Jonathan Wilson is an
Atlanta attorney with more than 19 years of experience guiding growing private and public companies. He currently serves
as the outside general counsel of several companies and is the former general counsel of Web.com.com (NASDAQ: WWWW) and EasyLink
Services (NASDAQ: ESIC). He is also the founding chair of the Renewable Energy Committee of the American Bar Association's
Public Utility Section.
Thursday, December 22, 2005
Don't Sue Me Santa!
7:18 am est
Thanks to the Center for Consumer Freedom's Christmas Cookie Liability Waiver
. With this waiver signed by the jolly old elf, homeowners will be free from liability for:
- Failure to provide nutritional information and a list of ingredients (the “Grandma’s secret recipe” clause);
- Failure to advise that walking, biking, and jogging will shed pounds, but riding around on a reindeer-powered sleigh will
- Failure to warn that Christmas lights, lawn ornaments (plastic reindeer, snowmen, etc.) and other holiday decorations
may constitute manipulative marketing to lure Santa into over-consumption;
- Failure to offer “healthier” cookie alternatives (e.g., tofu bars or carob blobs);
- Failure to affix warning label acknowledging that milk, should it be provided, must not be consumed if Santa is, or could
possibly be, lactose intolerant; and
- Failure to notify that eating too many cookies and not exercising may lead to even greater levels of obesity for St. Nick.
Of course the waiver is only as strong as the judge who is willing to enforce it.
One of the frequently-criticized problems with our litigation system today is the courts' refusal to enforce contractual
waivers of liability on grounds of "unconscionability" or "public policy."
Without an enforceable right of redress against those who pursue weak or excessive claims in litigation none of us can
be entirely safe from plaintiffs in red velvet.
Tuesday, December 20, 2005
Woman Jailed Over Frivolous Lawsuits
8:28 am est
In an unusual move
, U.S. District Judge Edward Nottingham has held serial pro se
litigant Kay Sieverding in contempt of court after
she refused to dismiss numerous cases she filed against various parties stemming from a zoning dispute involving a next-door
According to the article, Sieverding had filed numerous lawsuits stemming from the dispute and refused to dismiss them
or cease filing what the court called "hundreds of frivolous papers . . . . [that] are nothing more than petulant harassment."
It seems that Mrs. Sieverding and her husband (who, according to the article, spends his days typing the motions and
papers handwritten by his wife from her jail cell), "sued the lawyers who represented the neighbors and the city; Steamboat
city officials; the judge who heard a similar case at the state- court level; prosecutors in a related harassment case against
Kay Sieverding; the company that insured the city; the American Bar Association because the Sieverdings couldn't get a lawyer;
and the company that owns the small newspaper in Steamboat Springs, saying the newspaper wrote a defamatory story about Kay
Iranian President Asks, "What's Up Doc?"
7:32 am est
President Regan was famously called
the leadership of post-revolutionary Iran "the strangest collection of misfits, Looney Tunes and squalid criminals
since the advent of the Third Reich". He may have been understating it.
Bush Approval Climbs
7:19 am est
Monday, December 19, 2005
Operating Thetan VII
12:55 pm est
In his own spiritual life, Cruise has continued to climb the "Bridge to Total Freedom," Scientology's path to enlightenment.
International Scientology News, a church magazine, reported last year that the actor had embarked on one of the highest levels
of training, "OT VII" — for Operating Thetan VII.
At these higher levels — and at a potential cost of hundreds of thousands
of dollars — Scientologists learn Hubbard's secret theory of human suffering, which he traces to a galactic battle waged 75
million years ago by an evil tyrant named Xenu.
According to court documents made public by The Times in the 1980s,
Hubbard espoused the belief that Xenu captured the souls, or thetans, of enemies and electronically implanted false concepts
in them to keep them confused about his dirty work. The goal of these advanced courses is to become aware of the trauma and
free of its effects.
At Cruise's high level of training, ex-members say, devotees also are charged with actively spreading
the organization's less secretive beliefs and advancing its crusades, including Hubbard's deep disdain for psychiatry, a profession
that once dismissed his teachings as quackery.
"When you hear Tom Cruise talking about psychiatrists and drugs," said
one prominent former Scientologist who knows Cruise, "you are hearing from the grave the voice of L. Ron Hubbard speaking."
Earth to Tom. Come in Tom.
Video Blogging Comes of Age
11:20 am est
According to reports
. Still, does it matter, if you have a face made for radio?
Internet Availability of Proxy Materials
8:15 am est
the SEC's recent release
on the internet availability of proxy materials.
The SEC is proposing that issuers may post copies of proxy materials on the web and merely provide notice to shareholders
that the proxy materials are available. The SEC would require that issuers provide a copy (by e-mail or hard copy as
requested) upon the request of a shareholder and also exclude from the proposed rule proxy materials issued in connection
with a business combination.
While I agree that these developments are long overdue, I question whether they go far enough.
Should an issuer be required to make special delivery arrangements for shareholders who want hard copies by e-mail or
snail mail? Is there really anyone left in the U.S., who invests in equities, who doesn't have access to the Web?
The SEC cites a March 2004 study (21 months old by the time the rule-making was released) that indicated than 75% of
all U.S. households had access to the Web. The current number is probably higher. Moreover, because the statistic
only includes "households" it doesn't account for individuals who have Web access through their schools or work. The
total percentage of individuals with some form of Web access (home, work, school or public library) is probably approaching
While the net effect of the rule would undoubtedly reduce costs for issuers, it would require issuers to develop processes
to collect shareholders requests for copies and distribute copies. One can only estimate the number of hard copy requests
an issuer might receive, but it seems that the proposed rule doesn't go far enough in acknowledging the Web's pre-eminence
as a means of distributing information and providing individuals with the ability to manage their money.
Likewise, the SEC's rationale for excluding business combinations from the new rule seems weak. The SEC's
position is that proxy materials for these kinds of transactions should only be printed because:
Business combination transactions constitute highly extraordinary events for some companies and frequently involve an
offering of securities that must be registered under the Securities Act and require delivery of the prospectus. They
also typically involve proxy statements of considerable length and complexity. (Release, p. 56)
I'm not sure that business combination proxies are any more complicated or deserving of careful readying than other proxies.
In most public/public merger deals, the stock price of the target company quickly adjusts, after the deal is announced,
to reflect the stock price of the acquiror, after adjusting for the exchange ratio. In other words, even before proxy
materials are distributed, the market accounts for the economic impact of the proposed combination, discounted for risk.
If the market is already this efficient why should business combination proxies be subjected to a print-only requirement?
The ubiquitous nature of the Web and the wide availability of business news and analysis websites would seem to provide more
than enough information for investors to make informed decisions. Those investors who wished to free-ride on the market
could continue to do so as well. The only net effect would be the savings that issuers would enjoy from decreased printing
and mailing costs.
Saturday, December 17, 2005
Bush Claims Congressional Leaders Were Briefed on Wiretaps
10:58 am est
President Bush reacted angrily
in a radio address today, claiming that selected members of Congress had been briefed "more than a dozen times" about his
NSA wiretapping program.
Trent Lott is Suing State Farm for Katrina Damages
7:45 am est Martin Grace
covers Trent Lott's suit
against State Farm for Hurricane Katrina damages and the arguments he will need to use to circumvent the flood damage exclusion
in homeowners insurance policies.
As a Republican, this is not just a little embarassing.
Republicans have arguedly, rightly, for years that excessive litigation is a drag on the economy and should be reformed.
It does the effort precious little good to have a former Republican party leader initiating class action lawsuits like this
There has been some talk
in recent days that Lott may try to regain his leadership post, after surving the scandal
that swept him from that position three years ago. The Republican party does not need a trial lawyer in its leadership.
Mississippi Court Dismisses Over 4,000 Silicosis Cases
7:37 am est
Sadly, the lawyers who filed these non-meritorious suits will never be called to account for the damages they caused
to the vindicated defendants.
Previewing Blawg Review #37
7:35 am est
Like me, the Wired GC is also an in-house lawyer. Unlike me, he blogs anonymously.
I can understand the attraction to blogging anonymously: You can say whatever you want without fear of offending employers,
But you also lose a little something. As most bloggers are largely editorialists, their writings are the product
of their experiences. As Mark Twain once wrote, "I would rather hear war stories from a soldier who has been to war
than moon talk from a poet who has never been to the moon."
An anonymous blogger loses some ability to speak from experience, because his credentials and experience are unknown.
There is, however, a certain filter a non-anonymous blogger must maintain (unless that blogger is independently wealthy
or employed in some fashion where the risk of possible offense is irrelevant). I hope that I manage that filter
in way that keeps my writing interesting and truthful, but not so provocative as to offend current and future clients.
Thursday, December 15, 2005
7:29 am est
A relatively low level of violence
and high voter turnout suggest that this election, like the interim election a few months ago, will be a success for the
Iraqi people and the prospects for establishing a secure and democratic government in Iraq.
All this good news prompts Peggy Noonan to ask if American has "turned a corner
" in Iraq. She begins with the premise that Bush faced a difficult choice in the decision to go to war:
Do nothing about Saddam, or nothing that hasn't been done before, and you keep in place a personally unstable dictator
who has declared himself an avowed enemy of America, who will help and assist its foes at a crucial time, and who has developed
and used in recent memory and against his own citizens weapons of mass destruction. Do nothing and you face the continuance
of a Mideast status quo encrusted by cynicism and marked by malignancy.
But remove Saddam and you face the cost in blood and treasure of invasion, occupation and the erection of democracy.
It's all a great gamble. It could end with the yielding up of a new ruling claque as bad as or worse than the one just replaced.
You could wind up thinking you'd bitten off more than you could chew and were trying to swallow more than you could digest.
No matter what Mr. Bush chose, what decision he made, he would leave some angry and frustrated. No matter what he did,
the Arab street would be restive (it is a restive place) the left would be angry (rage is their ZIP code, where they came
from and where they live), and Democrats would watch, wait, offer bland statements and essentially hope for the worst. Imagine
a great party with only one leader, Joe Lieberman, who approaches the question of Iraq with entire seriousness. And imagine
that party being angry with him because he does.
But ultimately, this war is not about George Bush. It is about a new start for the people of Iraq and the
prospects of progress for the entire region.
Wednesday, December 14, 2005
ATRA Releases Judicial Hellholes 2005
8:22 am est
The ATRA's 2005 report on "judicial hellholes" was released yesterday
. While Madison County, Illinois remains on the list, it has fallen a few space since last year, suggesting some improvement.
You can find the full report here
Tuesday, December 13, 2005
The Scandals of Ralph Reed
7:50 am est
The Nation is covering the developing Abramoff/Reed scandals and in its most recent article
highlights their connection to Georgia.
Reed is the current front-runner for the Republican nomination for Lieutenant Governor. The leading Democratic
challenger, Greg Hecht
, has been using the scandals to pummel Reed in the polls, with some of those polls now showing that Reed has higher negatives
While the Nation takes the low road, emphasizing Reed's connection to the scandals, Hecht deserves more than that.
Greg is a friend of mine of long standing and has an innovative, business-friendly approach that his Democratic colleagues
would do well to imitate.
Saturday, December 10, 2005
Balancing the Costs and Benefits of SarbOx
4:46 pm est
The New Yorker has an interesting thought piece
on the Sarbanes-Oxley Act of 2002. While James Surowiecki does a great job of describing the social (or deadweight)
costs of corporate fraud, I think it remains to be seen whether the costs of SOX compliance are indeed outweighed by its fraud
To the contrary, it is more likely than not that the law would not have prevented some of the more notorious corporate
scandals in recent memory.
The chicanery at Enron was intentional on the part of those officers most in the know. They already knew that their
financials feel short of the requirements of GAAP and the CFO's certification that the financials were in accordance
with GAAP was false. How would SOX's section 404 certification process have stopped them?
Thursday, December 8, 2005
Bush Approval Ratings "Improve Markedly"
7:57 am est
According to the NY Times,
rising 5 points from the all-time low reached just a few weeks ago.
Wednesday, December 7, 2005
Critical Acclaim for Spielberg's "Munich"
8:11 am est
"Munich" is a poignant political masterpiece that will no doubt be very controversial. It's the best movie of 2005, coming
in at the last minute to best other terrific entries including "Walk the Line," "Match Point," "Capote," "Mrs. Henderson Presents,"
"Good Night, and Good Luck," "A History of Violence" and even "Memoirs of a Geisha."
Is Cameron the Tories' Tony Blair
7:41 am est
Cameron threw away his notes and did a Liddy Dole, walking around the stage and speaking apparently from the heart. Everyone
agreed it was brilliant, and the delegates responded with fervent enthusiasm. The media reported that he had given the Tory
A cool reading of the speech shows that it was devoid of argument and composed largely of optimistic cliches. Still,
Cameron has continued in this successful vein, refusing to offer substantive policies on the grounds that a general election
is four years away and it is too soon to commit himself on specifics.
Instead, he offered himself to the Tories as a new style of "modernizing" leader, in tune with the new multicultural
Britain and the younger generation. He took this posture to the extreme of reprimanding Davis for proposing a crackdown on
the yobbish drunkenness that is turning Britain's city centers into weekend fiestas of violence. Much of what Davis was saying,
he retorted, was simply young people having a good time.
Since yobbishness is one of the hottest topics in politics -- and the reason why Blair has proposed his "Respect" agenda
of restoring decency to Britain's streets -- this reprimand seemed like a gaffe by any standards. But Cameron does not seem
to have suffered from it. The Tory party faithful raised no objection. And the media took a tolerant attitude as well.
Indeed, the media -- especially the younger political correspondents -- are almost the second pillar of the Cameron coalition.
Cameron was briefly in the television business and he is distinctly media savvy. They like his relaxed style and, even when
they lean leftwards, they apparently prefer it to the more traditional style of his likely opponent, Brown. And they look
forward to a titanic battle of style between them.
Thus, Rachel Sylvester, a columnist in the London Daily Telegraph, contrasted the two men Monday to Cameron's distinct
advantage: "As a politician, Mr. Brown dislikes the new celebrity style of politics, what he calls 'all that touchy-feely
stuff'; he has never posed for a photograph with his son, John, since he took him home from hospital when he was only hours
old. He thinks Parliament should be treated with more respect and he wants his party to rediscover an understanding of the
past. His version of Britishness is more empire than Cool Britannia. He wants history lessons to be compulsory in schools
until the age of 16.
"Mr. Cameron ... wants a new style of politics, more consensual, less Punch and Judy. He prefers the 'can do' optimism
of 'The West Wing' to the British cynicism of 'Yes, Prime Minister.' [I]t was natural to him to create the perfect photo opportunity
after his conference speech by patting his pregnant wife's stomach. In his view, his party should represent the future, not
The Road Ahead for Britain's Tories
7:34 am est
Newly-elected party leader David Cameron has a long way to go
in reforming Britain's conservative party.
Polls in the U.K. suggest that public support for any given policy drops by 50% when those polled learn that the conservatives
support the policy. Thus conservative policies are held hostage by conservatives.
Tuesday, December 6, 2005
Turley and Taylor Agree on Parental Notification Case
12:46 pm est
Thus pro-choice advocates find themselves besieged on both sides in the case of Ayotte v. Planned Parenthood
, recently argued before the supreme Court. The case pits a New Hampshire law requiring that doctors notify at least
one parent of a minor patient before performing an abortion unless the delay would result in harm to the patient's health.
As Taylor notes, Planned Parenthood opposes any restriction on abortion, arguing that limitation on abortion rights "turns
back the clock".
But Turley, who describes himself as a "pro-choice liberal" demonstrates that Planned Parenthood is outside the mainstream
in opposing parental notification laws, as a solid majority of citizens (including those who favor abortion rights generally)
prefer that minors be required to notify their parents.
Turley strikes a more philosophical tone when he contrasts the absolutist claims of pro-choice advocates with our Constitutional
tradition of balancing rights. He writes:
The Framers forged a system protecting individual rights while recognizing legitimate countervailing interests of the
state. In that balanced system, even such fundamental rights as the freedom of speech and free press, association and religion
have been subject to some limitations.
Not long ago I suggested
that one partial resolution of the abortion rights imbroglio might be found in a balancing of individual rights with the
interests of society's other members. Professor Turley reminds that, in addition to society's interest in the health
of the fetus, that parents have an interest in the health of their daughters (and their fetuses) as well.
The polls cited by Turley suggest that the public recognizes the validity of parental rights and would find Constitutional
those statutes that try, as New Hampshire's does, to balance the rights of parents with the rights of minors seeking an abortion.
Tories Try Compassionate Conservatism
11:13 am est Newly-elected
Tory leader David Cameron vows to make the British conservative party more "compassionate" than in years past.
Securities Class Action Litigation Fails to Compensate Investors
8:02 am est
Monday, December 5, 2005
Not Afraid of Execution
1:22 pm est
Saddam Hussein interrupted his trial today with an outburst
in which he claimed he was "not afraid" of execution.
That makes two of us. I am also not afraid of Saddam's execution.
Tookie's Red, White and Blue Legacy
12:59 pm est
The neighborhood in which I was born is decked out in red, white and blue - but there's nothing patriotic about it. The
red, as seen on a gang assessment map, is Bloods territory. The white signifies "neutral" areas. And the swaths of blue designate
* * *
Whether Williams is truly reformed will never be known. It's hard to judge whether he regrets his actions, or regrets
that those actions landed him in San Quentin. What is known is the blue and red turf that has dyed our streets in blood.
If Williams is denied clemency, his advocates will weep. Regardless, many of us will be weeping for his four nearly forgotten
victims, as well as for a Los Angeles forever marred by the Crips. I've heard about a more peaceful time on my native turf
from older generations. I would have liked to have seen it myself.
Al Sharpton's Sitcom
8:30 am est
Looking for creative outlets after
his failed 2004 Presidential campaign, Al Sharpton has announced that he is launching a sitcom to be titled “Al and the Family”. According to Sharpton, he will play himself in the show: “I am the center of a family with different social and political views and we crack jokes
and confront each other but are a family.”
Sources close to Sharpton offer
just a few hints of the first season’s story lines:
high school-aged daughter comes home with an “F” in Algebra, Al enlists the aid of his next-door neighbor, Mr Koizumi, only
to get egg on his face when he realizes that his Japanese-American friend is not really so good at math.
Al panics when he gets an IRS
audit and he is forced to hire an accountant – Shlomo Fierstein (played by Jackie Mason) – to defend the audit. Al is forced to pay back taxes when he learns that track
suits are not deductible.
Hilarity ensues when Al accuses
the local quickie-mart of discrimination, leading Al to stage a protest march where his cigar “accidentally” sets fire to
Mr. Kim’s store. All’s well that end’s well, however, when Mr. Kim learns it
was just a big mistake.
Tawana Brawley could not be reached for comment.
Friday, December 2, 2005
8:05 am est
With just six days to go before a clemency hearing, the pundits are in full roar from every angle in L'Affaire de Tookie
Mark Essig touts the Hollywood line in the NY Times
, claiming that Williams has redeemed himself by eschewing violence and writing childrens' books with anti-gang messages.
opposes the death penalty for everyone, but finds it hard to generate sympathy for a convict like Williams whose gang legacy
lives on today despite the glittering array of movie star elites who flog for clemency in his case.
E.J. Dionne never mentions Williams in his piece in the Washington Post
, but it's hard not to see the connection in his coverage of Virginia Governor Mark Warner's decision to grant clemency in
a death row appeal and the political impact of that decision on Warner's possible candidacy in 2008.
Pouting Partisan Pundits
7:46 am est Brian Wesbury
accurately notes how every piece of economic news in the past year seems to have been given a negative spin in the mainstream
- The unemployment rate is only 5% and real GDP is growing a remarkable 3.7% but almost 43% of Americans think a recession
- The U.S. trade deficit has expanded, but the dollar is up 10% against the euro in the last eight months.
By every measure, the economy is better now than it was during the Clinton boom years of 1992-2000. While much
of the Clinton boom was illusory, stemming from an overheated stock market that created jobs and income that vanished in 2000-2001,
our economy today is growing steadily without any evidence of a speculative bubble in stock prices.
But what is the cause of this pessimism? Is it merely the hangover of 9/11 and anxiety over the Afghan and Iraqi
During the impeachment crisis of the late 1990s many pundits warned against pursuing impeachment on the theory that any
instability in the administration might jeopardize the booming economy, as if Bill Clinton were personally responsible for
a climbing stock market.
Few make the analogous argument today that criticizing the Bush administration and calling for a rapid pull-out from
Iraq might dampen investor and consumer confidence.
Thursday, December 1, 2005
Abortion Rights, Liberty and the Alito Nomination
1:57 pm est
Two recent columns about the Alito
nomination and the question of abortion rights raise some interesting philosophical questions.
George Will , never one to shy away from literary reference, hearkens back to John Stuart
Mill’s seminal work, On Liberty, and its famous quotation:
“The only purpose for which power
can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Will argues that this libertarian
sentiment has been exploited through Roe v. Wade to create a view on abortion that is almost “utterly unrestricted”.
From an entirely separate vantage
point, Dalton Conley writes that if men must be
financially responsible for their children (as virtually all states impose financial obligations on biological fathers and
the science of genetic testing makes it possible to determine paternity beyond doubt) shouldn’t biological fathers have some
role in a decision to terminate a pregnancy?
Both Will and Conley, of
course, write with reference to Judge Alito’s (ultimately overturned) opinion in Planned Parenthood v. Casey in which
Judge Alito, writing for the Third Circuit, held that the State of Pennsylvania had a “legitimate interest in furthering the
husband’s interest in the fate of the fetus” and therefore upheld the constitutionality of a Pennsylvania statute that required
a pregnant wife to inform her husband of a planned abortion.
While Mill, by 1859, was able
to posit an idea of liberty that meant the absence of restraint on individual determination, Edmund Burke, writing in the wake of the French Revolution, saw liberty as an outgrowth of
“Whatever each man can separately
do, without trespassing upon others, he has a right to do for himself; and he has a right to a fair portion of all which society,
with all its combinations of skill and force, can do in his favor. In this partnership all men have equal rights, but not
to equal things. He that has but five shillings in the partnership has as good a right to it as he that has five hundred pounds
has to his larger proportion. But he has not a right to an equal dividend in the product of the joint stock; and as to the
share of power, authority, and direction which each individual ought to have in the management of the state, that I must deny
to be amongst the direct original rights of man in civil society; for I have in my contemplation the civil social man, and
no other. It is a thing to be settled by convention.”
For this reason, Burke concluded,
individuals obtain liberties because they are part of a civil society that imposes obligations on them. Without assuming the obligations of civil society, an individual cannot suppose to have liberties.
Mill’s argument, however, was
that injustice would result if government power was imposed without consent over “any member of a civilized community.” But would Mill have agreed that justice was not offended by the imposition of power
over persons outside of a “civilized community” or upon communities that are not “civilized”?
If so, what elements of civilization would have been necessary?
These philosophical questions
are intractable and I wouldn’t presume to offer a solution to the question of abortion itself but the notion of liberty that
some offer as a norm for today – liberty unbounded by responsibility and unlimited by social restraint or obligation – seems
to contrast sharply with the notion of liberty suggested by both Burke and Mill.
The libertarian view of
freedom imagines humans who make decisions in a vacuum of social ties and obligations.
In our experience, however, we find no humans who are utterly devoid of at least some semblance of what Burke called
If liberty is the
fruit of social conventions, of which the law is a part, perhaps one solution to the political and legal problem of abortion
is one that recognizes society’s interest in the health of the child. If so,
perhaps Judge Alito’s conclusion that the State
had a “legitimate interest in furthering the husband’s interest in the fate of the fetus” is not so shocking after all.
Phone: 404-353-4833 | email@example.com
Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP. Jonathan B. Wilson
provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters,
intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters,
outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded