Smith v. Walmart involves a claim that Walmart and its courtesy patrol service, Wackenhut, failed to provide adequate security for the parking lot in which a Walmart customer, Michael Born, was murdered during a robbery.

Plaintiff attorney Mont Tanner told a Las Vegas jury that in the three years prior to the assault, the store had 2,683 service calls to the police department, including 17 calls for burglaries into vehicles, 56 for stolen vehicles, 15 for assault and battery, 15 for robbery, and five for possession of a deadly weapon. The store itself had 31 burglaries and 50 grand larcenies. “In summary…the police were called to this location on a vehicle that was either stolen or burglarized every other week. The police were called at a rate of just over one crime against person every four weeks. The police were called for just over one crime of felony theft every other week. The police were called on average over three times a day in the one year prior to the robbery and assault of Michael Born.”

Mr. Born had visited Walmart at 10pm to purchase a headlamp for his vehicle. He was installing the new headlamp in the Walmart parking lot when the assault occurred. According to Mr. Tanner, signs in the parking lot correctly indicated that surveillance or security cameras were in use, but the cameras were merely “scarecrow security” and were never monitored.

Mr. Tanner also said that the perpetrator, Raymond Garrett, had spent twelve minutes on the property stalking customers, with no apparent interest in shopping, but Walmart’s patrol service, Wackenhut, failed to warn Mr. Born not to do a repair in the parking lot, failed to respond to Mr. Garrett’s presence, was not trained to assess crime risks, and did not have a telephone.

For Walmart, Rob Phillips, of Phillips, Spallas, & Angstadt, said that Mr. Garrett was a sociopath, whose random attack was neither predictable nor preventable. Moreover, Mr. Garrett’s behavior was not suspicious or noteworthy, and Walmart could not have responded to it. Finally, the Walmart in question was not a “crime bed.”

Instead, twelve to fifteen thousand people per day visited the Walmart, which was considered a “safe haven” in a rather tough area. According to Mr. Phillips, Mr. Garrett had committed many assaults, but the reason he was behind bars now was because one of those assaults was at a Walmart, which had security cameras. But, “a reasonably prudent person put in the same position that Walmart was in could not have done anything that would have prevented this random and callous and heartless and chaotic, nonsensical, opportunistic, snap-in-time event.“

For Wackenhut, Craig Delk, of Thorndal, Amstrong, Delk, Balkenbush, & Eisinger, told the jury that Wackenhut’s job was to provide visible presence, which has a significant security effect. But the kind of criminal activity that occurred in this case was unavoidable could not have been deterred.

Wackenhut’s on-site traditional security officer (TSO) received proper TSO training, not police training. Wackenhut’s officer was not to be armed and was not to intervene. His job was to observe and report. The officer did have a radio to Wackenhut dispatch, but the officer’s total time of interaction with Mr. Garrett was maybe 8 seconds, so he had no basis upon which to report anything. “There is simply no causal connection whatever,” said Mr. Delk, “between my client’s activities on this parking lot on that night, and what happened shortly after 10:30 [to Mr. Born]… “Raymond Garrett is the guilty party here…not Walmart or Wackenhut.” 

CVN webcast Smith v. Walmart live.

The jury in Florida Gas Transmission v. Florida Department of Transportation today awarded over $82M in damages against the Florida DOT for breaching an agreement to reimburse for the costs of relocating a gas pipeline.

The jury rejected most of the claims asserted by both parties, including trespass, breach of easements, and promissory estoppel. However, on Florida Gas’s reimbursement claim, the jury awarded the precise amount requested by the plaintiff: $82,697,567.

In his closing rebuttal, Daniel Bishop, of Bishop London & Dodds, reminded the jury that a DOT witness had testified by video deposition: “I guess we would have to provide a place for [Florida Gas] to relocate…because they have a compensable interest in our right of way.“

“That was their own person’s testimony,” said Mr. Bishop. “Not ours, not taken from any of the documents.”

Florida Gas Transmission Co. is a subsidiary of Citris Corp, which is 50% owned by Southern Union Company (NYSE:SUG) and 50% owned by El Paso Corporation (NYSE:EP).

CVN webcast Florida Gas v. DOT live.

In Air Products v. Airgas, Airgas CEO Peter McCausland testified that the EBITDA drop that occurred during the great recession was Airgas’s only EBITDA decline in 22 years, and that going forward Airgas was projecting “record earnings”.

Mr. McCausland said that the rapid change in Airgas’s fortunes confirmed “exactly what we have said, and we have been saying ever since Air Products came along…We’ve done everything we said we would do.”

CVN is webcast Air Products v. Airgas live.

Charlene Amrhein was murdered by 20-year old Solim Kollissiba while in a common area of her apartment complex, the Charleston Club Apartments, in Sanford, Florida.

In Amrhein v. Concord Management, Ms. Amrhein’s husband and son claim that the apartment did not do enough to ensure the safety of the tenants.

For the plaintiff, Beers & Gordon’s David Beers told the jury that Mr. Kollissiba, who lived across the street, had entered the apartment complex repeatedly in the past and had never been confronted by anyone about what he was doing on the property.

Morever, said Mr. Beers, a courtesy officer and a marked police car were supposed to be at the site, but were not. A reasonably prudent site manager, according to Mr. Beers, would have taken more steps than Concord Management took to secure the property.

For Concord Management, Rissman Barrett’s Robert Jack told the jury that the plaintiffs lived in the apartment complex for a year-and-a-half and felt safe during that period, and even renewed the lease. The four on-site cameras were intended, said Mr. Jack, to protect the apartment’s property, not to provide security, and the plaintiff’s should not have expected that security cameras were provided. In fact, the lease specifically provided that the property managers did not provide security.

Finally, according to Mr. Jack, Mr. Kollissiba’s actions constituted a “sudden murder,” and there was nothing anyone could have done to prevent it.

CVN is webcasting Amrhein v. Concord Management live.

In Air Products v. Airgas, today’s second witness, Air Products’ presiding director William Davis, testified that he was not aware of any instances in which a board of directors viewed its offer as adequate and yet nonetheless removed the company’s defenses so as to facilitate the offer.

Mr. Davis also stated his belief that most of the Airgas stock had been acquired by arbitrageurs (arbs) who had acquired their stock for less than $70 and would accept a $70 price.

CVN is webcasting Air Products v. Airgas live.

The first witness to testify in the Air Products v. Airgas trial webcast live by CVN was Air Products CFO Paul Huck, who has led the acquisition effort for Air Products.

Mr. Huck told the court that after Air Products lost in the Delaware Supreme Court, they viewed themselves as having three options: walking away, holding a special meeting, or raising the offer to their best and final offer.

Air Products rejected the possibility of holding a special meeting, said Mr. Huck, because their advisors told them that getting to 67% was an “impossible task” and that no one had ever removed a board with a special meeting.

So their best option, said Mr. Huck, was to make their best and final offer, and try to convince the Delaware Court of Chancery that that best and final offer was not a threat to shareholders under Unocal.

Air Products was unwilling to wait any longer to consummate the deal, according to Mr. Huck, because they had other options, and the Air Products shareholders had long carried the burden of the reduced price of Air Products stock due to deal uncertainty.

Watch CVN’s live webcast of air Products ongoing effort to acquire Airgas in Air Products v. Airgas.

Opening statements were heard today in the first state court Fosamax products liability trial, Rosenberg v. Merck.

For plaintiff Allison Rosenberg, Paul Sizemore, of the The Sizemore Firm, told the jury, “We’re here because Fosamax caused harm to my client’s jaw…Jaw death and what we call osteonecrosis of the jaw doesn’t just happen…it was caused by Fosamax.”

According to Mr. Sizemore, Ms. Rosenberg’s health care providers were not warned that Fosamax could cause bone death, even though the FDA had sent warning letters to Merck. Nor were her physicians told that Fosamax’s effectiveness declined after three years; instead, said Mr. Sizemore, Merck successfully fought to delay and minimize any warning.

Mr. Sizemore predicted that Merck would claim that osteoporosis was “the worst disease in the world,” but noted that Ms. Rosenberg never suffered any fracture. Instead, her jaw died, and none of the other medications Ms. Rosenberg was taking, such as steroids, cause your jaw to die, said Mr. Sizemore — only Fosamax does that.

For Merck, Butler Snow’s Christy Jones told the jury that although Ms. Rosenberg believed that Fosamax had caused harm to her jaw, extensive studies showed Fosamax to be safe and effective. In addition, current scientific evidence does not show that Fosamax causes osteonecrosis of the jaw. Moreover, Merck timely warned doctors of the possible risk of osteonecrosis. Finally, said Ms. Jones, Fosamax did not cause Ms. Rosenberg to suffer osteonecrosis of the jaw. Instead, the harm to Ms. Rosenberg’s jaw possibly resulted from steroid use.

Merck’s FOSAMAX brand is a bisphosphonate, also referred to as alendronate, alendronic acid, or alendronic sodium. Teva manufactures a generic version.

Watch CVN’s live webcast of the Rosenberg v. Merck Fosamax trial.

Yvette Johansen v. Vuocolo involved a patient, George Johansen, who died in 2002 a month after his lung was removed by a vascular surgeon, Phillip Vuocolo, due to suspected lung cancer, at the Heart and Family Health Institute, in Port St. Lucie, Florida. However, the subsequent pathology reports indicated that Mr. Johansen did not have lung cancer.

For the plaintiff, Probinksy & Associates’ Brent Probinsky told the jury that Dr. Vuocolo had “no business” doing a lung removal, because Dr. Vuocolo was not board certified as a thoracic surgeon, and fewer than 10% of Dr. Vuocolo’s surgeries were lung surgeries. In addition, according to Mr. Probinsky, Dr. Vuocolo should have done a biopsy and other tests to confirm the suspected cancer before performing a major and risky surgery. Mr. Probinksy also identified other alleged errors that resulted in complications, bleeding, and an additional surgery.

For the defense, Wicker Smith’s Adam Rhys told the jury that Mr. Johansen was entitled to choose a lumpectomy, and that it was a reasonable choice. In addition, Dr. Vuocolo was an experienced surgeon who had done a thousand thoracic surgeries, with good outcomes. A CAT and a PET scan both confirmed the initial X-ray report, so there was a high likelihood of cancer. Finally, a biopsy would have been risky as well, and could reasonably have been refused. Everything that Dr. Vuocolo did, Mr. Rhys concluded, was within the standard of care, and Mr. Johansen was fully informed as to the risks.

CVN is webcasting Johansen v. Vuocolo live.

The Wall Street Journal said that the upcoming Air Products v. Airgas trial would deliver “one of the most significant [corporate law] decisions in a generation, one that could could affect the balance of power between boards and shareholders.”

On Tuesday January 25, Chancellor William B. Chandler III of the Delaware Court of Chancery will consider whether to prohibit a corporation from using a poison pill to defend against a hostile takeover bid.

Industrial gas manufacturer Air Products, which had been pursuing a merger with rival Airgas since October 2009, made public its intention to buy Airgas when it sued Airgas for refusing to properly consider an Air Products offer to purchase Airgas for $60 per share, which represented a 38% premium above the market price.

By September 2010, Air Products had increased its offer to $65.50, which Airgas rejected, as it had rejected all of Air Products’ previous offers

However, also in September, Airgas shareholders elected a slate of three directors endorsed by Air Products, and approved a bylaw change that would move Airgas’s next annual meeting to January 2011, thus giving Air Products a chance to elect three more of its endorsed candidates, which would constitute a majority of the Airgas board.

In October, 2010, Air Products and Airgas faced off in a Delaware courtroom to resolve whether the shareholder-approved bylaw change was valid, and whether the Airgas shareholders were entitled to accept the $65.50 offer over the board’s objection. The Court of Chancery did not decide whether the $65.50 offer was adequate, but upheld the bylaw change, and Airgas requested an expedited appeal.

On November 3, 2010, the Delaware Supreme Court heard the Airgas appeal and on November 23rd reversed the lower court, concluding that the attempted bylaw change was invalid because the board members’ three-year terms were inappropriately shortened, which amounted to removing the board members without cause, which in turn could only be accomplished by a supermajority vote of 67%, not the simple majority that had supported the bylaw change.

On December 22, 2010, Airgas rejected Air Products’ “best and final offer” of $70 per share. Airgas called the $70 offer “clearly inadequate,” and said the company was worth $78 per share.

Before the Delaware Court of Chancery now is Air Products’ request that the Court invalidate the Airgas shareholder rights plan, commonly called a “poison pill.” A poison pill automatically dilutes the holdings of a suitor that accumulates a certain number of shares, in the case of Airgas the threshold is 15%. The effect of a poison pill is to prevent a suitor from acquiring the company without the board’s approval. However, courts will invalidate a poison pill if it is considered too harsh a remedy. This raises the question of when an offer is good enough that shareholders should be allowed to accept it.

The parties had presented evidence during the October trial as to whether the $65.50 offer was adequate. However, on December 23, Chancellor William B. Chandler III offered the parties a chance to provide additional evidence and argument as to whether Airgas may continue to assert its poison pill defense now that the Air Products offer has been raised to $70.

The supplemental hearing begins Tuesday January 25, 2011, and is expected to continue through Friday. Airgas must explain why its shareholders should be prevented from accepting the $70 offer, and Air Products must show why the $70 offer is adequate.

Air Products is represented by Cravath; Airgas by Wachtell Lipton.

CVN will webcast the Air Products v. Airgas trial live.

In September 2010, 

Resort Properties v. Cherry Investment involved a claim by real estate broker David Atwell’s sole proprietorship, Resort Properties, for a commission from the buyer of a Las Vegas resort hotel, Richard Alter and his company Financial Capital Investment.

Will Kemp, of Kemp, Jones & Coulthard, told the jury, “This case is about a broken promise and a misappropriated real estate commission.” Mr. Kemp said that David Atwell had been a real estate broker for 30 years and was “the premier real estate broker for hotel casino transactions in Clark County.”

According to Mr. Kemp, Mr. Atwell told Mr. Alter that the Alexis Park was for sale, determined that it could be made into a casino, and worked out a price of approximately $79M. Mr. Alter allegedly did not want to proceed at that time with the Alexis Park, but subsequently completed the Alexis Park deal for $75M. However, instead of paying Mr. Atwell the 2% commission that they had discussed ($1.5M), Mr. Alter allegedly paid a $2M broker’s commission to a “fake broker” intermediary, and then transferred it back to himself.

For the defendant, Morris Peterson’s Rex Garner told the jury that Mr. Atwell did not represent the buyer, and did not have any commission agreement with the buyer. Mr. Garner said that Mr. Atwell was adequately compensated by the seller at 0.75%, and there was no written consent to Mr. Atwell’s representing both the buyer and the seller. Moreover, the allegedly misappropriated $2M “commission” was in fact a proper fee to a third party for development services provided in connection with the deal, such as zoning changes.

Mr. Garner claimed that instead it was Mr. Alter was damaged by Mr. Atwell’s insistence across the years that he had been somehow representing Mr. Alter in the transaction.

The jury found in favor of the Mr. Atwell and awarded $1.5M.