Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation, and such modified duties shall replace any fiduciary duties to which the Trustees would otherwise be subject. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. Notwithstanding the foregoing, the provisions of the Governing Instrument, to the extent that they modify, restrict or eliminate the duties (including fiduciary duties), and liabilities relating thereto, of a Trustee otherwise applicable under the foregoing standard or otherwise existing at law (statutory or common) or in equity, are agreed by each Shareholder and the Trust to replace such duties and liabilities of such Trustee under the foregoing standard or otherwise existing at law (statutory or common) or in equity.
Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. The appointment, designation or identification of a Trustee as the Chair of the Board, a member or chair of a committee of the Trustees, an expert on any topic or in any area (including an audit committee financial expert), or the lead independent Trustee, or any other special appointment, designation or identification of a Trustee, shall not impose on that person any standard of care or liability that is greater than that imposed on that person as a Trustee in the absence of the appointment, designation or identification, and no Trustee who has special skills or expertise, or is appointed, designated or identified as aforesaid, shall be held to a higher standard of care by virtue thereof. Except to the extent required by applicable law or expressly stated herein, (a) no Trustee or Trust officer shall have any fiduciary duty or other legal duty or obligation to the Trust, the Shareholders or any other Person, and (b) the Trust shall have no fiduciary duty or other legal duty or obligation to the Shareholders or any other Person except the Trustees. Unless otherwise expressly provided herein or required by federal law including the 1940 Act, the Trustees shall act in their sole discretion and may take any action or exercise any power without any vote or consent of the Shareholders.
Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. Except to the extent required by applicable law or expressly stated herein, (a) no Trustee or Trust officer shall have any fiduciary duty or other legal duty or obligation to the Trust, the Shareholders or any other Person, and (b) the Trust shall have no fiduciary duty or other legal duty or obligation to the Shareholders or any other Person except the Trustees. Unless otherwise expressly provided herein or required by federal law including the 1940 Act, the Trustees shall act in their sole discretion and may take any action or exercise any power without any vote or consent of the Shareholders.
Legal Standard. The Design/Builder shall furnish design/build services in accordance with design/build standards currently practiced by design/builders on projects similar in size, complexity and cost to the Project.
Legal Standard. Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” FED. R. CIV. P. 55(a). In addition, Rule 37 provides, in relevant part: If a party . . . fails to obey an order to provide or permit discovery . . ., the court where the action is pending may issue further just orders [which] may include . . . rendering a default judgment against the disobedient party . . . .
Legal Standard. In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s] favor, assume all well- pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Legal Standard. A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.
Legal Standard. 6 A district court has the inherent power to enforce a complete settlement agreement entered 7 into while the litigation is pending before it. In re City of Equities Anaheim, Ltd., 22 F.3d 954, 8 957 (9th Cir. 1995); Xxxxxx x. Near, 829 F.2d 888, 890 (9th Cir. 1987). This enforcement power 9 extends to oral agreements. Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002). The 10 moving party has the burden of demonstrating that the parties formed a legally enforceable 11 settlement agreement. In re Xxxxxxxx, 313 B.R. 302, 305 (B.A.P. 9th Cir. 2004) (citing 15A Am. 12 Jur. 2d Compromise and Settlement § 57 (2000)). 13 “The construction and enforcement of settlement agreements are governed by principles 14 of local law which apply to interpretation of contracts generally.” Xxxx X. x. Xxxxxx, 899 F.2d 15 753, 759 (9th. Cir. 1989). Therefore, even though the underlying cause of action presented in this 16 litigation is based upon a federal statute, this court applies California law regarding the formation 17 and interpretation of contracts in determining whether a legally enforceable settlement agreement
Legal Standard. A district court’s review of labor arbitration awards “is narrowly circumscribed and highly deferential—indeed, among the most deferential in the law.” Nat’l Football League Mgmt. Council v. Nat’l Football Leage Players Ass’n, 820 F.3d 527, 532 (2d Cir. 2016). The Second Circuit has found that courts may vacate arbitration awards under the LMRA in three scenarios relevant here: (1) when the arbitrator has acted outside the scope of his authority or in contradiction of an express or unambiguous term of the agreement, see NYC & Vicinity Dist. Council of United Bhd. of Carpenters & Joiners of Am. v. Ass’n of Wall-Ceiling & Carpentry Indus. of N.Y, Inc., 826 F.3d 611, 618 (2d Cir. 2016) (“NYC & Vicinity”); (2) when the arbitrator exhibits a “manifest disregard for the law,” see Chelsea Grand, LLC v. N.Y. Hotel & Motel Trades Council, 729 F. App’x 33, 36 (2d Cir. 2018); or (3) when the contract, as interpreted by the arbitrator, violates an explicit public policy, NYC & Vicinity, 826 F.3d at 812. “A party moving to vacate an arbitration award has the burden of proof, and the showing required to avoid confirmation is very high.” X.X. Xxxxx & Co., Inc. x. Xxxxxxxxxx, 462 F.3d 95, 110 (2d Cir. 2006). As to the first scenario, courts are “not authorized to review the arbitrator’s decision on the merits”; rather, they must “determine ‘whether the arbitrator acted within the scope of his authority as defined by the collective bargaining agreement.’” NYC & Vicinity, 826 F.3d at 618 (quoting Nat’l Football League, 820 F.3d at 537). If the court finds that “the arbitrator was even arguably construing or applying the contract and acting within the scope of his authority and did not ignore the plain language of the contract,” it should confirm the award. Nat’l Football League, 820 F.3d at 537 (quotation marks omitted). But, courts should vacate awards if they “contradict[] an express and unambiguous term of the contract or . . . so far depart[] from the terms of the agreement that [they are] not even arguably derived from the contract.” United Bhd. of Carpenters x. Xxxxxx Zee Constructors, LLC, 804 F.3d 270, 275 (2d Cir. 2015); see also Nat’l Football League, 820 F.3d at 537 (awards should be vacated if they do not “draw[] [their] essence from the collective bargaining agreement” and instead reflect “the arbitrator’s own brand of industrial justice” (quotation marks omitted)). For a court to find that an arbitrator exhibited a manifest disregard of law, the party requesti...
Legal Standard. A. Standard of Review District courts exercise appellate jurisdiction over final bankruptcy court orders. See 28
