Category Archives: law

Skepticlawyer.com.au

Another reason why I have been a bit distracted lately… after two years of my own little blog, I am moving my blogging services elsewhere.

I have decided to accept an offer to team up with Skepticlawyer (Helen Dale) from Catallaxy, and we are setting up a joint blog, Skepticlawyer. It goes live today! We are both lawyers (obviously) but we have quite different political slants – it just makes for more fun, really – the main thing is that we enjoy each other’s posts.

Henceforth, all my posting will be at Skepticlawyer, so please update your links and feeds.

Check out my new post on legal ethics and clients who confess to crimes. Helen also has an interesting post on whether libertarians and progressives can hammer out a political compromise.

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Opes investors fail at first hurdle

I know that some people have lost a lot of money through the collapse of Opes Prime, so it seems a bit ghoulish to be fascinated by it – but there you have it, I can’t help myself – I’m fascinated. There are so many interesting equitable and property law questions raised by it (tracing, equitable mortgages, mere equities, trusts in undifferentiated property), not to mention corporate governance issues. Some of my favourite topics!

Anyway, I saw yesterday that Finkelstein J of the Federal Court had handed down an important judgment from the point of view of investors seeking to reclaim their shares (Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Limited [2008] FCA 594).

I should explain briefly how the Opes Prime arrangement worked before getting into the judgment. Investors “loaned” their shares to Opes Prime in return for a cash advance. As a term of the Securities Lending Agreement (SLA), Opes promised that when the money advanced to the investor was repaid to it, Opes would redeliver shares to the investor which were equivalent in number and type to those originally provided. The value of the cash advance supplied was less than the value of the shares provided to Opes. The difference between the value of the cash advance and the value of the shares is referred to as the “margin”. Problems occur if the value of the shares fall below the value of the cash originally advanced to the investor, because then the value of the security is less than the value of the loan, and will not be sufficient to recompense Opes if the investor does not pay it back. In those circumstances, a “margin call” should be made to the investor, whereby the investor is required to “top up” the amount of shares provided so that the value of the shares is again greater than the value of the cash. One of the issues seems to have been that margin calls were not made when they should have been made to certain significant and substantial investors. And of course, the general stock market slump contributed to the drop in value of the shares beyond the margin.

As Finkelstein J notes at [9]:

In this case credit risk is all important. Boiled down to its essence, a party’s exposure to loss in the event of default is equal to the margin. That is to say, if the non-defaulting party is on the short side of the margin (ie the value of the assets delivered to him is less than the value of the assets provided) he will suffer a loss and, in the case of insolvency, be required to prove for the difference in the insolvency of the defaulting party.

In other words, the investors will have to pay the difference if their shares are not adequate security for the cash advances they received.

The investors are alleging that they were told by Opes that they would retain some form of ownership in their original shares. In fact, this was not true from a legal perspective (as will be discussed in greater detail below). Opes loaned the shares received from investors to its bankers, ANZ Bank (the defendant in this case) and Merrill Lynch. In return for this, Opes received cash advances, which were presumably used in part to fund the provision of cash collateral to investors. However, ANZ became aware that Opes was in financial difficulties, and appointed receivers to the firm. ANZ and Merrill Lynch commenced selling the shares that had been provided by Opes as security for its loans. Presumably this drove the value of shares even further below the margin. It was at this point that shocked investors started challenging the sales, as they had thought they retained some kind of ownership in the shares, and that it was not in ANZ’s power to sell them off.

In Beconwood, the plaintiffs claimed that they had retained a proprietary interest in the shares which they had loaned to Opes in two ways:

  1. Through an equity of redemption pursuant to a mortgage of the legal title to the shares
  2. Through an equitable charge over the shares

Both of these interests are proprietary security interests. Let me explain the equity of redemption first. In general law land, the actual title to the property is transferred to the lender, but the borrower retains the beneficial interest in the property (so he or she can live there and enjoy the property). What happens when the borrower has paid back all of her loan? It is then that the equity of redemption comes into play – it means that the lender has to transfer the legal title back to the borrower – the borrower is entitled to “redeem” her property.

An equitable charge is a little different. Legal ownership in the security property is never transferred to the lender at all – the lender merely has a right to sell off the borrower’s property if the borrower defaults.

The investor failed to make out either kind of security interest. In essence, this came down to Clause 3.4 of the SLA between Opes and the Investor, which stated as follows:

Notwithstanding the use of expressions such as “borrow”, “lend”, “Collateral”, “Margin”, “redeliver”, etc., which are used to reflect terminology used in the market for transactions of the kind provided for in this Agreement, all right title and interest in and to Securities “borrowed” or “lent” and “Collateral” which one Party transfers to the other in accordance with this Agreement will pass absolutely from one Party to the other free and clear of any liens, claims, charges or encumbrances or any other interest of the Transferring Party or of any third party (other than a lien routinely imposed on all securities in a relevant clearance system) without the transferor retaining any interest or right to the transferred property, the Party obtaining such title being obliged only to redeliver Equivalent Securities or Equivalent Collateral, as the case may be. Each Transfer under this Agreement must be made so as to constitute or result in a valid and legally effective transfer of the Transferring Party’s legal and beneficial title to the recipient.

In other words, it was clearly stated in the SLA that full ownership of the shares was transferred to Opes. All that the investor was entitled to upon repayment of the cash advance was equivalent shares – not necessarily the same shares as those which were originally provided to Opes. The point to be made about shares is that they are fungible – one share is very much like another, and it doesn’t particularly matter which one you get as long as you get an equivalent back. Finkelstein J makes the point that economically speaking, the arrangement was very much like a mortgage, but legally speaking, the analysis just could not be sustained.

The plaintiff then tried to argue that there was a necessary implied term in the SLA that the investor had a charge over any shares of the equivalent type held by Opes until it received its shares back, but it also failed in this respect too.

Finkelstein J’s judgment seems correct to me. Regardless of the representations Opes may or may not have made to its clients, it is the terms of the SLA which are fundamental, and the terms are explicit that the investors do not retain an interest in the shares. Clearly the investors did not read the terms of the SLA closely enough.

Finkelstein J makes an interesting analysis of US law. It is clear that the US has been using these kind of “securities lending arrangements” for longer than Australia, and that the market in the US is highly regulated in respect of these arrangements (unlike the Australian market). Perhaps the Australian regulators need to consider instituting US-style regulation if these kind of securities lending arrangements continue in popularity.

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Seinfeld makes it to court

I’ve written previously on how Alice in Wonderland has made it into many Court judgments. Well, now Jerry and Elaine have made it into a judgment too!

In Parish Oil Co Inc v Dillon Companies Inc, the US Court of Appeals in Colorado mentioned Seinfeld in an anti-trust case:

Indeed, the plaintiffs’ reading would apparently render unlawful in the State of Colorado a promotional gimmick so common that it features in an episode from Seinfeld:

JERRY: “Atomic Sub”? Why are you eating there?

ELAINE: I got a card, and they stamp it every time I buy a sub. Twenty four stamps, and I become a Submarine Captain!

JERRY: What does that mean?

ELAINE (embarrassed): Free sub.

Seinfeld: The Strike (NBC television broadcast Dec. 18, 1997).

If the first twenty-four sandwiches are sold for $4 apiece at a cost to the maker of $3, the customer who follows through and redeems the offer will have spent $96 to buy $75 worth of sandwiches. But the last one is sold below cost (in fact, it is “free”), making it illegal under the plaintiffs’ version of the UPA. We do not believe the Colorado legislature would have acted so cavalierly as to ban such customer-rewards programs—indeed, to make them criminal—without more clearly expressing an intent to do so.

The plaintiff had sought to challenge a scheme whereby consumers at a particular supermarket got reduced cost petrol from a particular supplier if they had purchased groceries of a specified value. I’m sure this is familiar to all and sundry (our house abounds in vouchers for cut-price petrol from various outlets).

I think it’s awesome that the Court used Seinfeld to illustrate its point.

Now my only wish is that a court use the episode from Treehouse of Horror IV  to illustrate the concept of nemo dat quod non habet (you cannot give what you do not have). In a portion of this episode, Ned Flanders appears as the devil and tempts Homer with a donut in exchange for his soul. Homer, of course, accepts the offer and signs the contract. He cannot resist eating all of the donut, and the devil appears to claim his soul. However, Marge and Lisa are able to show that Homer could not give his soul to the devil because he had already given his soul to Marge on their wedding day (Marge produces a signed photo as evidence of this). Accordingly, the devil cannot take Homer’s soul, but turns his head into a huge donut… There you have it: nemo dat quod non habet in a nutshell.

Well, I’m a property lawyer, of course my wishes are nerdy.

(Via Core Economics)

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The Spirit and the Law – consumer protection and mediums

A certain section of the British spiritualist community is protesting again the repeal of the Fraudulent Mediums Act 1951 (UK). The Independent reported the other day that the recently formed Spiritualist Workers Association (SWA) believes that the repeal of the legislation is discriminatory towards spiritualism. The Spiritualists’ National Union (SNU) which is a long-established body, backed the changes.

The government has denied that the changes are in any way discriminatory, saying that the repeal of the legislation is merely intended to pave the way for the implementation of the EC Unfair Commercial Practices law. The Consumer Protection Regulations cover all activities involving the supply of goods and services to consumers in trade or business, and like our Australian Trade Practices Legislation, looks to prohibit any activity which is misleading to consumers, and aggressive selling techniques.

The issue is that the previous act (which replaced the Witchcraft Act 1735) required the medium to have a deceptive intent or to use a fraudulent device before any contravention could be proven. Very few prosecutions were made, because it was difficult to prove dishonest intent. By contrast, it will be easier to punish or prosecute fraudulent mediums under ordinary consumer protection laws. According to this article in The Times, about £40 million is lost per annum as a result of fraudulent clairvoyant or spiritualist schemes. I agree with the author that the veracity of the religion is not being challenged: it is merely that those who provide services should be subject to uniform standards, and should not make claims that mislead or exploit vulnerable people.

When looking at the issue, I found this interesting directive by the UK Committee of Advertising Practice, which summarises its conclusions for spiritualists, psychics and the like as follows:

  • Marketers should hold documentary evidence to prove any claims that are capable of objective substantiation;
  • Marketers should not mislead or exploit vulnerable people;
  • Claims about successfully solving problems or improving health should be avoided because they are likely to be impossible to prove;
  • Claims of ‘help offered’ should be replaced with ‘advice’;
  • References to healing should refer to spiritual rather than physical healing;
  • Direct marketers should not imply that they have personal knowledge about recipients;
  • Claims relating to the accuracy of readings or guaranteed results should not be made unless they are backed up by appropriate evidence;
  • Claims about being a personal advisor to stars, the wealthy etc and claims such as ‘…as featured on TV’ should be backed up by appropriate evidence;
  • Claims relating to the length of time that a marketer has been established should be backed up by evidence;
  • Money-back guarantees should be clear and genuine;
  • Any testimonials used should be genuine;
  • Marketers should not imply that a lucky charm can directly affect a user’s circumstances;
  • Claims that a lucky charm can act as a confidence prop are acceptable if emphasis is placed on a user’s state of mind, and unproven beliefs that do not relate to the effect of a lucky charm may be acceptable if expressed as a matter of opinion;
  • Marketers offering premium rate fortune telling services should adhere to the ICSTIS Code of Practice.

Sounds eminently sensible to me…any UK clairvoyant, spiritualist or other practitioner in the alternative health sphere would do well to heed it, and then they shouldn’t have any problem with the new legislation. Legitimate practitioners need not worry, because presumably they can provide evidence of their skills, accreditation and testimonials from satisfied customers.

Some lawyers have suggested that spiritualists should describe their service as “entertainment” or a scientific experiment. Hmm, I don’t think so. Just don’t make claims that you can’t back up.

Personally, I don’t rule out the existence of talents which I cannot explain or the effectiveness of alternative treatments, although I have a fair measure of scepticism about some practices. What I very much object to is unrealistic claims about the provision of such services.

I particularly dislike some faith healing claims where, if the service doesn’t work, the fault is not that of the practitioner or the healing method, but the fault of the patient for lacking “faith” or “determination”. As someone who has suffered from illness and disability from an early age, I know that there are some things which just can’t be fixed. Don’t get me wrong: positive thought and determination are very useful. But you’re not a failure if you’re ill. The last thing you need if you are ill is to feel that somehow it is your fault. I have personally benefited from some “alternative” therapies in relation to problems with walking, including Feldenkrais, yoga, acupuncture and Bowen therapy. A friend’s mother gave me Feldenkrias training when I was a teenager after I had an operation on my legs and had to learn to walk again, and it was extremely helpful. I doubt I would have recovered so quickly or so well without it. But ultimately, some problems can never be totally “healed”.

I guess the ultimate point for all consumers is: IF IT SOUNDS TOO GOOD TO BE TRUE, IT IS! How loudly can I say it (well, type it)?

It doesn’t matter whether it’s spiritualism, alternative therapy or investment services. In one of my jobs, I used to come across a lot of share scams and investment scams, and I’ve seen some tragic cases. Indeed, there was a case in the paper this morning about the collapse of a Geelong investment firm which reportedly promised some investors returns of up to 70%. As I always tell my class: as a general rule, the return is directly proportional to the risk – the higher the return, the higher the risk!

So, to all you consumers out there, retain a measure of scepticism and don’t get carried away by extraordinary claims. I’m all for uniform standards which keep those who provide services to the public on the straight and narrow.

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The Force definitely wasn’t with him…

A drunken man in Wales dressed up in a black bin bag and cape and attacked two cousins with a metal crutch. Why would he do that? Well, apparently he wished to join the Dark Side of the Force. The cousins had recently set up a Jedi church in Holyhead, and were making a film of themselves duelling with lightsabers when the drunken man vaulted the fence and attacked them, shouting “Darth Vader!” as he did so.

Pre-sentence reports will be heard in mid-May.

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Not so much gibberish as derivative and boring

I was rather amused to see that the Judge hearing the J.K. Rowling copyright infringement case has described Rowling’s plotlines as “gibberish”.

To explain briefly, as outlined in this article from The Times, Rowling is asking the Manhattan Federal Court to block publication of The Harry Potter Lexicon, a guide to places and names in the Harry Potter series penned by Stephen Vander Ark. Vander Ark had been compiling the guide on a website when RDR Books persuaded him to publish it as a book. The trial has been very emotional, with Vander Ark breaking down in the witness box, and Rowling saying that her characters were as dear to her as children. I thought it was all rather melodramatic myself.

As I’ve explained in a previous post, I don’t think the plot lines are gibberish, but I find the series rather derivative, and Books 4 and 5 were very long, badly edited and boring. I never bothered to read Books 6 and 7, something which still amazes those who know of my voracious reading habits. Hence I was somewhat amused to see Rowling accusing Vander Ark of being derivative: her work is just a clever patchwork of motifs from other much better fantasy works.

I wonder if a better course of action for all would have been for Rowling to broker a deal whereby she collaborated with Vander Ark and fixed the bits of the Lexicon that she found to be offensive and derivative. I’ve noticed that where guides to a fantasy book deal are produced, they are often the product of collaboration between the author and a third party. A third party seems to be able to provide some perspective. But I don’t know what Rowling’s contract with her publishers is: perhaps that wouldn’t be possible. Still, it all seems unnecessarily confrontational.

Update

Further news and sensible commentary in this Guardian article, which asks how can Rowling talk about debasement when she is agreeing to the construction of a Harry Potter theme park in the US?

Although I have to confess that my sister and I went to Parc Asterix in Paris when we were young, and that was quite fun and not overly commercial from memory. We chose Parc Asterix over Eurodisney…after all, we had read our Asterix books all over France, and visited the site of Vercingetorix’s defeat in Alesia.

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God’s law and the law of the State

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder 406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

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