The Trial of Anne Boleyn

                                                               The Trial of Anne Boleyn

      On this day in 1536, Anne Boleyn, second wife of Henry VIII, as well as her brother George, was tried on allegations of adultery and incest.  The conclusion of the “trial” was a foregone conclusion.  On May 12, four of the men with whom Anne was accused of having engaged in adultery, they being Mark Smeaton, Henry Norris, William Brereton, and Francis Weston, had already been convicted, and, so goes the adage, it does take two to tango. The Calais Swordsman may and likely was already on his way to London.

      Although some incomplete notes of the trial do survive, sadly no transcript is available; it would no doubt make interesting reading.  It is clear that both Anne and then George (George’s trial was separate and held after that of Anne) denied all charges.  Those denials (as well as the denials of the other men charged with having committed adultery with Anne) must be accepted at face value.  As has been demonstrated by several scholars, most conclusively Eric Ives, Anne and her various co-conspirators could not have been guilty of the charges made – even with the incomplete records available to us today, it can be demonstrated that in numerous instances Anne and a particular gentleman were charged with having committed adultery at a particular time and place when, in fact, either or both of them were at a different place or even two difference places.  The truth, however, was not the issue; the outcome of the trial was a foregone conclusion before it ever started. Henry was both tired of Anne and desperate for a male heir whose legitimacy could not be scrutinized (his illegitimate son Henry FitzRoy was not a viable candidate for the throne, the Tudor claim to legitimacy already being weakened by succession through the female line), and Cromwell had been charged to bring about her fall. End of story.

      On May 14, Cramner, Archbishop of Canterbury, had declared the marriage of Henry and Anne to have been invalid ab initio, possibly (the papers as to his determination have been lost) on the basis of her alleged prior contract of marriage to Henry Percy, the son of the then Fifth Earl of Northumberland (this Henry would be the Sixth Earl). An alternative basis was that Mary Boleyn, Anne's sister, had been Henry's mistress, and on that basis the marriage could have been invalid based upon consanguinity. Regardless as to why, Anne would not die as the Queen of England, having never been validly married to Henry, and their daughter Elizabeth (the future Queen Elizabeth I) was rendered illegitimate.

      All of Mark Smeaton, Henry Norris, William Brereton, and Francis Weston, along with George Boleyn, were executed on May 17.  Anne’s death would not take place until May 19. Henry became engaged to Jane Seymour (wife number 3 if you are keeping track) on May 20.

          The definitive biography of Anne Boleyn has been and remains that by Eric Ives, The Life and Death of Anne Boleyn. Recently there have been published 'If Any Person Will Meddle of My Cause': The Judicial Murder of Anne Boleyn by Heather Darsie, Hunting the Falcon: Henry VIII, Anne Boleyn, and the Marriage That Shook Europe by John Guy and Julia Fox, and most recently (published in the U.S. on May 12, 2026)  Anne Boleyn: Reputation, Revolution, Religion, and the Queen Who Changed History by Martha Tatarnic.

The Sack of Rome and the Papal Swiss Guard

 The Sack of Rome and the Papal Swiss Guard

        Today marks the anniversary of the Sack of Rome in 1527 by troops of Charles V,  Holy Roman Emperor.

        Since the late 15th Century Italy (or at least the region we today identify as Italy – the notion of the region as a nation was long in the future) had been repeatedly invaded by forces from Northern Europe, each seeking to claim dominion over one area or another. Rival claimants to the crown of Naples caused as much trouble as did anything, but economic rivalry between for example Genoa and Venice did nothing to calm the waters.  Pope Alexander VI gave command of the papal army to his son/nephew (which is a matter of dispute) Cesare in order to bring some order, and Pope Julius II would actually don armor and lead his army into battle, again in an effort to bring some stability to the situation.  While Erasmus would condemn Julius for doing so, he did ignore the fact that the targeted cities surrendered to the Pontiff.

        But back to the Sack of Rome.  Charles’ forces were at this point battling the League of Cognac, it being comprised of France, Milan, Venice, Florence, and the Papal States .  Keeping track of the various Leagues through the Italian Wars is a troubling task; the League of Cambrai was initially formed against Venice by the Papacy, France, Spain and the Holy Roman Empire. Later the initial members would be allied against France with Venice as an ally, while a bit later Venice and France would be against the Papacy, Spain, and the Holy Roman Empire. After a significant victory over the French army Charles’ troops were restive in that they had not been paid – most were mercenary. Pillaging Rome would be a way of paying the troops. The city was not well defended, although its formidable walls did need to be and were breached.  Their commander having fallen in the course of the attack, discipline immediately broke down among the troops, and a sack of over three days began.

        The Pontifical Swiss Guard, created only in 1506 under Pope Julius II, rose to the occasion. Of its then number of 189, 147 would fall defending Pope Clement VII, affording him time to take refuge in the Castel Sant’Angelo (Hadrian’s Mausoleum). In recognition of this event, new members of the Pontifical Swiss Guard are sworn in on May 6.  In 2025 the swearing in was delayed to November to account for the recent passing of Pope Francis I and the election of Pope Leo; Leo presided at that ceremony and did so again at this year’s swearing in ceremony.

           There was in 2013 an event unique to the Guard, namely the recognition of a Pope’s retirement. Benedict XVI left the Vatican as Pope, flying to the Castle Gandolfo. The Swiss Guard accompanied him to the castle and there stood guard. When the moment his resignation became effective, and Benedict became not Pope but Pope Emeritus, the Guards left their station at the castle and returned to Rome. While the Vatican has its security forces, and they no doubt continued to provide protection for Benedict, the Swiss Guard serve the Pope or, during a Sede Vacante, the College of Cardinals

        Of course this was not the only sack of Rome – it had fallen many times in its long history. It fell to the Normans in 1084, in 546 by the Ostrogoths, in 455 by the Vandals, in 410 by the Visigoths and in 387 BC by the Gauls.

New York Applies Business Judgment Rule in LLCs

 New York Applies Business Judgment Rule in LLCs

The New York Appellate Division, in Levine v. Levine, 590 N.Y.S.2d 439 (1^st Dept. 1992), held that the deferential standard of the business judgment rule as applied to corporate directors and officers (Matter of Kenneth Cole Prods., Inc. Shareholder Litigation, 32 N.Y.S.3d 551 (2016)) would apply equally to “partners acting as fiduciaries.”

Recently, in Pokoik v. Steinberg, 2026 N.Y. Slip. Op, 246 A.D.3d 597 (1^st Dept. Feb. 19, 2026), affirmed the application of the business judgment rule in the context of the managers of an LLC. The blessedly short opinion provides:

The business judgment rule “provides that[ ] where corporate officers or directors exercise unbiased judgment in determining that certain actions will promote the corporation’s interests, courts will defer to those determinations if they were made in good faith”). As relevant here, partners acting as fiduciaries are entitled to the same protections as corporate directors. The deference afforded by the business judgment rule is not applicable where the challenged transaction is affected by an inherent conflict of interest, in which case the burden shifts to the defendant to prove the fairness of the challenged transaction.

Here, Supreme Court properly applied the business judgment rule where the shareholders, including plaintiffs, held roughly equal interests in the tripartite ownership structure made up of three entities holding their interests in the property, and no individual held a controlling position in nominal defendant Norsel Realties. Plaintiffs fail to submit credible evidence that defendants received any profit or other financial benefit that was not received by other shareholders in connection with their proportional ownership interest, nor that defendants were controlled or dominated by an interested party.

The setting of the ground rent at issue here was properly ratified under Norsel’s articles of partnership, which provide that partnership decisions only require a simple majority. The eighth amendment to the ground lease specifically contained the option for three lease extensions, including the first renewal embodied in the ninth amendment. It is undisputed that plaintiff Leon Pokoik was involved in the management of the three entities when the eighth amendment was executed in 1995, without any objection from him. Further, he financially benefitted from his interest in the three entities before and after the contemplated April 30, 2016 expiration date of the partnership. Thus, Norsel is not precluded from abiding by the terms of the ninth amendment and continuing the business of the partnership, at least through the expiration of the ninth amendment. Based on the foregoing, plaintiffs’ reliance on for the proposition that unanimous consent was required to extend the Norsel partnership past April 30, 2016, before executing the ninth amendment, is misplaced.

Because the business judgment rule applies here, it is unnecessary to reach the parties’ arguments as to entire fairness review.

(citations omitted).

The Silva decision from Nevada (Silva v. Clay, 2025 WL 2085356 (Nev. Dist. Ct. 2025).in which the BJR was applied is on appeal.  The decision of Judge Gall is reviewed in  "Miller and Rutledge Are Right," a posting here from last June.  No doubt more to follow.

Beware Greeks Bearing Gifts

 Beware Greeks Bearing Gifts

      Today marks the anniversary of the traditional Fall of Troy in 1184 B.C., as calculated by Eratosthenes, thereby bringing to its culmination the Trojan War.  

      The Fall of Troy is not recounted in Homer’s Iliad, the iconic epic, it rather covering only a period of ten days to two weeks within the supposed ten-year span of the war.  The Fall of Troy through the subterfuge of the Trojan Horse is briefly mentioned in the Odyssey and is referenced in several other Greek sources. (a/k/a The Homeric Cycle).  Keep in mind that Homer lived in the 8^th century Before the Common Era, so his stories were crafted hundreds of years after their supposed historical happenings.

But come now, change the theme, and sing of the building of the horse of wood, which Epeius made with Athena's help, the horse which once Odysseus led up into the citadel as a thing of guile, when he had filled it with the men who sacked Ilios. 

Homer, Odyssey, Book 8, Line469.

The story would not find, however, its full development until book II of Virgil’s Aeneid, it written just before the Common Era.

      Some modern historians have attempted to explain the story as an allegory, suggesting that an earthquake – Poseidon, whose portfolio included horses, was as well the god of earthquakes – was the reason for the fall of Troy’s walls.  Others have suggested the “sea horse” was a disguised tribute ship left at Troy with the same effect.  I, for one, would rather retain the literal interpretation as it affords more credit to Odysseus, said to be the wisest of the Greeks and according to certain legends the son of Sisyphus.  FYI, a new movie on Odysseus is in the works for release in 2026, and a new translation of the Odyssey, it by Daniel Memnelsohn, was released last year.

      Regardless it is a great story, especially the fall of Achilles to Paris after the former killed Hector after he killed Patroclus.  Speaking of which, the movie Troy misstated the story, likely because they wanted to keep Brad Pitt on the screen.  Achilles was killed before the fall of Troy; he never entered the city.  That is not the biggest problem with the movie vis-a-vis the books, but it is a big one.

            Some might consider the Trojan War to be ancient history.  It’s all matter of perspective.  At the time of the Fall of Troy the Egyptian civilization had been flourishing already for 2000 years, and the Great Pyramid of Cheops was nearly 1400 years old.

The Transformation of LLC Interests at Death

 The Transformation of LLC Interests at Death

A recent decision from Virginia highlights the transformation that happens to an LLC interest at death, in this case vacating a decision as to a post-death redemption.  Paul A. Galiotos v. Stavros P. Galiotos, 2026 WL 932636 (Va. App. April 7, 2026).

Irene Galiotos, mother of Paul and Stravos as well as a third brother Tasos, passed away. Her will provided that her 35.8% interest in Executive Cove, LLC (Tasos was the only other member with 64.2%) to her revocable trust for which all three brothers were beneficiaries. Tasos, seeking to interrupt that transfer, sought to affect a redemption by Executive Cove of Irene’s interest in Executive Cove, replying upon section 10.4 of the LLC’s operating agreement, it providing:

A Member who wishes to Transfer his or her Company Interest, in whole or in part, to a person who is not already a Member, or who has reason to believe that an involuntary Transfer or a Transfer by operation of law is reasonably foreseeable (an “Offering Member”), shall first offer such Company Interest (the “Offered Interest”) to the Company and the other Members on the terms set forth below. 2026 WL 932636, *3.

While the trial court held that Tasos redemption pursuant to this provision was valid, it was reversed on appeal.

 Parsing the language of the operating agreement, the Court of Appeals noted that upon Irene’s death her interest became that of an assignee, a bare economic right stripped of the right to participate in the LLC’s management.  To that end:

Prior to her death, Irene held a 35.8% company interest in the LLC, as shown on the schedule. But at the time of her death, Irene’s interest was only that of a membership interest with assignee rights rather than a company interest. Pursuant to the Virginia Limited Liability Company Act (“the LLC Act”), Irene was dissociated from Executive Cove upon her death. See Code § 13.1-1040.1(7)(a) (providing that “a member is dissociated from a limited liability company upon ... [t]he member’s death”). Further, under the LLC Act, “the dissociation of a member shall not affect the membership interest held by ... the former member’s successor in interest. The ... successor in interest shall continue to hold a membership interest and shall have the same rights that an assignee of the membership interest would have under subsection A of [Code] § 13.1-1039.” Code § 13.1-1040.2(A). In turn, subsection A of Code § 13.1-1039 provides limitations on the rights given to the holder of an assignment of an interest: an assignee is not entitled “to participate in the management and affairs of the limited liability company,” but is entitled “to receive, to the extent assigned, ... any share of profits and losses and distributions to which the assignor would be entitled.” Id. (footnote omitted).

And here is why that matters; section 10.4 of the operating agreement triggered a ROFR upon a transfer of a “Company Interest,” and upon Irene’s death what had been her “Company Interest” became an assignee interest; there was no ROFR as to an assignee interest so Tasos’ redemption was invalid and set aside.

Broadly speaking, operating agreements need to be precise in the terminology employed, especially with bespoke defined terms, and to the extent a right of redemption of the interest of a former member is to be provided for, the transformation of the character of an LLC interest upon death or other event of disassociation needs to be addressed.

The Death of Marcus Aurelius and the Consequences of His Worse Decision

 The Death of Marcus Aurelius and the Consequences of His Worst Decision 

Today marks the anniversary of the death in 180 of the great Roman Emperor Marcus Aurelius.  It is as well the date upon which his worst decision was inflicted upon the world.

      There is no question that Marcus was a great emperor.  In fact he is the only emperor to have written a book, namely the Meditations, that to this day remains in print (while Caesar's Gaelic Wars andCivil War remain staples of classes in both Latin and military history, Caesar was never emperor).  And Marcus was a member of a string of excellent emperors.  After the tragedy that was Nero and the tumult of the Flavians (Vespasian, Titus and Domitian), the emperors of the Nervan-Antonian dynasty had consistently been effective leaders.  This had been largely achieved by the sitting emperor adopting his heir.  This path avoided the deficiencies of restricting passage of control to only natural heirs, necessarily limiting the pool of possible successors; the example of Tiberius to Caligula was not lost. The Flavians had been lucky in this regard, but they were only two generations – the father Vespasian to his son Domitian and then upon Domitian’s death the throne went to his brother Titus.  That stability arose out of the confusions of the Year of Four Emperors. Hadrian was only a cousin to his predecessor Trajan. While Hadrian would in turn adopt Antoninus Pius, it does not appear they were related to one another.  It is reported that a condition imposed by Hadrian on Antoninius adoption was that he in turn adopt Marcus Aurelius.

      Marcus broke with this approach, appointing his natural son Commodus as his heir (Commodus was appointed co-emperor some three years before Marcus' death). He was a disaster on par with Caligula and Nero (we can argue as to whether he was better or worse than Elagabalus , assassinated in 222).  A man of apparently no character, he is described by Aelius Lampridius in the co-authoredHistoria Augusta,  “even from his earliest years he was base and dishonorable. and cruel and lewd, defiled of mouth, moreover, and debauched.”   A megalomanic, he styled himself as Hercules and took to fighting in the gladiatorial games.  Of course he always won;; it did not hurt that he secretly directed that his opponents be given dulled weapons.  Meantime he ignored the operation of the Empire, leaving decisions to his chamberlain and other officials.  He did, however, both order a devaluing of the currency and imposed excessive taxes.  Gibbons, in his monumental (although of well criticized for its historiographical methodology)  The History of the Decline and Fall of the Roman Empire dated the decline of the Roman Empire from Commodus.

      Finally he was assassinated.  There was, however, no natural heir to the position of Emperor, and his death would be followed by the “Year of Five Emperors.”  

      Had Marcus Aurelius followed the path of the other Nervan-Antonian emperors and adopted as his heir a proven leader, the path of the Roman Empire would well have been substantially different.  But he did not. Such decisions are the stuff of history.

      In closing, contra the movie “Gladiator,” Marcus was not killed by Commodus.  Rather, he died of natural causes (it has been suggested that an unidentified plague was involved), possibly in what is now Vienna.  Commodus was not killed in the gladiatorial games, but rather was assassinated  in 192 by being strangled.

Beware the Ides of March, and Caesar Did Not Say "Et Tu Brute?"

Beware the Ides of March

“Et tu, Brute?”

Today, the Ides of March, marks the anniversary of the assassination of Julius Caesar in 44 B.C. Caesar was famously assassinated at a meeting of the Roman Senate after having (almost certainly apocryphally) been warned to “Beware the Ides of March.” According to Seutonius, The Lives of the Twelve Caesars, “When a note revealing the plot was handed him by some one on the way, he put it with others which he held in his left hand, intending to read them presently.”  Marc Antony, to whom the plot had been divulged, tried to intercept Caesar, but he was himself interrupted. As for the "Beware” warning, Seutonius wrote: “Again, when he [Caesar] was offering sacrifice, the soothsayer Spurinna warned him to beware of danger, which would come not later than the ides of March.  …. [H]e entered the House [the Theater of Pompey] in defiance of portents, laughing at Spurinna and calling him a false prophet, because the ides of March were come without bringing him harm. Spurinna replied that they had of a truth come, but they had not gone.”

Although stabbed twenty-three times by the various conspirators, only one wound was fatal. At the time of his death he was 56, and by some measures was among the richest men to have ever lived.

      Caesar rose to power out of the First Civil War that resulted from the dissolution of the First Triumvirate, it comprised of Caesar, Pompey (a/k/a Pompey Magnus) and Crassus. Crassus was killed when he invaded Parthia.  The relationship between Caesar and Pompey fell apart over personal differences, and Pompey was later killed in Egypt.  

      Caesar’s murder by members of the Senate (some 60 senators were part of the plot, but not Cicero – the conspirators were unsure he had the stomach for such an act) was premised upon the notion that they were somehow preserving liberty for Rome; after the deed they paraded through the streets shouting “liberty.”  This against the fear that Caesar sought to be king, an especially galling notion in light of Rome having been, at least as part of its foundational myth, ruled by kings and then thrown them off.  Still, at this stage Caesar had been appointed Dictator for Life (Dictator Perpetuo) by the Senate.  It seems this subset of the Senate sought to undo what the whole Senate had approved. 

      As set forth in Adrian Goldsworthy’s biography of Caesar titled (surprisingly) Caesar:

The conspirators spoke of liberty, and believed that this could only be restored by removing Caesar. Most, perhaps all, thought they were acting for the good of the entire Republic. With Caesar dead the normal institutions of the State ought to function properly again and Rome could be guided by the Senate and freely elected magistrates. To show that this was their sole aim they decided they would kill the dictator but no one else, including his fellow consul and close associate Antony. Brutus is said to have persuaded them to accept this, against the advice of some of the more pragmatic conspirators.

      The huddled masses of Rome were less worried about Republican principles than they were with the loss of Caesar’s largess and the interruption of public work programs that provided desperately needed employment. As recounted by Nicolaus of Damascus in his Life of Augustus, “Even their [the assassin’s] houses were besieged by the people, not under any leader, but the populace itself was enraged on account of the murder of Caesar, of whom they were fond, and especially when they had seen his bloody garment and newly slain body brought to burial when they had forced their way into the Forum and had there interred it.” 

      “Liberty” was not to be had. Caesar’s death unleashed upon the tottering Roman Republic the Second Civil War of Caesar’s heir Octavian (18 years old at the time of Caesar’s death and later to be Caesar Augustus) and Marc Antony (Lepidus, the third member of the Second Triumvirate, was a place holder) against the assassins and their various supporters. Octavian and Antony were not friends. Rather, applying the adage “the enemy of my enemy is my friend,” they were joined in opposition to Caesar’s assassins and little else. Regardless, the decision of the night before the assignation to not as well target Marc Antony, in retrospect, was no doubt regretted.

      Assassins Brutus and Cassius (Gaius Cassius Longinus) would each commit suicide after losing a phase of the Battle of Philippi (notwithstanding the presentation in the HBO series “Rome,” they died on different days).  Cicero (who as noted above was not himself part of the conspiracy) would be executed as part of the proscriptions after the victory of the Second Triumvirate. 

      Still later Octavian and Antony would turn on one another, Antony’s forces being routed at Actium.  Octavian would go on to be the first Roman emperor, Caesar Augustus.

      But back to Caesar’s dying words. “Et tu Brute” is not recorded by any classical historian – it is a quote from Shakespeare. Plutarch, who was born exactly 100 years after the assassination, reports that Caesar said nothing after the attack began in earnest. Suetonius wrote that others reported his last words to be “καὶ σύ, τέκνον” (Greek still being the lingua franca of the Romans), transliterated as “Kai su, teknon” or “You also child,” addressed to Brutus (that is Marcus Junius Brutus the Younger, not to be confused with Decimus Junius Brutus, another party to the assignation; it was the former whom Donte put in Satan's mouth in the lowest circle of the Hell described in his Comedy). There were rumors, later reported by Plutarch (Suetonius is silent on the topic) that Caesar was in fact Brutus’ father – it was known that Brutus’ mother Servilia was Caesar’s mistress.  Still that would appear to be something of a stretch; Caesar was 16 at the time of Brutus' conception; Servilla was at that time 28.  

      For anyone who watched the “Spartacus” series, while the sources do not exclude Caesar's participation in the war against Spartacus (i.e., the “Third Servile War”), they provide no details of that participation.  Ergo, that portrayal of Caesar's actions are pure fiction.