Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

VIKRAM DAVID AMAR

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

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PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-10950

Opinion Date: March 18, 2021

Judge: Jordan

Areas of Law: Civil Procedure, Trusts & Estates

In a case involving an alleged multi-billion-dollar conspiracy to defraud the Venezuelan state-owned oil company known as PDVSA, the Trust filed suit alleging that it had authority to do so as an assignee of PDVSA pursuant to a trust agreement which, through a choice-of-law clause, is governed by New York law. The district court adopted in part the report and recommendation of the magistrate judge and dismissed the action without prejudice under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. The district court determined that the Trust did not properly authenticate the trust agreement and, even if the trust agreement were authenticated and admissible, it was void as champertous under New York law. The Eleventh Circuit assumed without deciding that the Trust made out a prima facie case of authenticity for the trust agreement at the Rule 12(b)(1) proceedings and that the district court erred by ruling that the trust agreement was inadmissible. The court concluded that, based on its review of the record, the district court may have erred procedurally in definitively resolving the question of champerty at the Rule 12(b)(1) stage because that question likely implicated the merits of the Trust's claims. However, the court concluded that the Trust does not make this procedural argument on appeal and therefore has abandoned any procedural obligations to the champerty ruling. On the merits, the court applied the champerty bar to the trust agreement under New York law in light of Justinian Capital SPC v. WestLB AG, 65 N.E.3d 1253, 1255 (N.Y. 2016), and concluded that the Trust's primary purpose in acquiring PDVSA's claims was to bring this action. Accordingly, the court affirmed the dismissal of the complaint.

Brokken v. Brokken

Court: California Courts of Appeal

Docket: B303898(Second Appellate District)

Opinion Date: March 15, 2021

Judge: Steven Z. Perren

Areas of Law: Legal Ethics, Trusts & Estates

The Court of Appeal reversed the trial court's grant of respondents' request for attorney fees under Probate Code section 2640.1, holding that attorney fees are not available where, as here, the matter is resolved without a conservator's appointment. In this case, respondents filed a conservatorship proceeding on their mother's behalf and the case settled before a conservator was appointed. Therefore, the trial court erred in granting respondents' request.

Eyford v. Nord

Court: California Courts of Appeal

Docket: A157962(First Appellate District)

Opinion Date: March 18, 2021

Judge: Fujisaki

Areas of Law: Trusts & Estates

Kay died in 2016 at age 90. In a trust instrument she executed months earlier, she named St. Jude Children’s Hospital the sole beneficiary of her estate, which was worth approximately $2 million. She disinherited her surviving son and her two granddaughters, who filed a petition contesting the validity of the trust instrument on the ground that Kay had a mental disorder with symptoms including delusions or hallucinations that allegedly caused Kay to devise her property in a way she would not otherwise have done. (Probate Code 6100.5(a)(2)). The court found that the granddaughters failed to carry their burden of proving that Kay was suffering from a delusion at the time she executed the trust. The court of appeal affirmed, rejecting an argument that the trial court erred in wrongly selecting a single false belief Kay had about her granddaughters—i.e., that they “wanted her out of the way in order to get her money”—and then wrongly determining it was not a delusion, while the court should have found that Kay’s multiple false beliefs about her granddaughters all constituted delusions negating Kay’s testamentary capacity. There was substantial evidence that Kay did not have “a mental health disorder” at the time she executed the trust.

Estate of Michael F. Cassiere v. Cassiere

Court: Rhode Island Supreme Court

Docket: 19-236

Opinion Date: March 16, 2021

Judge: Maureen McKenna Goldberg

Areas of Law: Trusts & Estates

The Supreme Court affirmed the judgment of the superior court granting summary judgment in favor of Plaintiff, the Estate of Michael F. Cassiere, on Plaintiff's claim for distribution of assets held in the Carmen D. Neumann Revocable Trust and on Defendant Joseph Cassiere's counterclaim for breach of fiduciary duty, holding that distribution of the trust was proper. Plaintiff brought this action seeking distribution of the trust's assets and termination of the trust. Defendant filed a counterclaim for breach of fiduciary duty. The trial justice granted summary judgment in favor of Plaintiff on both Plaintiff's claim and Defendant's counterclaim. The Supreme Court affirmed, holding (1) there was no evidence in the record to support the elements of a claim for breach of fiduciary duty; and (2) distribution of the trust was proper.