated by the medical insurance industry. Your personal injury attorney should be ready and willing to assist you with these issues or you should hire a different attorney.
Finally, you should trust your attorney. The attorney client relationship is the same as any other personal relationship in the sense that there must be complete candor if it is to succeed. Tell your attorney what you are seeking and ask him or her if that is a realistic goal. And be skeptical of attorneys who are willing to promise you extraordinary results in your first meeting. Ask tough questions and listen to the responses. If your potential attorney is the right person for the job, he or she should certainly be able to respond clearly and honestly to your questions.
Tags: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii accident victim, Hawaii accident victim attorney, Hawaii car accident attorney, Hawaii Personal injury attorney, Hawaii Real Estate Litigation, Honolulu car accident attorney, Honolulu personal injury attorney, Kauai Personal Injury Attorney, Personal Injury, Personal Injury Cases, personal injury claims, The Legal Profession
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury, The Legal Profession | Comments Off on Selecting the Right Hawaii Personal Injury Attorney
Friday, June 22nd, 2007
My April 10, 2007 blog entry concerns the acting career of our Office Manager, Warren Fabro. In the summer of 2006, Warren appeared in a major supporting role to Richard Chamberlain in the Hawaii Opera Theatre’s fine production of The King and I (which played to sold out audiences at the Neal Blaisdell Concert Hall). I was very excited to learn that Warren was recently cast in a supporting role in Hawaii Opera Theatre’s production of Rodger and Hammerstein’s South Pacific which opens in late July, 2007. We can all look forward to another fine production from Warren and Hawaii Opera Theatre this summer.
I am also proud of one of my legal assistants, who recently began her “television career.” Jennifer Brantley volunteers as the Fundraising Manager for a non-profit organization called HonoluluMommies.com (“HM”), a local chapter of The Mommies Network. This group is an online community that provides free support to all moms, regardless of age, working or marital status. On June 21, 2007, Jennifer appeared on the KHNL’s Morning Show to discuss HM’s fundraiser, The Mother of All Chases, which takes place on June 23, 2007. Portions of the funds raised will be used for HM’s charitable events, as well as fund newly created educational seminars for its members. A portion of the proceeds will also be used by The Mommies Network to ensure that members will continue to receive its excellent services for free.
In my April 10, 2007 blog, I wrote that Warren Fabro was the “real star of our office.” I am happy that Jennifer Brantley will now be acting in a “supporting role.”
Thursday, June 14th, 2007
A friend recently asked for advice for a young person graduating from law school. I did my best to provide these thoughts:
This is just the start of your career. Don’t get discouraged if it doesn’t begin exactly like you thought that it would. When I was a young associate in NY City, I would think to myself, “I took out all of these student loans just to become a lawyer, and now I spend my life working as a lawyer just to pay off my student loans.” However, as time passed, and my career blossomed, I became very thankful that I took out (and have now paid off) those student loans.
True, I still spend most of my days in an office or in court (while a few lucky people are enjoying the sun). And admittedly, my dream job was not to be a lawyer (but who really has their dream job). I mean the Los Angeles Dodgers already have a coach, and I don’t think that the Dodgers would be considering me even if they needed a new one. I was born to a middle class family and was destined to work my entire life.
So, if I was to live a happy, fulfilling life as a lawyer, I knew that I was the only one who could make that happen for me. In 1997, I started my own law practice and have been in business ever since. I run the office the way that I believe a law office should be run. I make sure that my staff is happy. I am proud of my work. And I couldn’t have owned my own office right out of law school. Especially, doing the variety of cases that we handle. All of the work that I did for those large law firms, prepared me for the work that I do in my office in Hawaii.
The moral is that this is just the start of your journey. The job you currently have is not necessarily where you will end up. My journey began in giant law firms in NY and Virginia and, in 22 years, took me to my own office in Hawaii. Attorneys have to find the practice in which they feel most comfortable. Some attorneys like big firms, other like small firms. Some people thrive doing criminal law, while others would be miserable. Each new lawyer must look within herself and decide what she needs in life to be fulfilled, and then go for it.
Above all, strive to be happy. And when you find happy, don’t try too hard to improve on happy. In fact, don’t mess with happy.