The Investors’ Control of Their Investment Advisers. Who Has the Final Word?

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions.

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Central Mississippi Medical Center v. Mississippi Division of Medicaid

Citation: 2018-SA-01410-SCT

Opinion Date: February 13, 2020

Judge: Michael K. Randolph

Areas of Law: Civil Procedure, Government & Administrative Law, Health Law, Public Benefits

Central Mississippi Medical Center (CMMC) appealed a Chancery Court decision denying its appeal of a Division of Medicaid (DOM) hearing. The DOM had determined that CMMC owed it $1.226 million due to overpayment. The Mississippi Supreme Court recently decided a reimbursement dispute involving the DOM, Crossgates River Oaks Hosp. v. Miss. Div. of Medicaid, 240 So. 3d 385 (Miss. 2018). In Crossgates, the hospitals prevailed because the DOM had failed to adhere to the Medicare State Plan Agreement. Applying the same legal principles to this case, the Supreme Court ruled the DOM prevailed because the DOM adhered to the Plan. The chancellor found sufficient evidence to support the DOM’s decision, decreed that it was neither arbitrary nor capricious, and decreed that it did not exceed the DOM’s authority or violate any of CMMC’s statutory or constitutional rights.

Biegel v. Gilmer

Citation: 2018-IA-01172-SCT

Opinion Date: February 13, 2020

Judge: Ishee

Areas of Law: Civil Procedure, Legal Ethics

The issue presented for the Mississippi Supreme Court’s review involved the first-to-file rule. Most of the claims were properly transferred, but all parties to this appeal agreed it was error to transfer the claims against two of the defendants, Michele Biegel and Bettie Johnson. The underlying controversy was a fee dispute between attorneys Seth Little, Barry Wade Gilmer, and Chuck McRae. McRae sued Gilmer in the Hinds County Chancery Court, claiming unjust enrichment and seeking an accounting. Gilmer later filed this suit in the Madison County Circuit Court against McRae’s attorneys in the fee dispute, Michele Biegel and Bettie Ruth Johnson. Biegel and Johnson filed a special entry of appearance and a motion to dismiss the complaint against them. McRae requested that the claims against him be transferred to Hinds Chancery Court, in which McRae previously filed suit against Gilmer. The Madison County Circuit Court ordered the entire suit, including claims against Biegel and Johnson, transferred, and denied Biegel and Johnson’s motion to reconsider. The Supreme Court concurred the transfer of the entire case was made in error, and therefore reversed transfer of claims from the Madison County Circuit Court to the Hinds County court.

Brent v. Mississippi

Citation: 2019-KA-00095-SCT

Opinion Date: February 13, 2020

Judge: Chamberlin

Areas of Law: Constitutional Law, Criminal Law

James Brent was tried by jury and convicted of armed robbery and kidnapping, and he was sentenced to serve two concurrent life sentences as a violent habitual offender under Mississippi Code Section 99- 19-83 (Rev. 2015). Brent appealed to the Mississippi Supreme Court. Brent’s appellate counsel filed a "Lindsey" brief, certifying no arguable issues existed in the record. Brent himself filed a supplemental pro se brief, arguing: (1) the evidence was insufficient to support each of his convictions; (2) his retrial subjected him to double jeopardy; (3) a jury instruction effectively modified an essential element of armed robbery; and (4) the State’s evidence was insufficient to prove his status as a violent habitual offender under Section 99-19-83. Finding no arguable issues from the record, the Mississippi Supreme Court affirmed conviction and sentence.

Johnson v. Mississippi

Citation: 2018-KA-00429-SCT

Opinion Date: February 13, 2020

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

In March 2015, James White was shot and killed in Brad Reed’s house in Clay County, Mississippi. A jury ultimately found Johnson guilty of first-degree murder, and the trial court sentenced him to a term of life imprisonment. At the close of the State’s case-in-chief, Johnson unsuccessfully moved for a directed verdict challenging the sufficiency of the State’s evidence. Johnson filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. The trial court denied that motion too. On appeal, Johnson argued: (1) the trial court erred by denying his motion challenging the sufficiency of the evidence; (2) the trial court erroneously instructed the jury; (3) his grand jury indictment was improper; and (4) his jury verdict form was erroneous. After review, the Mississippi Supreme Court found sufficient evidence was presented to support Johnson’s murder conviction; the indictment sufficiently notified Johnson of the charged crime, and the jury was properly instructed. Accordingly, Johnson’s conviction and sentence were affirmed.