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Statutes updated from Official Statutes on: January 26, 2022
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Defendant's final argument on appeal is that the trial court erred in its instruction to the jury on undue influence. Defendant submitted an instruction similar to North Carolina Pattern Jury Instruction 860.20, "WILLS — UNDUE INFLUENCE," in that, among the factors listed for the jury's consideration were: (1) whether the instrument is made in favor of one with whom there are no ties of blood, or not; and (2) whether it disinherits the natural objects of the drafter's bounty, or not. The trial court's instruction was, instead, based on N.C.P.I. 505.30, entitled "RESCISSION OF WRITTEN INSTRUMENT — UNDUE INFLUENCE," which is similar to 860.20, but does not include the two factors listed above. We note that there is no pattern instruction specifically relating to the setting aside of a deed based on undue influence.renumeration in the following amount: Timekeeper Rate Hours Total Fees Attorney Jason Starling $350 per hour 860.20 hours $301,070 Attorney John Camillus $425 per hour 38.40 hours $16,320 Paralegal Alynnah Satterfield
In support of the result reached by the district court, we note that the Supreme Court has repeatedly made clear that "[t]he canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States . . . is a valid approach whereby unexpressed congressional intent may be ascertained." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949) (emphasis provided); see also Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932). A fortiori, when clearly expressed Congressional intent exists, as in the ADEA's adoption of 29 U.S.C. § 213(f) of the Fair Labor Standards Act ("FLSA") providing for no extraterritorial application, courts should be loath to circumvent such intent. The Supreme Court has also explicity held that in interpreting the ADEA's provision incorporating the FLSA, Congress should be deemed to have fully understood the FLSA and to have intended to fully incorporate its remedies and procedures. Lorillard v. Pons, 434 U.S. 575… But even if the approach taken by the other circuits is not completely compelling on its own terms, we can find nothing in the Age Discrimination in Employment Act or its background that suggests the Act was intended to have an extraterritorial reach beyond what might be necessary to prevent transparent evasions of the sort suggested in our last paragraph. The federal agencies responsible for enforcing the Act have assumed, apparently from the beginning, that it was intended to be limited to domestic employment. See, e.g., 29 C.F.R. § 860.20 (1970). And to apply the Act extraterritorially could be more than a little awkward. The normal basis of national sovereignty is territorial. So if Germany has a law requiring employees to retire at the age of 65 (presumably to spread work in order to reduce unemployment), no one can doubt the authority of Germany to apply the law to Pfeiffer; and if it did so, and if the Age Discrimination in Employment Act were also applicable, Wrigley would find itself having to comply with inconsistent laws, which it could do only by moving Pfeiffer to another country. Incidentally, this particular problem would not arise under the Fair Labor… Two other areas identified in both the Auditor's Report and the Objection of the UST are potentially duplicative entries (860.20 hours/$110,037.50) and avoidance actions (2,675.10 hours/$332,024). With regard to the former, SD asserts that due to the nature of the thousands of adversary proceedings that it is prosecuting, a great deal of repetitive work is necessary which is not duplicative. (SD Response page 3) The Court has reviewed Exhibit D to the Auditor's Report and does not reach the conclusion that services isolated therein are unnecessarily duplicative. With regard to the latter services involving the avoidance actions, the Court notes the UST's further analysis that through the first four fee applications SD has expended a total of 18,150.50 hours or $2,453,388.75 for these services, yet the bankruptcy estates "have not realized any discernable benefit at this time." (See UST's Objection to Amended Fourth Interim Application dated August 3, 1999 at ~~ 6 7). In addition, the Committee in its Statement dated July 22, 1999, expresses its confusion with regard to the so-called "current investor" settlements for which SD has, apparently, taken credit. The Committee… The Court notes, however, that there is a discrepancy in the documents submitted to this Court. Specifically, in his Certification, Mr. Fenton states that, on April 15, 2005, in two separate transactions, he sold 4,540 shares of Tibco stock at $6.72 per share. However, Movants also state that Mr. Fenton sold his Tibcc shares at approximately $7.35. This results in a difference of approximately $2, 860.20. Although the Court does not condone the careless filing of inaccurate pleadings and motion papers, in light of the fact that Mr. Felton and Ms. Rajasubramanian are the sole parties seeking to be appointed as Lead Plaintiffs, the Court finds that Mr. Felton is still entitled to the presumption that he has the largest financial interest, regardless of this $2,860.20 discrepancy. See Greebel v. FTP Software, Inc., 939 F. Supp. 57, 64 (D. Mass. 1996) (finding that, when only one person or group has moved to serve as lead plaintiff, that person or group presumptively has the largest financial interest in the relief sought).At the time of the execution of the will, decedent was of advanced age, seventy-six years old, and suffering in Duke University Hospital from terminal uterine sarcoma. According to her medical records, the cancer had metastasized into her lungs and liver; and at the time the will was signed, decedent appeared sickly, feeble, and in poor physical condition. During this time, decedent was also dependent upon propounder to sign medical releases at the hospital. Caveator testified that his phone calls to speak to his mother went unreturned. The attorney who drafted the will was procured by propounder, and propounder was present during the interview with the paralegal who prepared the will. Propounder made transfers of sums of cash from his aunt's accounts prior to her death, which had the effect of maximizing his post- death inheritance to the exclusion of his sisters when decedent had specifically included the sisters in beneficiary designations. There was extensive evidence demonstrating propounder's impatience in connection with the execution of the will and the power of attorney, and the rapid pace that propounder moved money and accounts as soon as he had the ability to do so… The plaintiff argues, however, that it would not be unfair retroactively to apply the 1984 amendment because there was a split among the authorities as to the extraterritorial applicability of the ADEA as it existed prior to October 1984. It is true that the Wage-Hour Administrator of the United States Department of Labor originally interpreted the ADEA to apply extraterritorially when employees are hired in the United States for work abroad. Opinion Letter of the Wage-Hour Administrator, 8 Lab.Rel.Rep. 401:5217 (Sept. 24, 1968). The court also recognizes that the applicable regulation in effect at the time of the plaintiff's termination, 29 C.F.R. § 860.20, is not specific as to the extraterritorial reach of the ADEA. The regulation first states that the Act is "to apply only to performance of the described discriminatory acts in places over which the United States has sovereignty, territorial jurisdiction, or legislative control." The regulation then goes on to qualify this proscription, stating that activities within such areas are covered by the ADEA "even though the [discriminatory] activities are related to employment outside of such geographical areas."724.25 Phonograph records (except those provided for in item 724.15) ................................... 10% ad val. 860.30 Any sample (except samples covered by item 860.10 or 860.20), valued not over $1 each, or marked, torn, perforated, or otherwise treated so that it is unsuitable for sale or for use otherwise than as a sample, to be used in the United States only for soliciting orders for products of foreign countries ............................... FreeCopy $ 673.20 Paul Coletti, 3/26/09 Certified Copy $ 894.20 Paul Coletti, 3/27/09 Certified Copy $ 860.20 Paul Consigny Certified Copy Certification Fee $ 295.80 $ 5.00 Deponent Taxed Amount Christopher