- Online Edition
- Print Edition
- Donahue Lecture Series
A trustee’s discretion is generally constrained by statute, by the terms of the trust, and by the trustee’s fiduciary duty to act in the beneficiaries’ interests. When a trustee, acting within the scope of that discretion, distributes trust property into a new trust, that distribution is called “decanting.” In Morse v. Kraft, the Massachusetts Supreme Judicial Court (SJC) considered whether the broad discretion afforded to a trustee under the terms of an irrevocable trust included the power to decant. Holding that it did, the SJC nevertheless declined to adopt the Boston Bar Association’s (BBA’s) preferred position that such power is inherent in all trustees of irrevocable trusts
When the United States Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977, its chief concern was deterring off-the-books bribes of foreign officials by domestic corporations. The FCPA authorized the Securities and Exchange Commission (SEC) to issue new rules, including Rule 13b2-2, which imposes civil liability on corporate officers who mislead accountants concerning the corporation’s finances. In SEC v. Das, the Eighth Circuit Court of Appeals addressed the issue of whether civil liability is present in cases where the corporate officer did not knowingly mislead. Splitting from the Ninth Circuit—the only other circuit court that addressed this issue directly—the Eighth Circuit rejected the proposed “knowingly” requirement, holding that a reasonableness standard shall apply in such cases.
Das concerned infoUSA, Inc., a publicly traded, Nebraska-based corporation that sold databases to businesses and consumers. More specifically, the case concerned events involving three corporate officers: Vinod Gupta, who served as chief executive officer and chairman until 2008; Rajnish Das, chief financial officer from 2003 to 2006; and Stormy Dean, chief financial officer from 2000 to 2003 and then again from 2006 to 2008. The SEC claimed, in a 2010 civil enforcement action, that Dean violated provisions of the Securities Exchange Act of 1934. The agency claimed, among other things, that both former chief financial officers, Das and Dean, deceived auditors concerning payments infoUSA had made to Aspen Leasing Services LLC and Annapurna Corporation—two companies owned by Gupta—to pay for Gupta’s homes, yacht, and cars. The SEC’s complaint further alleged that Dean and Das had signed the company’s management letters to external auditors, falsely representing that all related-party transactions had been properly disclosed. At trial, the judge instructed the jury to find that Dean violated the law if he did not act “reasonably” regarding the false statements made to auditors.
The Fourth Amendment to the U.S. Constitution prohibits searches and seizures conducted without prior approval by a judge or magistrate, but this general rule is subject to several exceptions. One such exception allows a police officer to search a person in the course of a lawful arrest. . .