Posted on 05/18/2004 11:47:44 AM PDT by jmstein7
From Brehm v. Eisner, 746 A.2d 244, which overruled Grimes v. Donald in part.
This isn't exactly on point, since it involves cases in which the board was advised by an expert, but it is an example of the difficultly, perhaps nigh on impossible, of surviving a 12(b)(6) motion on such a lawsuit.
To survive a motion to dismiss shareholder derivative suit in a due care case where an expert has advised the board in its decisionmaking process, the complaint must allege particularized facts (not conclusions) showing, for example, that: (a) the directors did not in fact rely on the expert; (b) their reliance was not in good faith; (c) they did not reasonably believe that the expert's advice was within the expert's professional competence; (d) the expert was not selected with reasonable care by or on behalf of the corporation, and the faulty selection process was attributable to the directors; (e) the subject matter that was material and reasonably available was so obvious that the board's failure to consider it was grossly negligent regardless of the expert's advice or lack of advice; or (f) that the decision of the board was so unconscionable as to constitute waste or fraud. 8 Del.C. § 141(e); Chancery Court Rule 23.1.
Again, from Brehm v. Eisner (regarding an extraordinarily large golden parachute for Michael Ovitz, who served a very short time and very badly): "One can understand why Disney stockholders would be upset with such an extraordinarily lucrative compensation agreement and termination payout awarded a company president who served for only a little over a year and who underperformed to the extent alleged. That said, there is a very large-- though not insurmountable--burden on stockholders who believe they should pursue the remedy of a derivative suit instead of selling their stock or seeking to reform or oust these directors from office." Id. at 267.
I really understand these cases to require that fraud (or illegality) must be alleged to survive a MTD. Of course, nothing is black and white and reasonable people can disagree, but I think you have a major-league uphill battle here. Good luck.
Proof? (Not of the bias but, rather, that it's the reason for declining circulation).
Couldn't one just as easily argue that such factors as the Internet (free news), an overall declining readership of newspapers, etc would have just as much effect, if not more?
If I buy some stock will you procure a a pro bono attorney?
I will also agree to be part of a class action for the FReeper class and the CCRM.
This is an excellent piece of work and is the sort of media vunerability that needs to be exploited.
NY Times first. AP next.
If I buy some stock will you procure a a pro bono attorney?
I will also agree to be part of a class action for the FReeper class and the CCRM.
This is an excellent piece of work and is the sort of media vunerability that needs to be exploited.
NY Times first. AP next.
Yes, gladly :)
IANAL.
Allowing a suit for "journalistic malpractice" would be a horribly effective blow against the First Amendment and for totalitarianism in the US. For one thing, "journalistic malpractice" would seem to fly in the face of the freedom of the press. Yet, let's look into it more deeply.
As the article you linked to says, the First Amendment allows suits for fraud and misrepresentation. In those cases, however, an identifiable victim brings the suit. This victim usually has some kind of monetary loss.
If the NYT deliberately distorts the truth about Iraq, for example, how does that affect you financially? There may indeed be a link between the distortion and your net worth, but any link would be so tenuous that it would not be a proximate cause. If the NYT deliberately distorts the truth, who is the victim? Assuming they aren't actually defaming someone, the only cognizable victim is "society." And society can't sue a private company to enforce politically correct speech codes. This is America and we have freedom here.
In defamation law, there is no recovery for "group libel," or "group defamation." As a result, if someone says "liberals are idiots," they cannot be sued by non-idiot liberals for defamation.
The EU, Canada, the UK, and other countries that have little respect for freedom of speech all criminalize group defamation. If you say something negative about gay people there ("gay people have loose morals," for example), you may find yourself in prison.
There is a need to protect group libel. The need is identical to free speech. To disallow wide-ranging vague characterizations except those which are enthusiastic and non-critical in nature would be to crumple the freedom of speech and the freedom of press into a useless ball of paper.
Suits for "journalistic malpractice" must never be allowed to disgrace American courts of law.
As for the "futility doctrine" suit mentioned in the opener, the idea for the lawsuit is wrong.
Want to take on the NYT and its deliberate distortions of the truth? Set up a media watchdog group like Accuracy in Media or FAIR, or just whip up an expose document yourself.
If you just put the data in front of the American people to expose the NYT's deliberate distrotions of the truth, the public will do the job. They will stop buying and reading the NYT. Isn't that what you really want?
Lawsuits don't solve every problem.
I am not a lawyer.
IMHO... the fact that the NYT subsidiary, the Boston Globe, was caught faking photos of "prisoner abuse" and reporting them as "hard news" makes the NYT very, very vulnarable to suit right now.
I'm no lawyer, but I play one on TV...anyway, it seems to me a new shareholder would have very little chance of success. Somebody mentioned earlier getting established shareholders to file a class-action suit. That seems like the only real chance of success.
That's the beauty here... there is no "holding" requirement. I could buy today and sue tomorrow. Left-wing groups use this tactic all the time as PR stunts.
The Jayson Blair fiasco and other out in the open messes as well as the Globe phony sex abuse pictures to me are open cases of fraud. They used this bs instead of real news reporting to harm GW and dared to call it news until they were caught.
I agree with you that the NY Times is our most powerful and influential enemy, but I think your plan is too indirect and has too many moving parts. We need to take a page out of the left's book -- find out where these guys live and position ourselves outside their homes; demonstrate in front of their building on 43d Street to confront them personally; make them feel harried every time they appear in public. If we can stop the Times, the rest of the left would crumble -- they would be like ants after you destroy their hole, not knowing where to go or what to do. If this is in fact a culture war, the Times is target number one.
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