Posted on April 30, 2013 in Business Counseling, Litigation & Transactions

Delaware law permits a court to pierce the corporate veil of a company and hold its owners personally liable "where there is fraud or where [the corporation] is in fact a mere instrumentality or alter ego of its owner." See, e.g., Geyer v. Ingersoll Publ’ns Co., 621 A.2d 784, 793 (Del.Ch.1992). In order to state a claim for piercing the corporate veil under the "alter ego" theory, a party must show (1) that the corporation and its principals sought to be held liable operated as a single economic entity, and (2) that an overall element of injustice or unfairness is present. See, e.g., Trevino v. Merscorp, Inc., 583 F.Supp.2d 521, 528 (D. Del. 2008) (applying Delaware law). The fraud or injustice that must be demonstrated in order to pierce the corporate veil must be found in the principal’s use of the corporate form. See Mobil Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260, 267 (1989); Blair v. Infineon Technologies AG, 720 F. Supp. 2d 462, 473 (D. Del. 2010).

Moreover, Delaware courts have noted that the alter ego theory only comes into play in piercing the corporate veil "when one seeks to hold liable an individual owner who controls the [company]." See In re Opus E., L.L.C., 480 B.R. 561, 570 (D. Del. 2012) (quoting Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 333 n. 7 (3d Cir.2000)). The degree of control required to pierce the veil is "exclusive domination and control … to the point that [the person sought to be held liable] no longer ha[s] legal or independent significance of [their] own." See Wallace ex rel. Cencom Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1184 (Del. Ch. 1999) (citing Hart Holding Co. v. Drexel Burnham Lambert, Inc., 1992 WL 127567 (Del. Ch. May 28, 1992)). In other words, a corporate principal may be held liable where they controlled the corporation and used it to commit acts that sought to "defeat the ends of justice, to perpetuate fraud, to accomplish a crime, or to otherwise evade the law." See Trevino, 583 F. Supp. 2d at 529 (quoting Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 171 (3d Cir. 2002)).

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 Posted on April 30, 2013 in Business Counseling, Litigation & Transactions

Generally, it is the rule that a corporate director is not personally liable for the misconduct of co-directors where he or she has not participated in the misconduct. See, e.g., Seale v. Citizens Sav. & Loan Ass’n, 806 F.2d 99 (6th Cir. 1986). Corporate officers and directors can only become personally liable if they directly authorize or actively participate in the wrongful or tortious conduct complained of by a third party. See, e.g., Taylor-Rush v. Multitech Corp., 217 Cal. App. 3d 103 (1990). In other words, directors ordinarily will not be held liable for wrongdoing over which they have no practical control. See, e.g., Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 89 N.C. App. 41 (1988).

Alternatively, the related doctrines of "piercing the corporate veil" and the "alter ego" theory can pose potentially liability concerns for corporate officers, directors and shareholders. Piercing the corporate veil involves a court disregarding the corporate entity for the purposes of inter alia adjusting the allocation of loss between a particular claimant against the corporation and a person who has, under all the circumstances, misused the corporate form. Accordingly, under the "alter ego" theory courts will "pierce the corporate veil" in order to fasten liability on a person who uses the corporation merely as an instrumentality to conduct their own personal business, which would perpetuate a fraud or injustice on third persons dealing with the corporation if such liability were not imposed. Several factors are considered regarding whether a corporate veil should be pierced under an "alter ego" theory, including: (1) insufficient capitalization for purposes of the corporate undertaking; (2) failure to observe corporate formalities; (3) non-payment of dividends; (4) insolvency of the debtor corporation at the time of the transaction in question; (5) siphoning of corporate funds by the dominant shareholder; (6) absence of corporate records; and (7) existence of the corporation as merely a façade for individual dealings. See, e.g., Blair v. Infineon Technologies, AG, 720 F. Supp. 2d 462, 470-71 (D. Del. 2010) (finding plaintiffs sufficiently plead alter ego liability under Delaware law to defeat a motion to dismiss).

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 Posted on April 30, 2013 in Personal Injury

In an effort to help our clients understand the process of negotiating a personal injury claim, I have compiled the following information that I feel is important you understand once the medical bills, lost wage statements and any other "special" damages have been obtained and the negotiating process has begun.

There are basically two types of damages to be considered when evaluating your claim, special damages and general damages:

a. Special damages are those damages for which you can show a dollar amount that you incurred as a result of having to pay money or losing money as a result of the collision and your injuries. Examples of special damages are medical bills and lost wages.

b. General damages are the damages for which you do not have a bill or for which you cannot show any "tangible" loss. Examples of general damages are pain and suffering.

2. Insurance companies tend to believe that a person could not have been seriously injured unless the automobile the person was in suffered a great deal of damage or was totaled. The insurance adjuster usually will not believe that you were severely injured if the automobile you were in suffered only a few hundred dollars damage and was driven from the scene of the collision.

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 Posted on April 30, 2013 in Criminal Defense

As an Aggressive Baltimore Maryland Criminal Attorney I have handled more of these Continental Arms Gun Range Cases that any other attorney that I am aware of. Last week I handled two of theses case in the Circuit Court for Baltimore County. Both defendants were facing mandatory 5 years prison terms – neither served a day in jail and both received unsupervised probation.

I have blogged about these cases several times in the past noting that in my view, these cases represent the worst in law enforcement and are in many ways counterproductive to main objective of law enforcement which is, of course, to keep the community safe. The reason for my belief that these cases are in fact counterproductive stems from both the simple fact that these cases are prosecuted in the first place, and this fact is compounded by the "scorched earth" tactics utilized by the police to investigate them. More on that later but here are the facts of the cases:

These two cases had substantially similar facts, the only difference being what crime the defendant had been previously convicted of that disqualified him from possessing a firearm. One of the individuals was convicted of second degree assault for a fist fight with another young man when he was just 18 years old. The other individual had a more serious record as he had been convicted of felony drug distribution.

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 Posted on April 30, 2013 in Personal Injury

The law firm of Silverman, Thompson, Slutkin & White takes on a limited number of plaintiff’s personal injury cases each month. We limit our intake so we can provide the highest quality representation to each of our clients. To better equip our clients with an understanding of the process, we have broken down the phases of what to expect of our attorney-client relationship.

THE INITIAL CONFERENCE:

General information regarding the incident will be obtained when you are first interviewed. Certain other material relating to things you should not do will be furnished to you. You will be asked to sign authorization forms which will allow us to obtain necessary information. We will schedule a follow-up appointment for you to meet with the attorney handling your case shortly after you retain Silverman Thompson Slutkin and White.

RETAINER AGREEMENT:

This is the contract of employment between you and Silverman Thompson Slutkin and White.
Essentially it confirms that you have elected to hire Silverman Thompson Slutkin and White on a contingent-fee basis rather than an hourly or other basis. Accordingly, Silverman Thompson Slutkin and White’s fee will be one-third (35-40%) of any recovery whether obtained by suit or settlement. We do not take a case unless we think we will make a recovery. Therefore, all of our agreements are No Recovery-No Fee-No Expenses. The Retainer Agreement also confirms that for your convenience you have authorized Silverman Thompson Slutkin and White to advance money on your behalf to pay for expenses incurred for obtaining things such as medical records, medical reports, court costs and investigation costs.

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 Posted on April 22, 2013 in Personal Injury

An Ellicott City man was tragically killed this past weekend while participating in a "Tough Mudder" obstacle course. http://www.baltimoresun.com/news/maryland/howard/ellicott-city/bs-md-tough-mudder-death-20130422,0,3954904.story.

Based on what we know so far this case will almost certainly lead to a wrongful death claim against the operators of this race. Runners in these kinds of events certainly understand that they are subjecting themselves to certain risks by participating in them – twisted ankles, broken bones or even cardiac events come to mind – and probably even signed waivers to insulate the operators from liability from these known risks.

But drowning? It seems almost impossible to believe that the operators of this race would create an obstacle requiring people to traverse a plank over a body of muddy water deep enough to drown in apparently without warning the participants of the depth of the water. And if they were reckless enough to set up this kind of obstacle, it seems obvious that they should have stationed enough trained instructors in and around the obstacle to prevent such a forseeable occurrence. After all, everyone in the race is covered head to toe in mud as are the obstacles making them treacherously slippery. It is not only forseeable, it is all but certain that someone is going to slip or jump off of the obstacle into the water.

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 Posted on April 09, 2013 in Tax Controversy Litigation

File your tax returns. A week from now will be too late. It can be cumbersome, stressful and certainly annoying. But it’s one of those things in life. Do it and be done with it. Some added incentives to filing:

A. Avoid costly consequences
Did you know the IRS late-filing penalty is 5% of any unpaid tax due per month after the return’s due date? The same penalties apply to failing to file altogether. And failing to pay risks a penalty of ½ to 1% of any unpaid tax due per month. And the penalties are calculated separately from interest, which compounds daily at the current interest rate (presently 3% per year). Makes paying the current tax due (if any! You may be owed a refund, after all, and the IRS doesn’t pay interest on money you’ve failed to claim from them) fiscally savvy.

B. You can do it from home, in your pajamas
The IRS website (www.irs.gov/freefile) allows any taxpayer to file electronic returns free of charge. Gather last year’s tax return, your W-2s, 1099s and any other documents and use the IRS’s online, fillable forms to file. If you are itemizing deductions, don’t forget to include any charitable contributions, reduction in income from qualified IRA contributions, any capital gains or losses, etc. Once you’ve completed the online form, you can even set up direct deposit for any refund you may be owed, or pay electronically if you have a tax liability. Note the free e-file forms perform only basic calculations.

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 Posted on April 08, 2013 in Federal Crimes & White Collar Crimes

Very soon, the federal government could know what you bought for dinner last night, or whether you and your wife are having a nasty email fight about something very personal-and they could know this all because of CISPA-The Cyber Intelligence Sharing and Protection Act of 2013. If you’re using gmail, Google might already know this information, but our Constitution has traditionally protected us from the federal government getting its hand on such intimate, personal information without a warrant or court oversight.

CISPA is a bill that will be voted upon very soon in the U.S. House of Representatives; it allows for voluntary information sharing between private companies and the federal government. The bill’s language and provisions continue to be amended and shaped in closed-door, secret meetings by the U.S. House Intelligence Committee. In principal, the bill is supposed to prevent cyber-attacks. But it does this through sweeping, unprecedented information sharing provisions that allow and in fact encourage private companies, like Facebook and Google, to turn over every intimate detail they’ve collected about you from your online activities, your emails, your texts, your shopping habits, your web-browsing activities, etc., to the US government.

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 Posted on February 26, 2013 in Driving Under the Influence

As an Aggressive Baltimore Maryland DUI Attorney I have handled literally thousands of DUI cases both as a former prosecutor and as a defense attorney. I have written several times in this blog that it is extremely difficult these days to secure a not guilty in a DUI case on the issue of whether in fact the client was under the influence or impaired. I have won more than my fair share of DUI trials over the last 15 years since I left the State’s Attorney’s Office but the overwhelming majority have been on technical issues such as an illegal stop or the State’s inability to prove that my client was the operator of the vehicle.

I published a blog last week about a DUI trial that I won on the impairment issue but that was only one of two that week. I won a second on this issue in spite of the fact that my client had 3 recently consumed beer cans in the car when he was stopped and told the police that he would not do the field sobriety tests because he "would fail them". That case was scheduled in the District Court for Baltimore County last Friday. Here are the facts:

My client who was admittedly suffering from a combination of psychiatric and alcohol issues, was operating his vehicle in the Catonsville area of Baltimore County one day last summer. It was in fact a few days after the first big wind storm we had when many people lost power for a week or more. He was unfortunately one of those people so he decided to sit in his car to listen to the radio and drink beer. After a few beers he decided to take a drive to survey the damage which was needless to say a mistake.

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 Posted on February 26, 2013 in Victim's Rights

This past week, Marylanders were stunned and sickened by news that Johns Hopkins’ gynecologist, Dr. Nikita Levy, allegedly used still cameras and video recording devices to capture surreptitiously his gynecological examinations of potentially hundreds of his patients, and that he allegedly collected massive amounts of those images and videos on multiple media storage devices (computers, thumb drives, etc.). What Dr. Levy did with these images is not yet clear. Local, state and federal law enforcement have begun a large-scale cooperative investigation, and, according to reports, officers have searched Dr. Levy’s home and office, seizing multiple media storage devices pursuant to search warrants issued by Baltimore County and Baltimore City Judges. But in the Dr. Levy case, which involves electronic surveillance and electronic privacy crimes, potential child pornography, voyeurism, and invasion of the privacy of hundreds and hundreds of women, law enforcement faces obstacles far more complex than a physician sexually assaulting one or more patients.

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