DOCSLIB.ORG

Products Liability and Basic Tort Law Kotler 00 Fmt Auto4 05.02.2005 1:33 PM Page Ii Kotler 00 Fmt Auto4 05.02.2005 1:33 PM Page Iii

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Products Liability and Basic Tort Law Kotler 00 Fmt Auto4 05.02.2005 1:33 PM Page Ii Kotler 00 Fmt Auto4 05.02.2005 1:33 PM Page Iii kotler 00 fmt auto4 05.02.2005 1:33 PM Page i Products Liability and Basic Tort Law kotler 00 fmt auto4 05.02.2005 1:33 PM Page ii kotler 00 fmt auto4 05.02.2005 1:33 PM Page iii Products Liability and Basic Tort Law Martin A. Kotler Professor of Law Widener University Carolina Academic Press Durham, North Carolina kotler 00 fmt auto4 05.02.2005 1:33 PM Page iv Copyright © 2005 Martin A. Kotler All Rights Reserved ISBN LCCN Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America kotler 00 fmt auto4 05.02.2005 1:33 PM Page v To Melinda kotler 00 fmt auto4 05.02.2005 1:33 PM Page vi kotler 00 fmt auto4 05.02.2005 1:33 PM Page vii Contents Acknowledgments xix Table of Cases xxi Chapter 1 Negligence 3 1.1 Introduction: Sources of Law 3 1.2 Common-Law Negligence 5 1.2.1 The Standard of Conduct: The Reasonable Person Standard 6 1.2.1.1 Imputed Knowledge: Defendants Held to “Expert” Standard 8 1.2.2 The “Delegation” Problem in Negligence Cases 9 1.2.3 Balancing Approaches to Determine Reasonableness 13 1.2.3.1 Risk-Utility Analysis 13 1.2.3.2 Cost-Benefit Analysis 14 1.2.4 The Concepts of Reasonableness and Rationality: An Economic Approach to Negligence Law 15 1.3 Negligence Per Se 18 1.4 Due Care Per Se 27 Chapter 2 Misrepresentation 29 2.1 Introduction: Forms of Tortious Misrepresentation 29 2.2 Fraudulent Misrepresentation (Common Law Deceit) 29 2.2.1 False Representation of Material Fact 30 2.2.1.1 False Representation 30 2.2.1.2 “Mere” Nondisclosure 31 2.2.1.3 Materiality 32 2.2.1.4 The Fact—Opinion Distinction 33 2.2.2 Scienter 34 2.2.3 Intent to Induce Reliance 36 2.2.3.1 Direct and Indirect Misrepresentation 37 2.2.3.2 Reliance by One Other than the Plaintiff 38 2.2.3.3 Intent to Defraud the Plaintiff 39 2.2.3.4 Fraud on Regulatory Agencies 40 2.2.4 Causation: The Detrimental Reliance Requirement 41 2.2.4.1 Reasonable or Justifiable Reliance 43 2.2.5 Damages 47 2.2.5.1 Benefit of the Bargain 48 2.2.5.2 Out of Pocket 48 2.2.5.3 A Compromise Approach 49 2.2.5.4 Consequential Damages 50 vii kotler 00 fmt auto4 05.02.2005 1:33 PM Page viii viii CONTENTS 2.2.6 Defenses 52 2.3 The Negligence—Fraud Intersection 53 2.4 Negligent Misrepresentation 55 2.4.1 Duty 56 2.4.1.1 Personal Injury-Property Damage Cases 56 2.4.1.2 Pecuniary Loss Cases 57 2.4.1.2.1 Persons to Whom a Duty is Owed 58 2.4.1.2.2 Who Owes a Duty and the Nature of the Underlying Transaction 59 2.4.2 Breach 61 2.4.3 Causation 62 2.4.3.1 Reliance 62 2.4.3.2 Reasonable or Justifiable Reliance 63 2.4.4 Damages 64 2.4.5 Defenses 65 2.4.5.1 Contributory/Comparative Negligence 65 2.4.5.2 Voluntary Assumption of Risk 66 2.5 Strict Liability for Innocent Misrepresentation 67 2.5.1 Duty Issues 68 2.5.2 False Representation of Material Fact 68 2.5.2.1 The Fact—Opinion Distinction 69 2.5.2.2 Public Misrepresentations 69 2.5.3 Scienter 70 2.5.4 Reasonable or Justifiable Reliance 70 2.5.5 Damages 72 2.5.6 Defenses 72 2.6 Misrepresentation under the Products Liability Restatement 73 Chapter 3 Breach of Warranty 75 3.1 Introduction 75 3.2 The Vertical Privity Problem 76 3.3 Horizontal Privity 79 3.4 Tort and Contract: The Scope of the Code 81 3.5 Express Warranty 84 3.5.1 Affirmations, Promises, Descriptions and Models or Samples 84 3.5.1.1 Affirmations, Promises and Descriptions 84 3.5.1.2 Models and Samples 87 3.5.2 Basis of the Bargain 88 3.5.2.1 Reliance Required 89 3.5.2.2 Post-Sale Statements as Contract Modifications 90 3.5.2.3 Reliance Unnecessary or Burden Shifts 91 3.5.2.4 2003 Revisions 91 3.5.2.5 The “Sales Puff” Problem 92 3.5.3 Adoption of Warranties 93 3.6 Implied Warranty of Merchantability 95 3.6.1 In General 95 3.6.2 “Merchant with Respect to Goods of that Kind” 96 3.6.3 Merchantability 98 3.6.3.1 “Pass without Objection in the Trade” 98 kotler 00 fmt auto4 05.02.2005 1:33 PM Page ix CONTENTS ix 3.6.3.2 “Fair Average Quality” 100 3.6.3.3 “Fit for the Ordinary Purpose for which Such Goods Are Used” 100 3.6.3.4 “Run...ofEven Kind, Quality and Quantity” 103 3.6.3.5 “Adequately Contained, Packaged, and Labeled” and “Conform to the Promise or Affirmation of Fact Made on the Container or Label” 103 3.6.3.6 “Course of Dealing or Usage of Trade” 104 3.7 Implied Warranty of Fitness for Particular Purpose 106 3.7.1 Reliance 107 3.7.2 Ordinary Purpose and Particular Purpose 108 3.8 Disclaimers 109 3.8.1 Disclaiming Written Express Warranties 110 3.8.2 Disclaiming Oral Express Warranties 110 3.8.3 Disclaiming Implied Warranties 111 3.8.3.1 Conspicuousness 111 3.8.4 “As Is” Disclaimers 113 3.8.5 Buyer’s Opportunity to Inspect 114 3.8.6 Restrictions on Disclaimers 115 3.8.6.1 Statutory Prohibition of Disclaimers in Consumer Sales 115 3.8.6.2 Unconscionability and Other Restrictions on Warranty Disclaimers 116 3.9 Notice of Breach 117 3.10 Remedies for Breach 119 3.11 Sellers’ Attempts to Limit Remedies 120 3.11.1 Attempts to Exclude Personal Injury from Consequential Loss 121 3.11.2 Refund, Repair or Replace Limitations 122 3.12 Statute of Limitations and Accrual of the Cause of Action 123 3.12.1 2003 Proposed Revisions 124 Chapter 4 Strict Liability in Tort 127 4.1 Introduction 127 4.2 Elements of the Strict Liability Cause of Action 131 4.2.1 Commercial Distribution of the Product by One in the Business 132 4.2.1.1 Defendant as a Commercial “Seller” 132 4.2.1.2 Commercial Distribution: Placing the Product in the Stream of Commerce 133 4.2.1.2.1 Sale or Commercial Lease 133 4.2.1.2.2 Products That Have Not Yet or Will Never Enter the Stream of Commerce 134 4.2.1.2.3 Parties Other Than Distributors 135 4.2.1.2.4 The Sales—Service Distinction 136 4.2.2 The Concept of “Defectiveness” 139 4.2.2.1 Intended and Foreseeable Uses and Abuses 140 4.2.2.1.1 The “Crashworthiness” Doctrine 141 4.2.2.1.2 Other Product Misuse Cases 142 4.2.2.1.3 Dismantling and Disposing of Products 143 4.2.3 Types of Defects 144 4.2.3.1 Manufacturing Defects 144 kotler 00 fmt auto4 05.02.2005 1:33 PM Page x x CONTENTS 4.2.3.2 Design Defects 145 4.2.3.2.1 Consumer Expectation Test 145 4.2.3.2.1.1 The Background: Escola and Greenman 145 4.2.3.2.1.2 Application of the Consumer Expectation Test 147 4.2.3.2.1.2.1 The Patent Danger Rule 148 4.2.3.2.1.2.2 Who Is “the Consumer?” 150 4.2.3.2.2 Risk-Utility Test 151 4.2.3.2.2.1 The Problem of Defining “Utility” 152 4.2.3.2.2.2 The Feasible (Reasonable) Alternative Design Requirement 154 4.2.3.2.2.2.1 The Feasibility of the Alternative Design: One View of the State of the Art Problem 157 4.2.3.2.2.3 The Strict Liability-Negligence Distinction 159 4.2.3.2.2.4 Hindsight and Foresight Approaches 160 4.2.3.2.2.4.1 The Unknowable Generic Risk Cases: Another View of the “State of the Art” Problem 162 4.2.3.2.2.4.2 Changes in Technology 165 4.2.3.2.2.5 The Delegability Problem in Design Cases 166 4.2.3.2.2.5.1 Finished Products 166 4.2.3.2.2.5.1.1 Single Use Products 166 4.2.3.2.2.5.1.2 Multi- Purpose Products 168 4.2.3.2.2.5.2 Unfinished Products 170 4.2.3.2.2.5.3 Raw Materials 171 4.2.3.2.3 Other Approaches to Design Defects 172 4.2.3.2.3.1 The Two-Prong Approach 172 4.2.3.2.3.2 The Products Liability Restatement Approach 176 4.2.3.2.3.3 The Pennsylvania Approach 178 4.2.3.3 Marketing Defects: Failure to Warn (Adequately) or Failure to Give (Adequate) Instructions 181 4.2.3.3.1 The Test for “Defect” 183 4.2.3.3.1.1 The Attempt to Use a Hindsight Approach 184 4.2.3.3.1.2 The Delegability Problem in Marketing Defect Cases 185 4.2.3.3.2 Common Warning and Instruction Breaches 187 4.2.3.3.2.1 Inadequate Display 187 4.2.3.3.2.2 Inadequate Content 189 kotler 00 fmt auto4 05.02.2005 1:33 PM Page xi CONTENTS xi 4.2.3.3.2.3 Inadequate Instructions for Safe Usage 190 4.2.4 Defining “Product” for Strict Liability Purposes 192 4.2.4.1 Realty 193 4.2.4.1.1 Conveyances of Realty as Product Sales 193 4.2.4.1.2 Sale of Building Components 194 4.2.4.2 Intangible Products 195 4.2.4.3 Used Products 198 Chapter 5 Duties and Immunities 203 5.1 Introduction 203 5.2 Duty: In General 204 5.3 “Rules” and “Standards” Approaches to Duty or “No-Duty” Decisions 207 5.4 Extension of the Foreseeability Principle: The Rescue Doctrine 210 5.4.1 The Fireman’s Rule 211 5.5 The Foreseeability Principle and Preconception Torts 212 5.6 Acts and Omissions 214 5.6.1 The Post-Sale Duty Cases: In General 215 5.6.1.1 Latent Defect or Danger at Point of Sale 217 5.6.1.2 Voluntary Assumption of Post-Sale Duty 219 5.6.1.3 Obligations Arising Out of Post-Sale Technological Advances 220 5.6.1.4 Duty to Respond to Post-Sale Information Regarding Misuse 221 5.6.2 Post-Sale Duty to Warn: Successor Corporations 223 5.7 Other Judicially Imposed Limitations 224 5.7.1 The Privity Doctrine 224 5.7.2 The Patent Danger Rule 227 5.7.3 The Duty Problem in Point-of-Sale Failure to Warn Cases 229 5.7.3.1 No Duty to Warn of Obvious or Generally Known Dangers 230 5.7.3.2 Dangers Actually Known 233 5.7.3.3 Duty to Warn Experts or Sophisticated Purchasers 235 5.7.3.4 Duty to Warn of Dangers of Using Another’s Product 238 5.7.3.5 Allergic Reactions (Other than Prescription Drugs) 240 5.8 Legislatively Imposed Limitations 243 5.8.1 The Workers’ Compensation Bar 243 5.8.1.1 The Intentional Harm Exception 244 5.8.1.2 The Dual Capacity Doctrine 246 5.8.2 Legislative Pre-Emption 249 5.8.2.1 Federal Pre-Emption: The Background 249 5.8.2.2 Cipollone v.
Load more

Recommended publications
  • Chicago Board Options Exchange Annual Report 2001
    01 Chicago Board Options Exchange Annual Report 2001 cv2 CBOE ‘01 01010101010101010 01010101010101010 01010101010101010 01010101010101010 01010101010101010 CBOE is the largest and 01010101010101010most successful options 01010101010101010marketplace in the world. 01010101010101010 01010101010101010 01010101010101010 01010101010101010 01010101010101010 01010101010101010ifc1 CBOE ‘01 ONE HAS OPPORTUNITIES The NUMBER ONE Options Exchange provides customers with a wide selection of products to achieve their unique investment goals. ONE HAS RESPONSIBILITIES The NUMBER ONE Options Exchange is responsible for representing the interests of its members and customers. Whether testifying before Congress, commenting on proposed legislation or working with the Securities and Exchange Commission on finalizing regulations, the CBOE weighs in on behalf of options users everywhere. As an advocate for informed investing, CBOE offers a wide array of educational vehicles, all targeted at educating investors about the use of options as an effective risk management tool. ONE HAS RESOURCES The NUMBER ONE Options Exchange offers a wide variety of resources beginning with a large community of traders who are the most experienced, highly-skilled, well-capitalized liquidity providers in the options arena. In addition, CBOE has a unique, sophisticated hybrid trading floor that facilitates efficient trading. 01 CBOE ‘01 2 CBOE ‘01 “ TO BE THE LEADING MARKETPLACE FOR FINANCIAL DERIVATIVE PRODUCTS, WITH FAIR AND EFFICIENT MARKETS CHARACTERIZED BY DEPTH, LIQUIDITY AND BEST EXECUTION OF PARTICIPANT ORDERS.” CBOE MISSION LETTER FROM THE OFFICE OF THE CHAIRMAN Unprecedented challenges and a need for strategic agility characterized a positive but demanding year in the overall options marketplace. The Chicago Board Options Exchange ® (CBOE®) enjoyed a record-breaking fiscal year, with a 2.2% growth in contracts traded when compared to Fiscal Year 2000, also a record-breaker.
    [Show full text]
  • Companies in Texas That Match Financial Donations
    COMPANIES IN TEXAS THAT MATCH FINANCIAL DONATIONS Abbott Laboratories Avery Dennison Chubb Group/Chubb & Sons Adobe Systems Avon Products (Federal Insurance) ADP Ball Cigna Advanced Micro Devices Bank One Dallas Circuit City Stores Aetna BankAmerica Cisco Systems AG Communication Systems Bankers Trust CIT Group Air & Water Technologies Baroid Citgo Petroleum Air Products & Chemicals BASF Citicorp/Citibank N.A. Albertson’s Baxter Citizens Ban Alco Standard Bechtel CJT Enterprises Alcoa Becton Dickinson Clarcor Alex Brown & Sons Beecham SmithKline Clark, Klein & Beaumont Allegheny Ludlum Bell & Howell Clorox Allstate BellSouth Coca-Cola Amcast Industrial Bemis Colgate-Palmolive American Electric Power Beneficial Comerica American Express BetzDearborn Computer Associates Intl American General Finance BF Goodrich Conoco American Home Products Bituminous Casualty Container American Honda Motor Bloomingdale’s Continental Airlines American Intl Group Boeing Continental Corp Insurance American National Bank & Trust Borden Cooper Industrial American Standard Borg-Warner Cooper Tire & Rubber American States Insurance BP America Corning Amerisure Companies Brenco Cray Research Ameritech Bridgestone/Firestone Credit Suisse AMI Bristol-Myers Squibb Crowe Horwath LLP Amoco Brunswick Crum & Foster AMP BT Cummins Engine Analog Devices Budget Rent-A-Car CUNA Group Andersons Management Bunge Cytec Industries Anheuser-Busch Burlington Northern Dain Bosworth/IFG A.O. Smith Cabot Darden Restaurants Aon Campbell’s Soup Datatel Apache Canada Ltd Candle DDB
    [Show full text]
  • NASD Notice to Members 98-47
    Executive Summary Interpretive Material 2310-3 (IM-2310- NASD On May 29, 1998, the Securities and 3) describes members’ suitability obli- Exchange Commission (SEC) gation in making recommendations to approved amendments to National institutional customers. The primary Notice to Association of Securities Dealers, considerations under IM-2310-3 Inc. (NASD®) Rule 3110 (the Books include the customer’s capability to and Records Rule) that (i) change evaluate risk independently and the Members the definition of “institutional account” extent to which individual judgment is to include the accounts of investment exercised when making investment 98-47 advisers that are now required to decisions. register with the states pursuant to the National Securities Markets Accounts Of Registered Improvement Act of 1996 (NSMIA), Investment Advisers and (ii) exclude certain customer SEC Approves Changes accounts from the requirement to NSMIA and new rules recently To Books And Records obtain certain tax and employment adopted by the SEC under the Requirements information from the customer. Investment Advisers Act of 1940 (Advisers Act) reallocated regulatory Questions concerning this Notice oversight of investment advisers may be directed to Joseph E. Price, between the SEC and the states. Counsel, Advertising/Investment Under the new rules, advisers to reg- Suggested Routing Companies Regulation, NASD Regu- istered investment companies and Senior Management lation, Inc., at (202) 728-8877 or those with assets under manage- Robert J. Smith, Assistant General ment of at least $25 million generally Advertising Counsel, Office of General Counsel, will register exclusively with the SEC. Continuing Education NASD RegulationSM, at (202) 728- Most others will register exclusively 8176.
    [Show full text]
  • ALLSTATE LIFE INSURANCE COMPANY (Exact Name of Registrant)
    As filed with the Securities and Exchange Commission on November 3, 2017 REGISTRATION NO. 333-220835 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ALLSTATE LIFE INSURANCE COMPANY (Exact Name of Registrant) ILLINOIS (State or other jurisdiction of incorporation or organization) 36-2554642 (I.R.S. Employer Identification Number) C/O ALLSTATE LIFE INSURANCE COMPANY 3075 SANDERS ROAD NORTHBROOK, ILLINOIS 60062 847/402-5000 (Address, including zip code, and telephone number, including area code, of principal executive offices) C T CORPORATION 208 South LaSalle Street Suite 814 Chicago, IL 60604 (312) 345-4320 (Name, address, including zip code and telephone number, including area code, of agent for service) COPIES TO: JAN FISCHER-WADE, ESQUIRE ALLSTATE LIFE INSURANCE COMPANY 2940 S. 84 th Street Lincoln, NE 68506-4142 Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement. EXPLANATORY NOTE This Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3, File No. 333-220835, includes facing pages and Part II, including exhibits. This Pre-Effective Amendment No. 1 incorporates by reference the supplements and prospectuses contained in the Form S-3 filed on October 5, 2017. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
    [Show full text]
  • SEC News Digest, 01-26-1990
    sec nas di ..est Issue 90 ..18 _ January 26, 1990 JAN 2 9 \990 ~.s.SECURITIES ANti ::Xaw«2 COMMISSION WEEKLY CALENDAR The following is a schedule of speaking engagements, Congressional testimony, Commission hearings and other public events involving the Commission for the week of January 29, 1990. (Commission Meetings are announced separately in the News Digest.) Thursday. February 1 * Chairman Breeden will testify before the Senate Subcommittee on Securities of the Senate Banking Committee on Thursday, February 1, beginning at 9:30 a.m. The subject of the hearing, which will be in Room 538 of the Dirksen Senate Office Building, is the Securities Law Enforcement Remedies Act. ·.·~RIM:[NAL••••••})iQc.lat·.G$· ••••·•••••••••·•••••·•·•.•.... QUILLIN PORTER SENTENCED The Fort Worth Regional Office and the U.S. Attorney for the Western District of Arkansas announced that on January 17 Judge H. Franklin Waters sentenced Quillin Porter, formerly of Fayetteville, Arkansas, to 15 years incarceration and restitution of up to $2.2 million. On the same date, J. Bert Curtsinger, a business associate of Porter, was sentenced by Judge Waters to a five-year suspended sentence and restitution of approximately $370,000. Porter had previously pled guilty to mail fraud and the sale of unregistered securities, and Curtsinger had previously pled guilty to mail fraud. The pleas were the result of investigations by the Commission, the U.S. Attorney's Office and the Arkansas Securities Department. On November 29, 1988, Porter was permanently enjoined from future violations of the antifraud and registration provisions of the securities laws and ordered to turn over approximately $30,000 to the trustee in a related bankruptcy.
    [Show full text]
  • Michael N. Ungar Partner | Chair, Litigation Department
    Michael N. Ungar Partner | Chair, Litigation Department Overview As Chair of Ulmer’s Litigation Department, Mike is a nationally-recognized trial lawyer who is trusted by his clients to handle their most critical disputes. His practice is focused on complex civil litigation, with an emphasis on commercial and financial services matters. Mike represents clients across the country in a broad range of matters, including the defense of commercial, banking, professional liability, securities, broker- dealer, class action, consumer, product liability, pharmaceutical, and medical device cases. He frequently serves as a mediator and arbitrator, helping find solutions in contentious and complicated disputes. Mike brings a determined, decisive, and results- oriented approach to his cases, which has resulted in his recognition as one of the top trial lawyers in the United States. National Recognition O: 216.583.7002 C: 216.978.8197 Selected as one of the top 100 Trial Lawyers in the country by Benchmark 1660 West 2nd Street, Litigation (2015-2021), which also recognized Mike as a “State Litigation Star,” Suite 1100 defined as an attorney who is recommended consistently as a reputable and Cleveland, OH 44113-1406 effective litigator by clients and peers (2014-2021). [email protected] Recognized in Chambers USA: America’s Leading Lawyers for Business Practices/Industries (2007-2020) and ranked in Band 1 (the highest of six bands) for General Commercial Litigation (only six other Ohio attorneys earned this ranking). The Complex Business qualities on which Chambers USA rankings are assessed include technical legal Litigation ability, professional conduct, client service, commercial astuteness, diligence, Securities & commitment, and other qualities most valued by clients.
    [Show full text]
  • SEC News Digest, 03-24-1981
    sec ne igest Issue 81-56 MAR Z 5 1981 March 24, 1981 IIS SECURITIE8 AND RULES AND RELATED MATTERS EXCHANQE COMMISSION PROPO~ED DEFINITIONS OF "SMALL BUSINESS" AND "SMALL ORGANIZATION" FOR PURPOSES OF THE REGULATORY FLEXIBILITY ACT The Commission has issued a release giving interested persons until May 19 to comment on proposed rules under each of the securities laws administered by the Commission that would define the terms "small business" and "small organization" for purposes of the Regulatory Flexibility Act of 1980. Among other things, the Regulatory Flexibility Act requires federal agencies to determine whether proposed and final rules will or are likely to have a significant economic impact upon a substantial number of small entities. The Commission intends to use the proposed definitions in implementing this and other requirements of the Regulatory Flexi- bility Act. Persons wishing to submit written views should file four copies thereof with George A. Fitzsimmons, Secretary, Securities and Exchange commission, 500 North Capitol Street, Washington, D.C. 20549, and should refer to File No. S7-879. All submissions will be available for public inspection. (ReI. 33-6302) FOR FURTHER INFORMATION CONTACT: Jeffry L. Davis at (202) 272-2850 IIVESTMENT COMPANY ACT RELEASES SOUTHWESTERN INVESTORS, INC. A notice has been issued g~v~ng interested persons until April 17 to request a hearing on an application by Southwestern Investors, Inc., Southwestern Investors Income Fund, Inc., Fund of the Southwest, Inc. (collectively, Funds), each a diver-
    [Show full text]
  • Securities Law Fifth Circuit Symposium, 34 Loy
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1988 Securities Law Fifth irC cuit Symposium Steve Thel Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Business Organizations Law Commons, Consumer Protection Law Commons, Legal Ethics and Professional Responsibility Commons, and the Securities Law Commons Recommended Citation Steve Thel, Securities Law Fifth Circuit Symposium, 34 Loy. L. Rev. 1029 (1988-1999) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/468 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. SECURITIES LAW Steven S. Thel* The Fifth Circuit decided some important securities cases dur- ing the survey period and issued some interesting opinions. Al- though the court consistently claimed a conservative reliance on precedent and seldom acknowledged making new law, it inter- preted some well-established doctrine in surprising ways. The past year's opinions in fraud cases provide guidance in the related areas of reliance, damages, and plaintiff's due diligence. The year also witnessed important developments in the law governing the rela- tionship between brokerage firms and their clients. The most spectacular development in this area during the sur- vey year was the October collapse in security prices. In light of the crash and increasing volatility in the securities markets, many have come to question the nature of the relationship between the price of securities and their value.
    [Show full text]
  • December 23, 1982 Issue (Dig122382.Pdf)
    RULES AND RELATED MATTERS OIL AND GAS PRODUCERS -- FULL COST ACCOUNTING PRACTICES The Commission announced the issuance for comment of two alternative sets of pro- posed amendments to its rules for application of the full cost method of accounting by oil and gas producers. The proposed amendments are intended to clarify the criteria for determining which capitalized costs may 'be excluded from immediate amortization. They would thereby narrow the diversity of practice resulting from varying interpretations of the commission's existing rules which permit the exclu- sion from,amortization of "unusually significant" costs of unproved properties and major development projects. The Commission also announced the issuance of proposed amendments which would clarify its rules on the recognition of gain or loss on sales of oil and gas producing properties. Comments should be submitted to George A. Fitzsimmons, Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, DC 20549, on or before April 30, 1983 and should refer to File No. 87-956. All comments will be available for public inspection at the commission's Public Reference Room. (Rel. 33-6445) FOR FURTHER INFORMATION CONTACT: M. Elizabeth Rader or John W. Albert at (202) 272-2130 CRt_NAL PROCEEDINGS JERRY s. MAERAS PLEADS GUILTY The Chicago Regional Office announced that on November 19, before the Honorable William ',Hungate,U.S. District Judge for the Eastern District of Missouri, Jerry s. Ma~ras entered a plea of guilty to a three-count Information charging him with a conspiracy to impede the Department of the Treasury, mail fraud and securities fraud relating to his involvement with Thomas R.
    [Show full text]
  • Squirreling Away: Managing Information Resources & Libraries — the Writing on the Wall
    Against the Grain Manuscript 8227 Squirreling Away: Managing Information Resources & Libraries — The Writing on the Wall Corey Seeman Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. Squirreling Away: Managing Information Resources & Libraries — The Writing on the Wall Column Editor: Corey Seeman (Director, Kresge Library Services, Stephen M. Ross School of Business, University of Michigan; Phone: 734-764-9969) <[email protected]> Twitter @cseeman s I am writing this column, I am notic- position that anyone should be in — but alas, Dean Witter Reynolds (the large securities ing that my house is mostly free from it happens. firm). In 1984, they launched Prodigy with holiday decorations. It is not that I am IBM and CBS as one of the early ways that A About Sears a curmudgeon, but that given today is the first people could connect to the growing Internet. of the year, it is time to clean up the house and When I was a library school student, I In 1985, they introduced the Discover Card get it ready for the New Year. Put away are first learned about Sears List of Subject which for the first time, offered users cash the Christmas decorations and the tree. If we Headings. I remember thinking they were back on their purchases. In many ways, they can get this done by the first of the year, we incredible and delivered just about everything.
    [Show full text]
  • The Ouachita Circle Summer 1999 Ouachita Baptist University
    Ouachita Baptist University Scholarly Commons @ Ouachita The Ouachita Circle: The Alumni Magazine of Ouachita Alumni Ouachita Baptist University Summer 1999 The Ouachita Circle Summer 1999 Ouachita Baptist University Follow this and additional works at: https://scholarlycommons.obu.edu/alumni_mag Part of the Organizational Communication Commons, and the Scholarship of Teaching and Learning Commons Recommended Citation Ouachita Baptist University, "The Ouachita Circle Summer 1999" (1999). The Ouachita Circle: The Alumni Magazine of Ouachita Baptist University. 46. https://scholarlycommons.obu.edu/alumni_mag/46 This Book is brought to you for free and open access by the Ouachita Alumni at Scholarly Commons @ Ouachita. It has been accepted for inclusion in The Ouachita Circle: The Alumni Magazine of Ouachita Baptist University by an authorized administrator of Scholarly Commons @ Ouachita. For more information, please contact [email protected]. A Word from the President ... In the dark moments of life we rely, more than ever, on our faith, our family, and our friends. We've faced a few dark moments at Ouachita this past summer. First, with a touring boat accident in Hot Springs that claimed the life of Melanie McGuirk, secretary for the Elrod Center for Family and Community and the wife of James McGuirk, one of our students; and then the June 1 crash in Little Rock of Flight 1420, in which we lost James Harrison and Rachel Fuller, and in which Kristin Maddox was seriously injured. Those of us on the campus are grateful beyond words for the thousands of expressions oflove and sympathy that have been forwarded to us. Jed McGuirk, the Harrison Family, the Fuller family, and the Maddox family join me in a heartfelt word of thanks for your love and for your prayers.
    [Show full text]
  • Professional Designations ♦ ARIAS–US Certified Arbitrator – 2003 ♦ Fellow, Society of Actuaries (FSA) – 1978 ♦ Member, American Academy of Actuaries (MAAA) – 1977
    Barbara P. Niehus, FSA, MAAA President Niehus Actuarial Services, Inc. 5215 Old Orchard Road, Suite 750 Skokie, IL 60077 (847) 965-7307 Education: ♦ BS in Mathematics – University of Chicago, 1971 Employment Niehus Actuarial Services, Inc. – 2001 to present President, Actuarial consulting specializing in life and health insurance matters. CNA, Chicago, IL – 1994-2001 ♦ Group Vice President and Senior Financial Officer for Group Operations – 1997-2001; Group Operations included $4 billion of annual premium covering group life, accident, health, disability, and long term care. Also included two reinsurance businesses: individual life and group life and health. Responsibilities included financial reporting and planning, reserve valuations, oversight of accounting processes, internal and external communication of results, regulatory compliance oversight, reinsurance and M&A support. ♦ Vice President and Chief Actuary for Group Operations – 1994-1997; Responsible for pricing, product development, regulatory compliance, financial planning, reserve reviews, analysis of financial results, reinsurance and M&A support. Celtic Life Insurance Company, Chicago, IL – 1984-1994 ♦ Executive Vice President for the Small Group Division – 1988-1994; The Small Group Division provided life and major medical insurance to small employers (1-25 employees), and grew from about $40 million of annual premium in 1984 to over $200 million through new sales and block acquisitions. Responsibilities included full management responsibility for the product line, including
    [Show full text]