Also known as: means of communications · mode of communication
Written by attorneys — see sources below.
2 senses
A method that enables all directors participating in a board meeting to hear one another simultaneously. A director using such a method is deemed present in person at the meeting.
A usual channel for transmitting a record or notification, such as mail or electronic delivery, when postage or transmission costs are provided for and the item is addressed reasonably under the circumstances.
A method that enables all directors participating in a board meeting to hear one another simultaneously. A director using such a method is deemed present in person at the meeting.
A usual channel for transmitting a record or notification, such as mail or electronic delivery, when postage or transmission costs are provided for and the item is addressed reasonably under the circumstances.
1 common questions
Each sense below has its own examples, sources, and questions.
Majestic Construction's board meets at its headquarters to authorize a major contract. Director Mariam Mansour participates from her office via video conference that lets every attendee hear and respond to the others in real time. The corporation treats her as present and counts her vote toward the required majority.
Acme Distributors must notify retailer Beta Stores of a shipment change. Acme deposits the record in the mail with postage prepaid and addressed to Beta's ordinary business address. Under the UCC the notice is treated as sent once deposited.
Citizens United is a nonprofit corporation with an annual budget of about $12 million. Most of its funds come from donations by individuals, though it accepts a small portion from for-profit corporations. In January 2008, Citizens United released a 90-minute documentary film entitled Hillary: The Movie. The film mentions Senator Hillary Clinton by name and depicts interviews with political commentators, most of them critical of her. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making the film available through video-on-demand. In December 2007, a cable company offered to make Hillary available on a video-on-demand channel called Elections '08 for a payment of $1.2 million. The proposal was to make the film available to viewers free of charge. To promote the video-on-demand offering, Citizens United produced two 10-second ads and one 30-second ad. Each ad includes a short statement about Senator Clinton followed by the name of the movie and the movie's website address. Citizens United desired to promote the offering by running the advertisements on broadcast and cable television within 30 days of primary elections. Before the Bipartisan Campaign Reform Act of 2002, federal law prohibited corporations from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate in connection with certain federal elections. BCRA §203 amended the law to prohibit any electioneering communication. An electioneering communication is any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office and is made within 30 days of a primary or 60 days of a general election when publicly distributed so that it can be received by 50,000 or more persons in a relevant state. Concerned about possible civil and criminal penalties for violating 2 U.S.C. §441b, Citizens United filed suit in the United States District Court for the District of Columbia in December 2007. It sought declaratory and injunctive relief, arguing that §441b is unconstitutional as applied to Hillary and that BCRA's disclaimer, disclosure, and reporting requirements are unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United's motion for a preliminary injunction and granted the Federal Election Commission's motion for summary judgment. The Supreme Court noted probable jurisdiction. The case was reargued after the Court requested supplemental briefs addressing whether Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. Federal Election Commission should be overruled.
View caseLandlord Prime Properties must notify tenant Quinn of a rent adjustment. Prime transmits the record by email with transmission costs covered and addressed to the email Quinn previously supplied. The UCC deems the notice properly sent.
Lloyd Corp., Ltd. owns and operates Lloyd Center, a large retail shopping center in Portland, Oregon, spanning about 50 acres with more than 60 commercial tenants, interior malls, parking facilities, and other amenities. The Center maintains a strictly enforced policy prohibiting the distribution of handbills within its building complex and malls, with no exceptions made for such activity. On November 14, 1968, five individuals including Donald Tanner, Betsy Wheeler, and Susan Roberts entered the Center's malls and began distributing handbills inviting the public to a meeting protesting the draft and the Vietnam war. The distribution was quiet, orderly, and produced no litter, though one customer complained. Security guards employed by Lloyd Center, who possess full police authority, informed the distributors that they were trespassing and would be arrested if they did not cease handbilling inside the Center, suggesting instead that they use the adjacent public streets and sidewalks. The five individuals left the premises to avoid arrest and continued their handbilling outside the Center. They subsequently filed suit in the United States District Court for the District of Oregon seeking declaratory and injunctive relief against Lloyd Corp. on the ground that the prohibition violated their constitutional rights. The District Court found that Lloyd Center was the functional equivalent of a public business district and held that the prohibition on handbilling violated the distributors' rights, issuing a permanent injunction. The Court of Appeals for the Ninth Circuit affirmed this determination in a per curiam opinion. The Supreme Court granted certiorari to review the case.
2 common questions
Yes. Under the Model Business Corporation Act, a director who participates through any means of communication that permits all participants to hear one another simultaneously is deemed present in person.
Supporting sources
Yes. The statute permits remote participation only when the articles of incorporation or bylaws do not impose a restriction.
Supporting sources
The UCC treats deposit in the mail or any other usual means of communication as sufficient when postage or transmission costs are provided for and the item is addressed reasonably under the circumstances.
Supporting sources
…may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts’ own lawful authority. Substantial questions would arise if courts were to begin…