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Friday
Jun122015

Summertime Safety: Rollercoasters, Bounce Houses and Other Dangers

Injury Attorney Los AngelesPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

Amusement parks are supposed to be amusing – filled with family fun and a great place for older teens to meet up with friends without hovering parents. Unfortunately, they are not always what they are supposed to be, and sometimes, they are downright dangerous.

On May 1, 2015, two people died and two others were injured because a rollercoaster began moving before all of the passengers were buckled in. They were thrown from the ride. The park was in China, and the owner of the facility has been detained. It was opening day for the park.

Unfortunately, this incident is not as uncommon as you might think – nor do these accidents only happen in other countries.

You may recall the tree limb that fell on the Ninja coaster at Six Flags in Valencia, California last year where four people were injured.  A woman died by falling out of the Texas Giant coaster in Arlington, Texas, also last year. This death was blamed on a failed safety system, and a lack of safety belts. The park and the ride manufacturer sued each other, each blaming the other for the accident. A settlement was reached with the victim's family, and there was no determination as to who was ultimately responsible for the death. But both parties contributed to the settlement.  

Sometimes, it's not the ride itself that is to blame for accidents.

Recently, Universal Orlando installed metal detectors at three attractions to keep riders from taking their phones, keys, selfie sticks and other metal items on the ride in response to an incident in 2011.

The park had two coasters that sped past each other a mere 18 inches apart. Some riders were hurt by objects flying out of other riders' hands or pockets. Even park visitors walking near the coasters can be injured in this way.

 

Proper training of park employees could have prevented these injuries, had the operators been taught to prohibit riders from taking these items onboard. The metal detectors should prove to be an additional safety measure.

Alarming Amusement Park Statistics

According to Nationwide Children's Hospital, about 20 children and teens in the U.S. are injured each day between May and September, by amusement park rides. These dangerous rides include the mobile, or travelling rides to be found at carnivals and county fairs, mall or arcade rides, and fixed site rides like Goliath and Ninja, found at major amusement parks around the world.

The above-mentioned 20 injured people every day in the summer only include the ones that received treatment in American hospital emergency rooms. Numerous others endure less serious injuries.

Injury claims can be brought against the park owner, ride manufacturer or designer, or the ride operator, depending on the circumstances of the accident.

California Law Regarding Amusement Parks

The U.S. Consumer Product Safety Commission (CPSC) investigates accidents involving mobile rides. There is no federal regulatory organization overseeing rides to be found at permanent amusement or water parks. Those are overseen by state and local government.

In California, permanent rides are subject to building codes. Permanent parks like Disneyland, Knott's Berry Farm and Six Flags undergo yearly inspections by the state's Division of Occupational Safety and Health (CAL/OSHA).

According to the CPSC, park dangers are not the only amusements harming children. Over a ten year period, there were over 113,000 injuries requiring emergency treatment because of inflatable amusements – 90 percent of those attributed to dangerous bounce houses, or moon bounces—the type of amusement many parents rent for a child's birthday party.

Summertime SafetyHowever you plan to spend your summer, whether vacationing abroad or enjoying California's many amusement and theme parks, fairs or neighborly social gatherings – it is important to spend quality time with family and friends, but also to be aware that sometimes, risks escalate with the fun factor.

David B. Bobrosky is a Shareholder in our Personal Injury Practice Group. Contact him via email: dbobrosky@lewitthackman.com, or by phone: (818) 907-3254.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May272015

Family Law: Special Considerations When Representing Professional Athletes

Celebrity Divorce - Athletes

 by Anthony D. Storm

 

While we await news of Tom Brady's Deflate-Gate appeal, the National Basketball Association playoffs coming up fast, and the latest hints that Lamar Odom and Khloe Kardashian may not follow through with their divorce after all, it is apropos to address issues that are germane to the family law representation of a professional athlete. 

Like most professions, a professional athlete is compensated pursuant to his or her employment contract.  However, while that employment contract may be based on skills obtained before or during the marriage, may be negotiated during marriage, and provide a predictable sum of earnings, those earnings are often based on performance after separation. 

So, the question arises, do the payments belong to the community or are they separate property?

Furthermore, athletes may receive additional income from sponsorships and endorsements above what is set forth in their employment contract.  Even though there is no celebrity goodwill in California, this additional income may be income available for support. 

Additionally, depending on the athlete’s income and where the parties live, he or she may be a high-earner.  What may be considered a high-earner in Bakersfield may not be a high-earner in Beverly Hills. 

Finally, custody can be more complicated---how do you work visitation when the athlete is travelling for games? Who pays for the travel?  Does the child travel alone, with a tutor, and where does he or she stay while away? 

There are no simple answers, but awareness of these issues is critical and provides an opportunity for good lawyering. 

Anthony D. Storm is a Divorce Lawyer in our Family Law Practice Group. Contact him via email: astorm@lewitthackman.com, or by phone: 818.907.3248.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
May192015

Claims Dismissed: Social Media Site's Reference Search Not a Background Check

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm
818.907.3235

 

Good news for employers using social media to vet job applicants: A Federal District Court recently ruled the technology used in LinkedIn's Reference Search does not constitute a “consumer background check” of employees and job candidates.

Reference Search provides a list of coworkers or former coworkers of a particular LinkedIn member to potential employers paying for the service. Subscribers who use Reference Search are encouraged to send In-mail to the individuals on the list, presumably in an effort to find more information about the job seeker.

The plaintiff's in the lawsuit Sweet v. LinkedIn alleged LinkedIn’s search feature violated the Fair Credit Reporting Act (FCRA). The FCRA was enacted in 1970 to ensure consumer reporting agencies protect consumer privacy, and impart fair information.

Employers are entitled to conduct background checks, but under federal and state law must comply with several requirements, including obtaining written permission and making certain disclosures. They must also provide the reason(s) a candidate was not selected should something in the background check lead to an adverse decision in hiring or promotion.

Tracee Sweet and the members of her purported class contended they were passed over for jobs because of Reference Search results. She and three others sought to form a class on behalf of all LinkedIn members who had reports run on their professional backgrounds in the last two years through Reference Search.  

Plaintiffs alleged five violations of the FCRA:

1. LinkedIn is a consumer reporting agency, which failed to obtain required certifications.

2. LinkedIn does not verify or make reasonable efforts to verify, the identities of those using Reference Search, or the purpose for which those users are compiling reports.

3. The FCRA requires consumer reporting agencies to assure maximum possible accuracy of the information provided; LinkedIn failed to undertake any reasonable procedures to do so.

4. The FCRA requires agencies to provide a "Notice to Users of Consumer Reports", which includes a user's obligations to provide a notice to consumers when an adverse action is taken, in this case a refusal of employment. LinkedIn does not provide this Notice to Users.

5. Because LinkedIn provides information to users without inquiring into the users' purposes for obtaining the information, the social media site does not have reason to believe the users have permissible purposes as defined by FCRA.

The plaintiffs sought monetary damages, punitive damages, and attorneys' fees and costs. LinkedIn moved for dismissal, citing the plaintiffs' failure to state a claim, and prevailed.

The federal court judge held that:

1. The purpose of LinkedIn is for members to "share their professional identities online" – the information compiled through the site does not constitute a consumer report.

2. LinkedIn serves to "carry out consumers' information-sharing objectives", whereas a consumer reporting agency's purpose is to furnish information to third parties.

3. The information collected via Reference Search comes from the searcher's networks, not the employment candidate's networks.

4. LinkedIn does not market this information as reliable.

The plaintiffs may amend their complaint in future, so the case is not entirely put to rest yet. Arguably though, the information provided via Reference Search is not so different from the information an employer may glean by calling or emailing contacts s/he may already know at a candidate's former places of work.

Background Checks

For the moment, employers may continue to use social media websites as an informal type of background check without rising to the level of a “consumer reporting agency.” However, employers should only do so with caution. California employers are prohibited, under Labor Code §980, from:

1. Asking employees or prospective hires for usernames and passwords of their social media accounts;

2. Retaliating, by discharging, disciplining, or threatening job seekers or employees for refusing to provide their usernames and passwords;

3. Asking candidates or employees to log on to their personal accounts while in the presence of the employer, management, human resources representative, etc.

Employers using social media may also be at risk for discrimination claims though, should their findings result in hiring, firing or promotion decisions based on protected characteristics they may discover in search results.

For example, an employee who thinks s/he was passed over for a promotion because s/he Tweeted about personal medical conditions or political beliefs may allege Fair Employment and Housing violations.

Before Googling the next applicant or current employees, employers should consider the risks carefully and consult employment counsel.

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com; or by phone: 818.907.3235

Thursday
May072015

Benefits of an Irrevocable Life Insurance Trust as Security for Support

 

by Kira S. Masteller and Anthony D. Storm

 

Divorce or separation agreements often require one spouse to maintain life insurance as security for their support obligation. Attorneys often do not address the tax implications if the insured spouse owns the policy. 

Often life insurance will create an estate tax that would NOT otherwise exist by adding a windfall to the insured’s estate upon death. The death benefit of a life insurance policy owned by the insured spouse will be included in his or her estate for estate tax purposes. When the insured owns his or her life insurance policy, he or she has “incidents of ownership”, such as withdrawing cash value, assigning the cash value as collateral, or changing the beneficiary during his or her lifetime. 

In order to keep the death benefit OUT of the insured’s estate for estate tax purposes, the insured can create an Irrevocable Life Insurance Trust, commonly referred to as an ILIT.

Once created, the Trustee of the ILIT will own the life insurance policy, NOT the insured. As a result of having the ILIT own the policy, the insured avoids incidents of ownership and the tax implications associated therewith. 

The ILIT will also be the beneficiary of the life insurance policy resulting with the death benefit being held for the ex-spouse, children or other beneficiaries until certain ages, and can provide liquidity to an insured’s taxable estate, without having the death benefit itself be exposed to estate tax.  

Should the insured pass away before a support obligation is complete, the death benefit related to the support for the benefit of the ex-spouse would be administered by the Trustee of the ILIT pursuant to the terms of the Marital Settlement Agreement/Judgment. The residue of the death benefit, if any, would pass to the other named beneficiaries via the ILIT with no Court proceeding. 

Kira S. Masteller is a Trusts & Estate Planning Attorney. Contact her via email: kmasteller@lewitthackman.com, or by phone: 818.907.3244.

Anthony D. Storm is a Family Law Attorney. He can be reached via email: astorm@lewitthackman.com, or by phone: 818.907.3248.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr232015

Music Artists take Charge - The Fair Play Fair Pay Act

 

Franchise Agreement LawyerIntellectual Property Attorney

 

by Tal Grinblat
818.907.3284

 

Music RoyaltiesOn April 13th, four Congressional members introduced the Fair Play, Fair Pay Act of 2015 (FPFPA), which requires traditional radio stations to pay song writers and performers royalties – just as their internet and satellite counterparts do.

Additionally, FPFPA seeks to put a stop to broadcasters exploiting music released before 1972. Currently royalty rights for recordings made before 1972 are governed by state law and not the federal Copyright Act. And brick and mortar radio stations must only pay royalties to the composers or publishing companies, not to the actual performers and musicians for the songs.

The Act’s goals are to settle other legal questions regarding royalty payments.

Companies like Muzak began streaming music to Dish Network before the Digital Millennium Copyright Act was signed into law by President Clinton in 1998, and were "grandfathered" into paying 8.5 percent of revenue towards royalties, rather than the 15 percent currently mandated.  A recently filed suit contends that Muzak should not be allowed to pay the lower royalty rate as it expands to other platforms like DirecTV's Sonic Tap.

The FPFPA was introduced by Representatives Jerrold Nadler of New York and Marsha Blackburn of Tennessee, and is co-sponsored by John Conyers of Michigan and Ted Deutch of Florida. A whole marching band of music greats (Cyndi Lauper, Marshall Crenshaw, Gloria Gaynor, to name a few) have also come out in support of FPFP.

Copyright Attorney

What else is on track for the Fair Play Fair Pay Act

  • Grounding: Brick and mortar AM/FM stations will have to pay performance royalties just as cyber stations do, under new terrestrial performance rights.

  • Pay Parity: Unified royalty standards for all radio platforms to ensure that streamers and stations pay the same rates.

  • Un-Equalization: Capping royalty obligations for stations with less than $1M annual revenue at $500 per year (and at $100 a year for non-commercial stations); and exempting incidental or religious uses of music from royalty obligations.

  • Messaging: Providing a mechanism for pre-1972 recordings and artists to be paid royalties.

  • Publisher Protections: Prohibits use of the FPFPA to lower royalties for artists and publishers.

  • Canon: Streamlining royalty payment practices. 

In the past, broadcast stations were allowed to play recorded music free of charge – programmed music was considered a promotional use that prompted listeners to buy records, tapes and CDs, not to mention tickets to concerts.  But those sales have dropped dramatically with the advent of free streaming services – and both satellite and internet services have exploited the lack of federal copyright protection for pre-1972 recordings.

 

Tal Grinblat is an Intellectual Property Attorney. Contact him via phone: 818.907.3284, or by email: tgrinblat@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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