A business should protect its website and all the content, design and graphics by copyrighting it. This way, it protects all the original works of authorship as well as the look and feel of the website. Be sure to request ownership of the copyright in a written agreement if an outside company creates the website. This could increase the fees from the graphic design company but then later on the business could have the authority to use the same graphics and content on promotional materials such as brochures and mailings.

Copyright protection starts when the work is fixed in a tangible medium. Use the copyright symbol to inform others that the business has control over the display of the website, its production and distribution. State in the fine print that the business has created the website and is copyrighted. By copyrighting a website, it will be easier to seek court enforcement of the copyright should a copycat come along.

“A business and its employees work hard to create and maintain an Internet presence that will generate revenues and continue the marketing efforts,” said Anthony Spotora, Los Angeles business and intellectual property lawyer. “A good lawyer will help their clients protect their Internet business assets through copyright protection services.”

Copyright infringement is a very serious matter and should a programmer even copy code from another website, a business could be on the wrong side of the law. Websites can be shut down without notice as a part of the Digital Millennium Copyright Act and “blacklisted” from Google. Google will remove sites that infringe on another’s intellectual property, program its spiders to avoid the site, and ban it from its Adwords and Adsense programs.

It pays to hire a business and intellectual property attorney to assist with trademarks for domain names and unique business phrases, copyrights for the website, and contractual agreements for creative services done both for the website and with vendors used during daily business transactions.

Spotora & Associates has more than a decade of experience representing clients from start-ups to established national corporations with their website and intellectual property concerns. They are skilled in researching, registering, and protecting intellectual property rights throughout the United States and abroad.

To learn more, visit http://www.spotoralaw.com/.

What is an LLC?

A “Limited Liability Company” (LLC) is a hybrid between a partnership and a corporation. It has the operating flexibility and “pass through” tax treatment of a partnership with the limited liability for its “members” accorded to corporate shareholders. “While an LLC is a business entity, it is best to think of it as an unincorporated association,” said Anthony Spotora, a Los Angeles-based business attorney. “Although sometimes incorrectly referred to as Limited Liability Corporations, they are in fact not corporations.”

Further Benefits

LLCs are highly attractive to some because of the flexibility in tax choices. LLC business ventures qualify for a single layer of taxation, which prevents ownership from being double-taxed under the corporate tax structure.

“However, LLCs may also elect to be taxed under a corporate tax structure if they wish,” Spotora said. “In fact, the full list of taxation choices for LLCs are as a sole proprietor, a partnership and either an S- or C- Corporation.”

LLCs also often require much less administrative paperwork and record-keeping than do corporations. The laws also allow LLCs to customize the rules for how the LLC is best operated.

Drawbacks

Some people feel that LLCs do have disadvantages, however.

In California and a handful of other states, LLCs must pay a franchise or capital values tax on the business.

LLC’s in California must pay an annual tax to the state’s Franchise Tax Board. The fee is $800 per year, though if the LLC’s net annual income exceeds $250,000, then there will be an additional fee that must be paid, too.

Also, some people believe LLCs have a more difficult time raising financial capital because investors may be more comfortable investing funds into corporate firms.

If a person is considering making their new business venture a Limited Liability Company, it is important for them to speak with an experienced attorney.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

In an interesting international development, U.S.-based Smart Blocks Inc., a maker of construction toys, sued the Danish company Lego A/S, noted as one of Europe’s largest toymakers. Smart Blocks petitioned the federal court for a determination that they were not infringing on Lego trademarks.

Evidently, Smart Blocks, whose headquarters are in San Marcos, Calif., are noted for their talking building blocks that feature six built-in depressible pins. The toys are marketed in seven different colors and have a variety of themes that appeal to children.

Smart Blocks had a shipment worth close to $200,000 blocked by U.S. Customs at the Los Angeles/Long Beach Port in July because there was a trademark issue with Lego. Two months later, the shipment was still on stall and there were no signs it would be released. The company ended up paying thousands of dollars for detention and storage courtesy of U.S. Customs.

“As you can well imagine, this was a significant setback for the company who indicated it had a limited supply of blocks on hand and if they were delayed any further, they may be forced to go out of business,” said David Alden Erikson, who specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

On the other side of the globe, Lego was saying Smart Blocks packaging is infringing on their trademark. “Smart Blocks says they are not, and there is the rub. Lego actually lost a court challenge asking for European Union trademark rights for the shape of their toy bricks. The question is whether or not they will also lose this case,” Erikson said.

Right now, Smart Blocks is asking the federal court to declare its packaging and products are not infringing on Lego’s trademark and they want Lego to stop saying that they are. In addition, they also want their shipment released and the cancelation of several Lego trademarks because they are generic or invalid.

“Where will this case end up? At this point, that is anyone’s guess, but largely, this case depends on how the court views Smart Blocks products in relation to Lego’s products. On the surface, they sound different and look different, but their inherent design may become the key issue. This is yet another good case to watch to learn about trademark infringement,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

It’s obvious what kind of physical repercussion an attack can have on a victim, but most people have no idea how dog bite laws can affect them, too, such as the “first bite” or “one bite” rules.

Most states follow the “one bite rule,” which says that owners are not liable for a dog’s first attack provided the owner was not negligent in some manner. The rule, however, does not apply if the owner had previous knowledge that the dog was aggressive or dangerous, or had a propensity to harm people.

In Georgia, it can be difficult for dog-bite victims to prove that an owner was negligent. To do so, the incident must pass a two-part test.

“First, it must be proven that the dog had a previous tendency to bite or attack people and, second, that the owner had knowledge of such behavior,” said Robert Webb of the Atlanta-based personal injury law firm Webb & D’Orazio.

The other way to prove liability against a dog owner under the state statute is to show that the owner violated a local or county leash law when the event occurred.

Statistics show that when dogs attack, the most common victim is a child. Dog attacks cannot only bring physical scars to youngsters, but emotional ones too that lead to a fear of animals for the rest of his or her life.

“In the wake of a dog attack, it is important to understand the particular procedure that may follow, in regard to filing a dog bite lawsuit and seeking financial compensation for your injuries,” Webb said. “If you would like to discuss whether you may have grounds for a civil lawsuit against the owner of the dog that was responsible for your injuries, you should seek the advice of an experienced Atlanta personal injury attorney.”

To learn more, visit http://www.webbdorazio.com.

Music is everywhere in the world of entertainment: Movies, television, radio advertisements and commercials. There is always a need for top-notch songs and artists.

“For an upcoming composer, licensing music is a vital step in growing a career,” said Anthony Spotora, a Los Angeles-based entertainment and business lawyer. “Licensing music means that your creation is not only protected from illegal use but can also bring a source of income and bigger name recognition. If the people behind a commercial or feature film like your composition, for instance, they will request a music license for the piece.”

While music licensing can be lucrative, it is important to become educated about the process and to receive adequate representation to secure the best deals for oneself.

There are several options for music licensing. One of the best-known options is to register and become a member of ASCAP, BMI or SESAC, which are also known as performing rights organizations (“PRO”).

Such companies collect millions of dollars annually for composers and publishers for so-called performance royalties, but you must be registered as a member to see this income.

“Performing rights organizations act as middlemen, essentially,” Spotora said. “When a song is  ‘performed’ – this includes usage in commercials, airplay, etc. – the user pays the PRO rather than the copyright holder directly. The copyright holder is then paid a royalty by the PRO.”

A separate option is to connect with a publishing company. The publisher will handle issues such as music licensing, collecting royalties and negotiating licensing figures. If your publisher works hard and is well-connected, it can generate serious income for you as a composer and catapult your career to new heights.

If you are a composer, it is important you understand how to properly protect your music as well as secure the most desirable music licensing deals. For questions about legal matters pertaining to music licensing, contact an experienced entertainment attorney.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

Each state in the United States sets its own statute of limitations, which can vary from one to six years. Here in the Peach State, the limit is two years from the date of injury. For a minor, however, the situation is different: The statute of limitations does not begin until the minor has reached 18 years of age. That means if a youngster is injured at age 14, he or she may file to recover damages up until the age of 20.

“Sometimes after an accident, it is immediately clear whether you are injured,” said Robert Webb, of the Atlanta-based personal injury law firm Webb & D’Orazio. “At other times, it is not. It is in your best interest to retain an attorney to help you settle your claim in a timely and efficient manner.”

Personal-injury accidents can be physically and emotionally damaging so it is important to find a lawyer who shows both zeal and compassion.

When considering filing a formal claim, there are several steps that one can take to help the claim process along. Many of these actions can be taken by the injured person’s attorney, too, of course. The steps include:

•Making notes of the incident. What happened? What are the injuries? What were the circumstances and conditions surrounding the incident? When did it occur?

•Keeping evidence of what caused the accident, if possible, and taking pictures to illustrate important details about the incident.

•Taking note of important witnesses who can verify what happened and help the injured person prove his or her case. Find out how an attorney can get in touch with them at a later date.

“If you or someone you know has experienced a personal injury, you should seek the advice of an experienced Atlanta personal injury attorney who can help you seek justice for your injuries,” Webb added.

To learn more, visit http://www.webbdorazio.com.

A food packaging company may have crossed the line with its fruit-juice packaging and infringed on Coca-Cola’s trademarks. Where that line actually is often causes lawsuit like this one, but behind these types of lawsuits is the desire to protect a well-known brand and not confuse consumers.

Johanna Foods of New Jersey filed a suit in federal court asking for a ruling that says it is not infringing on the trade dress and design patents for Coca-Cola’s Simply Orange brand juices packaging.

“While this may seem to many like a tempest in a teapot, these are important issues to Coco-Cola, which wants to ensure its trademarks (trade dress) are clearly recognizable to its customers. If someone uses a mark close to Coca-Cola’s and causes confusion, not only does Coca-Cola lose business, the consumer is cheated out of an original product,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

A letter from Coca-Cola’s counsel warned the New Jersey-based company that other companies who had used the carafe-shaped container for their juices had been sued and if they persisted in using the same container, they could expect to land in court. Johanna uses an eerily similar bottle for its line of Nature’s Nectar and Tree Ripe juices, although the labels are different than the ones Coca-Cola uses. Johanna disputes Coke’s contention that the design is an indicator or origin and thus protected by trademark law.

“Counsel for Johanna states that the carafe shaped container is mostly a functional object and therefore can’t be inherently distinctive and that consumers aren’t very likely to be confused by using its containers as opposed to Coke’s,” Erikson said.

This will be an interesting case to watch, as Coke has deep pockets and can hang in there for a substantial amount of time to try and make a point. On the other hand, the court may just make a point of its own based on the interpretation of the functionality of the carafe-shaped bottle design.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

“In any business, even though the people running it are partners, and perhaps friends, anything can and does happen. While they may agree on the day-to-day running of their venture, they may not agree on the smaller details that make up the larger picture. Most businesses would do well to have mediation and conflict resolution options to help them solve such disputes when they do happen,” said Ty Gomez, a Dallas employment and business lawyer.

Sometimes, a dispute starts with something seemingly innocuous that someone else may take the wrong way. Some of the more common reasons for workplace disagreements involve discrimination – which may come in the guise of age, disability, marital status, race or sex – a difference of opinion over payment or one’s salary, misunderstandings about maternity leave or even an unfair dismissal.

It’s not just internal disputes that an owner has to deal with, as they may also face business-to-business differences of opinions. That’s not too hard to understand, given the nature of the global business community these days. Many B2B relationships are complex entities and involve different cultures, as well. Negotiations can be delicate and one wrong step can bring the whole house of cards tumbling down.

“Generally speaking, disputes that arise on this level are not just personal differences of opinion; they are larger and involve serious issues. In cases like that, the parties usually need either professional mediation or a good business lawyer to sort things out,” Gomez said. Then too, the same may be said of partners getting into a dispute over philosophical differences. These kinds of disputes may come up due to one partner wanting a change in direction the other one isn’t amenable to or they could arise as a result in disagreeing over the hiring procedures for a new manager.

Perhaps the most serious types of disputes tend to involve breach of financial agreements and/or breach of contract. These are severe rifts, as contracts are legally binding and one way or another, they must be adhered to for the good of the participants and the company.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

It seems that each year, the IRS has an issue to pursue that is near and dear to its heart. This year is no exception, with the laser-like focus on wage and hour compliance. Businesses need to be alert for this issue and also be aware that the IRS and the Department of Labor are just two avenues of enforcement that may be in place this year. Others may include state or local tax agencies interested in enforcing the rules and regulations in the area.

The biggest problems generally relate to things such as proper classification, differences between federal and state regulations and not applying wage and hour rules properly. “There are two big classification errors that generally occur,” said Ty Gomez, a Dallas employment lawyer and business lawyer. “The first one is usually the independent contractor versus employee mistake. Internal Revenue has rigid laws about who is legitimately classified as an independent contractor. If you have wrongly classified a worker, you could face crushing penalties and intense scrutiny.”

On the other side of the coin is the exempt versus non-exempt status classification. First of all, the worker needs to be an employee. Next is the determination of whether or not he or she is an exempt worker. “This means a person exempt from minimum wage and overtime regulations and other wage and hour requirements. To be exempt, the worker must meet the Fair Labor Standards Act (FLSA) requirements. If you don’t get this one right, once again, there are stiff penalties,” Gomez said.

“Not every state has the same standards as those in the FLSA, so it’s best to consult with an experienced Dallas business lawyer to find out what you need to know. For example, in just about every situation where a federal and a state law differ, the employer makes an attempt to follow the rule most beneficial to the employee,” Gomez said. If the federal minimum wage is $6.75 per hour and in Florida the current state minimum wage is $7.75, companies must say the minimum wage is $7.75 because it is better for the workers.

What this ultimately means is that people need to know what the state’s specific wage and hour regulations are and how to apply them. “For instance, in Texas, the minimum wage law doesn’t have dollar minimums. The State adopts the Federal minimum wage rate by reference,” Gomez said.

The last major category that employers tend to get wrong is improperly applying wage and hour rules. There are so many regulations that can be misapplied, it would be impossible to cover them all. There are more than enough to confuse any businessperson who isn’t familiar with them. For instance, errors tend to happen with final pay, improper deductions from paychecks, overtime, minimum wage, reporting time pay, call back pay, meals and rest periods, on-call time or standby time and training and travel time.

“As you can see, this is not an easy area to keep up-to-date on and it’s best to consult with a Dallas business lawyer who deals with material like this every day. If you get on the wrong side of the rules and regulations, you’ll have a lot of grief getting it sorted out,” Gomez said.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

S corporations are unique in that they don’t pay federal income taxes. The incomes and losses are divided among the corporation’s individual shareholders instead. Unlike C corporations, S corporations are not double-taxed through the company’s profits and shareholder dividends, which is perhaps the most important part of S corporation status. Predictably, this can result in substantial income savings.

There are a variety of other benefits a corporation can gain from electing to be treated as an S corporation, including the ability to offset losses against taxable income from other sources. Also, some corporate penalties and the federal alternative minimum tax do not come into play for an S corporation.

It is important to note that while S corporations have many advantages, there are other operational matters that should be considered. Firstly, there are other costs associated to S-Corp election, such as filing an annual S corporation tax return and quarterly and annual payroll tax paperwork. Individual and corporate assets also need to be separated.

Regardless, S corporations are becoming ever-popular in the United States. There were about 725,000 in the United States as of the mid-1980s, yet these numbers grew to more than 3 million by the early 2000s. They are currently the number one type of corporate entity.

But the Internal Revenue Service has had ongoing problems with S corporations, only 25 percent of which are believed to be in compliance. The IRS in recent years has worked to increase the number of taxes collected for S corporations.

The complete S corporation rules are contained in Subchapter S of Chapter 1 of the Internal Revenue Code (sections 1361 through 1379). It is a good idea to consult an experienced attorney to learn the ins and outs, advantages and disadvantages, of becoming an S corporation.

To learn more, visit http://www.spotoralaw.com/.

Usually one of the first things that a criminal defense lawyer does when someone has been accused of committing a crime is to contact a private investigator. Ultimately, it is expected that this step will garner the accused the very best possible defense by finding additional facts and details pertaining to the case. But many defendants don’t know what the investigator does for them.

“More often than not, the private investigator digs deep to find hidden information about your case. They get a wide variety of facts from various sources, including using the computer to track files or a digital trail. These days, a necessary skill is the ability to tackle encrypted files, determine if passwords have been altered and/or if certain documents have been deleted. The 21st century has created an electronic milieu for everyone to conduct their activities. However, they leave traces of what they did and where they’ve been that may be tracked later,” said Robert Webb, of Webb & D’Orazio, personal injury lawyers practicing personal injury law, business law, and criminal defense in Atlanta Georgia.

A good detective looks at all the various angles of a case to see who else may be involved, who may be building a case against you, what they are looking for and any inconsistencies or holes the defense could utilize while in court. Public and private records are scoured from top to bottom in the search for evidence the defense may use. “And if we need a certain witness, the investigator will track that person down in order for us to build a solid criminal defense case,” Webb said.

While not all law firms use private investigators, they definitely have their use when it comes to helping a criminal defense lawyer build a good case for a person accused of a crime. Investigators work with witnesses, various types of surveillance equipment and work legally and ethically – or they could not present the evidence in court.

“If you need a tenacious criminal defense lawyer, give us a call. We’ve got your back and have ‘been there and done that’, so we know the system. Let’s talk about your case,” Webb said.

To learn more, visit http://www.webbdorazio.com.

Anyone who has ever been through some kind of medical treatment is likely aware that just one slip up, one small mistake, one misunderstanding can result in medical malpractice. Unfortunately, even though the medical profession does a fine job under difficult circumstances, bad things do happen and patients get improper treatment or the wrong treatment altogether.

The wrong treatment puts a patient’s health and welfare on the thin edge of the razor; a fine line to walk when dealing with another person’s life. The wrong treatment means the real cause of the illness is undetermined and untreated, which means the patient will get worse. The long-term consequences of this medical missed diagnosis may result in serious harm or death.

“Typically, improper treatment may happen in a variety of ways,” said Robert Webb, an Atlanta personal injury lawyer with Webb & D’Orazio in Georgia. “For example, the patient gets either not enough medication or too much or the individual is treated for the wrong illness/disease, because they were misdiagnosed.”

While there are other things that may happen to an unsuspecting patient, the other most common error is when a health services worker (doctor, nurse, charge nurse, etc.) makes a clerical error and a patient gets the wrong medication. “Of course, any of these scenarios may cause irreversible harm to someone or kill them and if you have been in a situation like this and lived to tell the tale, you will want to discuss your case with an Atlanta personal injury lawyer,” Webb said.

The major difficulty with not treating a disease is that it continues on its course unabated and may, over time, become untreatable. Those who have been victims of improper treatment may very well be entitled to financial compensation for their medical malpractice injuries. “If you have any questions about a situation you have been in, give me a call. I would be happy to discuss your case with you,” Webb said.

To learn more, visit http://www.webbdorazio.com.

Social Security turned 75 on August 14. While some celebrated its successes, the dominant narrative was instead that Social Security is in trouble. Politicians and pundits took note of Social Security’s anniversary amid renewed warnings about the dire challenges the program is facing.

In the political realm, discussion of Social Security has degraded more to the level of insult slinging and demagoguery than actual policy discussion. Democrats are accusing Republicans of trying to dismantle the nation’s most popular social insurance program (which they are) and Republicans are accusing Democrats of scare mongering about Republicans’ plans (which they are).

However, as is increasingly and unfortunately the case, the additional attention currently being paid to Social Security is not contributing to a better understanding of the program.

Debates about the health of Social Security are not new. Since President Roosevelt signed the Social Security Act in 1935, the program has never met a 75-year test for solubility. [1] Yet, 75 years later, Social Security is still paying all promised benefits to retirees and individuals with disabilities.

President George W. Bush made Social Security “reform” a key goal early in his presidency. However, even with non-stop media coverage and in some cases flat out fear-mongering, the idea of privatizing some or all of the nation’s Social Security program simply did not appeal to the majority of Americans. The inability to pass any changes to Social Security after making “reform” key to his agenda was one of President Bush’s larger legislative failures.

The debate over what, if any, changes should be made to the Social Security system was quieted during the later years of the Bush presidency, but has resurfaced with vigor as President Barack Obama approaches the midway point of his first term. The resurgence of the debate can be attributed to several factors. Republicans, pandering to an increasingly extreme base in the coming 2010 mid-term elections, are using public confusion about the program to foment an atmosphere of fear and panic over looming budget deficits. Ideology also plays a roll. Conservatives do not like Social Security. It is a popular, effective government program that runs counter to the dogma that government can do no good. Finally, some politicians and economists are engaged in a good faith effort to make sure seniors who rely on Social Security and workers who have been promised Social Security will continue to receive benefits into the foreseeable future.

One key group investigating the future of Social Security is President Obama’s deficit commission. In February, the president created the National Commission on Fiscal Responsibility and Reform, and tasked the commission with developing solutions to help maintain the nation’s long-term fiscal solubility. Social Security leads the commission’s agenda, and members are mandated to produce a series of recommendations by Dec. 1, 2010. [2]

From its inception, the commission has received criticism from the left for its conservative makeup, being comprised of Republicans and moderate- to conservative-leaning Democrats. In a recent Washington Post article, Ezra Klein scored the six Republicans and six Democrats on the commission using DW-NOMINATE rankings. He found that the Senate Democrats on the committee are more conservative than the average Senate Democrat and that the Senate Republicans on the commission are also more conservative than most of their Senate Republican colleagues. The result, in his view, being a committee evenly split in terms of partisan affiliation but right leaning in terms of ideology. [3]

Klein’s analysis of the commission follows a wave of criticism directed at its co-chair, former Republican Senator Alan Simpson. Simpson, proving himself out of touch with working Americans, described Social Security as a “a milk cow with 310 million tits.” In addition to showing a striking lack of tact (the quote coming from a letter written to the head of the National Older Women’s League), Simpson’s rant proves he either does not care about or does not understand the actual workings of the Social Security insurance program. Social Security, funded separately from rest of the federal budget, quite simply pays benefits to those who have paid in. In order to qualify to draw Social Security, an individual must work and contribute to the program for 10 years. Social Security is not means tested; benefits are paid progressively as a percentage of former earnings and contributions.

The mean Social Security benefit is around $14,000 a year, providing 40 percent of retirement income for the average American. [4] According to the Center on Budget and Policy Priorities, Social Security lifts 20 million Americans out of poverty. [5] And, according to a recent national survey commissioned by the AARP, 85 percent of adults oppose cutting Social Security and half of non-retired adults support paying higher payroll taxes to ensure the systems stays solvent. Younger Americans, while skeptical about the program’s future, are particularly supportive of the program. 90 percent of respondents aged 18 to 29 said they believe Social Security is important. [6]

However, while Social Security is popular, many Americans, particularly young Americans, are skeptical about its future. Much of this can be attributed to the misunderstandings and mistruths that are continuously perpetrated by some in Congress and in the media. Here are the truths behind some of the more common Social Security myths.

1. Social Security adds to the deficit.

Social Security, by law, cannot add to the deficit. It is a separate program, paid into through FICA contributions, with benefits paid only from the revenue it raises. If the trust fund were to be exhausted and current contributions were not adequate to pay benefits, Social Security could not borrow from the general budget. Federal law prohibits Social Security from borrowing.

2. Social Security is broke, and there is no “Trust Fund.”

Conventional wisdom among Social Security skeptics is that the program is out of money now and that there is no Social Security Trust Fund. This is fueled largely by the fact that Social Security did begin to pay more in benefits than it received in taxes earlier than was projected due to the depth of the 2008 recession. Regardless of this fact, The Social Security Trust Fund currently runs a $2.5 trillion surplus. The Economic Policy Institute estimates the surplus will peak at $4.2 trillion in 2024 [7]

Trust Fund intact, with no changes to the program, Social Security is projected to be able to pay 100 percent of benefits until the year 2037. After 2037, Social Security will still be able to pay 75 percent of benefits. [8] A program projected to meet costs almost 4 decades into the future with no adjustments is not a system in crisis. Other government programs would be hard pressed to meet such a standard.

3. The Trust Fund has been raided and is just full of IOUs.

Those who decry the vacuous trust fund, eliciting imagery of a big room with lonely piles of IOUs, are in reality making claims against the creditworthiness of the United States government. True, the Social Security Trust Fund is not sitting around in a lock box as Al Gore eloquently stated. The funds are invested in Treasury Bonds, “full faith and credit” notes that the government issues to many of its creditors. Since the federal government has never missed a payment on its debt, and is not expected to anytime soon, to claim the Trust Fund is full of useless IOUs is disingenuous.

4. The retirement age must be raised because people are living longer

The retirement age argument is tricky because two things are the case: more baby-boomers are soon to retire, and people, on average, are living longer. The argument seems logical on its face, but the reality is very different.

The crux of the issue surrounding the retirement age is that the rise in life expectancy since 1935 is largely due to lower infant mortality rates and is unevenly spread among income levels. Since 1972, life expectancy has increased by 6.5 years for top earners, but by less than two years for workers in the bottom half of the earnings bracket. [9] Because of this disparity, the less affluent, those who most need social security, will see the greatest benefit cut. It is not as difficult to imagine staying in a well-paying office job for a couple more years as it is to continue working lower-paying labor-intensive jobs until age 70.

In addition, the retirement age is already set to increase gradually, due to a 1983 law, until it reaches 67 for people born after 1959.

5. Benefit cuts are needed

To the extent that there will be shortfalls in the Social Security budget in the future, they are minor in relation to other budget expenditures, and can be corrected without cutting benefits. In 1983, when Social Security actually did run out of funds, a “deal” was made with workers to put Social Security back in the black. Payroll taxes were raised, significantly, on middle and lower income workers. The tax increase was highly regressive, but, coupled with a raise in the retirement age, was responsible for building the large surplus Social Security enjoys today.

The increase in taxes on lower income individuals also allowed Reagan to cut taxes on those earning higher incomes. At the time, implicit in the deal was the idea that lower income workers would overpay their taxes for 30 years, at which point higher income individuals would pitch in to relieve some of the burden and cover any funding shortfalls. After a period of overpayment of payroll taxes, the tables would turn, and middle and lower income individuals would begin to underpay payroll taxes with the difference being covered by a raise in income taxes on higher earners. [10]

Thirty years later, the second part of that deal has been conveniently forgotten. Without cutting benefits, and in the spirit of Alan Greenspan’s 1983 recommendations, creating new sources of revenue could increase funds. The cap on Social Security taxed-income, currently $106,800, could be raised or eliminated. Other taxes, like a proposed financial transactions tax, could be implemented. The 75-year projected Social Security deficit is roughly equal to the cost of extending President Bush’s tax cuts on those earning over $250,000 a year for the same period. [11]

The logic, as Paul Krugman stated, is that benefits have to be cut to avoid cuts in benefits. That logic does not add up. [12]

6. Social Security faces the same issues as Medicare and Medicaid.

Social Security often gets lumped in with Medicare and Medicaid as a problem “entitlement” program. It is true, Medicaid and Medicare do face funding problems, but much of this is due to the ballooning costs of health care. Social Security does not face the same problems as Medicare and Medicaid as payouts are not affected by rising health care costs.

Even with these realities, many watching the Social Security debate expect the deficit commission to offer a package of several cuts, including an increase in the retirement age. It is anticipated these cuts will be coupled with some sort of an increase in payroll taxes for wealthier Americans.

Current and future retirees would be well served if politicians would stop confusing the distinction between cuts in Social Security and cuts in the national debt. Mounting deficits are a legitimate concern, but can in no way be attributed to Social Security. Americans, both those receiving Social Security benefits, and those planning to receive benefits in the future, acknowledge the significance of the Social Security. A program that is so important to so many Americans deserves an honest debate.

SOURCES

1. http://www.epi.org/publications/entry/webfeatures_viewpoints_ss_myth/

2. http://www.fiscalcommission.gov/

3. http://voices.washingtonpost.com/ezra-klein/2010/08/the_republicans_on_the_deficit.html

4. http://www.huffingtonpost.com/mark-miller/its-time-to-bolster-socia_b_696327.html

5. http://www.cbpp.org/cms/index.cfm?fa=view&id=3260

6. http://www.aarp.org/work/social-security/info-08-2010/social_security_75th.html

7. http://www.epi.org/analysis_and_opinion/entry/fact_check_has_social_security_begun_tapping_its_trust_funds/

8. http://www.ssa.gov/OACT/TR/2010/index.html

9. http://voices.washingtonpost.com/ezra-klein/2010/07/more_on_raising_the_retirement.html

10. http://motherjones.com/kevin-drum/2010/08/deal

11. http://www.cbpp.org/cms/?fa=view&id=3262&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+cbpp%2FfYJq+%28Center+on+Budget+and+Policy+Priorities%29#_ftnref1

12. http://www.nytimes.com/2010/08/16/opinion/16krugman.html?_r=1&hp

You may have noticed that sculpture downtown in the middle of the rotunda at your local city hall. At least you “think” it’s a sculpture, but then again, it might also be a bike rack. That’s the prevailing problem with art – what is it? This is actually a question that has been argued in many courts across the nation, and frankly, no one is even close to being able to define what art really is and they may never be.

The reason for that? It changes all the time. One year the “in” thing may be pictures of soda cans in a back alley depicting the angst of modern society and their throwaway habits – and this will be considered to be art. The next year, and honestly sometimes even the next month, those same soda cans become passé and the newest hot item is something that passes for finger painting done on steel panels. Go figure. Nonetheless, someone somewhere may find their “art” being knocked off and the battle may be on in the form of a lawsuit.

When defending the rights of the creator of the “art,” the main issue is what belongs to whom, and let’s also not forget who actually owns the “art.” While most would say the creator of the art is the owner, are they really? They don’t have anything appropriated to their work once it’s not in the studio.

Then, there is the often contentious issue of the relationship the artist has with the gallery. The artist is the worker who produces the work, but the gallery also has ownership rights to the work because they represent the artist. Often they get a whopping 50% cut of the final sale price for the work because they promoted it, showed it and raved about it and that got the artist and the work noticed.

Ownership changes hands through sale of the work, or does it? That’s the multi-million dollar question and one that poses an endless conundrum for those with a philosophical bent. It also poses some interesting questions in legal cases as well.

Here is an example of the problem of legality and ownership issues. Have you heard about Associated Press (AP) suing Shephard Fairey? They sued him over the Obama Hope posters that he artistically interpreted. Problem is that AP says his posters amount to copyright infringement because he mass produced a photo originally owned by AP without their permission. Fairey didn’t use the exact photo, he artistically interpreted it.

Fairey’s portrait version of the original image was based on a photo taken in April 2006 by AP photographer Mannie Garcia. AP kicked up a stink and in reply Fairey sued for a declaratory judgment that his poster, despite its origin, was “fair use” of the original photo. This is just one example of the kinds of issues that are floating around in the world of art law with the underlying confusion threaded into the mixture of what happens when you give art a primary holder. Is its meaning, which only the artist seems to know and understand, affected by giving it an owner?

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Being in business means dealing with everything that comes up. That includes copyright issues.

“Copyright is almost a four letter word for many in the world of business these days. While it’s something they know they need to deal with, they would rather not. This is largely due to the fact that this particular area of the law is complex, complicated and ultimately, a royal pain to deal with without the help of an attorney with experience in this area,” commented David Alden Erikson, a Los Angeles business litigation attorney with extensive background in this area of the law.

“To sum it up, copyright protects authorship of original works and that includes artwork, music and the written word, not to mention intellectual property. But, for now, I’m only going to deal with copyright to try and simplify things,” added Erikson.

Copyright actually protects more than just published works – meaning things you may read, write, etc. – it is applicable to “things” put out there in the public domain, such as exhibited, performed or made accessible by the Internet. This is where any similarities between countries ends. Every country has its own copyright laws. “If you don’t know what laws apply in your country (area), make tracks to talk to a lawyer with experience in this area. Better to be safe than find yourself being sued for violation of copyright,” Erikson remarked.

“Think copyright doesn’t apply to you because you don’t dabble in the creative arts? Think again, and then go take a look at your website copy, brochure copy and your flyers. All of those materials are affected by copyright,” explained Erikson. “You hopefully wouldn’t ‘borrow’ someone else’s copy from their site and call it your own, and you sure wouldn’t want someone pinching copy off your website either. If someone did swipe your copy without your express permission or giving you credit, this breach may result in a lawsuit,” he added.

What if the website owner did not write the copy for the site, but had someone do it for them? In a case like that, the copyright would still vest in the business. This is due to the fact that the owner would hold the copyright under “work for hire.” Work for hire is a section in the copyright act that covers situations like this where the copy is written by another person.

“While you might not develop an appreciation for the finer points of copyright law and copyright infringement, you really should have a passing acquaintance with the general highlights. Put another way, you’d likely want to know what to do if someone stole your copy and vice versa, should you make the same mistake,” suggested Erikson, a Los Angeles business litigation attorney. “If you find that copyright is about as clear as mud, give me a call for a more in-depth explanation,” he offered.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The US Supreme Court has said the NFL can’t avoid antitrust laws when dealing with team jerseys.

“The last place one would expect to find the US Supreme Court is on the football field, but there they are, dealing with the sale of NFL team jerseys and hats. It was actually an interesting case and may well set precedent for the future,” remarked David Alden Erikson, a Los Angeles business litigation attorney.

The core nugget of the case decision was that the National Football League isn’t exempt from antitrust laws relating to the sale of team jerseys and hats. The decision said the NFL could be sued by someone who formerly supplied the NFL with clothing who alleged the NFL participated in “illegal restraint of trade” because they gave an exclusive licensing agreement to one company for their 32 teams.

At first, it looked like the case may have been lost at a federal appeals court when they ruled the 32 teams were acting as a single entity in offering a licensing agreement. That meant the league as a whole was then protected from restraint of trade accusations. The supplier, American Needle, took their case to the Supreme Court because they did not agree with the Chicago Federal Court ruling.

“As it turns out, that was a smart tactical move, as the Supreme Court reversed the lower court by indicating that the teams don’t just compete on the field. Indeed, they compete when it comes to dealing with trademark issues and with intellectual property. Put another way, every team has/is a source of a valuable trademark, as they are not all the same,” explained Erikson.

“So the bottom line here is that the initial idea by the NFL to license their 32 separate trademarks in a collective manner to just one person ultimately took away the independence of each team’s decision making and quashed any actual or potential competition,” Erikson clarified.

This case is also interesting for the fact that it is the first time a private plaintiff won an antitrust case since 1992. Having said that, this isn’t over yet because the case has now been shuttled back down to the lower courts to take a look at whether the NFL acting collectively to create jerseys, hats, and other items complies with antitrust laws. The NFL may still pull a goal out of this situation.

What we can say for sure here is that the NFL isn’t granted immunity, but they do ultimately get a chance to present an argument saying that the anticompetitive benefits of joint licensing outweigh anticompetitive harms.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The online world is indeed getting more and more sophisticated, particularly when it comes to using open-source collaborative efforts to develop programs. The most well-known example of that would be Open Office, much the same as MS Word, but users seem to feel it’s easier to use. In addition to that observation, it is also constantly updated, because it’s open source, and it’s free. You can’t beat that as a major motivator to use it.

Over ten years ago, Linux was the first company to drive the revolution to open source technology and now, a drug company is dipping its toes into the open source waters for developing a new drug. GlaxoSmithKline PLC (GSK) is on the cutting edge of what may be the latest in creating new drugs quickly in response to perceived threats to humanity.

Just recently, GSK allowed the public to access the designs for about 13,500 chemical compounds that it feels may inhibit the parasite that causes malaria. The idea here is that by sharing information and partnering with others, scientists may find the right combination faster than if they were trying to do it by themselves.

It’s certainly not too far-fetched to think that everyone who sees the chemical compounds are going to see them they same way GSK scientists do. Often innovation and success comes from pooling the ideas and expertise from others with different approaches. At the moment, two government websites and one private one will act as hosts for the data.

This step forward into sharing what has previously been a deep, dark company secret may open the doors to the creation of drugs that are not owned by a single company. That in itself would be a giant step forward for the global community. Would it mean they would lose money or are we seeing the greening of a global sense of community responsibility for everyone affected by disease?

Interestingly, drug formulas are typically tightly guarded trade secrets and often end up being blockbuster sellouts with billions being made for the drug company. Is GSK about to give that potential up in this experiment? Chances are the answer is no, largely because malaria usually plagues poor countries and drugs for those countries aren’t famous for providing a large payback, thus reducing the drug company’s risk.

Just when you’d think Microsoft would have nothing to do with a venture of this type, up pops the information that one of the three websites hosting this open source effort is called Collaborative Drug Discovery, an Eli Lilly & Co spin off with funding from the Bill and Melinda Gates Foundation and Flounders Fund.

While the current drug information sharing is being done to experiment with “neglected” diseases, there is some speculation this process may be viable for developing commercial drugs. That might be a bit of a stretch for the simple reason that intellectual property issues would need to be dealt with before anyone could proceed. No matter what the outcome of “this” experiment in camaraderie, it may turn out to be “the” way of doing business in the future.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

There is one exception to the general rule of copyright vesting in an author’s work. It’s called “work for hire.”

In a nutshell the concept of work for hire is meant to let a company train, share ideas and educate the people they employ without the underlying fear that they are creating their own future competition. Generally speaking, this is an exception to the general rule of copyright where it vests in the author of a work.

Let’s take a closer look at this doctrine. A company employer is assumed to own copyright on any work created by their workers during the scope of their job. Along with this assumption is the fact that businesses will usually also lay claim to ownership of work produced by independent contractors (if they commissioned the work); if both parties agree in writing the work was work for hire, and that the work itself fits in one of nine categories enumerated in federal law.

As you may expect, the language in the statute leaves the door fairly wide open for vigorous arguments. Let’s look at an example. What if you had a tech support person working for you during the day that went home at night and created software applications? Is that person now working outside the scope of their job at your company? What if the person used skills or ideas learned at your workplace? While you might have thought to put scenarios like this in a work for hire document, the vital question is whether or not “you” will own the work.

There is no right or wrong answer to those questions because an answer is dependent on the facts of each case individually. This is why it is critically important to speak to a Los Angeles business litigation attorney with expertise in this area to outline what you would need to protect your company.

Now, here comes the fly in the ointment – startup tech companies who need their software developed for them and they hire out work as they need it done and when they can afford it. The fly in the ointment is that computer code isn’t really in any one of the nine federal work for hire categories, which puts a crimp in what the company is supposed to do. Put another way, this means the company almost has to hope the programmer’s ethics are superior, and that they won’t use what they’re working on to start their own firm.

The good news is that a recent court decision, JustMed, Inc. v. Byce offered this area of the business world a bit of elasticity when dealing with work for hire issues. The court held that a software developer was an employee and that meant any code developed belonged to the company that hired the developer.

This is an interesting case for another reason as well. The court came to this verdict by almost flying in the face of considerations that would usually lead courts to classify a relationship as being that of an independent contractor. Those factors included: the parties never having a written employment agreement; the business didn’t withhold taxes, provide benefits or a W-2; the company didn’t offer much in the way of direction for the job; the contractor used their own equipment and worked remotely.

The bottom line here is that this area may yet be open to further interpretations as new cases develop for consideration. In the meantime, each case is based on and dealt with on its own merits virtually guaranteeing different results every time. When in doubt about the work for hire doctrine, talk to a Los Angeles business litigation attorney. It could save you some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.
“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

While a LOI is a small document, it is essential because it helps guide the transaction. Without a LOI, the parties will lack the appropriate direction to move forward with the purchase and may have differing expectations. Furthermore, they may get bogged down in the Aircraft Purchase Agreement (APA) details, and this might delay the transaction or even prevent it from occurring at all.

A Letter of Intent should cover the following:

• Contain a description of exactly what is being purchased. This should include the make, model, any serial numbers, status of maintenance, and the condition of the aircraft.

• Set the purchase price of the aircraft.

• Establish what kind of deposit is necessary for the aircraft purchase, who will hold this deposit, and what the terms will be if it is forfeited. Also, it’s important to outline who will pay the agent’s escrow fees.

• Lay out the pre-purchase aircraft inspection that includes the allocation of costs and acceptance criteria. Be sure to include details about the location of the inspection facility, the scope of the inspection, including information about test flights, timing, and who pays for the inspection and the actual movement of the aircraft to the inspection facility. In addition, you will also need to establish the parties’ rights and obligations in the event of a successful or unsuccessful inspection.

• Agree to negotiate and enter into a definitive purchase agreement within a specified amount of time.

Crafting a letter of intention is an inexpensive option that will save both buyer and seller a great amount of time. A good letter of intent will make the aircraft purchase go smoothly with as little conflict as possible.

Stewart H. Lapayowker, P.A. is an aviation attorney and aviation transaction lawyer, focusing on airplane and jet transactions. To learn more, visit Businessaviationcounsel.com.

During the recession there are a lot of industries suffering significant hits. A turboprop manufacturer in Idaho was just getting its business underway during the same time frame when the recession hit the hardest, giving short shrift to his dreams and plans – temporarily. The business owner, Paul Schaller, snatched victory from the jaws of defeat and niche marketed his turboprop planes for missionary and humanitarian outfits requiring access to dangerous and remote regions. His company name: Quest.
“While this might sound nice and like a worthwhile cause, this also happens to be a burgeoning $300 million market that hasn’t really gone very far since the early 1960s. This particular plane, a ten-seater $1.45 million Kodiak, is certified by the Federal Aviation Administration (FAA). Since that happened, Schaller’s deliveries have blossomed from virtually zilch to over 27, with customers standing in line,” recounted Stewart H. Lapayowker, Esq., an aviation transaction lawyer who focuses his practice on aircraft transactions in Fort Lauderdale, Florida.

Who would argue that using a plane for rescue work is a luxury? Not a lot of people and its usefulness has proved itself over and over. It’s not just the fact that the plane and the business of saving people are in demand, it’s also that this industry employs others. “In other words, it provides jobs in many areas of the business aviation industry. Odd that people seem to think this kind of work and using a plane to get to places is acceptable, when other companies who do the same thing – but do work related tasks – is out of line and unjustified,” Lapayowker commented.

Consider the fact that this small company is now making three Kodiaks a month and has back orders for 120 planes on the books. Quest expects to makes close to $60 million next year. “Part of that revenue will go back into the local community; part will go to the government. In other words, business aviation turboprop planes are more than pulling their own weight when it comes to contributing to the economy,” added Lapayowker.

“This is a heartwarming story with a moral attached to it and that moral happens to be that despite an aircraft industry that is having trouble during the recession, it is possible to make a comeback. Business aviation is the lifeblood of the country, no matter what form it takes – turboprop aircraft or business jets. They all have value that contributes to the economy of this country,” said Lapayowker.

Stewart H. Lapayowker, P.A. is an aviation transaction lawyer focusing on airplane and jet transactions. To learn more, visit Businessaviationcounsel.com.

In a world that loves to pounce on excesses, it isn’t hard to find hundreds of people tsk-tsking over the use of corporate jets for private purposes. It happens. However, just because there are some companies or executives that do abuse an asset, does not mean that all companies and executives do it. In fact, the exact opposite is usually the case. It’s just that it makes good grist for the publicity mills to be able to point out instances where corporate big shots pulled a big blunder and used company jets to do their “thing,” while taxpayers footed the bill.

“Fortunately, as bad as a story like that might seem, there is a nugget of reality and truth in it, and that is using business aviation to run a company is not only smart, it means the organization is well managed. For those having trouble with that concept, consider the thousands of miles some companies need to put on to make and maintain a profit. While the profit does go to the company, it also goes to the coffers of the nation, keeping trade open across the nation. In other words, business aviation means the country’s economy is thriving thanks to the mobility and flexibility of using planes to do business,” explained Stewart H. Lapayowker, Esq., an aviation transaction lawyer who handles airplane jet transactions in Fort Lauderdale, Florida.

Business flights are a reality in the world today, and if they weren’t, America would not be what it is capable of becoming now and in the future, thanks to the capacity of planes to make vital connections viable. “Whether it’s getting to a distant office on the other side of the country to handle a production problem, sending sales teams for training on a new avionics model, or getting a critically ill person to the nearest high tech medical facility, business aviation is crucial to America’s well-being,” added Lapayowker.

If a business executive had to make four stops in one day, each involving a meeting and resolution of shipping glitches that were holding up the uninterrupted flow of goods to the four destinations, would that executive take a commercial airline to those locations? If one location was New Mexico, one in Washington, one in Maine and one in Montana, and they were all within a two day time frame, that executive could not efficiently take commercial airline flights to all of those places. Logistically, it would be a nightmare.

Using a corporate jet would deal with the geographic issues and make those meetings doable. In the process there would be a business resolution that would allow the company to continue to flourish. One trip, working on the aircraft, holding meetings and doing deals, makes financial sense. “Travel time involved is kept to a minimum using business aviation. Put another way, the return on investment that a business airplane provides for a company goes directly to its bottom line, which can only be a good thing in business,” said Lapayowker.

Stewart H. Lapayowker, P.A. is an aviation transaction lawyer focusing on airplane and jet transactions. To learn more, visit Businessaviationcounsel.com.

No one knows better than construction workers how dangerous their jobs are on a daily basis. The number of built in hazards prevalent on a job site are phenomenal and the most dangerous accidents usually relate to lifting and moving heavy equipment and parts. Because of the heavy use of such equipment, it only stands to reason that Occupational Health and Safety statistics indicate that slings, used to move heavy materials, and how they are handled during moving, is “the” major cause of workplace injuries and accidents.

Most of the slings in use across the nation at construction sites are made of wire rope, chain and nylon. If the workers don’t have a good enough understanding of how these slings work properly and how to handle the materials being moved, each time something is moved is virtually an accident waiting to happen. It may also be viewed as negligence on the part of the employer if they do not have the proper safety standards in place or instruct their workers on how to handle materials in the proper manner.

For instance, nylon slings are not only strong, but have a certain elasticity. When bearing a heavy load, these slings tend to absorb shock and return to their original shape after release, much like an elastic band. This characteristic makes this material ideal for repetitive lifting, etc. They handle moisture and most chemicals (alkalis) and may be used inside or outside, rain or shine, and in temperatures of up to 180 degrees F.
When working with nylon any adjustments to be made to the sling are very simple. The trick is to make the adjustments correctly and not overload the sling on a continuous basis. While this type of sling material does provide a warning when it’s getting damaged (red indicator yarn) there have been cases where the sling was kept in use past being safe. The results were not pretty for the worker injured when the material being moved fell on him.

Chain slings don’t have the same abilities as nylon and are prone to snap unexpectedly. They need to be inspected prior to use for flaws and signs of wear and tear. If this is not carried out on a regular basis, or if the sling is used for loads that crush the sling itself, it compromises the integrity and safety of the apparatus. Again, an improperly cared for sling may result in disastrous consequences for those working on the job site.

Wire rope slings are a combination of twisted wires over a fiber core, each with a different degree of flexibility and damage tolerance. They are susceptible to fraying and moist conditions and if they are used well past their safety tolerance, accidents can and will happen. While there are a great number of alternatives for sling, hitches, baskets, etc. that may be used on construction work sites, all of them still need to be respected for their potential to cause deadly harm. Parts and any equipment is replaceable, people are not.

If you or a loved one has been involved in a construction site work accident, make it a point to talk to a highly skilled personal injury attorney with experience in handling cases such as this. Any severe life altering injuries may be eligible for compensation from the courts. Your lawyer will be able to advise you of your rights.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

It seems like everywhere motorists look while they’re on the highway they’re behind a big truck, passing one or cutting back in front of one. Virtually every fourth vehicle spotted on the roads these days is a semi hauling a big load. The more trucks there are weaving in and out of highway traffic, the more accidents are bound to happen.

It’s inevitable than when a 40 ton truck hits another passenger vehicle there will be numerous liability issues, which is a major reason to speak to an expert personal injury lawyer with experience in this area of the law. The circumstances of the case need to be evaluated and legal rights explained to either the survivor or the survivor’s family.

The reasons a truck crash lawsuit are so different than many other personal injury cases has to do with the number of potential defendants. This could include everyone from the trucker to the trucking company and from the load owners to the owners of any pups being hauled. In instances like this, the personal injury attorney will be alleging the truck accident was caused by the negligence of the trucker.

When this happens, often the trucking company assumes the liability for the driver’s actions under a doctrine of the law referred to as respondent superior. That simply means employers are liable for employee negligence if, when the accident happened, the worker was doing something ‘within’ the scope of his or her job.

While this sounds like it might be fairly straightforward, it rarely is that way. For example, there are a variety of definitions as to what an employee is and this may be the key to these cases. Many employers and their attorneys try to deny liability for a big rig crash by saying the driver was not an actual employee.

This kind of scenario was recently played out in another state where a plaintiff filed a suit against a trucking company and the driver. Their response was the driver didn’t work for them because he was a leased driver, and therefore they were not liable for the accident.

This argument is known as the borrowed servant defense which means when the trucking company gave the trucker a big rig to drive, they surrendered control to him. In doing that, the idea is that he is solely responsible for the negligence that caused an accident, not the company.

These types of cases tend to be very tricky and convoluted. This is why it only makes good sense to deal with an expert personal injury attorney who knows the ins and outs of the court system, how to collect the evidence needed to make a case and most of all, who knows the parties that need to be sued in instances like this.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Dissolving a corporation is not as easy as it sounds. In nearly every business, there comes a time when, the life of a company should come to a close. Dissolving a business relationship is often a more arduous task than the initial start-up.

When it comes time to dissolve your corporation, someone will have to tie up any loose ends and fulfill the final legal obligations of the company. But how is this accomplished? “The process behind dissolving a company is dependent upon the business structure. Special handling is required especially with the involvement of shareholders,” states D. Scott Heselmeyer of Heselmeyer Zinda, PLLC.

Just because all of your merchandise is gone and you have closed your doors for the final time, do not assume that your company is finished. From a legal viewpoint, the company still exists even if you are no longer conducting business. Until an official dissolution is completed, the state requires the corporation to continue to fulfill its legal obligations.

“Not dissolving your corporation can have severe consequences,” says Heselmeyer, “the costs typically do not outweigh the consequences of failing to legally dissolve your company.”

Besides not having corporate closure, some consequences that you may be forced to deal with are tax filings and the associated penalties and fees of late filing, personal liability, annual reports, future product liability from any product sold while the company was in operation and asset allocation delay. The latter is likely to directly affect the shareholders, who would not be legally entitled to their share of the company’s assets until an official dissolution has been made.

When you first decide to dissolve a company, you need to adopt a corporate resolution to dissolve, an action designated by the board of directors. A vote has to be taken with minutes of the meeting recorded and retained in corporate records. Once this has been approved by the board of directors, a majority approval amongst the shareholders must be reached. Once these details have been met, an Article of Dissolution will need to be filed with the Secretary of State of your particular state; sometimes this can be accomplished with a certificate, but may require a more complicated process.

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

Typically, a Sacramento business lawyer handles things like contracts, commercial paper, employment law, sales and agency, and deals with things like corporations and partnerships. On the other hand, corporate law pays close attention to the relationship between businesses and customers and, how things run under the auspices of the firm’s internal rules. Anything legal, litigated or mediated, etc. in either area of these two types of law applies to all transactions in public or private.

Let’s take a closer look at what a Sacramento business lawyer handles. In this particular legal arena, business law lays out how different enterprises are set up. For instance: registration, proper documentation and other requirements, how taxes apply to them, drafting bylaws, articles of organization, company start-ups, buying or selling of other firms, handling employees in the correct legal manner, properly managing the venture and so on.

On the other side of the fence, corporate law has five things that separate it from business law (as these areas both use the same laws and processes). Corporate law deals with investor ownership, transferrable shares, limited liability of shareholders, delegated management, and the separate legal personality of the corporation. In most instances, these “differences” apply to publically owned corporations.

The interesting thing about corporate law is that its origin is from the middle ages. It was employed when medieval guilds were set-up, but not created for profit. Put another way, corporate law in the 21st century defends the rights of the company and the shareholders when legal matters need to be handled or the company goes under.

There are more than just the “five differences” that drive corporate law. For example, this area also deals with the corporate constitution, corporate litigation if necessary, the personality of the corporation, its capacity and powers, and the duties of the director. It will also handle things like acquisitions, insolvency, corporate crimes and mergers.

Just be aware of the “differences” when it comes to choosing a Sacramento business lawyer for your company.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Litigation is defined as the process of bringing a lawsuit. In business litigation, specialties arise within the specialty. One of these is real estate litigation.

Real estate litigation typically arises from real estate disputes. Such disputes may occur within purchase and sales contracts, partnership disputes, claims involving breach of fiduciary duty, commercial leases, property insurance, property tax assessment, and design and construction defects or boundaries. All of these sub-specialties within real estate law may require litigation expertise to resolve.

The objective with any litigated real estate case is to obtain a favorable outcome. Representation in matters of fiduciary duty and partnership and contract disputes can often produce multimillion dollar judgments and defense verdicts in favor of a real estate litigator’s clients. Litigators of real estate matters often represent buyers and potential buyers of real estate. Within the real estate milieu, land use restrictions leveraged in advantageous ways are often litigated for clients as diverse as owners of vineyards, hotel and motel owners and developers (and increasingly with bed & breakfast lodging establishments as proprietary brands are haggled over), and developers of commercial and residential properties. Real estate litigators frequently become engaged in disputes over boundary lines and easement rights, enforcement of seismic retrofitting requirements, and the failure of property owners from adjoining or abutting parcels to comply with zoning and permit requirements.

Homeowners too, most notably persons of wealth, may engage a business law practice handling real estate litigation for such matters as major design and construction flaws that may have been hidden or obscured when they initially purchased their properties; in such instances claims against responsible parties, including contractors and sub-contractors as laws permit, may be pursued.

For any real estate litigator, certain inherent skills may be more likely to ensure successful outcomes. One such example is experience in adversarial proceedings. If a business practice lawyer has not appeared before judges and juries as well as alternative dispute resolution forums such as non-binding mediation, it is prudent for potential clients to select another firm. In any case, a competent real estate litigator should be fully prepared to try any case in state or federal court.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

A contingency fee is the cost of legal representation when payment to an attorney is based upon a percentage of what a client receives in a settlement or judgment. While contingency cases are well-known to the public in the personal injury realm, business contingency cases can also be extremely viable for clients that have a business law issue. In either specialty, when a case comes along that a company does not have the resources to pay thousands, if not millions, of dollars in legal fees, the case is frequently dropped out or not engaged initially out of economic necessity. Contingency fees allow these cases to be pursued.

The trick of expertly handling contingency cases is to combine large-firm expertise with small-firm attention while reducing overhead.

The best business law firms in a given state or region are renowned for successful outcomes achieved in at least one or two, and preferably several, well-chosen contingency cases. Certain prudent firms versed in business contingency cases may carry three or more promising contingency cases at all times. A single such case may consume up to 20 percent of a firm’s available time, but typically generates between 40 and 50 percent of the same firm’s revenues.

The crucial part of any business firm’s contingency strategy is that these cases must be well chosen. The ideal formula is to have a relatively small number of such cases in the game, as a loss in a time-consuming and hard fought contingency case could seriously impair even the most aggressive firm’s bottom line.
Financial thresholds for a contingency-based case can range from tens of thousands to several million. Once an appropriate financial range is established, the case must be thoroughly analyzed and determined to be financially viable with sound prospects for success, assuming that the matter is deemed substantive enough to go to trial.

Legal vehicles such as blended contingency models, in which a fee consists of discounted hourly rates and a significant percent of the recovery, are considered the most useful, although individual negotiation is recommended so that the client is satisfied at the outset.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

It wasn’t until attorneys handling the results of car crashes began to ask questions about the nature of the injuries sustained to the head and neck that the medical profession began to take a closer look at what consequences whiplash really had. On the other side of the fence were the insurance companies whose stated preference was to not compensate for whiplash because it would save millions of dollars. And so it did, until the furor over whiplash injuries became great enough that they had to sit up and take action.
Insurance companies just didn’t “get” that whiplash had the potential to cause disabling pain and because it could not be “seen” then it must not be that bad. Based on that premise the insurance gurus came up with something called Minor Injury Soft Tissue Injury or MIST. The theory behind MIST was that whiplash was merely a psychosocial incident.

In reality of course whiplash is better known as cervical acceleration-deceleration injury and it is incredibly painful. Whiplash doesn’t just affect the neck; it may also damage ligaments, cervical discs, cervical facets and muscles. Recovery is a long and painful process.

Anyone who has suffered whiplash knows the worst manifestation is headaches. At one time insurance companies offered the attitude that headaches were caused by other things. The scientific evidence shows otherwise when dealing with cases of whiplash. The problem in the courtroom, even today, is that there are experts for hire who still claim whiplash victims are suffering because of “other” conditions. It then boils down to a he says/she says proposition that a judge or jury has to sort out in the final analysis.

Thankfully, it appears that recent research demonstrating the obvious connection between whiplash and headaches is beginning to make a dent in the insurance companies dogged insistence that they are not related. Although even the latest research is still being closely questioned in order to find a loophole for the insurance industry to deny claims and save money. Never assume that a person who has sustained a whiplash is “faking” the symptoms. Anyone who has been in an accident that resulted in neck trauma needs to consult with a skilled personal injury attorney to have their case assessed.

Living with constant pain and not being able to work or carry out daily activities, as a result of severe whiplash sustained in a car accident or other mishap, may mean recovering damages in court as a direct result of someone else’s negligence.

To learn more, visit Lawbarron.com.

Many construction sites have their fair share of minor accidents, as that seems to be the nature of the job. Unfortunately for the workers on site, deadlier accidents also take place like the collapse of scaffolding, electrocution, burns, amputations and crush injuries. The fact of the matter is that the construction industry ranks as number one when it comes to the number of on the job injuries sustained each year.

Across the United States there are approximately 250,000 construction sites at any one given time, with close to 6 million construction workers plying their trade. For every 100,000 construction workers on the job, at least 23 will die in a work-related accident. On many, if not all of the sites, there is scaffolding that poses a real hazard to people’s safety and lives in more than one way.

Not only can the scaffolding collapse, tip or disintegrate, there is the very real danger of falling material and tools striking people on the ground. Workers who are dealing with laying electrical wire and other potentially dangerous utilities, such as running gas lines, also face significant personal injury risks on the job site.

The US Department of Labor is predicting that over 1,000 workers will die this year as a result of sustaining a construction site injury. Those who do not die from their wounds may be permanently disabled and unable to work again. Interestingly enough, the second leading industry in terms of high numbers of personal injuries and deaths was the trucking business, reporting over 500 deaths. Some of those deaths involved crane accidents, something that has been in the news quite frequently as of late.

Turning to the Occupational Safety and Health Administration for further statistics in this area, they show there were ten top factors in construction worker injuries and death. These factors included the number one spot going to scaffolding, hazard communication, fall protection, respiratory protection, lockout/tagout (LOTO), powered industrial trucks, electrical wiring, machine guarding, general electrical maintenance and ladders. Lockout/tagout refers to a safety procedure of shutting down dangerous machinery and not starting it again until maintenance and servicing has been completed.

Workers that have survived a workplace injury or those that are grieving a wrongful death need to consult with a highly skilled personal injury attorney in order to ensure justice is done. The attorney will be able to guide claimants through the difficult process of securing damages for severe injuries or to obtain just damages for a negligent wrongful death.

To learn more, visit Lawbarron.com.

Entertainment law is an area that is a mystery to many folks and they don’t understand what this kind of attorney actually does. Given the nature of the specialized knowledge these attorneys deal with, it goes without saying that their expertise will protect your rights. Entertainment attorneys handle all the legal aspects of film and TV productions, set up music and film production companies, deal with talent agreements (including modeling, singers, actors and musicians) and ride herd on the details for film financing and production issues.

Along with all those issues, entertainment attorneys also draft producer agreements for both film and music, put together music licensing agreements and writer option agreements plus tend to copywrite law and all appropriate registrations. Mixed in with all these tasks, the attorney will also take care of trademark applications, distribution matters, draft solid non-disclosure agreements and confidentiality agreements and take care of prepping releases.

Hiring a lawyer like this is a guarantee that your legal rights will be protected in an industry known for its particularly fierce competition. Unfortunately there are also stories of abuse of power and control when it comes to the various agreements needed to make it in the entertainment business. Having an expert entertainment lawyer on board will also ensure your co-production agreements are handled correctly, that artist/management agreements protect the artist and management equally, that artist recording agreements reflect the needs of the artist and that director agreements accurately spell out what the director is required to do and receive in return for his or her services.

Generally speaking a great deal of the work an entertainment lawyer does is transactional in nature – meaning they draft a lot of contracts. However this isn’t to say that they don’t handle cases that need litigation or arbitration. Entertainment law is an eclectic mix of subcategories and is also referred to as media law. It has a great deal in common with the field of intellectual property law.

If you were to ask an entertainment lawyer what they do, their answer would likely be that they deal with such diverse areas of law as immigration, securities law, agency, bankruptcy law, labor law, international law, insurance law and employment law. Even these particular categories have further areas within them that have their own unique trade unions, rules, case law, production techniques and negotiation strategies.
For example if you hire an entertainment lawyer to deal with agreements, contracts and options, etc. in film, they would also need to be well aware of chain of title, finance; and what screen writers, film directors, composers, designers and actors do. This would also include post production, trade union issues and distribution issues, and motion picture industry negotiations distribution. As you can see, having a highly skilled entertainment lawyer on board will make all the difference in the world to how smoothly your operation runs.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Making music may be fun, getting recognized isn’t always easy, but when that happens, it’s definitely time to bring a lawyer onboard to make sure you are protected as your career takes shape. It doesn’t matter if you’re a band or solo, the fact is if you are the new kid on the block, you are fresh fodder to be taken advantage of in the entertainment business.

If you’re thinking right about now that it couldn’t possibly be “that” complicated to have a contract written, signed and be on your way, then it’s time to do your homework about what really happens in this business. It’s not unusual to see music contracts that are 30 pages or more, and most of them are so complicated only an entertainment lawyer is able to make heads or tails of them. Unfortunately, most of them are also couched in terms that are so circuitous that many artists take one look at the legal document and beg to see the places where they have to sign.

Obviously signing something without reading it isn’t a good idea, especially in the music industry, as there are a lot of contracts that musicians have to sign. One mistake by signing a contract you didn’t really pay much attention to could mean being stuck with a lousy record company, a bad distribution deal, or a shady manager, agent or promoter. If that happens, your career could be over before it even got started. Like the old saying, “Buyer beware,” make sure you know precisely what is in any contract you sign.

It’s not just dealing with contracts for agents and recording companies it’s also managing issues like copyrighting your music, ensuring you have a trademark for your band name, and having a logo designed. This can be done for an individual as well, and it’s called branding, or brand name recognition. Think Shania Twain or Mariah Carey.

This still isn’t the limit to the issues you will face when it comes to what is contained in the various agreements you need to sign; they may also include licensing contracts, festival and concert contracts, promotion deals and publishing contracts. Each contract you sign has even more convoluted clauses and provisions within it as well. Being a musician isn’t for sissies or total novices when it comes to legal issues. Always consult with experienced legal counsel when it comes to getting a contract that protects your rights.
Your entertainment lawyer will have highly specialized knowledge of things like advertising law, employment law, immigration, negotiation, ring tones, mechanical licenses, peer-to-peer file swapping, synchronization rights, digital rights and a superb knowledge of how music is created from start to finish – the mixing to the mastering. They will also have a good working understanding of the roles of a producer, promoter and manager.

The best advice to give someone just starting out in the music industry is to seek legal representation for everything because it is essential. No one wants to get saddled with a lousy one-sided contract.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Mediation is typically negotiation facilitated by a mutual and unbiased third party. Arbitration is a binding resolution process that resembles the results achieved in a courtroom at trial – but with far fewer technicalities and legal niceties entailed. “These are my tools for resolving legal disputes,” explains attorney Jack Zinda of the law firm Heselmeyer Zinda, PLLC, “Without them, resolving many legal disputes would be much more time consuming and expensive.”

Mediation is very different from arbitration, however. “Sometimes the parties are unwilling or unable to resolve a dispute,” Zinda says, “and that’s when mediation can make a real difference.” It’s most often short-term, structured, and task-oriented. “It’s a hands-on process,” according to Zinda. The contentious parties work with a third party, someone as unbiased as possible, who is referred to as a mediator – in an effort to resolve their disputes. It’s up to the mediator to supervise and moderate how and what information is exchanged between the contentious parties so that a genuine bargaining process begins to emerge. “The mediator is adept at discovering common ground that may exist and deal with unrealistic expectations as they arise,” says Zinda, “He’s also likely to introduce creative solutions and assist in the final drafting of a settlement that everyone can live with.”

Arbitration is a much more formal alternative to litigation. Contentious parties are also presenting their case to a neutral third party, but this time the arbitrator renders a decision in the manner of a judge. “Arbitration is generally considered more efficient than litigation because it’s quicker, cheaper, and provides more flexibility,” Zinda notes, “Typically the contentious parties get to choose their arbitrator and exert at least a measure of control over some aspects of the arbitration procedure.” Arbitrators are likely to possess more expertise and specific knowledge of a relevant subject area than mediators – or even judges. Evidentiary rules are not applicable and discovery and cross-examination opportunities are limited, however.

“The best thing about arbitration is that it’s voluntary,” Zinda concludes, “and mediation is always discretionary. In litigation, contentious parties are obliged to take their chances.”

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

A breach of contract lawsuit isn’t quite as straightforward as many people might think. It isn’t just a matter of someone making a promise and then not following through. There is more to it than that, as not all promises are enforceable in a court of law. The real question becomes just what is a legally enforceable promise as compared to those little promises people make, and then don’t actually follow up on them.
To know what is enforceable is to know what is not enforceable, and that would include things like promises or jokes that a reasonable person wouldn’t take seriously; any undertaking made by someone under the age of 18; assurances made by someone with mental problems; oaths to commit illegal acts and pledges not in writing when they are required to be in writing. There are many other vows that are not legally enforceable as well, but these are best discussed with a skilled Sacramento business lawyer when discussing the possibilities of a breach of contract lawsuit.

There is a fairly strong emphasis on the use of the term “reasonable” in the justice system. This is due to the fact that many cases are decided on the basis of what a “reasonable person under similar circumstances” should have known or done. In other words, that “reasonable person” makes their presence known in the courtroom and to juries trying to arrive at a decision as to whether or not a legally enforceable promise has indeed been shattered. If a contract has been violated, the person who caused the damage (broke the promise) must make it up to the person who lost the benefit of the original promise in the first place.
Suffice it to say that a legally enforceable promise then becomes one made by an adult of sound mind to do or not do something on which another person relies. It’s often not quite that simple, which is why consulting an expert Sacramento business lawyer is a necessity in breach of contract cases. Deciding if a lawsuit is worth it, depending on the facts of the case, may be the first hurdle to surmount, as lawsuits are expensive. There is the option to sue in small claims court, but the limit in California is $7,500.
The best thing to do if faced with a possible breach of contract situation is to discuss all the details of the possible case with a Sacramento business lawyer. Choose battles like this wisely, as much may be riding on the outcome.

To learn more, visit Lawbarron.com.

California has an unenviable record of having the highest number of wrongful deaths caused by drunk drivers. In fact, the statistics show that on average, every year, over 42,000 people are killed in alcohol related crashes nationwide. In California, the yearly number of those killed in crashes is 4,229 with 36% of those being alcohol related deaths or 1,509; a staggering number of needless deaths.

It would then make sense that the laws in the Golden State are as tough as the dickens and that California leads the nation in DUI arrests. Law enforcement is deadly serious about stopping drunk drivers from killing others. Thanks to the state having two statutory offenses for DUI it is easier to make more arrests.

The first offense is called DWI, DUI or OWI meaning driving while intoxicated or impaired, driving under the influence, or operating a vehicle while impaired. No matter what it is called, charges laid for these offenses are based on police observations that include slurring while talking, driving erratically and possibly a roadside sobriety test. Other things will likely happen at the same time and they may include immediate suspension, a field sobriety test and checking ignition interlocking devices installed in the vehicle (if any).
The second offense is referred to as being “illegal per se.” This simply means that a person is driving with a blood alcohol content of 0.08% or higher. This has actually been an offense since 2002 in all 50 states.
The thing to remember about going to court in California is that offenders may find themselves facing a wide variety of penalties depending on the charges, e.g. causing death, personal or property damage and injury. Generally speaking, a first time offender may face jail time and/or probation from three to five years, pay a fine and lose their license for six months. This tends to vary with the specifics of the case and each case is different given the circumstances so “one shoe does not fit all” when it comes to punishment on conviction.

Second offenses within seven years of the first offense may face more jail time, fines of up to $10,000 and suspension of driving privileges for not less than three years. Again, the facts of the case will make the difference in how it is handled when or if it does get to court. Interestingly enough, there are two schools of thought on automatically finding drivers guilty. Some attorneys feel a driver then loses their right to have a trial by jury. On the other hand, there are lawyers who argue that legal per se is a preventative measure to stop a drunk driving death every 30 minutes. Suffice it to say that the “jury” is still out on this issue and in the meantime, the DUI justice system carries on.

If the convicted offender chooses to continue to drink and drive, each subsequent offense nets longer jail terms and higher fines. If that person hits their fourth charge, this is considered to be a felony DUI. Felony DUIs definitely require the expertise of a skilled attorney.

To learn more, visit Lawbarron.com.

It goes without saying that any business, regardless of size, needs to have a comprehensive general business policy in place. Why? Without having a general business policy in place, the problems would be monumental. Along with the stated company policies there must also be a well written company employee manual and company procedures. In the event of a lawsuit, these documents are paramount.

This is where the services of a Sacramento business lawyer/ litigator come into play. A business litigator is a Sacramento business lawyer who handles actual court cases. This is not to be confused with transactional lawyers who deal with contracts and corporate matters only. In other words, the business litigator has the skill set and experience to handle the demands of business lawsuits in a court setting.

While it’s not always a good idea to go to court, it solely depends on how high the stakes happen to be in the case. Litigation does have some definite advantages and one of those is the potential financial gain. In fact, one of the leading disputes in business lawsuits usually deals with money. In cases like this, it is possible to get punitive and compensatory damages as settlement.

Oftentimes the plaintiff will be applying for injunctive relief to stop a competitor or ex-employee from blabbing a trade secret around town. If it doesn’t make sense to litigate from a strategic point of view, then there are usually other alternatives to be considered and your business lawyer will spell them out for you (alternative dispute resolution). This kind of decision, to sue or not, is often based on whether or not you have the upper hand in the lawsuit. If not, it might not make sense to proceed. After all, you have to think about the future of your business as well.

Taking a business lawsuit to court is by no means an easy task. It involves hundreds of hours of prep time. If you happen to be facing a lawsuit, you will thank your lucky stars that you had the sense to have a set of company policies put in place as a preventive measure for this very type of situation. Never underestimate the value of having a corporate compliance program.

Whether or not you ultimately choose to file a lawsuit or opt for alternative dispute resolution, speak to a highly skilled Sacramento business lawyer to define the lay of the landscape prior to making any decisions.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

To put this another way, think about protecting those conceptions of the mind and you are on the right track if you realize that those mind creations are actually property. Thus intellectual property rights are granted for handiworks of the mind. Those creations “belong” to someone and should not be infringed upon. Aside from the fact that the ideas and works should not be stolen, there is an underlying principle that recognizes people who create ought to be rewarded for their innovations, often financially, so they keep on creating.

Without confusing the issue too much, there are two types of intellectual property: copyright and industrial property. Industrial property lays claim to patents, industrial designs and trademarks. Trademarks are used to differentiate one product from another and that usually means using things like sounds, smells, signs, shapes, symbols, colors and brands.

Patents give the inventor a window of opportunity to stop others from creating, using or selling their inventions or creations without being authorized. On the other side of the coin, copyright applies to artwork like sketches, photos, sculptures and paintings, and literary works such as films, plays, books and poems. There are other areas covered as well, but for a full discussion of this area of law, it’s best to speak with a Sacramento business lawyer who has expertise in this area, as it’s a complex domain and sometimes understanding what is protected and why is a bit difficult to grasp.

Copyrights give authors the exclusive right to their works, but for a defined period of time. Again, discuss this with a Sacramento business lawyer who will also explain that copyrights must be renewed if the original creator wants the chance to promote their creation and derive financial benefit from it.
If you feel that your intellectual property rights have been violated, discuss your potential case with a Sacramento business lawyer to determine if you indeed have a case. Intellectual property rights cases tend to be complex and lengthy, but that is not to say they are cases that can’t be won.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Disagreements between business partners are often difficult to resolve. Many issues can emerge as conflicts. Contracts can be breached, business opportunities can be usurped, trade secrets can be stolen, or funds can be embezzled – with or without impunity. Resolving such conflicts can be time consuming, emotionally draining, and well, they cause stress or worse.

“It happens all too frequently,” says Austin-based business lawyer Jack Zinda of the law firm Heselmeyer Zinda, PLLC, “even the best intentioned business partners often find themselves disagreeing for a multitude of reasons.” Such disputes could arise from a failure to honor fiduciary duties, a failure to fulfill contractual obligations put forth in a partnership agreement, operating agreement or other business contract, trade libel, disparagement of goods or services, disputes among LLC members or perhaps by engaging in clandestine business dealings which don’t happen to coincide with the best interests of the company. “These disputes need to be resolved in an expedient manner. Sometimes an issue that’s arisen can be resolved internally, but most often they require legal help,” Zinda asserts.

If the dispute can’t be resolved internally, other options may surface, including the dreaded one – litigation. Owners of close-knit companies and small businesses will generally want their conflicts resolved as amicably as possible, so that they can return to servicing their customers. Negotiation, mediation, and arbitration are the best ways to avoid litigation. Through these conciliatory routes it’s often possible to arrive at a resolution made, if not in heaven, than in a netherworld that makes sense to all concerned. “When a dispute occurs, the business that you have worked to build and maintain can suddenly be placed in jeopardy,” Zinda explains, “Our goal is to truncate a crisis before it becomes a full-scale crisis.” Through alternative dispute-resolution procedures such as negotiation, mediation, and arbitration, it’s often possible to arrive at solutions that address a business partner’s integrity issues or decision-making authority while still preserving the infrastructure of your enterprise. “What you don’t want to do is throw your firm’s functioning ability out with the nasty bath water that’s been pooling in the office as a consequence of antagonism.”

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

When considering opening a business, you first need to explore and evaluate your personal and business goals. Why are you opening a business? A plan is needed to help obtain your personal and business goals. While developing a plan you’ll be forced to think through important issues that otherwise may have gone unconsidered. This plan will become an invaluable tool as you set out on the adventure of business start-up.

Entrepreneurs open businesses for many reasons. Perhaps the opportunity to gain financial independence through the full utilization of your expertise acquired through an active life intrigues you. Freedom of creativity is another perk of self-management. Some types of business can be run quite successfully from your home, which is a plus for parenting and juggling the omnipresent demands found in at-home settings.

Once a plan of action has been decided upon, a choice must be made. What business would be right for you? Begin with the knowledge and skills acquired from previous work experiences or possibly hobbies or interests at which you have excelled.

After the initial start-up of your plan, it’s usually prudent to identify the niche that your business would fill. When deciding what products or services to offer, keep in mind that competition will exist no matter what your specialty area happens to be. The goal is to offer an advantage the competition doesn’t have.

Other considerations are issues such as legal coverage, insurance, how you will maintain business records, and the equipment necessary for your business to run. It’s also an excellent idea to follow the famous maxim used in the real estate industry: location, location, location. The name that you select for your business is also important. Choose something that makes sense and doesn’t rhyme with “stooges.”

Once you’ve developed a focused, well-researched plan for your business, it will serve as a blueprint for future business operations, management and capitalization. After you have completed your business plan, be sure to review it with a business attorney or else run it by someone who is knowledgeable about YOUR daily business operation. This careful attention to detail will help to ensure success.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

Rules for executive compensation are governed by the federal securities laws. Several types of documents that a company must file regarding their executive compensation policies and practices should be organized within a company’s proxy statement, annual report on Form 10-K, within registration statements filed by the company established to register securities for sale to the public, and also should be contained within the company’s current report on Form 8-K.

In the annual proxy statement, companies must disclose information revealing the amount and type of compensation paid to its chief executive officer and the three other most highly compensated executive officers. Companies must also disclose the criteria used in reaching executive compensation decisions and the type of relationship existing between the firm’s executive compensation practices and company performance.

The cornerstone of the Security and Exchange Commission’s required discourse on executive compensation is The Summary Compensation Table (SCT). In a single location, the SCT provides a comprehensive overview of a company’s executive compensation practices. In larger multinational corporations, these can become somewhat complex in their structure, but will always bear a superficial resemblance to a flow chart. SCTs must include the total compensation paid the firm’s chief executive officer, chief financial officer, and three other most highly compensated officers for at least three previous fiscal years. The SCT is succeeded in order by other tables and precise disclosures containing increasingly detailed information about the various facets of compensation used during the most recently completed fiscal year. Essential to include are grants of stock options, stock appreciation rights, long-term incentive plan awards, pension plans, employment contracts, and related arrangements.

An additional component of a company’s executive compensation dossier is the Compensation Discussion and Analysis (CD & A). Functioning in the manner of an appendix, this section should explain all material elements of the relevant executive compensation programs not yet addressed.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

What this boils down to is it’s illegal to discriminate against someone because of their age, race, sex, religion, national origin or because they have a disability. There are a number of other forms of discrimination recognized by Texas courts.

Interestingly, even though Texas state law does not specifically list sexual orientation as an illegal reason to fire a person or decline to hire them, it may be improper under certain circumstances to ask about an applicant’s sexual orientation or ask about their family life. On the other hand there are many personal traits and characteristics that are not protected.

An employer has every right to not hire a person with a criminal record and may also terminate a worker they discover with a record. This should not be confused with being “accused” of a crime. The mere accusation does not make the person guilty, which brings up another point you should know about – it being illegal to ask about arrests or accusations during the initial job interview. They only thing they may ask about are convictions.

Potential employers are also permitted to ask whether or not you need special equipment or accommodations to do your job – for instance a larger screen to see text because your eyesight isn’t very good, or an extra space at a desk for a wheelchair. If your need is not “reasonable,” it may not be discrimination if you are turned down for the position.

In Texas, like most states, workers are considered to be employed “at will.” In other words, the employee can end the employment relationship at any time without prior notice. On the other hand, in most instances, the employer can terminate the employee at any time without notice as long as the reason for termination is not an “illegal reason.”

As with most things pertaining to the law, there are numerous exceptions to the at will employment relationship. One exception is where the employee and employer sign an employment contract that limits either party’s ability to end the employment relationship. For example, the contract might provide a specific time period of employment or that the individual may only be let go for certain reasons.

The important thing about contracts is that the words that are chosen matter and many employment contracts are written differently. That means in order to understand what your rights are under an employment contract, you must be able to understand the legal meaning of the provisions it contains. The best way to do that is to take your contract to a qualified lawyer who can read and understand what it means.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

Many people across America have lost their jobs in the face of this dreadful recession. Many of them needed to be laid off or let go because the company they worked for could no longer afford to pay their wages. Downsizing or resizing has become common and the consequences are devastating for those who lost their employment, as well as their families.

The underlying question here is whether or not a person lost their job due to the poor economy or for other nefarious reasons having to do with prejudices, illegal cost-cutting in the workplace, retaliation or blatant discrimination. Have you been terminated legally or do you suspect that something else was going on and you were wrongly fired? If you feel you were discriminated against in some form or other, then contact a Texas employment law attorney right away. While these cases may be difficult to prove, depending on the circumstances and how quickly you call a competent lawyer, you need to be made aware of your legal rights and discuss the case with someone who knows the law intimately.

The one strike you will have against you if you have been let go is that your employment, unless you have a contract, is “at will” which means you work for your employer as long as they want you and until they choose to fire you at any time for pretty much any reason. Mind you, this also means you may leave anytime you would like as well.

This doesn’t mean that you are not protected. You have the rights and guarantees of many laws which include: Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act (1964) backing you up. These laws deal with the illegality of discrimination based on age, sex, national origin, color, race or religion. There are other laws that specifically state you may not be denied work if you have a disability; may not be terminated if you are asking for unpaid leave under the Family and Medical Leave Act; are refusing to perform an illegal act for your employer and/or if you are blowing the whistle on fraud, safety violations or environmental issues where you work. If you happen to have an employment contract in place, then you may have protection from termination under certain circumstances.

Again, look to the economy to understand the main reason behind the high numbers of jobs being lost. Take a closer look and you may also find employment discrimination going on. Consider the most recent statistics from the Equal Employment Opportunity Commission in Texas that state they investigated roughly 13,000 more complaints in 2008 than in 2007, and there were 95,402 charges issued against employers last year.

The hidden side of the numbers doesn’t show that sometimes when an employer is faced with cutting a portion of his staff, they may make some of those decisions based upon an improper bias. On the other hand, these numbers also reflect an increased level of awareness on the part of those who have been terminated; that they may have been fired for the wrong reasons, thus prompting them to file a complaint or lawsuit.

Do you feel that you have been wrongly terminated? If that is the case, speak to an experience attorney who will ask you the right questions to evaluate your case, find witnesses who may be able to verify your story, and assist you if your case gets to mediation or a courtroom.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

A great many people don’t truly understand the ramifications of a non-compete agreement, but if caught in a situation where the issue raises its head, they usually get the drift fairly quickly. It all boils down to the basic fact that a person selling a business agrees not to compete or participate with the buyer of that business in the same niche, area, industry or market for a certain period of time.

The long and short of it is this agreement is alternatively referred to as a covenant not to compete or a non-compete agreement. This document, provided it meets certain conditions, may be defined as an acquired intangible asset accruing to the buyer. Be aware that this means it will be subject to cost recovery requirements from the IRS.

These agreements are far more common than people think, and it is customary when a business buyer and business seller iron out the terms of their agreement that they include a non-compete agreement. It’s a smart thing to do if it may be amortized for cost recovery for federal tax purposes.

The business of buying an enterprise generally breaks down into asset classifications: hard and soft assets. The hard assets are things like the equipment on the premises, etc, and the soft assets are intellectual property, the goodwill of the business and the non-compete agreement (often also called a covenant). The difficult task for the buyer often becomes trying to evaluate the price of the non-compete agreement. This has to do with the IRS mandating that intangible assets have to be depreciated over 15 years – much longer than those tangible assets.

Figuring out precisely what the non-compete agreement is worth is a headache of monumental proportions if done alone without the expert guidance of a skilled business attorney. In general the attorney will assist the buyer in determining how much damage the seller may be able to inflict on the buyer’s new business without a non-compete agreement. If the term confusion comes to mind, it’s time to speak with an expert business attorney and get on with running the business.

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

When it comes to choosing the form of company to hold a portfolio of real estate investments there are a number of choices, and they may be confusing without asking a knowledgeable attorney. Generally speaking, a good choice for a company intending on vesting real estate holdings is the limited liability company (LLC).

The major reasons someone might wish to choose a LLC are because it tends to limit personal liability but maximize asset protection, which is always a good thing. LLCs are a good choice to confidently organize an investment business and there may be some nice tax benefits, one of which is a one-time tax on member’s profits.

A business entity such as a limited liability company is considered to be a separate legal entity that has a life of its own. It has certain rights and duties it needs to carry out. It is responsible for filing a tax return on its own. In other words the limited liability company is independent, and because it is viewed that way, it needs to be at arm’s length in terms of being properly “legal.”

In other words, the company “must” have and keep a separate character because if it does not, the owner of the business runs the risk of being personally liable for actions taken by the company or its agents and workers. This is known as the legal doctrine of piercing the corporate veil.

If the company doesn’t follow these “corporate formalities” such as maintain all required records, pay taxes, hold meetings and have a bank account it uses regularly, then the owners may lose the benefits and protections the company was designed to create. In an instance such as that, the courts could allow a creditor to go after the owners personally and disregard the company, as it would be considered to be a personal “alter ego” of the owners.

This is the one area where most investors go wrong when they set up their companies. They go through the motions, but don’t really do much else to make the company a “real” company, thus leaving the door open for personal liability.

If a client wants to start a business in Texas, we often recommend that they form a exas LLC because of the legal protections and benefits it provides. However, the specific circumstances and needs of each client are different and this is a decision that is best made in consultation with a business attorney.

The attorney will cover other requirements that may need to be dealt with such as filing a DBA certificate, choosing the right company name, separating the company assets from personal assets and other issues that may arise under the circumstances presented. Clients should also consult with their CPA or tax attorney about the tax issues related to the business entity they choose.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

A great many people don’t truly understand the ramifications of a non-compete agreement, but if caught in a situation where the issue raises its head, they usually get the drift fairly quickly. It all boils down to the basic fact that a person selling a business agrees not to compete or participate with the buyer of that business in the same niche, area, industry or market for a certain period of time.

The long and short of it is this agreement is alternatively referred to as a covenant not to compete or a non-compete agreement. This document, provided it meets certain conditions, may be defined as an acquired intangible asset accruing to the buyer. Be aware that this means it will be subject to cost recovery requirements from the IRS.

These agreements are far more common than people think, and it is customary when a business buyer and business seller iron out the terms of their agreement that they include a non-compete agreement. It’s a smart thing to do if it may be amortized for cost recovery for federal tax purposes.

The business of buying an enterprise generally breaks down into asset classifications: hard and soft assets. The hard assets are things like the equipment on the premises, etc, and the soft assets are intellectual property, the goodwill of the business and the non-compete agreement (often also called a covenant). The difficult task for the buyer often becomes trying to evaluate the price of the non-compete agreement. This has to do with the IRS mandating that intangible assets have to be depreciated over 15 years – much longer than those tangible assets.

Figuring out precisely what the non-compete agreement is worth is a headache of monumental proportions if done alone without the expert guidance of a skilled business attorney. In general the attorney will assist the buyer in determining how much damage the seller may be able to inflict on the buyer’s new business without a non-compete agreement. If the term confusion comes to mind, it’s time to speak with an expert business attorney and get on with running the business.

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

While it may be nice to think about starting a new business and making a small fortune over a period of time, don’t forget the nuts and bolts of what makes a good business viable. One of those fundamental things is having access to a skilled business attorney who keeps the business on track.

A lot of first time entrepreneurs make the mistake of thinking they are able to handle their business affairs on their own. Unfortunately the bankruptcy statistics tell another story. It only makes good common sense to have a business attorney who is able to offer advice every step of the way as the venture grows. Without this kind of expertise, business owners may well find themselves in deep waters in mere months.

Some small business owners or would-be entrepreneurs wonder if they need to spend the time and money to find an attorney so early in the game. It may seem simple to try to handle things on your own but it gets complicated quickly. The problem is that there are many issues with any new business and these can only be answered by a competent business lawyer.

It’s a fact of business life that the laws that apply to running a business are often complex and confusing. Trying to muddle through the legal jargon is something best left to a highly qualified business attorney. While the attorney’s costs up front may be more than a business owner was thinking to spend, the long-term savings by following solid legal advice will more than make up for the initial outlay. A good business attorney is worth their weight in gold, not only for their skills, but for their invaluable knowledge.

Knowing the laws that govern a business is often a smart business move. This isn’t to say that as a business owner, there is a requirement to know the fine print in all situations. This is the business attorney’s forte. Running a business and trying to keep up with the various codes, restriction and laws is a headache best left to the attorney who deals with those items on a daily basis. Business lawyers are skilled in sifting through the morass of information and providing options in plain English.

Attorneys will coach a new venture in the differences in setting up a company as an S corporation, a partnership or another structure, or perhaps an LLC. Having the attorney provide the outline of which route would likely work best for the company being proposed, the entrepreneur has one more thing off their plate in setting up their business entity.

In light of today’s volatile business markets, entrepreneurs need the best advice available on how to set up their business. Only a fully qualified business attorney will fit the bill and deliver what the small business needs to start growing.

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

AB 33 would create the Department of Financial Services (“DFS”), including an Office of Financial Consumer Advocacy, transfer the Department of Financial Institutions (“DFI”) to the DFS as the Division of Financial Institutions, transfer the Department of Corporations (DOC) to the DFS as the Division of Corporations, effective 2011, and transfer limited licensing and regulatory authority from the Department of Real Estate to the DFS in the Division of Corporations effective 2012.

While it may not seem like a ground breaking bill, or one that would ruffle feathers, it is a bill that has met with opposition from the Financial Institutions Committee, Business Law Section of the state Bar Association of California. This committee argued that the proposed changes would lead California’s banks and credit unions to move towards national charters, and thereby negatively impacting the health of the state chartered bank system.

The Financial Institutions Committee asserted that preserving dual banking is substantially benefited from an independent Department of Financial Institutions (DFI). The committee reasons that state bank policy makers, legal advisors and examiners are a major benefit to California banks and that suggested changes to Financial Code section 200(b) would greatly diminish their effectiveness. Furthermore, the committee feels that by blending the DOC and some parts of the Department of Real Estate and their various staff would result in a loss of current focus to the detriment of the dual banking system.

Another very real concern is the committee foresees that California state banks don’t have that much exposure as federally regulated institutions to consumer and commercial real estate, making them less subject to market risks. This in turn is attributed to the extremely knowledgeable DFI staff. It is that very knowledge and skill that has seen many of the banks self-reporting as they have an established a solid working relationship with the existing department. Changes to the existing structure would bring about bureaucratic delays and a loss of the existing candor with a possible loss of the successful regulatory stewardship.

Commercial banking in California is under a great deal of stress give the economic climate.
If during staff reassignments and downsizing the expertise to oversee the banks was lost or administratively distracted, then this too could spell disaster. With pending economic recovery for the banks just around the corner, any loss of guidance and expertise could slow this recovery down.

Further concerns deal with the observation that the proposed changes do not streamline the existing structure, but rather add to the bureaucratic layers, thus resulting in more money being spent to change the existing structure which would not improve it. It if isn’t broken, why try to fix it could prove to be a challenging question for the proponents of this bill.

The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

While the act may have a long name and even longer reputation, it carries a clout on which Texas consumers can rely. Generally speaking, the DPTA is rather controversial and is constantly bombarded with a stream of legal interpretations and legislative changes, nonetheless it still provides Texans with the security of knowing that businesses must be accountable to them and adhere to ethical standards.

This particular act doesn’t just demand accountability for individual consumers, it holds all companies and businesses up to scrutiny and offers guidelines relating to fraud, breaches of warranty and false statements. So if someone went to a grocery store and they were misled by advertising about a product or bought an expensive painting at an art gallery, and it was a fake, consumers may be protected.

One of the reasons that the DTPA is so successful is because its provisions are applicable to most businesses or entities that engage in “any commerce or trade.” Of course this is also the reason why it gets “interpreted” rather frequently. Without getting too complex and legal, what the Act does is cover the sale, lease and distribution of just about all goods and services. It does not, however, cover professional advice. What that means is, if someone is asked for their professional opinion – say a licensed antique dealer about the authenticity of a painting – and their opinion turns out to be wrong, they can’t be held liable for being mistaken (whether someone relied on that advice or not).

Other terms in this Act make it illegal for any business or person participating in “trade or commerce” (which is fairly straightforward) to carry out “unconscionable conduct” (which isn’t that straightforward). The unconscionable conduct provision has caused a lot of grief over the years merely because of disputes over what that phrase means. One favored reading is that this is an act of behavior that takes advantage of a person in an unfair manner. Unfortunately, lawyers could and have frequently driven a truck through the holes in that definition.

Typically that particular definition has been used in court cases to refer to making false statements about how a product was made or its origin; misrepresenting the benefits of a product/service; passing off used products as being new; misleading or false advertising and fibbing about whether or not something needs parts or repairs. There are other situations where the definition of unconscionable conduct applies, and that is usually dictated by the facts of the case at hand; E.g. hiking prices on goods after a disaster.

In cases where an individual feels they have been misled or defrauded, it’s best to speak to an experienced attorney and discuss the details of the case. Knowing what one’s rights are goes a long way toward being an informed and aware consumer.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Alan Insul, an expert Los Angeles business attorney, consulted on this latest version of Continuing Education of the Bar’s Ground Lease Practice in the complicated area of the rights between the parties in the event of a total or partial destruction of the improvements in situations such as a fire or earthquake. Continuing Education of the Bar is a joint enterprise of the University of California and the State Bar of California.

Commercial ground leases are when the owner of the land leases unimproved land to another party who will build and then own that commercial development. Leases for projects like this may run from 25 to 99 years. Unless the parties agree right up front in a ground lease agreement, the land owner winds up owning the improvements – a rather awkward state of affairs. “The transactions are very complex often involving the land owner, developer, lender and sometimes a large commercial user such as a major department store,” outlined Insul.

Drafting and negotiating solid, long-term ground leases may sound like a fairly straightforward issue. It is anything but straightforward and requires an expert attorney with a fine imagination and vision for the future. The future meaning the ability to balance the short-term goals of a client against a plethora of “what if” issues and conditions that may crop up in a real estate project 30 to 50 or more years down the pike.

It isn’t easy going in the beginning either when the attorney needs to be able to co-ordinate and keep track of the parties, title and interests involved; make sure there is a complete premises description; provide for term, termination and options to extend or buy and deal with issues pertaining to rent, security and other types of payments. “The issues are even more far reaching than that and will also include the not insubstantial matters of construction, maintenance, ownership of improvements, financing, subordination, encumbrances and problems relating to condemnation,” added Insul.

It’s interesting to note that there is the distinct possibility that a major project in Beverly Hills may possibly have more residual value at the end of a ground lease situation as compared to a project developed to provide commercial support for the re-development of a blighted community which may or may not succeed in the long-term.

“A project in Beverly Hills may be more likely to have residual value at the end of the ground lease rather than a project developed to provide commercial support for a redevelopment of a blighted community which may or may not succeed over the long-term,” said Insul.

The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

While it may be nice to think about starting a new business and making a small fortune over a period of time, don’t forget the nuts and bolts of what makes a good business viable. One of those fundamental things is having access to a skilled business attorney who keeps the business on track.

A lot of first time entrepreneurs make the mistake of thinking they are able to handle their business affairs on their own. Unfortunately the bankruptcy statistics tell another story. It only makes good common sense to have a business attorney who is able to offer advice every step of the way as the venture grows. Without this kind of expertise, business owners may well find themselves in deep waters in mere months.

Some small business owners or would-be entrepreneurs wonder if they need to spend the time and money to find an attorney so early in the game. It may seem simple to try to handle things on your own but it gets complicated quickly. The problem is that there are many issues with any new business and these can only be answered by a competent business lawyer.

It’s a fact of business life that the laws that apply to running a business are often complex and confusing. Trying to muddle through the legal jargon is something best left to a highly qualified business attorney.While the attorney’s costs up front may be more than a business owner was thinking to spend, the long-term savings by following solid legal advice will more than make up for the initial outlay. A good business attorney is worth their weight in gold, not only for their skills, but for their invaluable knowledge.

Knowing the laws that govern a business is often a smart business move. This isn’t to say that as a business owner, there is a requirement to know the fine print in all situations. This is the business attorney’s forte. Running a business and trying to keep up with the various codes, restriction and laws is a headache best left to the attorney who deals with those items on a daily basis. Business lawyers are skilled in sifting through the morass of information and providing options in plain English.

Attorneys will coach a new venture in the differences in setting up a company as an S corporation, a partnership or another structure, or perhaps an LLC. Having the attorney provide the outline of which route would likely work best for the company being proposed, the entrepreneur has one more thing off their plate in setting up their business entity.

In light of today’s volatile business markets, entrepreneurs need the best advice available on how to set up their business. Only a fully qualified business attorney will fit the bill and deliver what the small business needs to start growing.

To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

At one time people used to be hired to work somewhere with very little in the way of formal paperwork. Sometimes it was even just a handshake hiring where the employer’s word ruled and the employee did what was requested of them as part of their job.

These days the times have changed drastically, and in addition to it being essential to have an employment agreement, the workplace has changed to one where adversity and employment issues often seem to be the flavors of the month.

If you own and operate a business in the 21st century, one of the first things you will need to have in place is a binding agreement for work between your company and any executive you may choose to hire. The bottom line is that the person is agreeing to perform various services in trade for a wage. This kind of an agreement is not to be confused with an executive compensation agreement. The executive employment agreement, as outlined by an expert business attorney, is binding and once the agreement has been signed by both parties, they are promising to live up to the terms of the agreement.
Generally speaking an executive employment agreement has what is referred to as a recitals section that speaks to the purpose of the agreement. In most instances, the first recital refers to the company wanting to hire a certain person in an executive position, and that person wants to be hired in the position. In other words, although the language may be legal, the intent is straightforward enough.

Common elements usually found in an executive employment agreement are compensation and benefits offered, the term of employment, the duties to be performed by the executive, the duties the employer has to perform, a section dealing with keeping information confidential, a non-competition agreement and what happens in the event of termination clause.

Typically these types of agreements are best drafted with the assistance of a skilled business attorney who will outline the “must have” sections in agreements of this nature.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

At one time people used to be hired to work somewhere with very little in the way of formal paperwork. Sometimes it was even just a handshake hiring where the employer’s word ruled and the employee did what was requested of them as part of their job.

These days the times have changed drastically, and in addition to it being essential to have an employment agreement, the workplace has changed to one where adversity and employment issues often seem to be the flavors of the month.

If you own and operate a business in the 21st century, one of the first things you will need to have in place is a binding agreement for work between your company and any executive you may choose to hire. The bottom line is that the person is agreeing to perform various services in trade for a wage. This kind of an agreement is not to be confused with an executive compensation agreement. The executive employment agreement, as outlined by an expert business attorney, is binding and once the agreement has been signed by both parties, they are promising to live up to the terms of the agreement.

Generally speaking an executive employment agreement has what is referred to as a recitals section that speaks to the purpose of the agreement. In most instances, the first recital refers to the company wanting to hire a certain person in an executive position, and that person wants to be hired in the position. In other words, although the language may be legal, the intent is straightforward enough.

Common elements usually found in an executive employment agreement are compensation and benefits offered, the term of employment, the duties to be performed by the executive, the duties the employer has to perform, a section dealing with keeping information confidential, a non-competition agreement and what happens in the event of termination clause.

Typically these types of agreements are best drafted with the assistance of a skilled business attorney who will outline the “must have” sections in agreements of this nature.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

While it might be “the in thing to do,” expanding a business into foreign countries and hiring manufacturers and suppliers right on the spot, you need to watch that you do not exploit local labor. If you do, and insist they follow “your” notions of minimum labor standards, working conditions and health benefits; chances are you might wind up as a party to a nasty lawsuit later, just the very thing that happened to retail giant Wal-Mart, Inc.

Now you may think it odd that U.S. lawyers are representing plaintiffs in foreign exotic countries, however it appears to be a growing legal trend. They are doing this because the foreigners can sue U.S. companies in the United States. Perhaps this is the wave of the future; the legal industry relying more on imports over domestic sources to stay in business.

Just the Facts Ma’am!

The plaintiffs are workers of foreign companies that sell goods to Wal-Mart Stores, Inc. They collectively brought claims against the retail giant based on working conditions in each of their employer’s factories. The basis of the claims was that a code of conduct included in Wal-Mart’s supply contracts with these foreign companies stated that the suppliers had to meet basic labor standards.

The standards insisted foreign suppliers adhere to local laws and local industry standards relating to working conditions like discrimination, child labor, forced labor, hours and pay and something called a right of inspection. The right of inspection clause stated: “Wal-Mart or a third party designated by Wal-Mart will undertake on-site inspection of production facilities, to implement and monitor said standards. Any supplier which fails or refuses to comply with these standards or does not allow inspection of production facilities is subject to immediate cancellation of any and all outstanding orders, refuse [sic] or return [sic] any shipment, and otherwise cease doing business [sic] with Wal-Mart.”

Wal-Mart promotes itself to the public as a corporate entity that improves the lives of its suppliers’ employees and won’t stand for any violations of their standards. The plaintiffs argue that Wal-Mart doesn’t properly monitor the suppliers and that standards are honored more in the breach than in actuality. They further alleged inspectors are coerced to produce positive reports for those not in compliance and that the short deadlines and low prices of Wal-Mart’s contract conditions forces suppliers to violate the standards to meet the agreements.

And the Contentions Are

The plaintiffs offer four legal theories that attempt to establish that Wal-Mart’s standards and California common law provides obligations that may be enforced by foreign workers against Wal-Mart. Those theories are that the plaintiffs are third-party beneficiaries of the standards contained in Wal-Mart’s supply contracts; Wal-Mart is the plaintiffs’ joint employer and they negligently breached a duty to monitor the suppliers and protect plaintiffs from the suppliers’ working conditions and finally that Wal-Mart was unjustly enriched by the plaintiffs’ mistreatment.

And the Court Said

Re: Third-party beneficiary contracts: the Court set out the oft quoted rule that a person will be entitled to sue on a contract as “an intended [third party] beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties.” Furthermore it is accepted that “contract interpretation is a question of law that the court reviews de novo.”

The court felt that Wal-Mart’s supplier agreement didn’t obligate them to inspect and a workplace’s standards violation has no consequence if there were no inspection. Therefore, Wal-Mart didn’t obligate itself with a duty owed to the supplier’s workers as 3rd party beneficiaries of the supplier contracts between Wal-Mart and its foreign based suppliers.

Re: Wal-Mart was the direct employer of the foreign based supplier’s employees. The court stated that “in order to be a direct employer, they must be determined to have the right to control and direct people’s activities or the manner/method used to perform those activities.” In addition any finding as to the right to control workers requires a comprehensive and “immediate level of ‘day to day’ authority over employment decisions.”

The agreement that Wal-Mart could monitor the work environment was already determined not to create a duty to carry that out. Therefore, this can’t rise to the level of control over method or manner necessary since Wal-Mart didn’t assume the obligation.

Re: Wal-Mart is liable in tort to the workers for negligently supervising the supplier’s facilities and their working conditions.

The court said that “Negligence requires a duty owed by defendant to plaintiff which is alleged to have been breached.” And further that “Wal-Mart did not owe the plaintiffs a common-law duty to monitor Wal-Mart’s suppliers or to prevent the alleged intentional mistreatment of the plaintiffs by the suppliers. Without such a duty, the plaintiffs’ negligence theories do not state a claim.”

Re: Wal-Mart was unjustly enriched because it knowingly profited from their suppliers substandard labor practices.

The court’s response to this contention was that “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” California’s approach to unjust enrichment is consistent with this general understanding. And in addition, “The fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust [emphasis added] for the person to retain it.”

The lack of any prior relationship between Wal-Mart and its supplier’s employees precludes the application of the unjust enrichment theory to recover. As you can see, this case was very nearly a case of no good deed goes unpunished and is a warning shot fired at other entrepreneurs and large corporations to watch their step when dealing in foreign countries.…… at least that’s what this lawyer thinks.

Roni Balint writes for the Law Office of Alan M. Insul. The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

If you haven’t seen the news in the last little while, you may be astounded at the damage awards in two controversial trade secret cases. One in California came in with a jury verdict of $36.3 million in damages in a trade secret and breach of contract case. In Georgia, there was another settlement of $37.3 million. There may be another chapter written in both of these cases, as they may be appealed.

Having said that, the staggering amount of the awards serves to point out something very important to the business community – trade secrets are invaluable to businesses. The fact is that companies with trade secrets they don’t want to lose to another company need to ensure they are protected through non-disclosure agreements (NDA). There is more than one way to protect secrets and it’s for this reason that an expert Austin business lawyer is the best person to turn to when those secrets need to be kept.

Non-disclosure agreements are not standard, run of the mill pieces of paper that an employee signs. They are, in most instances, tailor-made for a specific situation and in some instances for the people who need to sign them. No business should consider operating without a non-disclosure agreement if they have trade secrets that are critical to their industry. For this reason they need to discuss with the lawyer the categories of individuals who need to become acquainted with an NDA as a prerequisite of their employment.

Within and outside of any corporation there are a wide variety of individuals who may have access to a trade secret, and those include, but are not limited to employees, consultants, customers, suppliers, other existing or potential partners and angel investors or merger and/or acquisition aspirants.

Struggling to keep a lid on that secret is of primary importance to the company who will need to consider other methods of secrecy such as encrypted password protection, storing critical material under lock and key, limiting distribution of the crucial information and reminding employees frequently that they need to keep what they know to themselves.

Ironically, many a company that does have secrets to keep finds themselves in the position of wanting to hire someone who used to work for their competitors. This potentially awkward scenario is best addressed by having the new employee sign specific employment agreements to not divulge what they know. Obviously this would be a sticky situation that may have the potential to blow up later should the worker choose to talk about what they know despite having an agreement in place.

Often when an employee is leaving a company and has had access to trade secrets, they need to consider how to handle the potential possibility of being sued for leaking those secrets. Whether or not they are going to work for the competition or start their own business, if they’re smart, they need to have a clear understanding in writing about what they may take when they leave. The trick of course is living up to that agreement.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

If you haven’t seen the news in the last little while, you may be astounded at the damage awards in two controversial trade secret cases. One in California came in with a jury verdict of $36.3 million in damages in a trade secret and breach of contract case. In Georgia, there was another settlement of $37.3 million. There may be another chapter written in both of these cases, as they may be appealed.

Having said that, the staggering amount of the awards serves to point out something very important to the business community – trade secrets are invaluable to businesses. The fact is that companies with trade secrets they don’t want to lose to another company need to ensure they are protected through non-disclosure agreements (NDA). There is more than one way to protect secrets and it’s for this reason that an expert Austin business lawyer is the best person to turn to when those secrets need to be kept.

Non-disclosure agreements are not standard, run of the mill pieces of paper that an employee signs. They are, in most instances, tailor-made for a specific situation and in some instances for the people who need to sign them. No business should consider operating without a non-disclosure agreement if they have trade secrets that are critical to their industry. For this reason they need to discuss with the lawyer the categories of individuals who need to become acquainted with an NDA as a prerequisite of their employment.

Within and outside of any corporation there are a wide variety of individuals who may have access to a trade secret, and those include, but are not limited to employees, consultants, customers, suppliers, other existing or potential partners and angel investors or merger and/or acquisition aspirants.

Struggling to keep a lid on that secret is of primary importance to the company who will need to consider other methods of secrecy such as encrypted password protection, storing critical material under lock and key, limiting distribution of the crucial information and reminding employees frequently that they need to keep what they know to themselves.

Ironically, many a company that does have secrets to keep finds themselves in the position of wanting to hire someone who used to work for their competitors. This potentially awkward scenario is best addressed by having the new employee sign specific employment agreements to not divulge what they know. Obviously this would be a sticky situation that may have the potential to blow up later should the worker choose to talk about what they know despite having an agreement in place.

Often when an employee is leaving a company and has had access to trade secrets, they need to consider how to handle the potential possibility of being sued for leaking those secrets. Whether or not they are going to work for the competition or start their own business, if they’re smart, they need to have a clear understanding in writing about what they may take when they leave. The trick of course is living up to that agreement.

Jack Zinda is an Austin business lawyer with Heselmeyer Zinda, PLLC. To learn more about Austin business attorney Jack Zinda visit Texasbusinessattorneys.net.

While the lessons may sound rather drastic, it is unfortunately true that if you wish to do business as a contractor you must be licensed at all times without any lapses. At least that’s what building contractor Terry Criddlebaugh found out the hard way.

The facts are a bit boring, perhaps even laughable when you examine them deeply. Terry was not licensed and had actually been trying to use the license of another contractor that was out of the country; a contractor that had assigned his license to Terry. Now on the surface that sounds like it would work, but it didn’t.

The actual registered owner of the company Terry was representing was Robert Diani. However he’d been an absentee officer and had turned over the work responsibilities to Terry. Diani left the country in 2004 and only returned to the U.S. twice and only had active control of the building company prior to leaving the country. Terry had never held a California contractor’s license. Because Diani was absent, he let Terry use his contractor’s license under the auspices of Diani’s company.

The problem was that when Diani’s company got its contractor’s license it had to qualify through a responsible managing officer (Diani) or a responsible managing employee who was eligible to get the same license.

If the managing officer isn’t associated with the licensed company, it has 90 days to replace the person. If the person is not replaced the contractor’s license is suspended automatically. In this case, the Diani company wasn’t qualified for a contractor’s license because Diani wasn’t actively in the construction business after 2004, Terry didn’t have a contractor’s license and there was no replacement put into Diani’s position.

So, here was a home built and one that exceeded the White’s expectations, but that didn’t matter. White was happy but he nonetheless sued Terry to recover all monies invested in the home because he found out that Terry had no contractor’s license.

This particular case is another in a series since 1990 and the Hydrotech Systems, Ltd. v. Oasis Waterpark, supra, 52 Cal.3d at p. 997 case. California courts have been interpreting the California Contractor’s law to say that the importance of licensing for a contractor is similar to other professionals like lawyers and accountants.

The California Supreme Court broadly interprets section 7031: “it bars a person from suing to recover compensation for any work done under an agreement for services requiring a contractor’s license, unless proper licensure was in place at all times.” In essence, the statute’s position that justice be done regardless of the equities is justified by how important it is to deter violations of licensing requirement. (WSS Industrial Construction, Inc. v. Great West Contractors, Inc., supra, 162 Cal.App.4th at p. 596.)

Section 7031 (b) deals with people who use unlicensed contractors regularly whether or not they have paid for the unlicensed work. People who have not paid are protected from lawsuits. On the other hand those who do pay may recover all they paid under this 2001 addition to section 7031.

Before the White vs. Criddlebaugh case, a lawyer recovered $3.5 million in paid fees in a similar case, MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 419. The White case goes one step further and says even if the construction job was the most outstanding in the world and the material will last 50 years or more, an unlicensed contractor will not be reimbursed for it. To put this another way, the White case extends the consequences of the Business and Professions Code 7031b’s disgorgement to even prevent the unlicensed contractor from recovering out-of-pocket costs expended on the job – in this case material.

This case also raised the question of whether or not compensation under section 7031 (b) may be reduced by offsets for “materials and services or by claims for indemnity and contribution.” The court concluded unlicensed contractors must return all compensation received without reductions or offsets for the value of material or services provided. (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 856.)

While this may seem nitpicky in the extreme there is sense in the decision. It’s a fact of life that there are cases where unlicensed contractors perform substandard work which ultimately may mean demolition of what was initially built by the unlicensed contractor in order to correct it.

The harsh results express a strong public policy intended to send a message. The message being that if you are unlicensed at any moment from the time you sign a contract to do work for which a contractor’s license is required through the time of completion of the job, you just gave the client free material and labor and built them their dream house as a gift – and even if they knew all along you were unlicensed. So, be aware that if a contractor is unlicensed, even for a fleeting moment, the same kind of decision may apply.

Wait, there’s more. Fight in court and you also get to pay the property owner’s legal fees and costs. On the other hand, if you are licensed, contractors have a formidable array of weapons they can bring to bear in order to get paid for their efforts.

While there are sometimes clearly inequitable results from such a harsh rule, it is more than offset against the circumstances where the contractor has never been licensed and has little clue on how to build a doghouse let alone a custom Beverly Hills chateau. At least that’s what this lawyer thinks.

Roni Balint writes for the Law Office of Alan M. Insul. The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

When it comes to neighbor disagreements and pointing fingers at each other, the top reason for getting into a battle royale happens to be trees. Yes, that’s right, fallen trees. When things like that happen, one hopes there is a cordial rapport between the neighbor whose tree fell and the neighbor who now has the tree right in the middle of their picture window.

“In theory, a tree falling over during a major storm is considered to be an act of God. That would mean no one would technically be responsible for the damage, even if the tree was at one time in one person’s yard. The house that sustained any damages would (also in theory) have homeowner’s insurance and be able to place a claim,” said Deborah Barron, of the Barron Law Office in Sacramento, California.

That’s just one example of what has the potential to light the fuse under one neighbor. Another one, with a few small changes in details, may tell a totally different story. “For instance, if the tree that crashed into the neighbor’s picture window was being trimmed at the time, chances are the tree owner is at fault. What if the tree’s owner was negligent in maintaining the tree properly and it had rotted away inside becoming a hazard just waiting to be blown over?” suggested Barron.

In many of these cases, it’s pretty hard to actually prove anything about causation after the tree has taken a tumble, which means in a lot of instances, the victim’s insurance antes up payment to allow the victim to get repairs done. Herein lies the conundrum. In order to maintain a good relationship with one’s neighbor, it might make some sense to offer to help pay the deductible for the insurance – so long as it was truly an act of God that caused the tree to fall. If it wasn’t, and things go from bad to worse with the neighbor, it’s time to consult with a lawyer and salvage what’s possible.

“Mediation is another alternative solution, and there are other cities in the US that have programs especially designed to assist fighting neighbors in dealing with issues like fallen trees and barking dogs – the second biggest complaint one neighbor has against another, along with excessive noise and encroachments on property like – well – trees,” added Deborah Barron, of the Barron Law Office in Sacramento, California.

When all else fails, then speak to an attorney who is able to handle situations like this with skill and a fair dash of mediation skills as well.

To learn more, visit Lawbarron.com.

While this isn’t always a reality for everyone, getting a large payment from the IRS is entirely possible depending on what is done to achieve that goal. “In this instance, all a person would need to know is how to access the IRS Whistleblower Reward Program and then have pertinent information that pans out,” outlined Deborah Barron, of the Barron Law Office in Sacramento, California.

All the IRS wants from people who access the Whistleblower Program is for them to step up and report tax fraud. It’s that simple, and yet that complex all in the same breath. “It takes a great deal of courage to step forward and be counted and identify tax fraud,” added Barron.

This particular rewards program actually pays out a hefty amount of money based on a percentage of any underpaid taxes recovered by the IRS. The percentages aren’t small potatoes either and range from 15% to 30% of the money the IRS recovers. They keep the balance, of course.

The bigger the tax fraud reported, and subsequently verified and acted upon to obtain recovery, the bigger the reward payout. “For instance, let’s just make mention of one well-known $3.4 billion tax recovery from a major drug company who had been cheating on their taxes. They’d been participating in offshore tax fraud and someone blew the whistle,” explained Barron.

It seems like it was a good year for drug companies to pay the piper what was stolen, as yet another drug company had to ante up $2.3 billion to settle on allegations of tax evasion. This particular big Pharma outfit shifted profits offshore and once again, someone objected to the less than honest tactics and turned them in. “In both instances, the whistleblower rewards ranged as high as $1 billion. Imagine that kind of money for merely telling the truth,” said Deborah Barron, of the Barron Law Office in Sacramento, California.

The kind of tax evasion that typically pays the bigger rewards to whistleblowers are instances where a company (drug, high tech, telecommunications, etc.) is hiding ownership of patents and other large assets (manufacturing processes, franchises) or other intangible property rights to an offshore company it either owns or is affiliated with in some way.

If someone has reliable evidence of schemes like the ones discussed here, the IRS will get on it. If there are taxes owing and they collect, there is a reward. This is a real short cut to becoming a billionaire.

To learn more, visit Lawbarron.com.

It’s an interesting world out there, full of signs, slogans, logos, books, artistic work, and too many other things to mention in a short article. But the main thing to know is that there is a distinct difference in what a trademark is, what copyright means, and what one does with a patent.

Trademark rights act to protect a word or logo as being “the” source for goods/services. E.g. Nike. The instant anyone says that word, we all think of running shoes and well, Michael Jordan. This is the true definition of a trademark. Now here is the interesting thing. You don’t need to file for trademark registration to have common law trademark rights, but let’s put it this way – if you don’t file and someone infringes on those rights, you’d have a tough time enforcing them. So, it’s best to be safe and not sorry, and file with the US Patent and Trademark Office.

Other things that registering will do for you is provide the “presumption” you’re the trademark’s rightful owner and gives you statutory damages against someone using your mark in bad faith. Once your “mark” is registered, you need to remember to always keep protecting it to keep your trademark rights.

The Copyright Conundrum

The easiest way to explain copyright is to say that if you create something and it falls under the definition of being a creative work, it’s up to you who makes copies and how many copies. Of course, there are exceptions, and knowing what those exceptions are happens to be important.

At this point, it’s usually smart to contact a lawyer well versed in this area, as this type of law has the potential to be extremely complex. By the way, you may sell or even license this copyright, or if you have done work for someone else, then they buy this right in advance.

The major difficulty is defining what constitutes a creative work. Legally, it has to exist in some tangible form – on paper, a disk or even written in stone. However, what it’s written on isn’t what makes it creative. To be creative, it can’t be just straight factual data; that is where an easily understandable explanation usually ends, as there honestly is even an element of creativity to coding in computer language.

Anything you do that is classified as creative writing, creative editing, etc., is copyrighted. So the distinction is this: the facts can’t be copyrighted, but a very clever and creative organization of those facts may be. This is referred to as compilation copyright. In short, this area may make your head spin, so speak to a copyright lawyer who has their head on straight and can outline what you need to know.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

The number of people that die in the US every year as a result of medical mistakes is higher than the number of people killed in car crashes on an annual basis. This is hardly a spectacular record to be proud of either.

Aside from death as a consequence of errors, injuries resulting from medical mistakes are even more common, and sadly, don’t get reported that often. In fact, there is a lot of carnage that seems to lie just below the surface of the medical profession that no one wants to directly address. You know it’s more than “just a problem” when the Kaiser Family Foundation actually carries out a study on medical mistakes.

The results of the study were quite interesting and raised a few eyebrows in the process. There were 1,200 adults involved as well as 800 doctors. Turns out that roughly 35% of the physicians commented that either they or members of their family had experience with medical errors. The errors were not of the benign nature either, and resulted in severe pain, long-term disabilities and death.

The very fact that doctors were the victim of other doctors and medical personnel should have awoken a few people. In fact, the Kaiser study did collect data that pointed to the medical community being unwilling to change to make a difference. This of course, left medical malpractice attorneys on the leading edge of demanding change in the medical system.

It’s interesting that taking legal action against a doctor would seem to be the only solution to get any real changes made within the system; however, this makes much more sense when put into perspective. Most physicians are relatively indifferent to regulating themselves and/or making changes to procedures to avoid mistakes. Now that’s a chilling thought in itself.

Oddly, doctors also seem resistant to trying built-in system checks, such as taking a pharmacist on rounds or cutting back the number of hours a resident has to work. This is odd because these things would make a big difference in addressing the issue of fatigue, a primary cause of medical errors.

In the meantime, the other option appears to be suing for redress of a medical error and perhaps forcing the medical community to begin to police itself.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Choosing a business entity is difficult enough as it is and the choices include an LLC, partnership, corporation, etc. Choosing a name for the business, while exciting and challenging, is even more difficult if the rules laid out by the Secretary of State (SOS) are not followed.

It would behoove those who are serious about launching a business that requires filing with the California SOS to do some homework and check the newest changes to the regulations before picking a company name and finding out it is not acceptable.

This isn’t an easy process and when a company is launched, the choosing of a name is a critical part of the whole process of being a “business.” In addition, the choice of entity and its name may have long-term tax and economic ramifications, respectively. “This is one of the major reasons speaking to a Los Angeles business attorney familiar with the SOS guidelines will assist a serious entrepreneur in ‘getting it right’ the first time when they go to register,” outlined Alan Insul, a noted Los Angeles business attorney with years of corporate experience behind him.

Perhaps the most important section that business entrepreneurs want to pay attention to is the “same or deceptively familiar names” section. In essence, it makes reference to the fact that if a name being proposed for filing with the SOS is highly similar to one that already exists, that name will be declined.

The name is too close to being the same if the name being suggested and an existing name are identical; if the differences between the suggested name and one that already is in existence merely rest on differences in use of letters and other graphical touches, or if the difference boils down to the presence or absence of a business entity ending. The SOS regulations provide good examples of what to avoid when choosing an entity name.

As with many areas of law, there are exceptions to virtually every regulation and it only makes sense to speak with a Los Angeles business attorney to get the full sense of how the regulations affect the launch of a proposed business. “In the meantime, it’s a good idea to do some pre-launch research to find out what pitfalls to avoid,” said Insul.

One other place a serious business entrepreneur may find solid information backed by years of experience is Chapter 3 in the 2009 edition of Selecting and Forming Business Entities. The two volumes will be available soon and also have a forms CD included. Respected Los Angeles business attorney, Alan Insul, authored Chapters 3 and 7 in this year’s edition. The material is specifically designed for California business lawyers working with their clients to help them choose the “best” entity for their business.

To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship.

June was a busy month in the offices the governor of California with some landmark legislation making its way onto the floor of the house. “Signed into law was an innovative act that will assist California homeowners in keeping homes facing foreclosure,” said Alan Insul, a well-known and respected Los Angeles business and real estate attorney.

Called the California Foreclosure Prevention Act, this legislation’s intention is to ensure affordable loan modifications for homeowners up to their ears in debt and about to lose their house. Governor Schwarzenegger proposed this particular act and it made its way into the state budget in February.

It’s interesting to note the strong “community minded” orientation of this act in addressing the needs of every Californian for a place to call home without fear of losing the core of their existence. “Foreclosures do a great deal of damage economically, not just to the family caught up in that desperate struggle, but to the neighborhood as a whole. Cumulatively speaking, the rate of foreclosures also depresses California’s economy and drastically affects their budget. It is hoped that this step will stabilize the downward spiral in housing, but only time will tell,” indicated Insul.

Without reinventing the wheel, the act bars a lender or mortgage service provider from filing a notice of sale for a further 90 days in addition to the current time limits, unless there’s a comprehensive loan modification program approved by regulators. The emergency regulations to get this act rolling were brought into play in June as well, and they outlined the criteria for the loan program.

The application process states lenders and service providers get a 30-day grace period from the 90-day foreclosure halt when they get a substantially complete application. If the loan modifications are approved, the person applying gets the 90-day foreclosure stay provided they follow the terms of the approved loan program.

Simply put, the loan modification act modifies the borrower’s loan terms by doing such things as changing the principle loan amount, changing the interest rate or amortization schedule, etc; things that get results – like a 38% debt-to-income ratio for the borrower. “The one fly in the ointment is that if the lender proves modifying the loan gives them a bigger loss than foreclosure would, the lender doesn’t have to offer a loan modification,” added Insul.

To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship.

Let’s take a quick look at a major case that deals with non-competition agreements in the employment area.

CPA Ray Edwards (Edwards), a tax manager, was hired by a Los Angeles accounting firm – Arthur Andersen LLP (Andersen) in 1997. Edwards had to sign a noncompetition agreement that prohibited him from working for or seeking Anderson clients for limited periods upon his termination.
The agreement Edwards signed stated: If you leave the Firm, for eighteen months after release or resignation, you agree not to perform the professional services you provided clients you worked with during the eighteen months prior to release or resignation. This does not prohibit you from accepting employment with a client.
For twelve months after you leave the Firm, you agree not to solicit any client of the office(s) to which you were assigned during the eighteen months preceding release or resignation.
Edwards worked for Andersen for six years and was promoted to senior manager with an eye to becoming a partner. The United States government indicted Andersen in connection with Enron Corporation.
In May 2002 Andersen internally announced that HSBC USA, Inc. would purchase a portion of Andersen’s tax practice, including Edwards’s group. HSBC offered Edwards a job. Before hiring, all Andersen employees were required to execute a “Termination of Non-Compete Agreement” (TONC)
The TONC required employees to (among other things): release Andersen from “any and all” claims, including “claims that in any way arise from or out of, are based upon or relate to Employee’s employment by, association with or compensation from” defendant and continue indefinitely to preserve confidential information and trade secrets except as otherwise required by a court or governmental agency, etc.
In exchange, Andersen agreed to accept Edwards’s resignation, agreed to Edwards’s employment by HSBC, and released Edwards from the 1997 noncompetition agreement.
HSBC demanded Andersen provide a completed TONC signed by every employee before the deal went through. Andersen would not release Edwards, or any other employee, from the noncompetition agreement unless they signed the TONC.
Edwards signed the HSBC offer letter, but he did not sign the TONC. Andersen terminated Edwards’s employment and withheld severance benefits. HSBC withdrew its job offer. Edwards refused to sign the TONC because he didn’t want to give up his right to indemnification. He felt some of Andersen’s clients may sue them and name him as a defendant.
When all was said and done the California Supreme court decided that Andersen’s noncompetition agreement was invalid because the agreement restricted Edwards from working for Andersen’s Los Angeles clients after his separation from Anderson, and therefore restricted his ability to practice accounting – his profession. This violated express California law.
Said the court: An employer “cannot lawfully make the signing of an employment agreement, which contains an unenforceable covenant not to compete, a condition of continued employment. [A]n employer’s termination of an employee who refuses to sign such an agreement constitutes a wrongful termination in violation of public policy.”
Put another way, the agreement Andersen made Edwards sign in 1997 was invalid because it didn’t allow him to practice his profession for a period of time once he left his employment with Andersen. The court added that under the circumstances of this case, what was illegal was restraints that precluded one from engaging in a lawful profession, trade or business. Indeed, California courts are clear in their expression that section 16600 of the Business & Professional Code demonstrates a strong public policy of the state which “should not be diluted by judicial fiat.”

In reference to Edwards not signing the TONC because he didn’t wish to waive his right to indemnity, the bottom line was that the Labor Code says that right can’t be waived.

To say that this case was a landmark decision would be a major understatement, and even today it is still being discussed for the ramifications it has on non-competition agreements in a whole host of contexts beyond just employer-employee relationships. The court seemed to make clear that section 16600 expresses a legislative decision to invalidate non-competition agreements to be entered into by a seller of a business so long as its limiting scope is reasonable.

If you find yourself facing a situation where you are required to sign or want to get someone to sign a non-competition agreement, speak to a knowledgeable business attorney first before you sign or ask for anything. The Court in Edwards seemed to suggest that asking for a non-competition agreement beyond what you are entitled to do may expose you to liability. So don’t take a chance or you may wind up not being able to compete after the person from whom you wrongfully extracted that non-compete gets a big judgment against you. At least that’s what this lawyer thinks.

Roni Balint writes for the Law Office of Alan M. Insul. The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

Roni Balint writes for the Law Office of Alan M. Insul. The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

While the labor law in California attempts to find a delicate balance between the employer and the employee’s rights, much of this balancing act is undone by the unfortunate occurrence of discrimination in many forms, one of which is racial discrimination.

Also called racial prejudice, racial discrimination is something that people would like to think went out with the advent of the human rights movement. Unfortunately, that doesn’t seem to be the case in many workplaces in California. “Although the law clearly states that a person may not be discriminated against because they are a different race, unfortunately there are many companies – even today in the 21st century – who go out of their way to make things difficult for some to be treated fairly at work,” stated Deborah Barron of the Barron Law Office in Sacramento, California.

Some of these discriminatory acts include things such as adverse hiring procedures weighted against certain racial categories, the assignment of difficult or dirty tasks to those of color, a greater workload for those individuals, lower salaries, fewer benefits, fewer chances or no chance of promotion and lack of training that others are required to have for the job.

Several other areas where discrimination may rear its ugly head also include not allowing those of color the same access to company facilities and equipment, not offering them the same kind of support and access to dispute resolution opportunities, and terminating them for vague reasons and hiring a white person to replace them. “While many of these activities may look innocent enough on the surface, when all of them are taken into consideration during an investigation, it’s hard not to assume there is evidence of racial discrimination,” said Barron.

There are two types of discrimination a worker may face on the job and those include disparate treatment and disparate impact. Disparate treatment mainly refers to acts of discrimination that an employer perpetrates against a person of a different race.
Those acts might involve insults and offensive remarks that create an intolerable workplace. Disparate impact refers to the company implementing rules and regulations that exclude certain classes of individuals applying for a job, asking for a promotion or a raise.

The bottom line is that racial discrimination laws guarantee protection for workers who have faced harassment or have been fired from their jobs because of their race. “Consulting with a knowledgeable attorney will go a long way toward getting justice in situations like this,” commented Deborah Barron of the Barron Law Office in Sacramento, California.

To learn more, visit Lawbarron.com.

“If a case of sexual harassment is filed in California, it is filed under the auspices of the California Fair Employment and Housing Act, and may fall into one of two categories – hostile work environment or the quid pro quo theory,” indicated Deborah Barron of the Barron Law Office in Sacramento, California.

To further differentiate these two categories, in one (hostile work environment) the complainant needs to have been harassed by a fellow worker; in the other, the harassment could have taken place at the instigation of a supervisor (the quid pro quo theory).

“Without getting too technical, if an employee is complaining of a hostile work environment, then that person’s co-workers or supervisor needs to have been making repeated unwanted sexual advances in such a pervasive manner, that working conditions are totally intolerable (meaning the workplace is a hostile environment),” explained Barron.

If these kind of shenanigans are going on already, it may be that the employee feels their job security is predicated on giving in to the other person’s sexual advances. This situation is a prime example of quid pro quo. Nowhere in the code defining these categories does it specifically state that the people involved need to be a male and a female only, nor does the code address same sex harassment specifically. “This is usually where case law comes into play,” said Barron.

“We know of one landmark case in which the court held that a cause of action for sexual harassment may be filed by a member of the same sex as the harasser under the auspices of either quid pro quo or hostile work environment,” commented Deborah Barron of the Barron Law Office in Sacramento, California. The whole point is that even if someone of the same sex harasses a person, it does not deny him or her the right to protection under the law.

If facing a situation such as this, now is the time to contact a highly qualified employment attorney to get advice and find out what protections the law offers people in this kind of a situation. Knowing what rights are accorded to people facing these types of situations goes a long way toward making informed decisions about how to proceed with any potential lawsuit.

To learn more, visit Lawbarron.com.

When you’re walking across the street, you should feel safe, not like you’re a moving target. Unfortunately, walking across a crosswalk is not a cakewalk any longer, as the incidents of car versus pedestrian accidents are on the rise. All it takes is for one inattentive driver, perhaps talking on a cell phone, to run a red light and – the consequences may be deadly.

One of the most disturbing statistics, when it comes to car/pedestrian accidents, is the fact that many of the “at fault” drivers insist they never saw the person they hit. How could they have not seen a pedestrian? Most often the answer may be one of several things, including the fact that they were combing their hair, trying to access their email on their phones, paying attention to a GPS device or yakking with their passenger, and not paying attention to their surroundings.

It’s rather obvious that in an accident of this nature, the pedestrian is going to wind up on the short end of the stick, with either very serious injuries, or they may not live through the experience. If you don’t think the number of deaths as a result of being hit by a car are that high, consider the statistics from the National Highway Traffic Safety Administration, that indicate almost 70,000 people meet their death in this manner yearly.

The end result of this carnage for survivors is quite often head trauma or Traumatic Brain Injury, broken or shattered bones, and either permanent or temporary disabilities. To say that the individuals who were hit experience a significant change in lifestyle thanks to a negligent driver, would be an understatement.

If you have been hit by a car crossing at a crosswalk, or have experienced injuries as the result of a car accident caused by the negligence of another, contact a highly skilled personal injury attorney. S/he will sit down with you and discuss the facts of your potential case. Your attorney will ensure you receive justice.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

The regulations that accompany RESPA actually represent one of the biggest shifts in the real estate industry since the Real Estate Settlement Procedures Act came into being. What do the new regulations mean? In most instances, they mean you will need to redefine your sales and marketing strategies. It may seem a bit confusing since you’ve likely been doing just fine prior to this new wrinkle being introduced.

Here’s a bit of history about the RESPA, which has a significant impact on everyone involved in real estate transactions. It came into being with the stated goal of standardizing the buying of residential real estate and the reforms in it, among other things, raised the bar for making disclosures to consumers and also streamlined loan processes.

What the RESPA was intended to accomplish is to provide consumers with the benefits of cost savings and better, more transparent disclosure of things such as settlement fees, loan terms and costs. You can well imagine how pleased buyers were to have this new legislation working “for” them and making their ultimate purchase less confusing financially.

Let’s deal with the “less financially confusing” part now. The US Department of Housing and Urban Development (or HUD for those who want another acronym to learn) figures that the more information about the loan application process a consumer has – all the way through settlement – the more informed consumers are; thus, they make smarter purchases. That makes sense if you stop to think about it, but also be aware that HUD has another objective and that is ensuring there is a competitive market for settlement service providers.

So what do we have in the final analysis? The RESPA rules and regulations now include changes to two previous forms (HUD-1 and the Good Faith Estimate document) and the term “required use” has finally been spelled out so people understand what it actually means.

The most interesting change, however, is one that deals with the yield spread premiums lenders pay for loans, and the fact it must be stated as a credit to the borrower upon closing. These reforms have been a long time coming and are a refreshing change to the industry, not to mention a benefit for consumers.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Illegal discrimination is one thing, being given work that isn’t challenging, being given a poor performance rating at work or even being yelled at in the workplace is not cause to file a discrimination suit. “The major distinction is that discrimination takes places when an employer treats an employee differently because that person is a member of a “protected” class – age, race, religion, disability, gender and/or familial status,” commented Deborah Barron, of the Barron Law Office in Sacramento, California.

While being treated differently might not be hard to prove, proving why those differences exist and finding out what the motive is for the conduct is another can of worms altogether. Suffice it to say that it would be a challenge to find out those factors and be able to prove them in a court of law.

It is often difficult to prove discrimination, but it should be pointed out that some forms are easier to get a handle on. “For example, racial discrimination may be quite evident if the employer/supervisor makes constant remarks of a derogatory nature about a person’s race, constantly tells jokes about them and/or uses slang terms to refer to them,” said Barron. Often another telltale sign is if the employer is slowly replacing workers of a certain race with others of a different ethnic origin, which may be the same as the employer.

Discrimination of a medical nature (disability) often may be implied or outright proven causally if an employee was let go or given a demotion right after they suffered a serious injury or had been diagnosed with a debilitating medical condition.

In the area of age discrimination, the proof may lie in demonstrating the company fired an employee over the age of 40 or 50 without any other valid reason (poor performance, etc.) and then got a new person who is younger. “If a consistent pattern exists of the company doing this kind of thing, it’s fairly strong evidence of age discrimination,” explained Deborah Barron, of the Barron Law Office in Sacramento, California.

There are many faces of discrimination in a workplace and if faced with a situation such as this, consult with an attorney who has experience in this area. “The attorney will advise the plaintiff of their rights and outline what steps would need to be taken should the complainant wish to file a discrimination lawsuit,” explained Barron.

To learn more, visit http://www.lawbarron.com.

The idea with sexual harassment training in California is to stop it before it gets a foothold in a workplace. “The specific legislation used in California is dubbed the AB 1825 law and it outlines some incredibly stringent requirements for sexual harassment training,” said Deborah Barron, of the Barron Law Office in Sacramento, California.

What is unusual about AB 1825 is that it has a very high level of accountability attached to it. The driving point behind this piece of aggressive legislation is that education is the best protection against any potential sexual harassment claims.

California’s legislation also specifically outlines that companies who have 50 or more workers must hold this type of training, although the only people required to receive it are those that hold jobs as supervisors. “The Golden State mandates that sexual harassment trainers must be from one of several pre-determined categories that include an attorney, a law school/college professor, a harassment prevention consultant or human resources professional,” explained Barron. The ideal trainer would have in-depth experience in not only harassment, but discrimination and the boomerang companion complaint in these kinds of cases, retaliation claims.

It is no longer acceptable to just give sexual harassment training a cursory nod and put out a newsletter with tips now and then or have a lecture on the topic. Employers are being mandated to have properly trained personnel teach their staff what they need to know about this inflammatory workplace issue.

California also requires complete documentation of all people who have taken a sexual harassment course. “This doesn’t just mean their names and addresses, it means every supervisor must have a copy of the company anti-harassment policy and provide proof that those supervisors did receive it,” said Deborah Barron, of the Barron Law Office in Sacramento, California. This isn’t just because someone wants to keep good records, as the documentation on the training process must be kept for two years.

Last but not least, California takes the lead over other states in how they teach sexual harassment awareness and prevention. No other state has anything like this. The course must feature skill-building exercises, ways to assess learning, interactive questions that involve all participants, real life examples, methods for reporting harassment, and ready access to the trainer to get questions and concerns ironed out.

Sexual harassment is an issue long overdue for the attention it is now rightfully receiving. “California has taken the reins and proactively put legislation into place to prevent this kind of harassment in the workplace,” added Barron.

To learn more, visit http://www.lawbarron.com.

In this day and age, with things changing at the speed of light, ideas being transmitted around the world with a click of a mouse and books being published online and in print, it becomes almost second nature for people to think it’s OK to use someone else’s writing and call it their own. The same seems to apply to paperbacks, hard copy books, and other written materials.

Copyright law has its origins from earlier times when authors, individuals working in the printing and publishing fields, and journalists needed to ensure their work was protected from unauthorized copying. Legislation to accomplish this protection was first introduced in the 18th century in England. The first attempt at embodying a copyright law gave authors, etc., the right to keep ownership of original works. If anyone wanted to copy those original documents, they had to get permission.

You might see this is where the term copyright came from – because the law recognized a writers “right” to not be copied. Over time, this area of the law expanded and was applied to musicians, photographers, all original drawings (engineering, maps etc.) and even scientific formulas. These days the laws cover even more areas and are far stricter than the original ones.

Imagine if you lived in a time where you could freely take and copy anyone’s works or documents, change them and sell them without the consent of the person who first wrote the material. You’d be making money for the fraud of selling someone else’s work as yours, but the original writer would not be getting any profits. Again, all the more reason for copyright being in place, not only to protect an author’s original works, but to protect their potential source of income.

In 1886, there was an international agreement on the nature and extent of copyright law. The same general agreement, except for it being reaffirmed in 1952, has remained in place (with some legal tweaking) until the 21st century. We’re not so different these days that we don’t see the value in protecting original works of writing, etc.

Today’s copyright laws are very clear on their definition of rights and because they are so clear, there are far fewer legal disputes over its infringement. What may vary in this field are how the law applies to copyright renewals, how long the rights apply, and the question of eligibility for a copyright. This isn’t to say that copyright cannot be transferred because it can, so long as the original author gives their consent.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

Renting at the best of times might not be the most wonderful experience, depending on the landlord you have. That having been said, you need to be aware that there are a complete set of rules, regulations and laws that govern not only what rights you have as a tenant, but what rights the landlord has as well. These laws do apply to evictions, which tend to vary from state to state – all the more reason to consult a lawyer if you are faced with eviction.

The first thing you should be aware of, depending on where you live, is that the landlord might not need to provide a reason for evicting you. Check this out before you rent if you don’t want any unpleasant surprises later. In California for instance, there are a fair number of jurisdictions with laws on the books that say the landlord doesn’t have to give you a reason for evicting you. So, before you fight eviction, check with an attorney to find out what laws apply in your state.

Just for the record, other states do have various good reasons on the books for a landlord to evict. Some of them include failing to pay the rent, that a provision in the lease was violated (always read the fine print on your lease first), there are damages to the rental unit or you are a nuisance and/or doing something illegal.

Another reason that landlords may also use is that the tenant is not letting them into the unit to repair things or to inspect it. If you don’t like the idea of someone going into your home to inspect it, then you might want to think twice about the concept of renting.

A notice of eviction cannot be verbal, it must follow specific rules as laid out in the laws of your state. Generally speaking though, the eviction must be contained in a written notice. Whether the reasons for the eviction are contained in that notice may depend on the reasons for eviction in the first place. The length of time to vacate the premises may also range (depending on where you live and the reasons for the eviction) from 3 to 120 days.

Landlords may also file something called an Unlawful Detainer, which indicates you have violated the terms of the rental agreement in some manner. Do not ignore this notice, as it was filed in court and is a valid legal document. Speaking of legal documents, there is another method of being evicted, being served by a Sheriff. Again, this is usually the result of a case that has gone to court.

Read every document you get during this process very carefully, as it might not mean you need to leave right away. There may also be things you are able to do, with the help of a highly skilled attorney, to fight the eviction. You won’t know until you call an attorney and ask for a consultation. Don’t think that you have to fight an eviction on your own, not when competent legal counsel will be able to sort things out for you.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.

“Within a few weeks, the 2009 edition of Selecting and Forming Business Entities will be available,” said Alan Insul, Los Angeles business attorney and respected author of Chapter’s 3 and 7 in this year’s edition. The two looseleaf volumes along with a forms CD are specifically designed for California business lawyers working with their clients to assist them in choosing the “best” entity for their business.

The material covers the basics and more of how to go about choosing the entity, how and where it needs to be organized and also how to manage it once it is set up. The companion CD is especially crucial, as it contains annotated operating agreements that attorneys are able to use.

“This is not a lightweight publication by any means and covers evaluating entity choices, general partnerships, limited partnerships, limited liability partnerships, S&C corporations, close corporations, professional corporations and limited liability companies,” outlined Insul.

Insul’s contributions this year, Chapter 3 and Chapter 7 cover, limited liability partnerships and selecting a business names. Insul’s experience as a business attorney precedes him and he is highly regarded in Los Angeles as someone who is able to get to the heart of any legal matter, paring it down to the bare bones to deal with it. Many of Insul’s clients appreciate his ability to take a complex legal subject and sum it up in a nutshell.
“Being the CEO of a major corporation doesn’t mean they don’t appreciate the clarity of succinct advice on legal matters that affect their bottom line. This is why I strive for language that makes sense and good common sense when dealing with my areas of expertise,” explained Insul.

In a world gone complex with the intricacies of today’s business transactions, having a complete set of well written, informative and easy to understand how-to instructions makes eminent sense. “Business law isn’t getting any easier to understand, and when something like this is available for attorneys who practice in this area, it’s usually in high demand,” added Insul.

To learn more about Los Angeles business attorney, Los Angeles corporate lawyer, California corporate lawyer Alan M. Insul of The Law Office of Alan M. Insul, visit Insullaw.com.

Being creative and thinking beyond the usual parameters has stood Los Angeles attorney Alan Insul in good stead for over 30 years. His personal and incisive touch when it comes to business and real estate law has gained him the reputation as the “go to” guy in the City of Angels.

Insul is noted for his deft handling of various transactional matters or adversarial proceeding in litigation. Insul is a tough and business savvy corporate management expert that takes the time to see all sides of an issue prior to proceeding.

This same tough and yet laid back approach is something that permeates Insul’s personal style when handling his clients affairs as well. He’s known to have a flair for taking some really nasty legal concepts and being able to explain them in plain English. A rare gift for an attorney, and one that will come in very handy for Insul’s newest appointment to Chairperson and Managing Editor of the Business Law News.
“We’re pleased to be making a concerted effort to reach out to and be more accessible to smaller law firms and solo practitioners. After all, the information we have is useful to everyone, no matter what the size of their firm,” outlined Insul.

The Business Law News (BLN) is the official news periodical of the California State Bar’s Business Law section – the largest section of the State bar. This periodical publishes articles that deal with, among other things, ex parte communications in a transactional law practice, the unfair competition law and how it is evolving, what commercial landlords need to understand about bankruptcy and intellectual property issues that need to be taken into consideration when doing due diligence for a merger or acquisition.

While the various topics that business lawyers handle may be as exciting as watching paint dry for the average reader, those in business who rely on attorneys with this kind of skill have a vested interest in their attorney being intimately familiar with various concepts that affect businesses of all sizes. No issue is too small when its eventual applicability may affect a major corporation sometime later.

This is something that Alan Insul is quite conversant with and as an attorney who makes the law look and sound easy, his appointment to Chairperson and Managing Editor of the Business Law News will continue to improve on the long tradition of excellence of delivering the latest developments and insights in business law to California business attorneys.

“I try to meld the advice I give as a lawyer with the actual situations that clients face, simply because giving legal advice in a vacuum just doesn’t cut it in today’s legal arena. Clients are looking for advice that is clear cut, straight forward and to the point in order to make decisions,” said Insul.

The Business Law News is responsible for publishing four quarterly periodicals featuring content written by experts in various areas of business law. The BLN also produces an annual review which is a retrospective of major developments in the area of business law during the previous year.

To learn more about Los Angeles business attorney, Los Angeles corporate lawyer, California corporate lawyer Alan M. Insul of The Law Office of Alan M. Insul, visit Insullaw.com.

Just because you go into partnership with another person, with all of the best intentions in the world, doesn’t mean that at some point in time you may not have a falling out over – well, over any one of a number of things that happen when trying to run a company and stay friends and partners. No matter whether the form is a partnership, limited liability company or corporation, making sure the principals have properly prepared buy-sell arrangements is critical.

Think that will never happen? Think again. It’s a far too common occurrence and many people have made the mistake of not dealing with this eventuality in a buy-sell agreement, and have lived to regret that decision. The essential parts of this type of contract must be outlined in detail by your corporate lawyer and include an evaluation method for the business and how to pay out in the event of the big four – death, disability, disillusionment and transfer of the interest in the business on retirement.

If you’re having trouble imagining what kinds of situations would make you have a dust up with your business partner, speak to your lawyer. Most corporate lawyers have seen it all and been there and done that. That’s what they’re paid for, to craft a buy-sell agreement that will withstand any of the above-mentioned eventualities.

The importance of having a buy-sell agreement in place cannot be underestimated. It is a crucial document that will ultimately ensure the continuation of your business and allow your family a return on a lifetime of your hard work. Caution: this will only happen if there is money behind this agreement. No cash can end up in a major disaster, as the agreement may obligate more than the signing parties. It may obligate family, heirs and partners. Without cash, no one will be able to carry on the empire or have any security.

These issues need to be discussed in great detail prior to signing anything and they need to be resolved to the satisfaction of both partners. If something does happen and one party wants to pack it in because they fell out of “love” with their partner, they need to be covered for this possibility.

Of course, before getting that far into drafting an agreement, the crucial question of where will the money come from to fund it needs to be asked, along with how much will you need and whether or not, realistically, you are able to afford it. Remember, that without money in the background, a buy-sell agreement is potentially worthless. A worthless contract without money backing may have serious consequences; just ask your lawyer to fill you in.

In the meantime, while you are waiting to have that buy-sell agreement drafted, make a list of important questions to ask your lawyer such as “How much money in before tax dollars do we need?” “Where does the money come from?” “How much money in total is required to live up to the terms of the agreement?” Make the list a substantial one, because these kinds of agreements need to be discussed in great detail. Your lawyer knows this and will walk you through the sticky parts.

To learn more about Los Angeles business attorney, Los Angeles corporate lawyer, California corporate lawyer Alan M. Insul of The Law Office of Alan M. Insul, visit Insullaw.com.

So in late in 1996, “The Bank of Real Estate” made you a real estate loan to go buy that 100 unit apartment complex. You thought you would spend the rest of your days soaking up the sun and drinking Kona coffee on your very own beach in Maui.

Fast forward. It is 2009, you’re a running 10% higher vacancy, the loan has reset (higher of course), and you, and your dream, are in serious trouble. Try as you might, the lender is not willing to recast your loan.

The next thing you know, the lender has gone ahead and notified you that it intends to sell all the furniture in your furnished units in one commercially reasonable sale. But they do not foreclose on the apartment complex.

You think back quickly to your college days and business law class and realize that perhaps “The Bank of Real Estate” made a major mistake. You recall something about a secured real property lender having but one action within which to foreclose against real estate security or risk losing its lien on the property. You decide to call your real estate lawyer confident in two things, the lender lost its lien on your 100 units and you have been saved from a life of burnt day old coffee and crowded beaches.

In your call, you find out that they don’t call your lender “The Bank of Real Estate” for nothing. Counsel explains that your lender took a secured interest in both the real estate and personal property used with the real estate – i.e. the furniture used in your furnished units. This is the so-called “mixed collateral” situation and lenders face it all the time.

Empathetically, your lawyer explains that when it comes to dealing with mixed collateral loans, sometimes there is confusion about how a lender is to proceed in the event of a borrower’s default. First off, the term “mixed collateral” refers to those situations where the loan is secured by some combination of real and personal property. For example, a trust deed against the building together with a security interest in accounts receivables, fixtures, furniture and equipment.

The confusion stems from the general differences in the way a lender forecloses on a loan secured by real property versus personal property. California, like most jurisdictions, provides a set of rules to reconcile the differences in requirements for foreclosing personal versus real property.
In your case, when you defaulted, “The Bank of Real Estate” had the right to pick and choose which property (real versus personal property) to foreclosure and in which order.

California’s Commercial Code §9401 provides the primary rules for dealing with these mixed collateral situations. It, and the cases interpreting it, hold that the lender gets to pick the order in which the collateral is foreclosed and may sell its security in a series of sales without violating the one action rule that you remembered from your business law class. So, for example, “The Bank of Real Estate” could choose to foreclose against the furniture, as it did, and then the real property ….. or the other way around. That’s the easy part.

As for our friend and his fleeting dreams of Kona coffee on Maui, he should have considered contacting his trusty real estate lawyer before he took the adjustable loan and perhaps he’d be riding the waves to no where instead of the Amtrack to his new no where job….. at least that’s what this lawyer thinks.

This is an unlikely scenario but designed to make an illustrative point.
2 Nothing in this article is intended to nor should it be construed as legal advice. Situations involving mixed collateral can be quite complex and you should consult with your legal professional regarding your particular situation.

To learn more about Los Angeles business attorney, Los Angeles corporate lawyer, California corporate lawyer Alan M. Insul of The Law Office of Alan M. Insul, visit Insullaw.com.