Top 10 Topics for Directors in 2014 | Akin Gump Strauss Hauer & Feld LLP - JDSupra

see - Top 10 Topics for Directors in 2014 | Akin Gump Strauss Hauer & Feld LLP - JDSupra


"x x x.

Top 10 Topics for Directors in 2014 -

U.S. public companies face a host of challenges as they enter 2014. Here is our list of hot topics for the boardroom in the coming year:

1. Oversee strategic planning amid continuing fiscal uncertainty and game-changing advances in information technology

2. Address cybersecurity

3. Set appropriate executive compensation as shareholders increasingly focus on pay for performance and activists target pay disparity

4. Address the growing demands of compliance oversight

5. Assess the impact of health care reform on the company’s benefit plans and cost structure

6. Determine whether the CEO and board chair positions should be separated

7. Ensure appropriate board composition in light of increasing focus on director tenure and diversity

8. Cultivate shareholder relations and strengthen defenses as activist hedge funds target more companies

9. Address boardroom confidentiality

10. Consider whether to adopt a forum selection bylaw

Please see full alert below for more information.

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September 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG

see - September 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG


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Attorney; Attorney’s Fees. The case initially concerned the execution of a final decision with the Court of Appeals in a labor litigation. Petitioner Malvar, however, entered into a compromise agreement with the respondents pending appeal without informing her counsel. Malvar’s counsel filed a Motion to Intervene to Protect Attorney’s Rights.

The Supreme Court, on considerations of equity and fairness, disapproved of the tendencies of clients compromising their cases behind the backs of their attorneys for the purpose of unreasonably reducing or completely setting to naught the stipulated contingent fees. Thus, the Court granted the Motion for Intervention to Protect Attorney’s Rights as a measure of protecting the Intervenor’s right to his stipulated professional fees. The Court did so in the interest of protecting the rights of the practicing Bar rendering professional services on contingent fee basis.

Although the compromise agreement was still approved by the Court, the payment of the counsel’s adequate and reasonable compensation could not be annulled by the settlement of the litigation without the counsel’s participation and conformity. He remains entitled to the compensation, and his rights are safeguarded by the Court because its members are officers of the Court who are as entitled to judicial protection against injustice or imposition of fraud committed by the client as much as the client is against their abuses as her counsel. In other words, the duty of the Court is not only to ensure that the attorney acts in a proper and lawful manner, but also to see to it that the attorney is paid his just fees. Even if the compensation of the attorney is dependent only on winning the litigation, the subsequent withdrawal of the case upon the client’s initiative would not deprive the attorney of the legitimate compensation for professional services rendered. Czarina T. Malvar v. Kraft Foods Phils., Inc., et al., G.R. No. 183952, September 9, 2013.

Attorney; Attorney-Client Relationship. A disbarment complaint was filed against respondent Atty. Ramos for representing conflicting interests in the same case. The Supreme Court held that Atty. Ramos violated Rule 15.03 of Canon 15 of the Code of Professional Responsibility. Under the afore-cited rule, it is explicit that a lawyer is prohibited from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or on totally unrelated cases. The prohibition is founded on the principles of public policy and good taste. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount interest in the administration of justice. Atty. Ramos’ justification that no confidential information was relayed to him is not an excuse since the rule on conflict of interests provides an absolute prohibition from representation with respect to opposing parties in the same case. Thus, a lawyer cannot change his representation from one party to the latter’s opponent in the same case. Joseph L. Orola, et al. v. Atty. Joseph Ador Ramos, A.C. No. 9860, September 11, 2013.

Attorney; Gross Misconduct. The Supreme Court held that Atty. Alcid, Jr. violated Canon 18 and Rules 18.03 and 18.04 of the Code of Professional Responsibility. Atty. Alcid, Jr. violated his oath under Canon 18 to “serve his client with competence and diligence” when he filed a criminal case for estafa when the facts of the case would have warranted the filing of a civil case for breach of contract. To be sure, after the complaint for estafa was dismissed, Atty. Alcid, Jr. committed another similar blunder by filing a civil case for specific performance and damages before the RTC, when he should have filed it with the MTC due to the amount involved. Atty. Alcid, Jr. did not also apprise complainant of the status of the cases. Atty. Alcid, Jr. is not only guilty of incompetence in handling the cases. His lack of professionalism in dealing with complainant is gross and inexcusable. The legal profession dictates that it is not a mere duty, but an obligation, of a lawyer to accord the highest degree of fidelity, zeal and fervor in the protection of the client’s interest. The most thorough groundwork and study must be undertaken in order to safeguard the interest of the client. Atty. Alcid, Jr. has defied and failed to perform such duty and his omission is tantamount to a desecration of the Lawyer’s Oath. Julian Penilla v. Atty. Quintin P. Alcid, Jr., A.C. No. 9149, September 4, 2013.

Attorney; Practice of Law. Petitioner Medado passed the bar examinations in 1979. He took the Attorney’s Oath thereafter, and was scheduled to sign the Roll of Attorneys, but failed to do so because he had misplaced the Notice to Sign the Roll of Attorneys. Several years later, he found such Notice and realized he never signed the Roll of Attorneys. Medado filed this Petition to allow him to sign in the Roll of Attorneys. The Supreme Court held that while an honest mistake of fact could be used to excuse a person from the legal consequences of his acts as it negates malice or evil motive, a mistake of law cannot be utilized as a lawful justification, because everyone is presumed to know the law and its consequences. Knowingly engaging in unauthorized practice of law transgresses Canon 9 of the Code of Professional Responsibility. Such Canon also applies to law students and Bar candidates. Medado was imposed a penalty akin to suspension by allowing him to sign one (1) year after receipt of the Court’s Resolution. In Re: Petition to Sign in the Roll of Attorneys, B.M. No. 2540, September 24, 2013.

Court Personnel; Gross Dishonesty; Gross Misconduct. The audit team discovered cash shortages in the books of accounts of the Office of the Clerk of Court, RTC, Lipa City. As clerk of court, Atty. Apusen is primarily accountable for all funds collected for the court, whether personally received by him or by a duly appointed cashier who is under his supervision and control. As custodian of court funds, revenues, records, properties and premises, he is liable for any loss, shortage, destruction or impairment of said funds and properties. Being a cash clerk, Savadera is an accountable officer entrusted with the great responsibility of collecting money belonging to the funds of the court. Clearly, she miserably failed in such responsibility upon the occurrence of the shortages. The Supreme Court held that no position demands greater moral righteousness and uprightness from its holder than a judicial office. Those connected with the dispensation of justice, from the highest official to the lowliest clerk, carry a heavy burden of responsibility. As frontliners in the administration of justice, they should live up to the strictest standards of honesty and integrity. They must bear in mind that the image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women who work there. Office of the Court Administrator v. Donabel M. Savadera, et al., A.M. No. P-04-1903, September 10, 2013.

Judge; Delay in deciding cases. Judge Lazaro was accused of undue delay in the resolution of the Motion to Dismiss a civil case considering that she had resolved the Motion to Dismiss beyond the 90-day period prescribed for the purpose without filing any request for the extension of the period. The Supreme Court held that the 90-day period within which a sitting trial Judge should decide a case or resolve a pending matter is mandatory. If the Judge cannot decide or resolve within the period, she can be allowed additional time to do so, provided she files a written request for the extension of her time to decide the case or resolve the pending matter. The rule, albeit mandatory, is to be implemented with an awareness of the limitations that may prevent a Judge from being efficient. Under the circumstances specific to this case, it would be unkind and inconsiderate on the part of the Court to disregard Judge Lazaro’s limitations and exact a rigid and literal compliance with the rule. With her undeniably heavy inherited docket and the large volume of her official workload, she most probably failed to note the need for her to apply for the extension of the 90-day period to resolve the Motion to Dismiss. Danilo E. Lubaton v. Judge Mary Josephine P. Lazaro, Regional Trial Court, Br. 74, Antipolo, Rizal, A.M. RTJ-12-2320, September 2, 2013.

Judge; Delay in deciding cases. Judge Baluma was asked to explain his failure to act on the twenty-three (23) cases submitted for decision/resolution. The Supreme Court held that it has consistently impressed upon judges the need to decide cases promptly and expeditiously under the time-honored precept that justice delayed is justice denied. Every judge should decide cases with dispatch and should be careful, punctual, and observant in the performance of his functions for delay in the disposition of cases erodes the faith and confidence of our people in the judiciary, lowers its standards and brings it into disrepute. Failure to decide a case within the reglementary period is not excusable and constitutes gross inefficiency warranting the imposition of administrative sanctions on the defaulting judge. Judge Baluma’s gross inefficiency, evident in his undue delay in deciding 23 cases within the reglementary period, merits the imposition of administrative sanctions. Re: Cases Submitted for Decision before Hon. Teofilo D. Baluma, Former Judge, Branch 1, Regional Trial Court, Tagbilaran City, Bohol, A.M. No. RTJ-13-2355, September 2, 2013.

Judge; Gross Inefficiency. Judge Soriano failed to decide thirty-six (36) cases submitted for decision in MTC and MTCC, which were all due for decision at the time he compulsorily retired. The Supreme Court held that Judge Soriano has been remiss in the performance of his judicial duties. Judge Soriano’s unreasonable delay in deciding cases and resolving incidents and motions, and his failure to decide the remaining cases before his compulsory retirement constitutes gross inefficiency which cannot be tolerated. Inexcusable failure to decide cases within the reglementary period constitutes gross inefficiency, warranting the imposition of an administrative sanction on the defaulting judge. Judge Soriano’s inefficiency in managing his caseload was compounded by gross negligence as evinced by the loss of the records of at least four (4) cases which could no longer be located or reconstituted despite diligent efforts by his successor. Judge Soriano was responsible for managing his court efficiently to ensure the prompt delivery of court services, especially the speedy disposition of cases. Thus, Judge Soriano was found guilty of gross inefficiency and gross ignorance of the law, and fined P40,000 to be taken from the amount withheld from his retirement benefits. Office of the Court Administrator v. Hon. Santiago E. Soriano, A.M. No. MTJ-07-1683, September 11, 2013.

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Is Corona entitled to retirement pay? BY CARMELA FONBUENA POSTED ON 12/02/2013 10:13 AM | UPDATED 12/02/2013 3:21 PM

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MANILA, Philippines — It's the Supreme Court's unfinished business with dismissed Chief Justice Renato Corona. The en banc is expected to discuss next month, January 2014, if he is entitled to a retirement pay, according to a source in the High Court.

The High Court was originally scheduled to tackle the matter next week, December 10, but the justices decided to postpone it.

Rappler learned that in a letter he sent to the Court middle of this year, Corona asked his former colleagues to allow the release of his retirement pay. If he did not send the letter, the Court would have no reason to discuss the matter.

An appointee of former President Gloria Macapagal-Arroyo, Corona still has friends in the High Tribunal. The Court is still dominated by Arroyo appointees.

On Sunday, December 1, a group of former senior government officials slammed the supposed P50-million retirement pay that Corona was asking for. "Is Justice Corona really claiming P50 million as his retirement pay? How is the amount computed, and where is the source of funding?," reads the FSGO statement signed by former education secretary Edilberto de Jesus, former civil service commission chairperson Karina Constatino-David, former finance secretary Jesus Estanislao, and former education undersecretary Isagani Cruz. (READ: Take 'principled stand' on Corona retirement case)

Corona denied he's asking for P50M, but he was silent on whether he indeed asked the Court to grant him retirement pay. The P50M is the same amount that senators who voted to convict Corona supposedly received after the trial. (READ: There was P50M but not for Corona conviction)

"The [FSGO] statement is untrue," Corona said in a statement sent to reporters on Monday, December 2. "I do not know of anybody in government who ever received that kind of retirement pay."

Lawyers familiar with the issue estimated that Corona's retirement pay would amount to a lump sum of P20 million.

The basic issue however is whether or not he is entitled to one.

Dismissed judges and justices are not entitled to a retirement pay, according to lawyers. The FSGO stressed Corona should not be an exemption. It pointed out that the Salary Standarization Law prescribes a uniform system for determining compensation and benefits awarded to public officials.

"He did not retire. He was thrown out of office. He has not been accepted into the Association of Retired Justices," the FSGO argued.

The group also cited the case of Davao clerk of court Delsa Flores, who was denied her retirement benefits in 1997 for failing to disclose ownership of a public market stall in her Statement of Assets, Liabilities and Net Worth (SALN). Her case was mentioned in a speech by President Benigno Aquino III in February 2012 and cited during the Corona impeachment trial that followed.

On May 29, 2012, the Senate, sitting as an impeachment court, convicted Corona for his his failure to declare his assets in his SALN. The ruling led to his dismissal - a first of its kind in Philippine history.

The possible forfeiture of his benefits was immediately raised after his conviction.

During the impeachment trial, Corona admitted to dollar deposits totalling to at least US$2.4 million. The money was not declared in his SALN. There were other allegations against Corona in the impeachment complaint but the prosecutors focused on his bank deposits.

Over a year since his removal, Corona is still facing various cases and probes including tax evasion. (READ: Corona finally faces probers in tax case) —Rappler.com.

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See - http://www.rappler.com/nation/45019-corona-retirement-pay

Criminal case; when appeal is to be taken.

Section 6, Rule 122 of the Revised Rules of Criminal Procedure provides that an appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. In this case, the judgment convicting the petitioner of the crime of Estafa was promulgated on March 25, 2009. Instead of filing a notice of appeal within fifteen (15) days from the promulgation or notice of judgment, the petitioner filed with the Regional Trial Court (RTC) a motion to lift warrant of arrest and to reinstate bail bond three (3) months later. It was only in November 2010 or more than a year later since the RTC denied her motion that the petitioner filed with the Court of Appeals (CA) her motion to admit notice of appeal. At that point, her judgment of conviction has already attained finality and cannot be modified or set aside anymore in accordance with Section 7, Rule 120 of the Revised Rules of Criminal Procedure. Thus, the CA did not commit any reversible error in denying the petitioner’s motion inasmuch as by the time the petitioner filed the same, the appellate court was already bereft of any jurisdiction to entertain the motion. 

- Anita Ramirez v. People of the Philippines,G.R. No. 197832, October 2, 2013. Lexoterica.

Rape; statutory rape; elements.

Rape of a minor under 12 years of age is statutory rape. The elements of statutory rape are that: (a) the victim is a female under 12 years or is demented; and (b) the offender has carnal knowledge of the victim. Neither the use of force, threat or intimidation on the female, nor the female’s deprivation of reason or being otherwise unconscious, nor the employment on the female of fraudulent machinations or grave abuse of authority is necessary to commit statutory rape. In statutory rape, there are only two elements that need to be established, to wit: 1) carnal knowledge or sexual intercourse; and 2) that the woman is below 12 years of age. In this case, the prosecution satisfactorily established the fact of carnal knowledge. It is likewise beyond dispute that “AAA” was only 11 years of age at the time she was raped. Her Certificate of Live Birth showed that she was born on November 26, 1992. The lower courts therefore correctly held appellant guilty of the crime of statutory rape and imposed upon him the penalty of reclusion perpetua. 

- People of the Philippines v. Rodolfo De Jesus y Mendoza, G.R. No. 190622, October 7, 2013. Lexoterica.