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Monthly Archives: March 2014

Corporate Derivative Lawsuits & Adequacy of Representation

A corporate derivative lawsuit is a lawsuit brought by shareholder(s) on behalf of a corporation against its director(s). The basis for the underlying lawsuit can be for any number of reasons, but is generally for a director’s breach of fiduciary duty to the corporation (e.g., conflict of interest, business judgment, misused of funds, etc.).  See Hyde […]

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Revocation or Amendment of a Revocable Trust

Missouri trusts are presumptively revocable. Therefore, they are freely amendable and capable of being cancelled by the settlor/grantor, unless the trust itself states that it is irrevocable. To amend a trust, the general rule of thumb is that one must follow the method of amendment/revocation provided for in the terms of the trust — or […]

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Contractual Choice of Law, Conflicts of Law

While the creation of a federal government and state governments has its policy benefits, it can often cause headaches in litigation. Specifically, when there are parties from multiple states which State’s law applies to the dispute? For breach of contract actions, Missouri courts will typically defer to a valid choice of law provision in a […]

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Corporate Disposition of Assets: sale, lease, exchange

While the directors and officers of a corporation typically run its day-to-day operations, the shareholders — the owners — are generally responsible for their election and the direction of the corporation. It should come as no surprise, therefore, that major decisions involving the corporation often require shareholder approval. This extends to include when the corporation […]

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Necessary Parties versus Indispensable Parties

Multi-party litigation changes things substantively, strategically and procedurally. As a threshold issue, the question of whether all necessary/indispensable parties have been joined in a given lawsuit is something litigants often raise. This leads to the subtle distinction between necessary parties and indispensable parties under Missouri law. Under Missouri Supreme Court Rules, a party must be […]

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Imputed Income

When calculating child support in Missouri, the Court is required to determine a presumed amount of child support pursuant to Form 14. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. 1997). The starting point for Form 14 is a determination of each parent’s monthly gross income. Ricklefs v. Ricklefs, 39 S.W.3d 865, 874 (Mo. Ct. App. 2001). […]

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Seller’s Remedies in Breach of Contract

Under the Uniform Commercial Code (“UCC”), a selling merchant has a number of option when the buying merchant commits a breach of contract. Specifically, when the buyer wrongfully rejects/revokes either the contract or the goods or repudiates the contract — in whole or in part — the seller may (a) withhold delivery of the goods, […]

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UCC Statute of Frauds: Merchants & Signature

The statute of frauds requires that certain types of contracts be in a writing signed by the party sought to be charged. The general rules regarding the statute of frauds differ when the contract involves merchants and pertains to the sale of goods. When only one party is a merchant, and the contract for the […]

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Severability Clauses in Contracts

In contractual disputes, particularly breach of contract cases, a common issue that arises is whether the underlying contract is even enforceable. A prudent attorney will determine if there are any substantive or procedural deficiencies which can sink the contract. Just because one specific section of a contract is void or unenforceable, however, does not necessarily […]

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Permanent Injunction

Under Missouri law, temporary restraining orders typically last ten (10) days, but can be extended for additional 10 day increments See Rule 92.02(b). A preliminary injunction typically lasts for the duration of the underlying litigation. Permanent injunctions, as the name suggests, can last in perpetuity — but a trial court has broad discretionary power to shape and […]

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