text:
In October, 1888, Joseph Birtwell brought an action in the circuit court of the United States for the district of Massachusetts against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error to this court, where the same was reversed, and the case was returned to the circuit court for a new trial. 150 U.S. 417 , 14 Sup. Ct. 169.
In June, 1894, the case was again called for trial in the circuit court (63 Fed. 1004), and again resulted in a judgment for Birtwell. The case then went by writ of error to the United States circuit court of appeals for the First circuit, which court affirmed the judgment of the circuit court. 14 C. C. A. 205, 66 Fed. 969.
"It is hereby agreed that trial by jury may be waived in the above- entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as [164 U.S. 54, 55] provided in sections 649 and 700 of the Revised Statutes of the United States.
'Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting.
"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.
"This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.
"The defendant moves the court to rule that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in [164 U.S. 54, 56] force at the time of his importation, the duties he now seeks to recover.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as be has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importation.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case.
"And the defendant moves also that the court find generally for him.
'Said motion is thereupon overruled by the court, and judgment ordered to be entered for the plaintiff.
'(1) That on February 27, 1888, the plaintiff Joseph Birtwell imported, ex steamship Jan Breydel, from a foreign country into the port of Boston, and entered at the customhouse at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston courthouse,' drilled and fitted complete, as required by plan, and painted.
'(4) That on February 29, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 432 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $2,889.29.
'(5) That on March 14, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 4 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $166.75.
'(6) That the plaintiff actually obtained said 432 pieces of iron and said 4 pieces of iron at the time when he paid the estimated duties thereon, respectively.
'(7) That on the 4th day of April, 1888, the defendant collector liquidated the duties on said 432 pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties; and on the 10th day of April, 1888, said collector liquidated the duties on said 4 pieces of iron at the same rate, and under the same provisions of law, at which he had estimated said duties.
'(8) That on the 4th day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty at which the duties on said 432 pieces of iron had been liquidated by the defendant collector; and on the 10th day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty assessed by the collector upon said 4 pieces of iron; and in each of said protests the plaintiff claimed that said 432 pieces of iron and said 4 pieces of iron, respectively, were dutiable under that portion of Schedule C of the tariff act of 1883, which is in the words following: 'Manufactures, articles or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, [164 U.S. 54, 58] lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per cent. ad valorem'; and these protests were the only written protests filed by the plaintiff with the defendant in this case.
'(9) The plaintiff took an appeal from the decision of the defendant collector on both the said importations to the secretary of the treasury within due time, and, the secretary of the treasury having sustained the defendant collector in both cases, the defendant brought this suit in due time, and filed with the attorney of the defendant a bill of particulars in compliance with the requirements of section 3012 of the Revised Statutes of the United States.
"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of paragraph 216 of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.
"This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.' I find that said 432 pieces of iron and said 4 pieces of iron were dutiable at the rate of forty-five per centum ad valorem, as claimed by the plaintiff.
'(12) The value of said 432 pieces of iron was $2,647; the value of said 4 pieces of iron was $216; and the excess of [164 U.S. 54, 59] duties paid over duties due is, on said 432 pieces of iron, $1,698.14, and on said 4 pieces of iron, $69.55.
'(13) The court finds that the plaintiff is entitled to recover the sum of $1,767.69 and interest from the date of the writ, and costs.
'Le Baron B. Colt, Circuit Judge.
'This was an action to recover the amount of certain duties alleged to have been illegally exacted of the plaintiff by the defendant collector of the port of Boston upon certain pieces of iron imported by the plaintiff into said port in the year 1888. The pleadings in the case are hereby referred to, and made a part of this bill of exceptions. The parties, by their attorneys of record, filed with the clerk a stipulation in writing waiving a jury. This case came on to be heard before the Honorable Le Baron B. Colt, circuit judge, at the May term, 1894.
'The court made thirteen special findings of fact, which are hereby referred to, and made a part of this bill of exceptions.
'Joseph Birtwell, the first witness called by the plaintiff, testified that on February 27, 1888, he imported from Antwerp, by the steamship Jan Breydel, into the port of Boston, and entered at the customhouse at said port, 432 pieces of manufactures of iron, and that on the 14th day of March, 1888, he imported from Antwerp, by the steamship Petre De Connick, into said port of Boston, and entered at the customhouse at said port, 4 riveted girders.
'By agreement of counsel, naval-office copies produced by the witness Birtwell of the entries of said two lots of iron, and triplicate copies of the consular invoices thereof offered by him in evidence, were admitted in lieu of the originals, or collector's copies.
'The witness Birtwell then further testified that on the date of importation and entry, in the case of each of said two [164 U.S. 54, 60] lots of iron, the defendant collector estimated the duties thereon at one and one-quarter cents per pound, and the third finding of fact of said circuit court shows that said estimation was under that provision of Schedule C of the tariff act of March 3, 1883, wlich reads as follows: 'Iron or steel beams, girders, joists, angles, channels, cartruck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.' He further testified that on February 29, 1888, for the purpose of obtaining said 432 pieces of iron, he paid the duties estimated thereon by the defendant collector, amounting to the sum of $2,889.29, and that on March 14, 1888, for the purpose of obtaining said four riveted girders, he paid the duties estimated thereon by the defendant, amounting to the sum of $166.75, and that he actually obtained said 432 pieces of iron and said four riveted girders at the times when he paid the estimated duties thereon, respectively.
'From one of the entries referred to above, offered by the plaintiff and received in evidence, it appeared that the defendant collector liquidated the duties on said 432 pieces of iron on the 4th day of April, 1888, at the same rate and under the same provisions of law at which he had estimated said duties; and, from the seventh finding of fact of said circuit court, it appears that on the 10th day of April, 1888, the defendant collector liquidated the duties on said four riveted girders at the same rate and under the same provisions of law at which he had estimated said duties.
'The examination of the witness Birtwell was then suspended, and the plaintiff called Miss Clara Kenrick. She testified that she had for many years been the protest clerk in the customhouse at the port of Boston, and was said clerk during the year 1888, and that it was her duty to receive and care for protests filed by importers against the rate of duty exacted by the collector of said port upon their importations of merchandise.
'The entries of the plaintiff of the two lots of merchandise [164 U.S. 54, 61] in question, referred to above, were then shown to Miss Kenrick, and identified by her as naval-office copies of the entries made by the plaintiff of the two lots of merchandise in question; and the stamps thereon, showing the dates of payment of the estimated duties and of the liquidation, were explained by the witness, corroborating the witness Birtwell, to mean what has been stated above.
'The papers were then handed to the witness by the attorney for the plaintiff, and she was asked if there was anything upon them to show when they were filed at the customhouse. She testified that there were stamps upon each of said papers indicating the dates, respectively, at which they were received at the customhouse. She further testified that the date upon one of the papers, which related to the plaintiff's importation of said 432 pieces of iron by the steamship Jan Breydel, was April 4, 1888, and that the date upon the other paper, which related to the plaintiff's importation of said 4 riveted girders by the steamship Petre De Connick, was April 10, 1888, and she testified that said papers were the protests in writing filed by the plaintiff with the defendant collector against the rate of duty exacted by him upon said importations.
'She was then asked the following question by the counsel for the plaintiff: 'What were your deties in relation to protests filed at that time, so far as the time within which and when they should be filed was concerned?' The question was objected to by the counsel for the defendant, but the court overruled the objection and permitted the witness to answer, and the defendant then and there duly excepted.
'The witness was then asked by the counsel for the plaintiff the following question: 'Can you, from your memory, tell which of those practices was in vogue at this time, in 1888?' Her reply was, 'I think the last one.' The witness then testified further that she was the clerk who received protests; that she made certain entries in a book regarding them, giving the place from which the goods were imported, the date when the protests were received, the name of the importer, and the subject of the protest and appeal; the name of the vessel, the date of entry, whether the entry is duty paid or bonded, the date of liquidation, and the date of filing the protest and appeal, and then it was her duty to send the protest to the deputy collector of customs; that the protests were required to be filed in duplicate, and that the original protest and appeal are sent to the deputy collestor of customs, and the duplicate protest retained by the witness; and that the original protest and appeal are afterwards sent by the deputy collector to the secretary of the treasury at Washington; that in some cases the deputy collector of customs sent protests to the appraisers, and did not send protests to the secretary of the treasury, unless the report of the appraisers confirmed the decision of the collector; and that the decision of the secretary of the treasury upon protests and appeals is sent to the collector of customs from whom they have been received.
'The witness then identified two papers as the appeals to the secretary of the treasury filed by the plaintiff with the defendant collector in the matter of the decision of the defendant as to the rate of duty chargeable upon defendant's said two importations.
'Up to this point the papers containing the protests and appeals referred to above had not been formally offered in evidence by the plaintiff. Counsel for the plaintiff then formally offered in evidence the two papers identified by the witnesses Birtwell and Kenrick as the protest filed by the plaintiff with the defendant collector against the rate of duty [164 U.S. 54, 63] exacted by the defendant upon the plaintiff's exacted by the defendant upon the plaintiff's said two importations of iron.
'The papers were objected to by the attorney for the defendant on the ground that from the testimony in the case, and from the dates stamped upon said papers, it appeared that they had been filed by the plaintiff with the defendant collector too late to be good and valid protests under the law in force at the time of said importations; but the court overruled the objection and admitted the papers, whereupon the defendant them and there duly excepted.
'It is not deemed necessary to set out said two papers verbatim, inasmuch as the only objection to their admission was the objection just stated; it being conceded by the defendant that said papers complied with the provisions of law regarding protests in all respects, except the time at which they were filed with said defendant collector. Miss Kenrick then gave further testimony, which, however, is not material for the purpose of this bill of exceptions.
'The four pieces of iron referred to in said admission are what are referred to herein as four riveted girders.
'On cross-examination the witness Kenrick testified that she had no personal knowledge whatever in regard to the [164 U.S. 54, 64] practice at any time at other ports than the port of Boston in the matter of the time of receiving protests.
'The examination of the witness Birtwell was then resumed, but his further testimony contained nothing material for the purpose of this bill of exceptions.
'Upon the conclusion of the plaintiff's evidence, and after the plaintiff had rested, the counsel for the defendant stated that the had no evidence to offer on behalf of the defendant, and thereupon rested.
"The defendant moves the court to rule that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise according to the provisions of law in force at the time of his importation, the duties he now seeks to recover.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importations.
'The court overruled the motion, and the defendant duly excepted.
'This bill of exceptions having been tendered for signature and allowance to the judge presiding at said cause at the same term of court at which said special findings were rendered, and within the time allowed by the court therefor, the same is now hereby signed and allowed as a further statement of [164 U.S. 54, 65] the exceptions taken and reserved by the said defendant at the said trial, and is hereby made a part of the record in the said cause.
'The within bill of exceptions is allowed this twelfth day of October, 1894.
The Chief Justice, Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Brewer dissenting.
Atty. Gen. Harmon and Asst. Atty. Gen. Whitney, for plaintiffs in error.
J. P. Tucker and Edward Hartley, for defendant in error.
This was a suit brought by Birtwell, an importer, against the collector of customs at Boston, to recover certain duties alleged to have been overcharged upon goods, imported in 1888.
It is conceded on the part of the government that the classification and rate of duty adopted by the collector, and affirmed on appeal by the secretary of the treasury, were erroneous, and that the classification contended for by the importer was proper. The plaintiff was accordingly entitled to recover if payment of the duties was made by the importer for the purpose of obtaining possession of his mer- [164 U.S. 54, 66] chandise, and if the protest which must be made in order to give an importer a right of action against a collector for duties claimed to have been illegally exacted was made in time, as provided by law.
It was affirmatively found in the circuit court that the duties were paid by the importer in order to get possession of the goods, and no objection has been urged in this court to the correctness of that finding. The question principally discussed is whether the plaintiff gave timely and sufficient notice of protest and dissatisfaction with the decision of the collector. The record discloses that when the gross estimates were made, as provided in section 2869 of the Revised Statutes, the importer paid the amounts thereof, and that subsequently, when the duties on the respective invoices were liquidated, protests in writing, in the form required, were filed.
The United States claim that the protests, to be efficacious, should have been made at or before the time the payments were made according to the gross estimates. This position was overruled by the trial court (63 Fed. 1004), and the same view prevailed in the circuit court of appeals ( 30 U. S. App. 52, 14 C. C. A. 205, and 66 Fed. 969).
It is unnecessary at this time to enter into a minute examination of the several enactments on this subject, as they have been so frequently and recently discussed in several opinions of this court cited in the arguments of counsel. Barney v. Watson, 92 U.S. 449 ; U. S. v. Schlesinger, 120 U.S. 109 , 7 Sup. Ct. 442; Davies v. Miller, 130 U.S. 284 , 9 Sup. Ct. 560; and Barney v. Rickard, 157 U.S. 352 , 15 Sup. Ct. 642,-may be particularly mentioned. Our present task is to apply the conclusions of those cases to the one in hand and we can add but little to the opinion of the circuit court of appeals.
'Section three thousand and eleven is amended by striking out all after word 'protest,' in the eighth line, and by adding the words 'and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one."
Undeniably, the general purpose of this legislation was to secure to the importer, who, in order to get possession of his merchandise, has paid duties which he alleges to have been in excess of those authorized by law, a remedy in the nature of an action at law to recover back any such excess, and to the United States a notice in writing, setting forth distinctly and specifically the grounds of objection to the amount claimed, and to provide, in respect to time, that such notice must be given within 10 days after the ascertainment and liquidation of the duties, and that the action must be brought within 90 days after the decision on appeal by the secretary of the treasury. [164 U.S. 54, 69] There is no apparent reason, in the way of advantage or disadvantage to the United States, why the notice or protest should be made at any particular juncture, if made before the appeal to the secretary.
The moneys paid by the importer, in order that he may get possession of his merchandise, are forthwith paid into the treasury of the United States, and the function of the protest to warn the government of the fact of dissatisfaction, and to commit the importer to a specific statement of the grounds of his objection, is equally performed, whether made at the time of such payment, or within 10 days after the ascertainment and liquidation of his duties.
We think that the fair and reasonable import of section 2931 and of section 3011, as they stood in 1888, when these goods were imported, was that a right of action accrued to [164 U.S. 54, 70] the importer if he paid the duties complained of the order to get possession of his merchandise, and if he made his protest, in the form required, within 10 days after the ascertainment and liquidation of the duties.
That congress, in 1877, amended section 3011 by striking out the provision that the protest should be made and delivered at or before payment was a legislative declaration that thereafter such provision should not exist or apply.
It is urged that the phrase 'under protest,' in the first part of section 3011, is inconsistent with this view. But it is not unusual, in a succession of statutes on the same subject-matter, amending or modifying previous provisions, that a word or phrase may remain, although rendered useless or meaningless by the amendments. Such words are merely vestigial, and should not be permitted to impair or defeat the fair meaning of the enactment.
However, we do not think that in this instance there is any real inconsistency. The transaction treated of in this legislation is an entire one, beginning with the entry of the merchandise, and continuing through the appraisement, the liquidation of the duties, the payment, the protest, the appeal, to the trial of the action, and may properly be spoken of as one in which the payment is made under protest, or made in a process in which a protest is made. 'Payment under protest' means a transaction where protest has been made in accordance with the requirement of section 2931, and not 'at or before payment' of the estimated duties.
This view of the subject renders it unnecessary to consider what effect ought to be given, in the case before us, to the practice of the treasury, either by way of departmental construction, or by way of estoppel. Nor do we consider it incumbent on us to consider whether there was error in the circuit court, as a matter of practice, in directing judgment upon the special findings in favor of the importer. No such error was assigned in the circuit court, or was considered in the court of appeals, but it first appeared in the application for the writ of certiorari. [164 U.S. 54, 71] The judgment of the circuit court of appeals, affirming the judgment of the circuit court, is affirmed.
At common-law money unlawfully exacted by a collector of taxes or duties could be recovered back in an action of assumpsit brought against him, but to sustain the action the money must have been paid under duress. Duties are voluntarily paid if paid without objection. The finding in this case that the importer paid for the purpose of obtaining these pieces of iron is no more than would be true in any case, and does not show, in the absence of expressed objection, that the payment of the particular amount was made by the importer in invitum.
As construed by this court in Carey v. Curtis, 3 How. 236, the act of March 3, 1839, took away the common-law right of action to recover moneys paid under duress of goods; but it was restored by the act of February 26, 1845, the provisions of which were carried forward as section 3011 of the Revised Statutes. The common-law action continued as before, save that it was subject to certain new restrictions. In the revision of 1873-74, section 3011 read as follows: 'Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest in writing and signed by the claimant or his agent, was made and delivered at or before the payment, setting forth distinctly and specifically the grounds of objection to the amount claimed.' [164 U.S. 54, 72] Protest was required to show that the legality of the demand was not conceded when payment was made, and the words 'at or before payment' were merely declaratory and redundant.
It may be observed that two written protests or notices of specific objections were not generally, if ever, necessary, for the notice required by section 2931 might be given at the time of paying the money.
The Revised Statutes did not change the action recognized by the act of 1845, substantially, or relax any of its requirements; and although it is true, as said in Arnson v. Murphy, 109 U.S. 238 , 3 Sup. Ct. 184, that the specified action was regulated by express statutory provisions, yet the conditions that the pay- [164 U.S. 54, 74] ment must be made under protest, and to obtain the goods, still remained, and so it has been several times decided. Porter v. Beard, 124 U.S. 429 , 8 Sup. Ct. 554; U. S. v. Schlesinger, 120 U.S. 109 , 7 Sup. Ct. 442.
This amendment was held by the circuit court of appeals to have revolutionized the law as to the recovery back of moneys voluntarily paid, and to allow payments made without objection to be recovered, if grounds of objection was afterwards discovered. And yet the statute, as amended, preserved the express requirement that payments, to be recovered back, must be made 'under protest and in order to obtain possession' of the goods. In other words, the amendment pre- [164 U.S. 54, 75] served so much of the act of 1845 as announced the common-law rule and omitted so much as established new restrictions, referring instead to the restrictions of 1864. If the intention had been to change the common-law rule, the words 'under protest' would have been stricken out, and it seems to me a most dangerous and wholly inadmissible rule of construction to treat them as accidentally retained traces of something that had ceased to be. The words 'at or before the payment' were omitted, but, as already said, these were merely declaratory and redundant, and that was undoubtedly the reason of the omission. The last clause of section 3011, as amended, refers to the notice in writig required by section 2931, and is simply a cross reference to the additional requirement that the treasury proceeding shall be had before the action is commenced. In my opinion, the action remained an action in the nature of a common-law action, and governed by the principles of the common law, except as otherwise specifically provided. Indeed, section 3011, as it now stands, is unambiguous on its face, and does not call for construction, unless in respect of the character of the protest; and that need not be considered, as the finding of facts must be taken to mean that no protest at all was made at the time these duties were paid, and the pieces of iron obtained by the importer. I cannot accept the conclusion that under this act the importer can recover on a payment not made under duress, and think that such duress cannot be said to exist, in the absence of any objection to making the payment.
I therefore dissent from the opinion and judgment of the court, and am authorized to say that Mr. Justice FIELD, Mr. Justice HARLAN, and Mr. Justice BREWER concur in this dissent.

matches: v. v. v. v. v. v. v. v.


Board members’ decisions to award compensation packages for themselves can present some thorny issues. In a close corporation, shareholders typically serve as officers and directors, and have a reasonable expectation of compensation in lieu of dividends or distributions. But dissenting shareholders or directors, armed with the benefit of hindsight, can, and often do, criticize a board’s compensation decisions as excessive, claiming self-dealing, looting, and waste. What statutory protections do board members have when making compensation decisions? To what extent can board members truly rely on those protections?
In Cement Masons Local 780 Pension Fund v Schleifer, 56 Misc 3d 1204 [A], 2017 NY Slip Op 50875 [U] [Sup Ct NY County June 29, 2017], Manhattan Commercial Division Justice Saliann Scarpulla considered these issues in a thoughtful opinion, in which she relied on some relatively infrequently litigated provisions of the Business Corporation Law (“BCL”). The decision is also noteworthy for its reliance on decisional law from Delaware on not one, but two important issues of law, one of which was an apparent question of first impression in New York. Although Cement Masons Local involved a public company, it addressed the same statutes that govern close corporations, and provides helpful guidance to board members, and counsel, when weighing compensation decisions.
Cement Masons Local was a stockholder in Regeneron, a NASDAQ-traded New York biopharmaceutical corporation. Cement Mason Local brought a shareholder derivative action against 13 of Regeneron’s current and former members of the ten-member board, alleging they awarded themselves excessive compensation packages, including cash, equity, and stock options, as Regeneron’s finances were declining precipitously.
Initially, a written incentive compensation plan, adopted in 2000 without shareholder approval, governed the board’s discretion to grant compensation. In 2014, the board unanimously recommended that Regeneron’s shareholders approve a new compensation plan. After a shareholder vote, a majority of the shareholders approved the plan. But the board controlled the voting rights of a large block of common shares held by certain non-party shareholders, who were required under a written agreement to vote their shares as recommended by the board. Without those votes, a majority of the shareholders would not have approved the plan.
The first statutory protection potentially available to the board was BCL § 505 (h), which states that in the “absence of fraud,” the “judgment” of the board of directors is “conclusive as to the adequacy of consideration” for the receipt of options or rights to purchase a corporation’s stock.
Absent a controlling New York precedent in the context of BCL § 505 (h) and self-interested transactions, I follow Delaware’s case law and find that BCL § 505 (h) does not shield the Director Defendants’ judgment in this self-interested transaction as a matter of law.
Because a majority of the directors was self-interested in the board’s post-2014 compensation decisions, the court held that BCL § 505 (h) did not shield the board from liability for issuing itself stock options in Regeneron.
No contract or other transaction between a corporation and one or more of its directors . . . shall be either void or voidable for this reason alone or by reason alone that such director or directors are present at the meeting of the board, or of a committee thereof, which approves such contract or transaction . . ..
The plaintiff argued that shareholder approval of the post-2014 plan did not protect the board because the board controlled a large block of voting shares, which, if excluded from voting, would have been inadequate to obtain a majority vote.
Borrowing again from Delaware law, the court explained that “Delaware courts interpreting” a similar statute “have concluded that it provides that only disinterested shareholders votes may be considered” in ratification of a board decision (citing In re Cox Communications, Inc. Shareholders Litig., 879 A2d 604 [Del Ch 2005]). The court held that because a majority of disinterested shareholders did not approve the post-2014 compensation plan, shareholder ratification under BCL § 713 (a) (2) was insufficient to shield the board from liability.
a complaint challenging the excessiveness of director compensation must—to survive a dismissal motion—allege compensation rates excessive on their face or other facts which call into question whether the compensation was fair to the corporation when approved, the good faith of the directors setting those rates, or that the decision to set the compensation could not have been a product of valid business judgment.
The final statutory provision invoked by the board members — this time with partial success — was the requirement of pleading “demand futility” under BCL § 626 (c), a subject this blog has addressed many times.
With respect to pre-2014 compensation decisions, under the first Marx prong, the court held that Cement Masons Local failed to allege that a majority of the directors were interested in the transaction, because only three members of the ten-member board allegedly received compensation under the pre-2014 plan. With respect to the second Marx prong, the court held that the plaintiff “conclusorily” alleged that the directors “failed to inform themselves” about the transaction. As to the third Marx prong, the court held that plaintiff did “not sufficiently allege that the directors failed to exercise their business judgment in approving the executive compensation.” Thus, the court dismissed the complaint as to all compensation decisions before 2014.
As a result of these holdings, the court allowed plaintiff’s two causes of action for breach of fiduciary duty and unjust enrichment to proceed with respect to the board’s post-2014 compensation decisions.
Much like the common-law business judgment rule, BCL §§ 626 and 713 provide important protections for board compensation decision. But as Cement Masons Local makes clear, those protections are anything but absolute, and may be lost where (i) a majority of the board is self-interested in a transaction, (ii) where the board controls a large block of shareholder votes, without which a majority of shareholders cannot be obtained to ratify a transaction, or (iii) where the complaint contains detailed allegations calling into question whether the compensation was fair.
Cement Masons Local emphasizes that, as always, board members and their counsel should do their utmost to secure at least a majority of disinterested votes in favor of a compensation decision at the board level and, if ratified, by a majority of disinterested shareholders.


text:
LTG Aktiengesellschaft (abbreviated to LTG AG) welcomes you to its website. Thank you for your interest in our air-conditioning and process air technology products and services. In the following, we inform you about how and why your personal data are collected, handled and processed when you use this website.
Unless stated otherwise in the following sections, no personal data will be collected, processed or used while using this website. By preserving your anonymity some information will be transferred while accessing this website, such as your anonymised IP address. This data cannot be allocated to a certain person by us.
Data protection legislation is of course complied with. Personal data within the meaning of the German Federal Data Protection Act (BDSG) includes information concerning the personal or material circumstances of an identified or identifiable individual, such as name, address, telephone number and date of birth.
In the absence of explicit consent pursuant to Art. 6 para. 1 a GDPR, LTG AG processes personal data in order to fulfil a contract or if this is necessary for the implementation of pre-contractual measures pursuant to Art. 6 para. 1 b GDPR. Any further processing that takes place is necessary to safeguard a legitimate interest of our company pursuant to Art. 6 para. 1 f GDPR and outweighs the interests, fundamental rights and freedoms of the data subject.
When using the website for information purposes only, i.e. if you do not register or otherwise provide us with information, we only collect the personal data that your browser transmits to our server. If you view our website, we collect the following data, which is technically necessary for us to display our website to you and to ensure stability and security. The legal basis for this is Art. 6 para. 1 f GDPR: anonymisedIP address, date and time of the request, time zone difference to Greenwich Mean Time (GMT), content of the request (specific page), access status/HTTP status code, amount of data transmitted in each case, website from which the request comes, browser, operating system, and its interface, language and version of the browser software.
You can apply to our company electronically, especially by e-mail. We will of course use your data exclusively for processing your application and will not pass it on to third parties. Please note that unencrypted e-mails are not transmitted with access protection.
Your personal data will be deleted immediately after completion of the application process or after a maximum of 6 months, unless you have expressly given us your consent for a longer storage of your data or a contract has been concluded. The legal basis is Art. 6 Para. 1 a, b and f GDPR and § 26 of the German General Data Protection Regulation (BDSG).
This website uses Google Analytics, a web analysis service provided by Google Inc. (“Google”). Google Analytics uses “cookies”; these are text files which are stored on your computer to analyse the way you use the website. The information created by the cookie about the way you use this website is usually sent to and stored on a Google server in the USA. If the IP anonymisation is activated on this website, Google will first truncate your IP address in Member States of the European Union or in other states party to the Agreement on the European Economic Area. Only in exceptional cases is the full IP address sent to and truncated on a Google server in the USA. Google will use this information on behalf of the operator to evaluate the way you use the website, to collate reports on website activities and in order to provide the website operator with other services related to website and internet use. The IP address sent by your browser as part of Google Analytics is not combined with other data held by Google. You can change your browser settings to prevent cookies from being stored; however we would draw your attention to the fact that in these circumstances, you may find that you are unable to make full use of all functions on the website. You can also prevent the data (including your IP address) relating to your use of the website which is captured by the cookie being sent to or processed by Google by downloading and installing the browser plug-in available at the following Link.
You can also use the form available on this website to contact us. Any data you provide us with in this connection is provided on an explicitly voluntary basis and with your consent. The legal basis for data processing in this case is Art. 6 para. 1 a GDPR. The personal data provided to us in this way will only be used for the purpose for which you have provided it. This optional information improves the handling of the contacting process and helps us to determine the specifics of your inquiry. The data will not be used for any other purposes without your express consent. You may of course revoke your consent to any future use of such data. All you need to do is contact the address stated in the legal notice section . Your data will not be passed on to third parties.
You can subscribe to our newsletter. Your e-mail address will be needed for the registration. To be sure that you want to subscribe to the newsletter we use the so called double-opt-in process. After successful registration you receive a link via email to activate the newsletter service. The storage of your email address serves only the purpose of being able to send you the newsletter. Of course you have the possibility to unsubscribe the newsletter and to revoke your consent for the future.
The legal basis for the processing of the data after registration for the newsletter by the user is, with the user’s consent, Art. 6 para. 1 a GDPR.
External service providers and partner companies such as online payment providers or the shipping company commissioned with the delivery will only receive your data if this is necessary to process your order. In these cases, however, the scope of the transmitted data is limited to the required minimum. As far as our service providers come into contact with your personal data, we ensure within the scope of the order processing according to Art. 28 GDPR that these comply with the regulations of the data protection laws in the same way. Please also note the respective data protection information of the providers. The respective service provider is responsible for the content of external services, whereby we check the compliance of the services with the legal requirements within the scope of reasonableness.
It is important to us to process your data within the EU/EEA. However, we may use service providers who process data outside the EU/EEA. In these cases, we ensure that an appropriate level of data protection is established at the recipient prior to the transfer of your personal data. This means that EU standard contractual clauses or a decision on adequacy, such as the EU Privacy Shield, achieve a level of data protection comparable to standards within the EU.
LTG AG has taken extensive technical and operational security precautions to protect your data against unauthorised access or misuse. Our security procedures are reviewed at regular intervals and modified to keep pace with technological progress. Our employees receive regular training and are committed to data secrecy.
In addition, you have the right to have your data corrected or deleted. If there is no reason for further storage, we will delete your data, otherwise we will restrict processing. You may also request that we provide all personal information that you have provided to us in a structured, current and machine-readable format either to you or to a person or company of your choice.
In addition, there is a right to lodge a complaint to the responsible data protection supervisory authority (Art. 77 GDPR in conjunction with § 19 BDSG).
If you have any questions about the processing of your personal data, please contact our data protection officer. The data protection officer will also be glad to answer any queries you may have or to accept applications or complaints.

matches:
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
§ 26
Art. 6
Art. 6
Art. 28
§ 19


text:
Dias, L.C., A. Morton, J. Quigley (eds). Elicitation - The science and art of structuring judgement. Springer New York, 2018.
Bisdorff R., L. Dias, P. Meyer, V. Mousseau, M. Pirlot (eds). Evaluation and Decision Models with Multiple Criteria - Case Studies. International Handbooks on Information Systems, Springer-Verlag Berlin Heidelberg, 2015.
Antunes, C.H., L. C. Dias (coord.), Decisão – perspectivas interdisciplinares, Imprensa da Universidade de Coimbra, Coimbra, 2007.
Antunes, C.H., J.J. Costa, L.C. Dias (eds), Sustainable Cities and Society, Special issue: “Sustainable Cities: designing for the people and planet”, Vol. 26, pp. 419-567, October 2016.
Dias L.C., V. Mousseau (eds), Journal of Multi-Criteria Decision Analysis, Special Issue: “Applying MCDA: challenges and case studies”. Vol. 21, Issue 1-2, pp. 1-93, January-April 2014.
Antunes C.H., D. R. Insua, L.C. Dias (eds), International Journal of Systems Science, “Special Issue on uncertainty and robustness in planning and decision making”.Vol. 45, N.º 1, pp. 1-93, 2014.
Dias L.C., C.H.Antunes, D. Rios Insua (eds), International Journal of Intelligent Decision Technologies, “Special Issue on Intelligent technologies for planning and decision making under uncertainty”. Vol. 6, N.º 4, pp. 243-304, 2012.
Antunes, C.H., L.C. Dias, Decision Support Systems. “Managing Uncertainty in Decision Support Models” Mini EURO Conference, Vol. 43, N.º 4, pp. 1451-1547, 2007.
Antunes, C.H., L.C. Dias, Feature Cluster, European Journal of Operational Research, “Managing Uncertainty in Decision Support Models” Mini EURO Conference, Vol. 181, N.º 3, pp. 1425-1616, 2007.
Dias, L.C., R. Vetschera. On generating utility functions in Stochastic Multicriteria Acceptability Analysis, European Journal of Operational Research (forthcoming).
Dias, L.C., R. Vetschera. Multiple local optima in Zeuthen-Hicks bargaining: An analysis of different preference models EURO Journal on Decision Processes (forthcoming).
Du C., C. Ugaya, F. Freire, L. Dias, R. Clift. Enriching the results of screening Social Life Cycle Assessment using content analysis: A case study of sugarcane in Brazil, International Journal of Life Cycle Assessment (forthcoming).
Du C., L.C. Dias, F. Freire, Robust multi-criteria weighting in comparative LCA and S-LCA: A case study of sugarcane production in Brazil, Journal of Cleaner Production, 218, May 2019, 708-717.
Caldeira, C., F. Freire, E.A. Olivetti, R. Kirchain, L. Dias. Analysis of cost-environmental trade-offs in biodiesel production incorporating waste feedstocks: a multi-objective programming approach, Journal of Cleaner Production, 216, April 2019, 64-73.
Caldeira, C., O. Swei, F. Freire, L.C. Dias, E.A. Olivetti, Randolph Kirchain, Planning strategies to address operational and price uncertainty in biodiesel production, Applied Energy, 238, March 2019, 1573-1581.
Jasinski, D., M. Cinelli, L. C. Dias, J. Meredith, K. Kirwan, Assessing Supply Risks for Non-Fossil Mineral Resources via Multi-Criteria Decision Analysis, Resources Policy, 58, October 2018, 150-158.
Gouveia, M.C., E.D. Neves, L.C. Dias, C.H. Antunes, Performance evaluation of Portuguese mutual fund portfolios using the Value-Based DEA method, Journal of the Operational Research Society, 69, Issue 10, 1628-1639, 2018.
Dantas, G.A., N. J. de Castro, L. Dias, C. H. Antunes, P. Vardiero, R. Brandão, R. Rosental, L. Zamboni, Public Policies for Smart Grids in Brazil Renewable & Sustainable Energy Reviews, 92, September 2018, 501-512.
Lee, N.C, V. Leal, L. C. Dias. Identification of objectives for national energy planning in developing countries, Energy Strategy Reviews,21, August 2018, 218-232.
Dias, L.C., C.H. Antunes, G. Dantas, N. de Castro, L. Zamboni, “A multi-criteria approach to sort and rank policies based on Delphi qualitative assessments and ELECTRE TRI: the case of smart grids in Brazil”, Omega, 76, 100-111, April 2018.
Domingues, A.R., P. Marques, R. Garcia, F. Freire, L.C. Dias, “Applying Multi-Criteria Decision Analysis to the Life-Cycle Assessment of Vehicles”, Journal of Cleaner Production, Vol. 107, 749–759, November 2015.
Clímaco J., L. Dias, L. Alçada Almeida, "Uma revisão de três pacotes de software dedicados a problemas multiatributo", Engevista, Vol 17, n. 3, 288-307, setembro 2015.
Noshadravan, A., L. Cheah, R. Roth, F. Freire, L. Dias, J. Gregory, “Stochastic comparative assessment of life-cycle greenhouse gas emissions from conventional and electric vehicles”, International Journal of Life Cycle Assessment, Vol. 20(6), 854-864, 2015.
Gouveia, M.C., L.C. Dias, C.H. Antunes, “Benchmarking of maintenance and outage repair in an electricity distribution company using the Value-Based DEA method”, Omega, Vol. 53, June 2015, pp. 104-114.
Silva S., L. Alçada-Almeida, L. C. Dias, “Biogas Plants Site Selection integrating Multicriteria Decision Aid Methods and GIS Techniques: A Case Study in a Portuguese Region”, Biomass and Bioenergy, Volume 71, December 2014, pp. 58–68.
Vetschera R., P. Sarabando, L. Dias, “Levels of incomplete information in group decision models - A comprehensive simulation study”, Computers & Operations Research, Vol. 51, November 2014, pp. 160–171.
Silva S., L. Alçada-Almeida, L. Dias, “Web-based Multi-criteria Spatial Decision Support System for the Assessment of Environmental Sustainability of Dairy Farms”, Computers and Electronics in Agriculture, Vol. 108, October 2014, pp. 46–57.
Asadi E., M. Gameiro da Silva., C.H. Antunes, L. Dias, “Multi-objective optimization for building retrofit: a model using genetic algorithm and artificial neural network and an application”, Energy and Buildings, 81, October 2014, pp. 444–456.
Gülşen, E., E. Olivetti, F. Freire, L. Dias, R. Kirchain, “Impact of feedstock diversification on the cost-effectiveness of biodiesel”, Applied Energy, Vol. 126, August 2014, pp. 281–296.
Olivetti, E., E. Gülşen, J. Malça, E. Castanheira, F. Freire, L. Dias, R. Kirchain, “Impact of Policy on Greenhouse Gas Emissions and Economics of Biodiesel Production”, Environmental Science & Technology, 48 (13), July 2014, pp 7642–7650.
Sánchez-Lozano, J. M., C. H. Antunes, M. S. García-Cascales (3), L. C. Dias, “GIS-based Photovoltaic Solar Farms site selection using ELECTRE-TRI: Evaluating the case for Torre-Pacheco, Murcia, Southeast of Spain”, Renewable Energy, Vol. 66, June 2014, pp 478–494.
Haydt, G., V. Leal, L. Dias, “A Multi-Objective Approach for Developing National Energy Efficiency Plans”. Energy Policy, Vol. 67, April 2014, pp 16–27.
Rocha, C., L.C. Dias, “MPOC: an agglomerative algorithm for multicriteria partially ordered clustering", 4OR - A Quarterly Journal of Operations Research, 4OR - A Quarterly Journal of Operations Research, Vol. 11, Issue 3, 253-273, 2013.
Dias, L.C., A.R. Domingues, “On multi-criteria sustainability assessment: spider-gram surface and dependence biases”. Applied Energy, Volume 113, January 2014, pp 159–163.
Rocha, C., L.C. Dias, I. Dimas, “Multicriteria Classification with unknown categories: a Clustering-Sorting approach and an application to Conflict Management", Journal of Multi-Criteria Decision Analysis, Vol. 20(1), 13–27, 2013.
Sarabando, P., L.C. Dias, R. Vetschera, “Mediation with incomplete information: Approaches to suggest potential agreements”, Group Decision and Negotiation, Vol. 22, Issue 3, 561-597, May 2013.
Covas, M., C.A. Silva, L.C. Dias, “Multi-Criteria Decision Analysis for Sustainable Data Centers Location”, International Transactions in Operations Research, Vol. 20(3), 269–299, May 2013.
Covas, M. T., C. A. Silva, L. C. Dias, “On locating sustainable Data Centers in Portugal: problem structuring and GIS-based analysis”. Sustainable Computing: Informatics and Systems, Vol. 3(1), 27-35, 2013.
Haydt, G., V. Leal, L. Dias, “Uncovering the multiple objectives behind national energy efficiency planning”. Energy Policy, Vol. 54, March 2013, pp. 230-239, 2013.
Gouveia, M.C., L.C. Dias, C.H. Antunes, “Super-efficiency and stability intervals in additive DEA", Journal of the Operational Research Society, Vol. 64(1), 86–96, 2013.
Sarabando, P., L.C. Dias, “Comparison of decision rules to mediate negotiations with incomplete information”, International Journal of Society Systems Science, Vol. 4(4), 381-404, 2012.
Dias, L.C., C.H. Antunes, D. Rios Insua, “Dealing with uncertainty in Decision Support Systems: Recent trends (2000-2011)”, International Journal of Intelligent Decision Technologies, Vol. 6(4), 245-264, 2012.
Asadi E., M. Gameiro da Silva., C.H. Antunes, L. Dias, “A Multi-objective optimization model for building retrofit strategies using TRNSYS simulations, GenOpt and MATLAB”, Building and Environment, Vol. 56, October, 370–378, 2012.
Dias, L.C., P. Sarabando, “A note on a group preference axiomatization with cardinal utility", Decision Analysis, Vol. 9 (3), 231-237, 2012.
Asadi E., M. Gameiro da Silva., C.H. Antunes, L. Dias, “multi-objective optimization for building retrofit strategies: a model and an application”, Energy and Buildings, Vol. 44, No. 1, 81-87, 2012.
Almeida P, LC Dias, Value-based DEA models: application-driven developments, Journal of the Operational Research Society, Vol. 63 (1), 16-27, 2012.
Sarabando, P., L.C. Dias, “Simple procedures of choice in multicriteria problems without precise information about the alternatives”, Computers and Operations Research, Vol. 37, No. 12, 2239–2247, 2010.
Dias, L.C., C. Lamboray, “Extensions of the prudence principle to exploit a valued outranking relation”, European Journal of Operational Research, Vol. 201, No. 3, 828-837, 2010.
Neves L.P., L.C. Dias, C.H. Antunes, A. G. Martins, “Structuring an MCDA model using SSM: A case study in Energy Efficiency”, European Journal of Operational Research, Vol. 199, No. 3, 834-845, 2009.
Sarabando, P., L.C. Dias, “Multi-attribute choice with ordinal information: a comparison of different decision rules”, IEEE Transactions on Systems, Man, and Cybernetics, Part A, Vol. 39, No. 3, 545-554, 2009.
Madlener, R., C.H. Antunes, L. Dias. “Assessing the performance of biogas plants with multi-criteria and data envelopment analysis”, European Journal of Operational Research, Vol. 197, No. 3, pp. 1084-1094, 2009.
Clímaco, J.N., J.A. Costa, L. C. Dias, P. Melo, “Supporting collaborative multi-criteria evaluation: the VIP Analysis plug-in for Decision Deck”, International Journal of Decision Support System Technology, Vol. 1, No. 4, 1-15, 2009.
Rocha, C., L.C. Dias, An Algorithm for Ordinal Sorting Based on ELECTRE with Categories Defined by Examples, Journal of Global Optimization, Vol. 42, No. 2, pp. 255-277, 2008.
Neves, L. P., A. G. Martins, C. H. Antunes, L. C. Dias, A multi-criteria decision approach to sorting actions for promoting energy efficiency, Energy Policy, Vol. 36, No. 7, pp. 2351–2363, 2008.
Gouveia, M.C., L.C. Dias, C.H. Antunes, Additive DEA based on MCDA with imprecise information, Journal of the Operational Research Society, Vol. 59, No. 1, pp. 54-63, 2008.
Damart, S., L.C. Dias, V. Mousseau, “Supporting Groups in Sorting Decisions: Methodology and Use of a Multi-criteria Aggregation-Disaggregation DSS”, Decision Support Systems, Vol. 43, No. 4, pp. 1464-1475, 2007.
Mousseau, V., L.C. Dias, J. Figueira, “Dealing with inconsistent judgements in multiple criteria sorting models”, 4OR - A Quarterly Journal of Operations Research, Vol. 4, No. 2, 145-158, 2006.
Clímaco J., L. C. Dias, “An approach to support negotiation processes with imprecise information multicriteria additive models”, Group Decision and Negotiation, Vol. 15, No. 2, 171-184, 2006.
Dias, L.C., V. Mousseau, “Inferring Electre’s veto-related parameters from outranking examples”, European Journal of Operational Research, Vol. 170, No. 1, 172-191, 2006.
Dias, L.C., V. Mousseau, “IRIS: A DSS for Multiple Criteria Sorting Problems”, Journal of Multi-Criteria Decision Analysis, Vol. 12, 285-298, 2003. (published in 2005).
Dias, L.C., J.N. Clímaco, “Dealing with imprecise information in group multicriteria decisions: A methodology and a GDSS architecture”, European Journal of Operational Research, Vol. 160, No. 2, 291-307, 2005.
Neves L.M.P., A.G. Martins, C.H. Antunes, L.C. Dias, “Using SSM to rethink the analysis of energy efficiency initiatives”, Journal of the Operational Research Society, Vol. 55, No. 9, 968-975, 2004.
Mousseau V., L. Dias, "Valued outranking relations in Electre providing manageable disaggregation procedures", European Journal of Operational Research, Vol. 156, No. 2, 467-482, 2004.
Mousseau V., L. Dias, J. Figueira, C. Gomes da Silva, J. Clímaco, Resolving inconsistencies among constraints on the parameters of an MCDA model, European Journal of Operational Research, Vol. 147, No. 1, 72-93, 2003.
Costa, J.P., P. Melo, P. Godinho, L. Dias, “The AGAP System : A GDSS for project analysis and evaluation”, European Journal of Operational Research, Vol. 145, No. 2, 287-303, 2003.
Dias, L., V. Mousseau, J. Figueira, J. Clímaco, "An Aggregation/Disaggregation Approach to obtain Robust Conclusions with ELECTRE TRI", European Journal of Operational Research, Vol. 138 (2), 332-348, 2002.
Dias, L. C., J. N. Clímaco, "Additive Aggregation with Variable Interdependent Parameters: the VIP Analysis Software", Journal of the Operational Research Society, Vol. 51, No. 9, 1070-1082, 2000.
Dias, L. C., J. N. Clímaco, "ELECTRE TRI for Groups with Imprecise Information on Parameter Values", Group Decision and Negotiation, Vol. 9, No. 5, 355-377, 2000.
Dias, L. C., J. N. Clímaco, "Shortest Path Problems with Partial Information: Models and Algorithms for Detecting Dominance", European Journal of Operational Research, Vol. 121, No. 1, pp. 16-31, 2000.
Dias, L. C., J. N. Clímaco, "On Computing ELECTRE’s Credibility Indices under Partial Information", Journal of Multi-Criteria Decision Analysis, Vol. 8, pp. 74-92, 1999.
Dias, L. C., J. P. Costa, J. N. Clímaco, "A Parallel Implementation of the PROMETHEE Method", European Journal of Operational Research, Vol. 104, Nº 3, pp. 521-531, 1998. Dias, L. C., J. P. Costa, J. N. Clímaco, "Conflicting Criteria, Cooperating Processors - Some Experiments on Implementing a Multicriteria Decision Support Method on a Parallel Computer", Computers and Operations Research, Vol. 24, Nº 9, pp. 805-817, 1997.
Dias, L. C., J. P. Costa, J. N. Clímaco, "O Processamento Paralelo e o Apoio Multicritério à Decisão: Algumas Experiências Computacionais", Investigação Operacional, Vol. 16, pp. 181-199, 1996.
Dias, L., J. P. Costa, J. N. Clímaco, "A Parallel Approach to the Analytic Hierarchy Process Decision Support Tool", Computing Systems in Engineering, Vol. 6, No.4/5, pp. 431-436, 1995.
Dias, L.C., A. Morton, J. Quigley, Elicitation: state of the art and science, in: Dias, L.C., A. Morton, J. Quigley (eds). Elicitation - The science and art of structuring judgement. Springer New York, 2018, pp. 1-14.
Mousseau, V., L.C. Dias, Eliciting multi-criteria preferences: ELECTRE models, in: Dias, L., A. Morton, J. Quigley (eds). Elicitation - The science and art of structuring judgement. Springer New York, 2018, pp. 349-375.
Diaby. V., L. Dias, Beyond Value Function Methods in MCDA for Health Care, in: K. Marsh, M. Goetghebeur, P. Thokala, R. Baltussen, Multi-Criteria Decision Analysis to Support Healthcare Decisions, Springer International Publishing, 2017, pp. 299-310.
Ventura A., L. Dias, J. Clímaco, On facilitating group decision making processes with VIP Analysis, in: P. Zaraté, G. E. Kersten, J. E. Hernández (eds), Group Decision and Negotiation. A Process-Oriented View. Lecture Notes in Business Information Processing Volume 180, 2014, pp 246-253.
Caldeira C., E. Gülsen, E.A. Olivetti, R. Kirchain, L. Dias, F. Freire, A Multiobjective model for biodiesel blends minimizing cost and Greenhouse Gas emissions, Computational Science and Its Applications – ICCSA 2014, Lecture Notes in Computer Science Volume 8581, 2014, pp 653-666.
Asadi E., M. Gameiro da Silva, C. Henggeler Antunes, L. Dias. State of the art on retrofit strategies selection using multi-objective optimization and genetic algorithms, In: F. Pacheco Torgal, M. Mistretta, A. Kaklauskas, C.-G. Granqvist, L.F. Cabeza (eds.), Nearly Zero Energy Building Refurbishment: A Multidisciplinary Approach, Springer, 2013, pp. 279-298.
Pereira, H., L. Dias, M. J. Alves, Assessing the Efficiency and Distribution of Agricultural Activities Using DSS, in: B. Manos, K Paparrizos, N Matsatsinis, J Papathanasiou (eds), Decision Support Systems in Agriculture, Food and the Environment: Trends, Applications and Advances, IGI, Hershey, May 2010, pp. 288-316.
Ventura, A., L. C. Dias, J. N. Clímaco, “Using Action Research on the Process of Decision Support with VIP Analysis Software”, in: A. Respício, F. Adam, G. Phillips-Wren, C. Teixeira and J. Telhada (eds), "Bridging the Socio-technical Gap in Decision Support Systems - Challenges for the Next Decade", IOS Press, Amsterdam, July 2010, pp. 259-270.
Dias L.C., A note on the role of robustness analysis in decision-aiding processes. In: B. Roy, M. Ali Aloulou, R. Kalaï (eds), Robustness in OR-DA, Annales du LAMSADE, No. 7, Université-Paris Dauphine, 2007, pp. 53-70.
Antunes C.H, L.C. Dias (eds), Managing Uncertainty in Decision Support Models - Proceedings of the 15th Mini-EURO Conference MUDSM 2004, INESC Coimbra (CD-ROM; ISBN: 972 - 9044 - 52 - X), 2004.Dias, L.C., A. Tsoukiàs, On the constructive and other approaches in decision aiding, in: C.H. Antunes, J. Figueira, J. Clímaco (eds), “Aide multicritére à la décision : Multiple criteria decision aiding”. CCDRC/INESCC/FEUC, Coimbra, 2004, pp. 13-28. Dias, L. C., J. N. Clímaco, Exploring the consequences of imprecise information in choice problems using ELECTRE, in: Bouyssou, D., E. Jacquet-Lagrèze, P. Perny, R. Slowinski, D. Vanderpooten, Ph. Vincke (eds), Aiding Decisions with Multiple Criteria - Essays in Honor of Bernard Roy, Kluwer, 2002, 175-193.
Dias, L.C., Apontamentos de Análise de Decisão: Como Considerar Múltiplos Critérios, Colecção Apontamentos, Faculdade de Economia da Universidade de Coimbra, 2002.
Carvalho, M. J., L. C. Dias e J. P. Costa, "Projecto MAPPA: Critérios e modelos de avaliação", in: A.D. Figueiredo e J.P. Costa (eds), Actas da 3ª Conf. da Associação Portuguesa de Sistemas de Informação, Coimbra, 20-22 Novembro de 2002.
Carvalho, M.J., L. Dias, J.P. Costa, "Projecto MAPPA: Decisão e adequação legislativa", in: A. Serrano e C. Zorrinho (eds), Actas da 2a Conf. da Associação Portuguesa de Sistemas de Informação, 21-23 Novembro 2001, Évora.
Dias, L.C., L.A. Almeida, J.N. Clímaco, Apoio Multicritério à Decisão: Métodos e Software Dedicados à Avaliação de um Conjunto Discreto de Alternativas, Colecção Apontamentos, Faculdade de Economia da Universidade de Coimbra, 1997.
Dias, L. C., "A informação imprecisa e os modelos multicritério de apoio à decisão: Identificação e uso de conclusões robustas", Dissertação de Doutoramento em Organização e Gestão de Empresas (especialidade de Ciências dos Sistemas nas Organizações), Faculdade de Economia da Universidade de Coimbra, 2000.
Dias, L., O Processamento Paralelo e os Métodos PROMETHEE e ELECTRE III no Apoio Multicritério à Decisão. Alguns Programas, Experiências Computacionais e Discussão de Resultados, Trabalho de Síntese no Âmbito de Provas de Aptidão Pedagógica e Capacidade Científica, Universidade de Coimbra, 1995.

matches: V. V. V. V. V. V. V. V. V.


text:
PEOPLE OF STATE OF ILLINOIS.
This is an original proceeding in the Supreme Court of Illinois by way of writ of error to test the validity of sentences of imprisonment following pleas of guilty. The Supreme Court of Illinois having denied the writ, 394 Ill. 194, 68 N.E.2d 252, we brought the case here, 329 U.S. 712, 67 S.Ct. 630, because of the importance of reviewing convictions where solid doubt is raised whether the requirements of due process have been observed.
Eleven years later, on February 7, 1946, the petitioners asked the Supreme Court of Illinois for their discharge. Various state grounds were urged and rejected. Our sole concern is with the claim 'that the record in this case fails to show' a compliance with the Fourteenth Amendment insofar as the Due Process Clause of that Amendment requires an accused to have the benefit of counsel.
The considerations that guide the disposition of this case have been canvassed here in a series of recent opinions. The 'due process of law' which the Fourteenth Amendment exacts from the States is a conception of fundamental justice. See Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102; Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288. It is not satisfied by merely formal procedural correctness, nor is it confined by any absolute rule such as that which the Sixth Amendment contains in securing to an accused 'the Assistance of counsel for his defence.' By virtue of that provision, counsel must be furnished to an indigent defendant prosecuted in a federal court in every case, whatever the circumstances. See Palko v. Connecticut, supra, 302 U.S. at page 327, 58 S.Ct. at page 152, 82 L.Ed. 288; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Betts v. Brady, 316 U.S. 455, 464—465, 62 S.Ct. 1252, 1257, 86 L.Ed. 1595. Prosecutions in State courts are not subject to this fixed requirement. So we have held upon fullest consideration. Betts v. Brady, supra. But process of law in order to be 'due' does require that a State give a defendant ample opportunity to meet an accusation. And so, in the circumstances of a 'particular situation,' assignment of counsel may be 'essential to the substance of a hearing' as part of the due process which the Fourteenth Amendment exacts from a State which imposes sentence. Palko v. Connecticut, supra, 302 U.S. at page 327, 58 S.Ct. at page 152, 82 L.Ed. 288. Such need may exist whether an accused contests a charge agaist him or pleads guilty.
The rationale of this application of due process was first expounded in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. In following that case our recent decisions have spoken of 'the rule of Powell v. Alabama,' or 'the requirements of Powell v. Alabama,' thereby indicating the essential scope of the doctrine. See Williams v. Kaiser, 323 U.S. 471, 476—477, 65 S.Ct. 363, 366, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 488, 65 L.Ed. 370, 372, 89 L.Ed. 407. And so, in every case in which this doctrine was invoked and due process was found wanting, the prisoner sustained the burden of proving, or was prepared to prove but was denied opportunity, that for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement. See Powell v. Alabama, supra, 287 U.S. at pages 51, 53, 56, 57—58, 53 S.Ct. at pages 57, 58, 59, 60, 77 L.Ed. 158, 84 A.L.R. 527; Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859; Williams v. Kaiser, supra, 323 U.S. at pages 472, 473, 474, 476, 477, 65 S.Ct. at pages 364, 365, 366, 89 L.Ed. 398; Tomkins v. Missouri, supra, 323 U.S. at pages 486—487, 65 S.Ct. at page 371, 89 L.Ed. 407; House v. Mayo, 324 U.S. 42, 45—46, 65 S.Ct. 517, 519, 520, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 762 763, 65 S.Ct. 978, 979, 980, 89 L.Ed. 1348; Rice v. Olson, 324 U.S. 786, 788—789, 65 S.Ct. 989, 990, 991, 89 L.Ed. 1367. Only the other day in a case concerning a charge of first-degree murder against a seventeen-year old defendant, in which we found a deprivation 'of rights essential to a fair hearing,' we took pains to point out that 'The court did not explain the consequences of the plea of guilty, and the record indicates considerable confusion in petitioner's mind at the time of the arraignment as to the effect of such a plea.' De Meerleer v. Michigan, 329 U.S. 663, 664, 67 S.Ct. 596, 597.
In this case there is neither proof nor uncontradicted allegation of any such miscarriage of justice in accepting pleas of guilty. The record of the proceeding plainly imports an observance of due process. In the contemporaneous language of the trial court, the defendants 'are advised of their rights of Trial and of the consequences of an entry of a plea of guilty,' the court 'advises and admonishes each of said defendants of the consequences of entering such pleas of guilty,' and the defendants thereafter still persisting, their pleas 'are received and entered of record.' There was nothing in the common-law record, on the basis of which the Supreme Court of Illinois rendered its decision, to contradict this account of the proceedings in 1935. We thus have in effect the bald claim that, merely because the record does not disclose an offer of counsel to a defendant upon a plea of guilty, although the court before accepting the plea duly advised him of his 'rights of Trial' and of the consequences of such a plea, he is 'deprived of rights essential to a fair hearing under the Federal Constitution.' De Meerleer v. Michigan, supra, 329 U.S. at page 665, 67 S.Ct. at page 597.
We reject such a claim. Most incarcerations are upon pleas of guilty, and probably most such pleas have been made without the felt need of counsel. It is not for us to suggest that it might be desirable to offer to every accused who desires to plead guilty the opportunities for counsel and to enter with formality upon the record the deliberate disclaimer of his need for counsel because of a full appreciation of the meaning of a plea of guilty as expounded by responsible judges. Our duty does not go beyond safeguarding 'rights essential to a fair hearing' by the States. After all, due process, 'itself a historical product,' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107, is not to be turned into a destructive dogma in the administration of systems of criminal justice under which the States have lived not only before the Fourteenth Amendment butfor the ei ghty years since its adoption. It does not militate against respect for the deeply rooted systems of criminal justice in the States that such an abrupt innovation as recognition of the constitutional claim here made implies, would furnish opportunities hitherto uncontemplated for opening wide the prison doors of the land.
Insofar as the sentences in this case are attacked on claims which were not open for consideration on the common-law record which alone was before the Illinois court, see 394 Ill. 194, 68 N.E.2d 252, they are not open here. Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216. They must be raised by whatever procedure Illinois may provide, or, in default of relief by appropriate Illinois proceedings, by a new claim of denial of due process for want of such relief. See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406.
In Adamson v. California, this day decided, 332 U.S. 46, 67 S.Ct. 1672, the Court waters down the Fourteenth Amendment's application to the States of the Bill of Rights guarantee against self-incrimination so as to make it compatible with the Court's standards of decency and a fair trial. In this case the Court similarly waters down the Bill of Rights guarantee of counsel in criminal cases. In both cases, the Court refuses to strike down convictions obtained in disregard of Bill of Rights guarantees, assuming all the while that identical convictions obtained in federal courts would violate the Bill of Rights. For the Court, in the instant case, concedes that, by virtue of the Sixth Amendment, 'counsel must be furnished to an indigent defendant prosecuted in a federal court in every case, whatever the circumstances.' This, of course, relates to convictions following both pleas of not guilty and pleas of guilty. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407.
In the Adamson case, I have voiced my objections to dilution of constitutional protections against self-incrimination in state courts. This decision is another example of the consequences which can be produced by substitution of this Court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the Bill of Rights guarantees. This time it is the right of counsel. We cannot know what Bill of Rights provision will next be attenuated by the Court. We can at least be sure that there will be more, so long as the Court adheres to the doctrine of this and the Adamson case.
The Court's decision relies heavily on Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. In that case, a man on relief, too poor to hire a lawyer, and whose request for the appointment of a lawyer was denied, was compelled to act as his own lawyer on a charge of robbery. Conviction followed. That case is precedent for this one. But it is the kind of precedent that I had hoped this Court would not perpetuate.
One thing more. The Court seems to fear that protecting these defendants' right to counsel to the full extent defined in the Bill of Rights would furnish 'opportunities hitherto uncontemplated for opening wide the prison doors of the land,' because presumably, there are many people like Betts, Foster and Payne behind those doors after trials without having had the benefit of counsel. I do not believe that such a reason is even relevant to a determination that we should decline to enforce the Bill of Rights.
I think the Sixth Amendment's guaranty of the right to counsel in criminal causes is applicable to such proceedings as this in state courts.
Apart from that view and upon the Court's basis that the Fourteenth Amendment by its own force independently prescribes a partial similar guaranty, cf. Palkov. Connect icut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, I am unable to accept its conclusion in this case. Of course if the so-called presumption of regularity is to be effective to sustain the denial of counsel in circumstances as bald as those presented in Gayes v. New York, 332 U.S. 145, 67 S.Ct. 1711, decided today, that presumption must work the same denial in the somewhat less startling facts of this case.
But when a record discloses as much as the record here shows, I do not think any presumption of regularity should be permitted to overcome the substance of the violated constitutional right. Such a presumption indeed, if valid by mere force of the fact that a judgment has been rendered, may always be indulged. Cf. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; De Meerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596. And the consequences of such a course of action here, for the observance and preservation of constitutional rights, more especially of the indigent and ignorant who are unable to employ counsel from their own resources and do not know their rights, must be, not merely a denial of the basic right of counsel, but also a denial of the equal protection of the laws in sweeping application. Poverty or wealth will make all the difference in securing the substance or only the shadow of constitutional protections.
Here petitioners were charged with the serious crimes of burglary and larceny, handed a copy of the indictment, and arraigned. Every lawyer knows the difficulties of pleading to such charges, including the technicalities of the applicable statutes and especially of the practice relating to included or lesser offenses. The crimes charged involved penalties of imprisonment for from one year to life, the penalty actually imposed upon these petitioners.
On the very day the indictment was handed down, petitioners were arraigned, their pleas of guilty were accepted, and they were sentenced. At no time were they offered counsel or advised of their right to counsel, nor did they receive any assistance from counsel. The record, it is true, recites that they were 'advised of their rights of Trial and of the consequences of an entry of a plea of guilty,' notwithstanding which each said that he was guilty, whereupon the court 'advises and admonishes each of said defendants of the consequences of entering such pleas of guilty,' despite which each persisted in his plea.
However this vague and formal recital might be taken in other circumstances, it cannot be regarded in this case as meaning that petitioners were either offered counsel or informed of any right to counsel. Indeed the recital must be taken as having deliberately avoided including statements in either respect. And, upon the record as a whole, we are required not only to read it in this light but to conclude that the recital and the intentional omission of statements concerning the right to counsel were effective to establish that the petitioners were in fact denied that right.
The Court does not point out, but it is the very heart of this case, that under Illinois law these petitioners were, in effect, denied the right to have counsel tendered or appointed by the court. It was under no duty imposed by state law to tender counsel, to inquire into the need for counsel, or to inform the defendants of any right to counsel. Indeed, under the law of the state, it seems, the court would have exceeded its powers by taking action in any of these respects.
'* * * Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense.' Ill.Rev.Stat. (1945) c. 38, par. 730.
In the light of the Illinois statutes and decisions, therefore, the present record can be taken to sustain no presumption that the trial court offered counsel to petitioners, inquired concerning their need for counsel or ability to secure such aid, or advised them in any way of their right to have that assistance. The only tenable presumption is that the court refrained deliberately, in accordance with the state law, from taking action in any of these respects.
Moreover, when men appear in court for trial or plea, obviously without counsel or so far as appears the means of securing such aid, under serious charges such as were made here involving penalties of the character imposed, it is altogether inconsistent with their federal constitutional right for the court to shut its eyes to their apparently helpless condition without so much as an inquiry concerning its cause. A system so callous of the rights of men, not only in their personal freedom but in their rights to trial comporting with any conception of fairness, as to tolerate such action, is in my opinion wholly contrary to the scheme of things the nation's charter establishes. Courts and judges, under that plan, owe something more than the negative duty to sit silent and blind while men go on their way to prison, for all that appears, for want of any hint of their rights.
Adding to this blindness a 'presumption of regularity' to sustain what has thus been done makes a mockery of judicial proceedings in any sense of the administration of justice and a snare and a delusion of constitutional rights for all unable to pay the cost of securing their observance.
'Whenever it shall appear to the court that a defendant or defendants indicted in a capital case, is or are indigent and unable to pay counsel for his or her defense, it shall be the duty of the court to appoint one or more competent counsel for said defendant or defendants, who shall receive a reasonable sum for services * * *.' Ill.Rev.Stat. (1945) c. 38, par. 730.
'It is first contended by plaintiffs in error that they did not have counsel appointed to represent and protect their rights. It is not shown by the record that the defendants informed the court or in any way indicated that they desired counsel. We have repeatedly held that the right to be represented by counsel is a personal right which a defendant may waive or claim as he himself may determine. People v. Fuhs, 390 Ill. 67, 60 N.E.2d 205. This contention is without merit.' 394 Ill. 194, 195, 68 N.E.2d 252, 253.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.