Since then I have researched the mediation literature, and found that in many areas of the U.S. mediators are recommending to the parties that the joint session be dispensed with and that the mediation consist only of separate caucuses.  The reason typically given is, as above, the potential volatility of the parties or their reluctance to be in the same room with their opponent.

After that research, and discussion with numerous other mediators, I believe that a joint session, properly structured and moderated, generally increases the likelihood of a settlement, and a fair one.

Negatives of the Joint Session

A number of reasons are given for dispensing with the joint session:

1. The joint session takes additional time;
2. It puts a timid party in a stressful situation;
3. Some counsel or parties will use it to intimidate the other side;
4. The joint session is not appropriate

(a)  when criminal behavior or physical abuse is a factor, and
(b)  when the parties know and literally hate each other too much.

Positives of the Joint Session

In favor of holding joint sessions, however, are factors too numerous to list but which include:

1. The discomfort caused the parties, even parties unfamiliar with litigation, is perhaps positive, in that it familiarizes those parties, to a small extent, with the discomfort they will face in trial;
2. It gives the parties a “day in court;”
3. It provides an opportunity for the parties to see each other as human beings, at least during the course of small talk unrelated to the dispute, which is generally included in joint sessions;
4. It informs each party, and counsel, of how the other party will look and sound at trial should the case not be settled.
5. It saves time in covering issues jointly rather than separately.

Be Creative

And even in situations in which it is anticipated that the parties will not get along, or in which events or certain persons in the joint session may obstruct the effectiveness of the joint session, a limited joint session may still be advantageous, and a creative mediator will consider changes to the classic joint session model in order to avoid losing all the benefits of the joint session.  These include:

1. Professionals only, in which opening statements, and possibly further discussion, are made with only the attorneys present (requiring agreement of all parties before such session is begun);
2. Partial client attendance, excusing one or more parties from portions of the joint session, such as allowing a party to listen to presentation of his own case, but excusing him from presentation of the other side if he would not receive it constructively;
3. Limited issues, in which certain particularly incendiary issues are precluded from the joint session and the parties and counsel focus on only those issues which might lead to settlement.

Obviously, planning ahead for such modified joint sessions is best brought about by discussions between the mediator and counsel for the parties well in advance of the mediation itself.  During those conferences, the mediator should ask counsel about the possible reaction of his or her clients to persons who might be present, to the issues which might be brought up, etc., and determine what counsel intend themselves to do at the joint session.

After such pre-mediation discussions with counsel, the mediator should encourage counsel to agree to as much of a joint session as possible, but should also respect counsels’ desire to limit or eliminate the joint session.

Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation.

Social Security survivor benefits can be an important component of your spouse’s financial security after your death. While the majority of U.S. citizens in the American workforce have survivor insurance protection for their spouses, noncitizens who are working in the United States are subject to different eligibility rules. Even if you are working in Social Security covered employment and your immigration status is fully legal, your spouse may not be able to receive survivor benefits after your death if these requirements are not met. Also, your surviving spouse may unknowingly forfeit survivor benefits upon leaving the United States. Read on to see if you are eligible and what your spouse will have to do to continue receiving benefits.

If You Are a Noncitizen…

The first question is whether you are currently covered by the Social Security program. In most cases, if you are working for a U.S. employer, even without authorization, the answer is yes. Among the few exceptions are people working under certain visa categories designated in § 101(a)(15) of the Immigration and Nationality Act. These categories are designated by short alphanumeric codes, and they include the following:

• H-1B temporary professional workers
• H-2A agricultural workers
• F-1 foreign students
• J-1 cultural exchange participants

Second, if you received your Social Security Number on or after January 1st, 2004, you may need federal work authorization in order to be eligible for any kind of Social Security benefits, including survivor benefits. Does not make a difference when you receive your work authorization; even if you did not have it when you began working in the U.S., you may obtain it at a later date and still be eligible for benefits. Noncitizens admitted to the U.S. under a B visa or D visa are exempt from the work authorization requirement.

Third, in order for your spouse to receive survivor benefits, you must work long enough to obtain fully insured status. Insured status is determined by the number of quarters of coverage (“QCs”) you accumulate during your working years. In 2012, workers will earn one QC for every $1,130 in wages they receive. To achieve fully insured status, you will generally need to earn one QC for every year that elapses between the year you turn 21 and the year you either turn 62, become disabled, or die, whichever comes first.

If Your Spouse is a Noncitizen…

After your death, assuming you are either a U.S. citizen or a noncitizen who has met all the above eligibility requirements, your spouse must meet Social Security’s lawful presence requirement in order to receive benefits while he or she is in the United States. It is important to know that being lawfully present for Social Security purposes is not the same as having lawful status under United States immigration law. The definition of “lawfully present” is a multi-part definition, and it includes lawful permanent residents, refugees, asylees, noncitizens paroled into the United States for less than one year, and Cuban-Haitian entrants.

In addition, if your surviving spouse ever leaves the United States, there are two rules that may limit his or her ability to receive survivor benefits. However, your spouse may be exempt from these rules if the country of origin falls into one of three categories:

• Social insurance countries. These are countries with social insurance or pensions systems that will pay benefits to U.S. citizens who reside outside that country. The United States will extend a reciprocal benefit to citizens of social insurance countries who reside outside the U.S.
• Treaty obligation countries. The United States has entered into treaties with certain countries requiring the payment of Social Security benefits to noncitizens under certain circumstances.
• Totalization agreement countries. A totalization agreement is an agreement between the United States and another country with a program similar to the American Social Security system. Totalization agreements allow greater flexibility for workers who split their careers between the two countries.

Under the first rule, unless you are a citizen of a treaty obligation country or a totalization agreement country, your spouse must have lived in the United States for five consecutive years (lawfully or unlawfully), and you must have been married during some part of that five-year period. Under the second rule, unless your spouse is a citizen of a social insurance country or a totalization agreement country, your spouse will stop receiving benefits if he or she lives outside the United States for more than six consecutive months.

Ensuring Your Spouse’s Eligibility for Survivor Benefits

It is important to fully understand your status and that of your spouse under Social Security as early as possible. If there are any problems with your eligibility, they cannot be remedied after your death, so be sure to look into the matter while you are planning your estate. In addition, the Social Security residency requirements for surviving spouses may influence your spouse’s decisions about his or her residency after your death.

Posted by Attorney Misty A. Watson and law clerk Cliff Smith. Watson’s practice focus is estate-related: planning, administration, and probate. She creates trusts, wills, financial, and health care powers of attorney, guardianships, and conservatorships. Smith is a second year law student at Saint Louis University School of Law and is on the the staff of the Saint Louis University Law Journal. He graduated from Washington University in St. Louis in 2008, majoring in philosophy, neuroscience, psychology and computer science.

But you quickly realize that although for the moment knowledge of the dispute is restricted to people in the company, it will only be a short time before it gets out to the customers, suppliers, banks and others with whom the company does business, threatening the existence of the company.

You should consider recommending the factions mediate the dispute, if possible before litigation is filed.

Advantages of Mediation

Some advantages of mediation are:

No Publicity. No lawsuit is filed. The situation can be kept as confidential as the parties want.

Speed. Trial, or even a hearing for significant injunctive relief, will take months, if not years. And as soon as customers hear there is an internal dispute — and they will — they will take their business elsewhere, to a “stable” competitor. And this risk increases significantly if a lawsuit is filed. A mediation can begin immediately.

Possible Quick Reduction in Ill-Will. The early part of most mediations give the parties the opportunity to vent, and then to be brought by the mediation format to look for rational resolutions. The mediator could, for example, hold an immediate mediation session, not necessarily to reach resolution immediately but as a way to begin gathering information. But another objective would be to reduce the ill-will between the factions, pending one or more future sessions to be held a short time later. During the following interim, they would likely work better together, and the company’s employees will understand that they have begun to work out their problems.

Better Resolutions than are Available in Litigation. In most business divorce situations, the court at best has very limited options for resolution, usually being able only to dissolve the company and distribute the assets. The parties in mediation, on the other hand, have unlimited possibilities to resolve the dispute. The easy ones come readily to mind: one faction buys out the other, perhaps on a “push-pull” basis. Frequently a company has two or more lines of business, and different factions can take different lines into separate companies.

And courts, with crowded dockets and lack of expertise in complicated corporate structure, with tax and very complicated technical issues arising from the nature of each unique business line (hence the Business Judgment Rule), frequently make mistakes in their attempts at resolution, mistakes which the parties with their lawyers, advisors and a mediator are unlikely to make.

Complicated Issues Must be Resolved

The company’s lawyer, and the lawyers for the disputing factions, must be versed in those issues in deciding whether to go to mediation, and indeed, in choosing a mediator. And they and the mediator must be familiar with them in the mediation process.

Some of those issues are, to name a few:

Valuation (virtually all such cases require valuation of the business as a whole, and valuation of its lines, its hard assets, value claimed by each faction for work and assets previously contributed without compensation, etc.);

Possible legal restrictions on settlement by the statutes, the articles of incorporation and bylaws (or the articles of organization and operating agreements of LLCs) (e.g., companies may not purchase their own stock if it will “impair capital”; there may be shareholders who are not in the disputing factions whose rights must be preserved; labor laws may set requirements on treatment of employees in any settlement);

Rights of third parties (e.g., creditors and third parties to the company’s contracts may have guarantees and other rights from the disputing principals that must be accommodated);

Regulatory issues (e.g., brokerage firms, bars/restaurants and other businesses are frequently required to have licenses the continuation of which requires persons with certain qualification stay in management);

Tax issues (e.g., some flow-through entities incur serious consequences if the ownership of more than 50% of their equity changes).

But underlying the parties’ negotiation positions will always be their (and their attorneys’) beliefs about how favorable a resolution they would get if they filed and completed litigation. So the mediator must also be familiar with the complexities and vagaries of litigation: the remedies available, (partition? injunctive relief vs. mandamus?), motion practice, what evidence would be admissible in trial, the level of understanding of most judges with complicated business law issues, and others.

Mediation, Even Prior to Filing, is Usually the Best Decision

My experience as a transactional attorneyand a business litigator and arbitrator is that seeking to settle as quickly as possible, even before filing litigation or arbitration, has historically improved the outcomes for both (or all) disputing factions. Admittedly, business people as a class are strong-willed and aggressive, and often want to “win.” But they are also business people who regularly evaluate risk and prospective benefit, and negotiate to “deals.” With that mindset on the part of the disputing factions, the probability of a mediated settlement is greater among business persons than among most other groups. And even if the mediation does not resolve the dispute, it usually improves the tone and quality of outcomes in litigation that follows.

 Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation.

This Acts amend the Securities Act of 1933 to essentially allow “general solicitation,” heretofore illegal, in small offerings of investments if they meet numerous other restrictions. The Acts allows an issuing company to offer and sell securities, without regard to the general solicitation–type methods of promotion used, to an unlimited number of purchasers, so long as no purchaser is allowed to spend more than the lesser of $10,000.00 or 10% of his or her net worth, and the total amount of securities purchased within any 12 month period is no greater than one million dollars. And purchasers need not be “accredited” (usually meaning having a net worth of no less than one million dollars or annual income of $200,000.00 or $300,000.00 if purchasing jointly with a spouse). (And, if the issuer provides potential investors with audited financial statements, the offering may be as much as two million dollars. This may be particularly important in light of the ease of auditing a newly formed issuer with no history of operations and earnings).

Also, the Acts allow entrepreneur issuers to utilize “intermediaries,” who need not be registered as broker-dealers with the SEC, to assist in finding investors. This is a significant change from the present law, albeit with many restrictions on the use of the intermediary.

This is a “sea change” in the law of private placements. Perhaps its greatest significance is the new ability of such issuers to use the internet in private offerings. Also, it allows many potential investors, not sufficiently affluent to be “accredited,” to participate in an admittedly limited method in the growth of entrepreneurial companies. And, of course, it opens to entrepreneurial companies’ access to a body of investors hereto for prohibited to them.

However, some of the “restrictions” on crowdfunding should cause some companies to select other methods of private placement, particularly those who can attract sufficient accredited investors. These negative factors should also cause the Senate, in its considerations, to consider improving this new exemption.

Under pressure from state regulators, who believe that the $10,000.00/10% of net worth restrictions are too high and still allow purchases by unsuitable (i.e. non-affluent) prospective investors, it is likely that the Senate versions and eventually the House versions, if adopted at all, will decrease the minimum investment allowed by each investor. Even without such reduction, the amount that most persons will invest will be significantly smaller than that of average private placements under present law. This will result in there being many more investors–many more holders of interests in the entrepreneur’s business–than in traditional private offerings, increasing the cost of administering investor relations. And precise administration of investor relations is crucial to an entrepreneurial business’s ability to get future financing from venture capitalists or to achieve an exit event such as a purchase by a larger company.

Perhaps worse, the presence of many persons with the right to vote on whether to go forward with future financings or exit/liquidity events, perhaps requiring giving significant pre-emptive voting or other rights to venture capitalists, may also hinder such future financings. For this reason, crowdfunding, if it ever becomes law, may better be used for debt or other investments which do not include voting rights.

Also, the House bills require that the issuing company engage a “qualified third-party custodian, such as a broker or dealer registered” with the SEC or an “insured depository institution” to handle its “cash-management functions.” The bills do not define “cash–management” functions, and the issuer may have difficulty retaining a custodian, at least until prospective “cash managers” receive some assurances that they do not face the same problems which cause registered broker-dealers to avoid involvement with entrepreneurial issuers.

Crowdfunding, should it become law, will significantly improve the fundraising opportunities for some companies. However, it will not be best for all companies and will prove complicated and problematic even for those companies it benefits.

Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation. He is past president of the Missouri Venture Forum.

Reprinted with permission by the Missouri Venture Forum, Enterprise, December 2011 issue.

This is a major change from prior law. Historically, the exclusive remedy for an employee with any employment-related injury – whether acute or gradual in onset – was to pursue a claim in the workers’ compensation forum. This is a system that clearly benefits employers (as well as third-party workers’ compensation insurers).

There are two types of employers in the workers’ compensation context: those who carry insurance policies issued by third-party insurance companies, and those who self-insure – that is, who create and pay into their own private workers’ compensation insurance policies. In every work-injury case, there are three benefits to which an injured employee is presumptively entitled: medical costs, lost wages, and permanent disability.

Two Scenarios

Consider the difference between the likely cost of a workers’ compensation claim versus the possible cost of a civil lawsuit with regard to: (1) a Missouri business with a workers’ compensation insurance policy issued by a third-party insurance carrier; and (2) a Missouri business that self-insures.

1.      Missouri business with a third-party policy.

Workers’ Compensation Claim

The only substantial cost the employer incurs as a result of a work injury is the increase in monthly premium that results from the “exposure” of the injury. The insurance carrier pays all claim-related costs for medical treatment, lost wages, and permanent disability. The insurance carrier also pays all attorneys’ fees associated with defending the claim, if necessary.

Civil Lawsuit

It is possible, depending on the terms and language contained in the employer’s workers’ compensation insurance policy, that the workers’ compensation insurance will not cover the company’s liability because the injury is not a “workers’ compensation” injury. If this is the case, the employer will be liable for all injury-related costs, including medical treatment, lost wages, permanent disability, and attorneys’ fees.

The good news for employers is that, in the civil realm, the employee will have to prove that the injury was caused by the employer’s negligence. Contrast this with the workers’ compensation system, in which the employer and its insurance company are strictly liable (i.e. liable without evidence of fault) for all injuries as long as the employee proves that the injury was caused by his work activities. Clearly, the evidentiary standard is harder on the employee in a civil lawsuit than in the workers’ compensation forum.

Still, if the employee is able to prove employer negligence, the employer will face costs dramatically higher than the increased insurance premium it would face in the workers’ compensation system. Plus, regardless of whether the employer wins or loses a civil case, it will be responsible for attorneys’ fees with the workers’ compensation insurer out of the picture.

2.     Employer that self-insures.

Workers’ Compensation Claim

The maximum cost to the employer is still relatively low. The maximum number of weeks a claimant can possibly obtain in permanent disability is 400, and the maximum rate per week is currently $811.73 (for permanent total disability). That caps the possible cost to the employer for permanent disability at $324,692. And note that in order to be entitled 400 weeks of disability, the employee essentially has to have died as a result of the injury.

With regard to medical costs, the self-insured employer has the right to direct and control medical treatment. With that right comes substantially depressed medical costs due to state-regulated re-pricing of medical billing.

Civil Lawsuit

Again, the injured employee has to prove employer negligence. This is not a simple task, but assume that the employer accomplishes it. $342,692 may seem like a high cost. However, consider the possible liability in a civil jury trial where, depending on the circumstances, an employer could face a punitive damages award that could reach $500,000.

In addition, in a civil case, the employer no longer is afforded the right to direct medical treatment, as it would in a workers compensation case. The employee can treat wherever he wants. And without directing treatment, the employer loses the benefit of re-priced (i.e. lowered) medical costs and selecting treatment providers with whom it has established client relationships. Under Missouri law, it is possible for injured claimants in a civil trial to obtain more money for medical costs than their insurance provider actually paid for their medical care. As a result, the workers’ compensation forum is unquestionably preferable for the self-insured employer.

What This Means for Missouri Employers

Most “occupational disease” claims involve “repetitive use” injuries, such as carpal tunnel syndrome (wrists/hands) and epicondylitis (elbows). It is yet to be seen whether or not Missouri courts will allow pursuit of these sorts of claims in the civil forum as well. However, it seems clear that KCP & L would permit an injured employee to pursue a repetitive use claim in civil court.

Still, this does not mean that most – or even many – employees will do so. Repetitive use injuries like carpal tunnel syndrome are caused by repetitive use. Plain and simple. It is hard to believe an employee would be able to prove that his employer’s negligence caused this sort of injury. To prove negligence, an employee must prove that the employer knew or should have known that a harmful condition existed and that its employees were at risk as a result. If the employee cannot prove negligence, it would be foolish for his attorney to file a civil lawsuit rather than a workers’ compensation claim.

“Injuries” such as mesothelioma, which results from years of exposure to asbestos, are do not commonly result from employment. However, Missouri employers need to ensure that they are not subjecting their employees to hazards – like asbestos – that can cause disease. Employers should also ensure that there is no way an employee can show that the employer’s negligence caused him to develop a repetitive use injury. How can employers do this? Ensure that:

• Machines work as they should. This includes making sure that machines are routinely maintained.
• Employees are educated and trained in the proper manner of using machines, tools, and other devices used in the course and scope of their job activities.
• Employees use safe/proper techniques in performing their job activities, and employees who do not are reprimanded.
• Employees are instructed to immediately report any acute injury. (This will help prevent acute injuries from becoming, arguably, repetitive-use/occupational disease injuries.)
• At least one administrative employee has the job function of monitoring employee activities and machine performance.

The more employers use their imaginations with regard to how they could possibly be viewed as negligent with regard to employee safety, the better they will be insulated against civil claims for “occupational disease” claims.

Employers should act accordingly to reduce “occupational disease” risk to their employees and protect their business from civil claims beyond the scope of workers’ compensation.

Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers. 

As people in the industry know all too well, different forms of collateral require different procedures to properly perfect their security interests. Real property, for example, is relatively straight forward; a secured party in Missouri records a properly executed deed of trust with the recorder of deeds office in the county in which the property is located. Investment property (stocks, bonds, mutual funds, brokerage accounts, etc.) are a different animal altogether. Under the Uniform Commercial Code (the “UCC”), a securities account is classified as investment property (UCC § 9-102(a)(49)). Most investors do not maintain physical possession of their certified securities (stock certificates or bonds); rather, these are held by their financial intermediaries. Understanding that your borrower will not have the ability to hand you its certified security for this reason, a creditor wishing to obtain its highest priority should perfect its security interest in investment property by control (UCC § 9-314(a)).

The secured party gains control over the securities account when the owner of the account instructs the securities intermediary, after the secured party has rights in the account, that the intermediary shall comply with the secured party’s orders without consent of the owner.

Put more simply, for a lender to perfect its security interest in a securities account two steps are required: (1) execute a written security agreement whereby the borrower acknowledges its pledge of the account (rights to the account); and (2) enter into a written three-party agreement among the lender, borrower, and financial intermediary (borrower’s instructions to the intermediary).

The most efficient method of gaining control in a securities account is by use of a control agreement (alternatively, the borrower may agree to have the securities titled in lender’s name). Most control agreements start with the secured intermediary’s, e.g. a securities or brokerage firm, standard control agreement form. The financial intermediary has two primary goals with this document: (1) accommodate its client so that the borrower may use its account as collateral for a loan; and (2) limit its own liability for entering into this transaction. When representing a secured party, this leaves significant room for improvement from the bank’s attorney’s perspective.

Aside from the typical concerns in a contract – jurisdiction, venue, notice provisions, etc. – below are a few issues a secured party should consider when taking a securities account as collateral:

1. Is the securities account properly identified? Here, the name of the borrower, the financial intermediary, and the secured party, in addition to the account number, should all be clearly identified.
2. Does the financial intermediary agree to comply with instructions from the secured party, even if it is to the borrower’s detriment?
3. What representations and warranties does the intermediary provide? The intermediary should, at a minimum, represent and warrant that: (a) it will provide copies of all statements and trade confirmations to lender; (b) notify lender if anyone makes a claim to the account, and that there are no current claims to the account other than those of lender and the financial intermediary; (c) the account is held in borrower’s name; (d) the statement provided to lender is accurate at the time the control agreement becomes effective; (e) the account does not contain any financial asset registered in borrower’s name, payable to borrower’s order, or specifically endorsed to borrower, which has not been endorsed to the intermediary, lender, or in blank; and (f) neither borrower nor the intermediary shall terminate the account.
4. Who has priority as between the financial intermediary and lender? The lender should insist the intermediary subordinate its set-off rights in the account to the rights of lender.
5. What is the current value of the account? Lender may require borrower’s account maintain a minimum value.

Understanding that a secured party’s highest form of priority is for a secured lender to take control is the first step properly securing such an account. Realizing that you are not relegated to using a broker’s pre-printed control agreement enables the lender to further enhance its position.

Posted by Attorney James M. Heffner. Heffner practices in corporate and real estate law. He is experienced in the purchase, sale, financing, and leasing of real estate, as well as the creating and negotiation of construction documents. In corporate matters, he supports business owners in structuring entities, shareholder disputes, mergers, and stock purchases/redemptions.

With seven hundred and fifty million people actively using Facebook, there is a significant chance that a post about working conditions, compensation or other issues related to their employment will spark a conversation with an employee’s colleagues, and such conversations may constitute concerted activity under the National Labor Relations Act.

The question remains, if your employees say something negative on Facebook about your company, their fellow employees or their supervisors, can you terminate without running afoul of the National Labor Relations Act?

The answer depends on the facts surrounding the post(s). The test is whether the employee is engaging in activity solely for himself or on behalf of other employees.

Individual social media griping activity that is the “logical outgrowth of concerns expressed by the employees collectively” are considered “concerted” and protected under Section 8(a)(1) of the the National Labor Relations Act (“Act”). “Concerted activity includes ‘circumstances where individual employees seek to initiate or to induce or to prepare for group action’ and where individual employees bring ‘truly group complaints’ to management’s attention.” Meyers Industries, 281 NLRB 882, 885 (1986)

The following factors should be considered:

1. Is the post concerted activity?
2. Is the post directed at other employees?
3. Does the post suggest that the employees take some action?
4. Is the employee posting a Spokesperson for Common Concerns?
5. Does the post arise out of a previous union or employee group?

What this means is that not all online posts are protected. Two Advice Memorandums issued this July by the National Labor Relations Board, Office of The General Counsel regarding non-union companies provide guidance. In JT’s Porch Saloon & Eatery, Ltd., the NLRB found no concerted activity when a bartender complained to his step-sister on Facebook that he had not received a raise in five years, he was performing waiter’s work without tips, the Company’s customers were “rednecks” and he hoped the customers choked on glass as they drove home drunk. The Board found that the termination was not in violation of the Act because the post was not discussed with any other employees, before or after he wrote it and there had been no employee meetings or attempt to initiate group action regarding the tipping policy.

Similarly, in Wal-Mart, the NLRB found no concerted activity when a customer service employee, after an interaction with the Assistant Manager, posted the following comment on his Facebook page: “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit.” The Facebook friend responses were mixed with some friends responding favorably and others not. The customer service employee responded further by making negative comments regarding his supervisor, using profanity and claiming false advertisement on behalf of Walmart. Of course, a co- worker “friend” gave a copy of the post to the supervisor at issue and the supervisor required him to take down the post, suspended him for a “decision day,” and prepared a discipline report.

In defense, Walmart claimed that the postings were not concerted activity for mutual aid or protection, and even assuming so, the Charging Party’s use of profanity was so “opprobrious” as to deprive him of the Act’s protection. The Advice Memorandum found the customer service employee’s comments were solely about him and were “mere griping.” The comments did not look toward group action.

In contrast, the National Labor Relations Board issued a complaint alleging that the Hispanics United of Buffalo unlawfully discharged five employees because they took to Facebook to criticize working conditions, including work load and staffing issues. In this case, an employee, in advance of a meeting with management regarding working conditions, posted an allegation that employees did not do enough to help the organization’s clients. Five employees responded and defended citing work loads and staffing issues. The organization terminated the five defending employees because their defense constituted harassment of the employee originally mentioned in the post. The National Labor Relations Board Complaint claims that the Facebook discussion was protected concerted activity. Outcome of this complaint is not known at time of this post.

Social Media has been likened to a “loaded gun.” For all its benefits, it can be quite dangerous to the employer as well as the employees if it is not used appropriately. It is in the employer’s best interest to establish legal social media policies and train employees on the ramifications of their social media use as it relates to their employment.

However, employers should not impair an employee’s ability to act in concert or to effect some change in the terms and conditions of the workplace.

Just as employees should think before posting on Facebook, employers should think carefully before disciplining employees to avoid running afoul of the National Labor Relations Act. As unwise as it may be to complain about one’s employer on Facebook, it may be unlawful for an employer to discipline an employee for voicing such a complaint.

For more information and guidance, please check out the National Labor Relations Board Acting General Counsel Report on Social Media Cases.

Posted by Attorney Ruth A. Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

A trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and also upon death.

A revocable living trust normally involves three parties:

• The Settlor – Also called grantor or trustor, this is the person who creates the trust, and usually the only person who provides funding for the trust. More than one person can be the settlors of a trust, such as when a husband and wife join together to create a family trust.
• The Trustee – This is the person who holds title to the trust property and manages it according to the terms of the trust. The settlor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the settlor’s death or if the settlor is unable to continue serving for any reason.
• The Beneficiary – This is the person or an entity that will receive the income or principal from the trust. This can be the settlor (and the settlor’s spouse) during his or her lifetime and the settlor’s children (or anyone else or a charity the settlor chooses to name) after the settlor’s death.

A trust is classified as a “living” trust when it is established during the settlor’s lifetime and as a “revocable” trust when the settlor has reserved the right to amend or revoke the trust during his or her lifetime.

How is a Revocable Living Trust Created?

There are two basic steps in creating a revocable living trust. First, an attorney prepares a legal document called a “trust agreement” or a “declaration of trust” or an “indenture of trust” which is signed by the settlor and the trustee. Secondly, the settlor transfers property to the Trustee to be held for the benefit of the beneficiary named in the trust document.

Can a Revocable Living Trust be Changed or Revoked?

Yes. The settlor ordinarily reserves the right in the trust document to amend or revoke the trust at any time during his or her lifetime. This enables the settlor to revise the trust (or even terminate the trust) to take into account any change of circumstances such as marriage, divorce, death, disability or even a “change of mind.” It also gives the settlor the peace of mind that he can “undo” what he has done. Upon the death of the settlor, most revocable living trusts become irrevocable and no changes are then allowed (with some exceptions) to save taxes or improve administration. Sometimes the trust becomes irrevocable after the death of a spouse if the trust was jointly created by a married couple.

Is a Revocable Living Trust an Adequate Substitute for a Will?

No! A revocable living trust may be considered the principal document in an estate plan, but a will should accompany a revocable living trust. This type of will, referred to as a “pour over” will, names the revocable living trust as the principal beneficiary. Thus, any property which the settlor failed to transfer to the trust during his or her lifetime is added to the trust upon the settlor’s death and distributed to (or held for the benefit of) the beneficiary according to the trust instructions.

The settlor may not be able to transfer all desired property to a revocable living trust during the settlor’s lifetime. For example, the probate estate of a person who dies as a result of an auto accident may be entitled to any insurance settlement proceeds. These settlement proceeds can only be transferred from the estate to the trust pursuant to the terms of a will. Without a will, the proceeds would be distributed to the heirs under the Missouri laws of descent and distribution.

Also, a parent cannot nominate a guardian for minor children in a revocable living trust. This can be accomplished only in a will.

Will a Revocable Living Trust Avoid Probate Expenses?

Property held in a revocable living trust at the time of the settlor’s death is not subject to probate administration. Thus, the value of the property is not considered when computing the statutory fee for the personal representative or the estate attorney. Also, the amount of any required bond for the personal representative will be reduced to the extent the property is held in the trust and not subject to probate administration.

Nevertheless, certain expenses associated with the death of a person are not eliminated. Trustees are paid for their work unless they waive their fees. Deeds to real estate transferring the property from the trust to the beneficiaries must be prepared. Estate tax returns must be filed when the total value of the property owned at death (including assets in a revocable living trust) exceeds a certain value. The decedent’s final income tax returns must still be filed and income tax returns for the trust must also be filed. Trustees often seek assistance and advice from attorneys who charge fees.

What Are Some of the Advantages of a Revocable Living Trust?

In addition to the savings in probate expenses, the avoidance of probate administration has other advantages. The administration of a revocable living trust at the settlor’s death is normally a private matter between the Trustee and the beneficiaries. Unlike probate, there are few public records to reveal the nature or amount of assets or the identity of any beneficiary.

Property can often be distributed to the beneficiaries shortly after the settlor’s death, avoiding much of the delay encountered with probate administration. Also, probate court approval is not necessary to sell an asset in a trust, thus avoiding further delay.

In addition to the avoidance of probate administration in Missouri, “ancillary” probate administration in other states where real estate is owned can be avoided by transferring the out-of-state real estate to a revocable living trust. For those owning real estate in several states, this can be a significant advantage.

Real estate, businesses, and other assets can continue to be actively managed by a successor trustee in central administration much the same way as a settlor would have done before the settlor died or became incapacitated. For example, a trustee can use trust assets to pay utility bills to keep the pipes from freezing, property maintenance expenses, and real estate taxes until real estate is sold or distributed. The trustee might work out property distribution issues such as some beneficiaries wanting the real estate while others want money.

What are Some of the Disadvantages of a Revocable Living Trust?

Since a revocable living trust is a more complex legal document that must be funded by changing property titles while the settlor is alive, it is more costly to establish than a will, which can have higher expenses after death. Also, accounts need to be retitled, deeds and other transfer documents must be prepared transferring the settlor’s assets to the trust, and beneficiary designations need to be changes to the trust— all processes which can require a substantial investment of the settlor’s time.

The use of a revocable living trust requires more ongoing monitoring to ensure that assets remain in the trust and that newly purchased assets are titled in the trust. For example, a settlor who moves a certificate of deposit (perhaps to obtain a better interest rate) must remember to advise the new institution to title the new account in the trust.

After the settlor’s death, some of the income tax rules applicable to a trust are not as liberal as those available to a probate estate. For example, a probate estate may elect to use a fiscal year as its tax year, while a trust is restricted to the calendar year. Trusts must pay estimated income tax payments while a probate estate is exempt from this requirement for the first two years. Trusts are also subject to other tax rules that do not apply to probate estates.

Who Can Serve as Trustee?

If the settlor becomes physically or mentally incapacitated, property held in this trust remains available to the settlor without the requirement of a court supervised conservatorship. The successor trustee named in the trust document takes charge to manage the assets in the trust and pay the settlor’s bills.

The successor trustee can be a trusted relative or friend, or can be a professional trustee such as a trust company or the trust department of a bank. Missouri law does not require an individual serving as successor trustee to be a Missouri resident. However, certain restrictions apply to banks or trust companies whose principal place of business is located outside the state of Missouri. Since the activities of the successor trustee are not ordinarily supervised by a court or other independent third party, the selection of the successor trustee should be carefully considered.

The settlor is not limited to naming only one trustee. Two or more individuals may be named to serve as co-trustees or a combination of individuals and a corporate trustee may be named. If more than one is named, care should be taken to designate who can pay the usual, ordinary expenses without having to take the time and expense of requiring more than one signature.

If an individual is to serve as successor trustee, the settlor should consider whether the trustee is to be bonded. The settlor’s decision should be clearly stated in the trust document. If a bond is required, the bond premium is normally paid by the trustee from the assets in the trust.

Is a General Durable Power of Attorney or an Advance Directive Still Needed?

Although the function of a general durable power of attorney is beyond the scope of this brochure, a settlor of a revocable living trust should also consider establishing a general durable power of attorney to accomplish objectives which cannot be attained with a trust and to complement what is accomplished by a trust.

An “advance directive,” usually used with a durable power of attorney for health care, has an entirely different function from a revocable living trust and the two should not be confused. Whether a person has a trust ordinarily has no bearing on the decision to have (or not to have) an advance directive. Care should be taken, however, to require the trustee to pay for medical expenses for an incapacitated settlor if necessary.

Does the Revocable Living Trust Reduce Income Taxes or Estate Taxes?

During the settlor’s lifetime, the revocable living trust usually has no effect on the income tax which the settlor will owe. In fact, if the settlor is the trustee or a co-trustee, all income earned on assets held in the revocable trust is reported directly on the settlor’s income tax return using the settlor’s Social Security number, and the trust is not required to file a return. After the death of one or both settlors, the trust must have its own separate tax identification number and is taxed at the same rate as a probate estate.

Regarding the estate tax, proper planning can often reduce the amount of tax payable upon the settlor’s death. For the most part, estate tax planning can be equally accomplished through proper drafting in a will, a revocable living trust, or through the use of other legal devices such as disclaimers. However, there are minor differences. For instance, under current tax rules a lifetime gift of an amount over the annual exclusion amount directly from a living trust to a donee may be subject to estate tax if the settlor dies within three years of making the gift. This three-year rule does not apply to gifts made directly from an individual to a donee.

Who Can Be the Trustee?

A settlor who desires to manage his or her own financial affairs and who is physically and mentally able can (and ordinarily should) serve initially as trustee. But provisions should be made in the trust for a successor trustee to take charge if the settlor becomes unable to continue for any reason and when the settlor dies. Or, the settlor may simply desire to make someone else responsible for managing assets, whether temporarily or permanently, by resigning or naming another initial trustee.

The Trustee’s Duty to Inform

The trustee of a revocable trust does not have to tell future beneficiaries about the trust, what is in it, or how it is administered.

If a trust is irrevocable or when a revocable trust becomes irrevocable, usually because the settlor dies or becomes incapacitated, beneficiaries have certain rights based upon their beneficial interests set out in the trust. The trustee of an irrevocable trust must give the current and future beneficiaries information for them to protect their interests. They must be told about the existence of the trust, the name and address of the beneficiary, and that a copy of the trust would be given to a beneficiary who requests a copy. The trustee must report the property in the trust at the time the trust became irrevocable and the income and disbursements from it and the balance at least once per year.

Who Can Advise You About a Revocable Living Trust?

You should never sign a revocable living trust document without the advice of a Missouri attorney who practices in this field of law. He or she will be able to advise if a revocable living trust is right for you.

Who Can Draft a Trust to Meet Your Needs?

Only a lawyer can write a trust that you can be sure will be legal. There are many pitfalls and, if proper technical language is not used, certain distributions or the entire trust may become unenforceable. What you put in the trust should be carefully thought out with your attorney’s help because it may too late to change it after you die or become incapacitated.

This article is used with the permission of the Missouri Bar.

Prior to 1948, BAMSL’s refusal to admit African American attorneys was not codified or recorded on any document I have found in our archives; however, we know that African Americans were not admitted to BAMSL as far back as 1922. This fact is not from our own records, but from the records of the Mound City Bar Association. The Mound City Bar, named for St. Louis at a time when there were still Mississippians’ burial mounds on both sides of the river, was, and is, one of the first bar associations for African Americans in the country. It was formed because black attorneys were not admitted to BAMSL. Therefore, I assume that, like many Jim Crow-era institutions, BAMSL’s segregation policy was strictly implicit.

Until 1948 when the association received an application for admission from Mr. Sidney R. Redmond. At that time, applications for membership in BAMSL were subject to review and required an affirmative vote by at least 80 percent of the members. Nevertheless, most applicants were admitted on oral vote for an entire slate of new members. Mr. Redmond’s resume would have been not only adequate for admission, but exceptional for an applicant. He held both an undergraduate and a law degree from Harvard. He had already tried and successfully appealed a case to the United States Supreme Court. He was counsel for Lloyd Gaines in State of Missouri Ex ReI. Gaines v. Canada, 305 U.S. 337 (1938). The case was one of the first to address racial separation in education. Mr. Gaines had applied to attend law school at the University of Missouri. However, because he was black, Mr. Gaines was denied admission.

The Court held that this practice was not Constitutional, but in keeping with the then prevailing “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896) it stopped short of ordering Mr. Gaines’ admission to the University of Missouri Law School, but did hold that he had a right to an education in the law within the state. This lead to the creation of a separate, but theoretically equal, public law school in Missouri through Lincoln University.

In addition to his exceptional education and United States Supreme Court advocacy, Mr. Redmond had also been the first black alderman elected in the City of St. Louis in 1944. In all, it was a pretty exceptional resume for an applicant to BAMSL in 1948 (indeed, it strikes me as a more impressive resume than the current President of BAMSL).

Mr. Redmond’s application was not rejected ab initio. Instead, like most candidates, his application was endorsed by the Membership committee and referred for admission at the next general membership meeting held on January 24, 1949. BAMSL did not have a permanent home yet, so that meeting was held at the St. Louis Medical Society at 3839 Lindell Boulevard. The specific nature of the normally routine agenda item for admission of new members was widely anticipated by the membership, and the meeting was well attended. Association Secretary Lon Hocker, Jr. estimated the attendance at more than 350 members. BAMSL President John F. Cunningham, Jr. chaired the meeting. Then, as now, admission of new members was a routine agenda item placed toward the top of the agenda right after approval of minutes, committee reports, and the treasurer’s report.

Both the segregationists and the integrationists dug in for a pitched battle, and the weapon of choice was to be Robert’s Rules of Order. The first volley was the standard motion for approval of the members by simple voice vote. It failed. Then, being the experienced, well-trained lawyers that have always made up the membership of this organization, the 1949 membership started in with procedural motions: points of order, motions for secret ballots, and responses to all. The procedural posture became so convoluted that the minutes reflect that President Cunningham had to consult the text of Robert’s Rules of Order. Efforts by the integrationists started to take on an air of desperation, as motions to table the motion for admissions, conduct a vote by mail ballot, and even adjourn the meeting were presented and rejected.

As it became clear that this was to be the night when the matter was settled, members began speaking for the admission of Mr. Redmond. The speakers for integration included William Stix, Lon Hocker, Jr., (who, it should be noted, was also the secretary and author of the minutes from which most of this information is derived), Richmond C. Coburn, and J. M. Lashly.

Interestingly, the minutes do not mention any speeches opposing the admission of Mr. Redmond; however, this is probably because of the need to establish a super majority of 80% to accomplish integration. Eventually, ballots were prepared and distributed to allow the members present to cast their ballots individually for the 35 applicants. That list included both men and at least one woman, but BAMSL’s story of gender integration is an older, but similar, separate tale initially told in the minutes of the May 8, 1922 general meeting with the denial of admission to Mary G. Jones. That meeting concluded with a vote to send a letter to Ms. Jones, which essentially said “your qualifications are acceptable for admission but your gender is not.”

As the ballots were collected and counted, Judge Louis Comerford was called upon to deliver the report of the Criminal Laws Committee. Secretary Hocker notes that Judge Comerford delivered his report “with admirable courage and perseverance considering the restlessness of the meeting and the consuming interest in the result of the election.” When the 303 votes were counted (and recounted), Mr. Redmond had received 75 “no” votes. In other words, he had only received 75 percent of the votes present for admission where the rules required 80% of the votes present. Mr. Redmond was denied admission into this association for the want of 13 votes. Subsequent history teaches us that despite his denial of admission to this association, the seeds of change had already been planted and legal racial segregation was moribund. Indeed those seeds had been planted by Mr. Redmond himself, as his victory in Gaines would become precedent invoked by Attorney Thurgood Marshall and cited by the still all-white Supreme Court to overturn Plessy in Brown v. Board Of Education, 347 U.S. 483 (1954) and launch the current era of equal protection under the law, superseding the spurious “separate but equal” idea.

I have a personal tradition which I have adopted to celebrate the legal holiday to recognize the birthday of Rev. Dr. Martin Luther King, Jr. in the middle of January. Each year I reread Dr. King’s I Have a Dream speech originally delivered from the Lincoln Memorial at the Civil Rights March on Washington on August 28, 1963. This year on the King holiday, as I re-read those words while researching this article, I decided that we are still working toward a time when “justice rolls down like waters and righteousness like a mighty stream” for people of color in this country and this profession. But I do think at this point a larger percentage of BAMSL members have realized Dr. King’s assertion that the freedom of all is inextricably tied to the freedom of minorities.

BAMSL is an important organization with a mostly proud history, but to further paraphrase Dr. King’s speech, the subsequent admission of Judge Scovel Richardson as the first black member of this association in 1953 is merely one “rough place made plain.” This association’s racist history and the code of ethics we all swore to uphold (see Mo. Sup. Ct. Rule 4-8.4(g).) require that we all continue to be vigilant of the rights of all lawyers. But in my opinion, all the subsequent admissions of black attorneys to BAMSL and all of this organization’s many diversity initiatives do not amount to an apology.

The current BAMSL media relations policy indicates that as President of this association I can speak with the voice of the organization. So in my official capacity as President, and on behalf of the entire Association, I apologize to the heirs and survivors of Mr. Sidney Redmond for the rejection of his application based on the color of his skin. Moreover, I apologize on behalf of the Association to the many other attorneys of color who were denied admission to this organization explicitly or implicitly before or after Mr. Redmond.

I also apologize to the current minority attorneys that were never directly subject to this discrimination but who have been subject to the pernicious continuing impacts upon our organization as reflected in the exiguous numbers of minority members and leaders in BAMSL to this day. These apologies are not meant to be interpreted as a full and final resolution of this matter, just one of many more steps to be taken to move us all closer to Dr. King’s dream.

In comparing the success of our country and culture, we frequently cite the “rule of law” as basis for our economic success over the last two centuries. We often hear from other cultures that the inviolability of property and contract rights in our legal system is what instills the confidence in our system that encourages individuals to take the economic risk that causes our economy to thrive.

However, if “rule of law” is the structural “foundation” of our society, it might be time we grabbed a flashlight and headed into the basement. Every property owner in or around St. Louis knows that this foundation, like those in our homes, requires constant vigilance for cracks and leaks. Unfortunately, the bad news that property owners often learn is that even with constant vigilance, the early discovery of a tiny trickle of water in a well designed and maintained basement can result in significant and expensive repair costs. 

As lawyers, we are explicitly the guardians of our society’s rule of law foundation, so even with the queasy horror of substantial sacrifice on the horizon; I think we must continuously inspect the rule of law to ensure it is watertight.  This seems a particularly appropriate analogy given the alarming mortgage crisis that has predicated our current national recession. 

Initially, the home loans and foreclosure did not seem to implicate the rule of law: we all heard stories about improper, impatient, and immoral activity by big banks and lenders that snowballed into disaster. The banking industry had thrown its political weight around to generate laws that allowed a lot of people to get into homes they could not realistically afford. Initial blame was focused on lending behemoths, who with the help of their Wall Street brethren, had effectively destroyed our economy with a legal but complex version of the classic scam, Three Card Monte. This scam was accomplished by using classic huckster techniques of misdirection and fast talk.  They repeatedly sliced and recombined bad loans until they convinced everyone that worthless paper was worth buying. This was offensive, unethical, and irresponsible, but for the most part, legal. 

Now, in the wake of the toxic-asset crisis, we have come to realize it predicated the current foreclosure crisis.  But there is a big difference between creation and manipulation of a hazy set of laws, and the outright decision to put an American citizen out of his home based on less than absolute certainty that she has benefited from full due process. 

This year, as the summer turned into fall, our general population began to learn more and more about the internal workings of foreclosures by large institutional lenders or those that bought the debt from them. We heard anecdotal revelations that foreclosures and evictions had proceeded against families that had paid their mortgage, tried to pay their mortgage, and in at least one case against a family that were free and clear fee simple owners, when their legal description accidentally ended up on someone else’s loan documents. 

We began to understand that these problems resulted, in part, from something the media dubbed “robosigners.” Robosigners are not actually mechanical automatons, but low-wage employees who presumably took these jobs in order to pay their own mortgages. Large banks and institutions hired such people to execute legal documents, including affidavits, required for the foreclosure process.  Most robosigners were not only improperly trained to understand the documents they were executing but were assigned so many documents on a daily basis that the clear expectation of their employers’ was that such documents be executed without any inquiry to the facts of any individual case. 

To me the phrase “robosigner” is merely a polite euphemism that we adopted for these employees, which might just as accurately be “perjurers.”  My suggestion of this more accurate term is not meant to cast blame strictly on the many employees in many areas of the country for many different employers who ascribed their names on false affidavits. Instead, I selected this term because it allows me to make my next logical step from the perjurers to those who suborned perjury from them.

In this case, those who suborned perjury wield substantially more power than the perjurers. These institutions have the assets necessary to hire public relations consultants and lawyers. They also have a history of making political contributions that give them access to governmental decision makers. So upon discovery of this crisis they were able to proffer and “spin” their answers to give them a solid air of credibility.

Indeed, these banks and related institutions were able to exploit the vast schism of disagreement between right and left that polarizes our current political landscape. We have grown accustomed to any and all controversies being cast in the light of fundamental, diametric divergent views.  When we learned that in some cases the intuitions had acted contrary to the rule of law on a broad scale, to me, as an attorney, this matter took on substantially more importance than a mere political football in an endless, dispiriting contest.

When I heard that hucksters had warned against genuine correction if the problem, using excuses about the potential for substantial negative economic consequence, I was unconvinced. Substantial negative economic consequence does not, in my opinion, provide a valid reason for taking action divergent from the rule of law, like executing a false affidavit.

These talking points are then filtered through to us by the media’s “master logicians” — the same talking heads that present every unseasonably cold day or surprise snowstorm as irrefutable evidence to undermine the global warming phenomenon. Nevertheless, in reporting on this crisis they somehow discovered that there was something wrong with “anecdotal evidence.” This led many of these unqualified squawk-boxes to report and endorse the lenders’ position that the overwhelming majority of foreclosures were against people who had not paid their mortgages. I assume that this position was an attempt to convince the public that if lenders’ had bothered with such niceties as “due process” they would have almost always reached the same conclusion, foreclosure. Unfortunately, there is more wrong here than the mere hypocrisy of shouting “anecdotal evidence!” at your opponents while using inconclusive evidence in other contexts to further your own aims. This approach to the foreclosure issue overlooks the fundamental questions at stake.

In making policy decisions we recognize that our efforts to benefit the most people invariably have a negative impact on a few people. That’s just the way life works. However, as lawyers, we also recognize that there are some actions that despite some benefit to the majority, so disadvantage the minority that they cannot be permitted.  Often we find such rules in the philosophical underpinnings of our normal laws that are inscribed in our Constitution. For this reason, even though there is merely anecdotal evidence of a very small number of people being evicted from their property without due process of law, that is an adequate basis for us to act. 

In elementary school civics we learned that our criminal justice system was based on the maxim that it is better for ten innocent people to be set free than for a single person to be wrongly punished.  Later in law school, we learned how criminal procedure was modeled around this concept, including most importantly the burden of proof we describe as “beyond a reasonable doubt.” I am not suggesting that lenders be subject to a higher burden of proof in order to proceed with foreclosures. Instead I am suggesting that constitutional questions of due process in this civil setting are just as crucial to our system as criminal cases.  And it is not a tremendous leap for anyone who completed a Constitutional Law Class to recognize that the drafters of our Constitution also saw property rights as pretty important.

As a result, I feel that more than mere outcome-based analysis is required for the foreclosure crisis. In the last two years I have grudgingly acknowledged that there are some constitutions in our country that from a macro-economic prospective are “too big to be allowed to fail.”  But we cannot accept that there are any entities that are too big — or too important — to follow the rule of law.

This article originally appeared in St Louis Lawyer and is reprinted with permission.