The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

Autoethnography : critical appreciation of an emerging art

In this article, the author discusses how she applied autoethnography in a study of the design of hypermedia educational resources and shows how she addressed problematic issues related to autoethnographic legitimacy and representation. The study covered a 6-year period during which the practitioner’s perspective on the internal and external factors influencing the creation of three hypermedia CD-ROMs contributed to an emerging theory of design. The author highlights the interrelationship between perception and reality as vital to qualitative approaches and encourages researchers to investigate their reality more fully by practicing the art of autoethnography.

Enhancing the trust of location acquisition systems for critical applications and location-based security services

This paper identifies a number of critical infrastructure applications that are reliant on location services from cooperative location technologies such as GPS and GSM. We show that these location technologies can be represented in a general location model, such that the model components can be used for vulnerability analysis. We perform a vulnerability analysis on these components of GSM and GPS location systems as well as a number of augmentations to these systems.

Critical success factors for positioning Australian business talent in the global knowledge economy : a current research agenda

"Globalisation‟ and the "global knowledge economy‟ have become some of the most common "buzzwords‟ in Australian business, economic, and social sectors in the past decade. Further, knowledge service exports are a growing sector for Australia that utilise complex technical and creative capacities, increasingly rely on virtual work innovations, require new socio-technical systems to establish and maintain effective client relationships in global contexts; and – along with other innovations in the electronic age – may require novel coping abilities on the part of both managers and their employees to achieve desired outcomes (Bandura, 2002). Accordingly, this paper overviews such trends. The paper also includes a research agenda which is a "work-in-progress‟ with a major global company, Shell (Australia); it highlights both the objectives and proposed methodology of the study; it also outlines anticipated key benefits arising from the research.

Critical success factors of process modeling for enterprise systems

The integrated and process oriented nature of Enterprise Systems (ES) has led organizations to use process modeling as an aid in managing these systems. Enterprise Systems success factor studies explicitly and implicitly state the importance of process modeling and its contribution to overall Enterprise System success. However, no empirical evidence exists on how to conduct process modeling successfully and possibly differentially in the main phases of the ES life-cycle. This paper reports on an empirical investigation of the factors that influence process modeling success. An a-priori model with 8 candidate success factors has been developed to this stage. This paper introduces the research context and objectives, describes the research design and the derived model, and concludes by looking ahead to the next phases of the research design.

Relationship between indoor/outdoor concentrations of particles : a critical review

The relationship between indoor and outdoor concentration levels of particles in the absence and in the presence of indoor sources has been attracting an increasing level of attention. Understanding of the relationship and the mechanisms driving it, as well as the ability to quantify it, are of importance for assessment of source contribution, assessment of human exposure and for control and management of particles. It became particularly important to address this topic when evidence came from epidemiological studies on the close association between outdoor concentration levels of particles and health effects, yet with many studies showing that indoor concentrations could be significantly higher than those outdoors. This paper presents a summary of an extensive literature review on this topic conducted with an aim to identify general trends in relation to the I/O relationship emerging from studies conducted worldwide. The review considered separately a larger body of papers published on PM10, PM2.5, as well as the smaller database on particle number and number or volume size distribution. A specific focus of this paper is on naturally ventilated houses. The conclusion from the review is that despite the multiplicity of factors that play role in affecting the relationship, there are clear trends emerging in relation to the I/O relationship for particle mass concentration, enabling more general predictions to be made about the relationship. However, more research is still needed on particle number concentration and size distribution.