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Jan032014

Why Get a Prenup? Marriage Is a Financial Partnership Too

Marriage and Money: Prenups

by Lovette T. Mioni

 

Most people wouldn't go into business without insurance. So why do so many couples get married without a prenup? 

Marriage, like it or not, is a financial partnership – whether or not the couple decides to keep their finances separate or comingle them. If they're smart, they'll talk about their expectations and responsibilities before they tie the knot, whether they have a few grand tucked away in a savings account, or millions of dollars invested in complicated portfolios.

The financial conversation is necessary to every couple. The prenup conversation though, will particularly benefit anyone who:

  • Owns a home, real property, or valuable collections/heirlooms

  • Owns a business

  • Has a stock or retirement fund

  • Expects, or already has an inheritance

  • Has a child or children from a previous marriage

  • Has loved ones that need special care/elder care

  • Is pursuing a degree or license in a potentially lucrative profession

  • Expects dramatically increased earnings in the future

A legally enforceable prenup is fair to both parties, and is not signed under duress.

It should define and protect community and separate property, support an estate plan, save time and money by reducing conflicts in the event of a divorce, and lay down some ground rules for deciding future problems.

Since California is a no fault state, the parties can't write in financial penalties for bad behavior or making lifestyle decisions, such as cheating, refusing to have children, or taking up gambling.  

They can however, protect themselves from debts one of the parties incurs should s/he make some of these choices. That's why prenups are like insurance.

When Should You Ask for a Prenup?

Some people find it easier to mention their preferences for a prenup very early in a relationship, as part of a general conversation regarding marriage, for example. This way the boyfriend or girlfriend will know what to expect further down the road, should the relationship progress more seriously.

Others ensure they talk about prenuptial agreements before the engagement; while some others wait until the 11th hour, fearing hurt feelings and the potential end of what was once a good relationship.

Generally speaking, the earlier you bring up the idea, the better.

Whenever you decide to pop the question – the prenup question, that is – know that California law requires there be seven days between presentation and execution of the prenuptial agreement, Family Code §1615(c)(2). This gives time for the person receiving the prenup to seek legal counsel to protect his/her own assets.

Contact one of our Prenuptial Agreement Attorneys for more information.

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
Dec262013

Employer Compliance - New California Employment Laws for 2014

Attorney for EmployersEmployer Defense Attorney

 

by Sue M. Bendavid
818.907.3220

 

Most employers already heard: California’s hourly minimum wage will increase in July, from $8.00 to $9.00 per hour for most cities in the state.

What employers may not know though, is that this increase will affect more than just hourly non-exempt employees. For more details, please read, What the Minimum Wage Hike Means for Employers.

Employer Lawyers Los AngelesAll California employers must post information regarding wages, hours and working conditions where the posters will be easily seen by employees.The wage increase also means employers should update the Minimum Wage Poster mandated for all employers, which should in turn, remind everyone to update all notices required by various state and federal governing agencies. By way of example, see a list of workplace postings as stated on the CA Department of Industrial Relations website.

 

California's New Laws for Employers

 

The legal landscape in this area constantly evolves, and it rarely benefits the employer. Consider these new California Assembly and Senate Bills:

  1. The Labor Commissioner can create a lien on an employer's property for amounts due under a Labor Commissioner order, decision or award: AB 1386.

  2. Employers may recover attorneys' fees only if a court finds that an employee claimant filed a lawsuit in bad faith: SB 462.

  3. Penalties for failure to pay minimum wage have been expanded – an employer will now pay liquidated damages to the employee in addition to existing penalties:  AB 442.

There are many more that involve protecting whistleblowers and military veterans. Other laws affecting specific industries like agriculture, garment workers, employees in the car wash industry and those who pay piece-rate wages also went into effect. Domestic workers now have a Bill of Rights to cover those who offer private child or elder care and other services.

Also consider the new bills that expand leaves of absence: Victims of certain crimes including stalking must be given time off. Certain employers will need to afford time off for workers to train for emergency duty, to care for elder or young family members and in-laws.

These will be discussed during our in-person Employment Law Update. But if you have questions, contact us for help in staying compliant: 818.907.3220.

 

Sue Bendavid represents employers in employment-related litigation and all claims made by employees or governing agencies. Contact her via email: sbendavid@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.

Tuesday
Dec172013

Trademark Disputes – Lessons Learned by Roubaix-ing Owners the Wrong Way

by Stephan Mihalovits 

Roubaix, like Champagne, is a locale in France – though the town is known more for being the end point of the Paris-Roubaix Cycling Race, than for grapes.

Specialized is a bike maker well-known among professional cyclists. They carry a line of Roubaix road bikes that run thousands, sometimes tens of thousands, of dollars.

Enter Dan Richter, a Canadian veteran who opened Café Roubaix Bicycle Studio in Cochrane, Alberta. Richter began his career by building custom bike wheels and other cycling products – Richter Bicycles moved to Cochrane in 2012 and became Café Roubaix.

It didn't take long for Specialized, understandably wanting to protect its brand, to send Richter a "cease and desist" letter regarding his use of Roubaix for his business this summer. Like most cease and desist letters, it threatened a lawsuit should Richter refuse to change the name of his brick and mortar store. The shop owner, not having the funds to fight the cycling giant, resigned himself to losing this particular battle.

 

Social Media: Specialized Bumps in the Road

 

It all looked like an easy cross to the Roubaix finish line for Specialized, until the Calgary Herald got wind of the story.

Cycling enthusiasts reading of Richter's uphill battle took up his cause, and carried the fight to social media. Many changed their twitter handles to include Roubaix in their names. Others protested with hate tweets. Specialized's Facebook page took hits regarding company boycotts and suggestions for establishing a legal defense fund for Richter.

That's when a U.S. company, Advanced Sports International (ASI), stepped in.

As it turns out Specialized was out of bounds in making its claim. ASI owns Fuji Bikes and holds the trademark for Roubaix in the United States. Steve Frothingham of ASI said Specialized lacked the authority to pursue a trademark case against the owner of the small bike shop.

ASI reached out to Richter, telling him he can continue to use the name under a license, which ASI is willing to grant. ASI noted it believes Richter did not intend for his customers to confuse the bike shop with the Roubaix line of bikes, and that consumers should be able to tell the difference.

 

Trademark Disputes & Lessons Learned

 

This tussle between various users of the same mark shows how important it is to read the lay of the land before engaging in a trademark dispute.

Whether it knew about ASI, or whether it knew but didn’t care, Specialized should have known its own rights were inferior to another company.  Companies should tread cautiously before seeking to enforce a mark that may stir a competitor with superior rights.

The second lesson is another example of how public relations must be considered in trademark disputes.

In an age when social media can deliver gossip instantly, companies should consider ways of resolving trademark disputes without creating potentially harmful PR. These could include phone calls instead of letters, or more conciliatory language.

Problems are seldom resolved when a lawyer writes a scorched-earth letter. More often, this approach bolsters the other side, and the dispute becomes intractable. With a firm message and reasonable language, trademark holders can better get a handle on their legal and public relations issues.

 

 

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
Nov272013

“She’s Crafty”: GoldieBlox, Beasties, Copyrights and Codicils

Civil Litigation AttorneyIP Litigation

 

by Nicholas Kanter & Robert A. Hull, Esq.
November 27, 2013

In 1986, New York hip hoppers the Beastie Boys released Licensed to Ill, the first rap LP to top the Billboard album chart, selling over 9 million copies in the U.S. One of the singles from the hit album was Girls. The song, in which the Beastie Boys sing about their affection for girls, is riddled with sexist lyrics, such as:

Girls - to do the dishes

Girls - to clean up my room

Girls - to do the laundry

Girls - and in the bathroom.

Seventeen years later, northern California toy company GoldieBlox Inc. is rewriting feminine roles, by selling toys meant to inspire young girls to construct, engineer and invent. The problem is they also rewrote the Beasties’ song Girls to market their products:

Girls to build the spaceship,

Girls to code the new app,

Girls to grow up knowing

That they can engineer that.

The rewritten song and accompanying video became a YouTube sensation, receiving over 8.5 million hits since being uploaded to YouTube on November 17, 2013.

In a lawsuit filed on November 21, 2013 in the Northern District of California, GoldieBlox claims the Beastie Boys threatened them with copyright infringement.

Rather than wait for the Beastie Boys to sue, GoldieBlox filed their complaint, seeking a declaratory judgment that their parody video does not infringe the rights of the Beastie Boys (and others that hold rights to the song), and constitutes fair use.

 

Fair Use: Is GoldieBlox's Version of Girls Defensible or Not?

 

GoldieBlox claims they created their song and video specifically to “make fun of the Beastie Boys song, and to “further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.” 

Based on the underlying purpose of the song and its intended effect, GoldieBlox asserts their song is protected by the Fair Use Doctrine.  

Under the Fair Use Doctrine, certain uses of another's copyright-protected work may not be considered infringement if the protected work is used for purposes of “criticism, comment, news reporting, teaching…scholarship, or research”  ( 17 U.S.C. §107). Whether a particular use qualifies as “fair use” is determined by considering four “fair use” factors, which include:

  1. The purpose and character of use – how transformative is the new material? Does the new material add new information or understanding?

  2. The nature of copyrighted work – what is the value of the work vis-à-vis the core of the copyright’s protective purposes.

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole – this factor looks at whether the quantity of the original work used is reasonable in relation to the purpose of the copying.

  4. The effect of the use upon the potential market for or value of the copyrighted work – does the new material deprive the copyright owner of income in some way?

While GoldieBlox’s song by itself seemingly qualifies as Fair Use, the crux of the lawsuit (assuming it does not settle) will likely center on whether GoldieBlox’s use of the song to advertise and sell its retail goods causes the song to lose Fair Use protection.

 

A Brass Monkey in the Machine?

 

Complicating the matter further is the fact that one of the members of the Beastie Boys, Adam “MCA” Yauch, died last year leaving a will which provided that in no event may “any music or any artistic property created by me be used for advertising purposes.”  Another fly in the ointment was the fact that apparently, MCA hand wrote these words on his prepared will near language which prohibited MCA’s image or name from being used for advertising purposes.

It is not clear whether the added language was part of the original will or was added later. If added later, such an amendment (typically called “codicils”) must be executed with the same formalities required of the will. Those formalities include executing the codicil in the presence of witnesses, etc.

Thus, if the handwritten language was added by MCA after the execution of the will, but for example without the presence of witnesses, it could be successfully challenged. However, there seems to be no mention in the press of a specific challenge to such language. Therefore, the language was likely present at the execution of his will.

Presuming this language was valid, in order for it to be enforceable in this case, obviously MCA must own an interest in the song (i.e., the interest must be part of his “estate”).

But, if MCA owned an interest but had previously transferred this interest into, for example, a living trust, the trust would be the owner, not MCA’s “estate”). If there was no commercial prohibition language in the trust, then the will language would not apply to prohibit commercial exploitation of the trust’s interest.

Also, this will restriction would apply only to the beneficiaries of Yauch’s estate. Absent an agreement to the contrary, joint owners of a copyrighted work have an equal right to license the copyright, provided that the other joint owners get their shares of the proceeds.

Thus, if there was not such an agreement between MCA and the other Beastie Boys preventing commercial exploitation of this song, the others could independently license the song to GoldieBlox, despite the prohibition by MCA, with MCA’s estate receiving its share of the proceeds. The prohibition by MCA would likely apply to the beneficiaries of his song interest, but would not be enforceable against the other joint owners.

From the published news reports, it appears as though the others do not wish to permit GoldieBlox to use the song in this manner.  So, MCA’s wishes may indeed be carried out.

However, if the will restriction is not enforceable, MCA’s heirs may be able to license the work commercially, despite objections from the other Beastie Boys.

Ultimately, it will come down to whether the GoldieBlox version is considered a “fair use” of the song. If so, MCA could not have prevented this commercial use while he was living and cannot prevent it after his death.

 

Nicholas Kanter is a Business and IP Litigation Attorney at our firm. Contact him via email: nkanter@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.
Friday
Nov152013

Holiday Parties | Top 10 Dos & Don'ts for Employers

Attorney for EmployersEmployer Defense Attorney

 

by Sue M. Bendavid
818.907.3220

 

You've heard the saying: The road to hell is paved with good intentions. You want to celebrate a year of company achievements. You want to reward your employees for their hard work and dedication. Maybe you just want to improve morale.

Whatever the case, celebrate with caution. Here are several common sense Holiday Rules for every employer:

  1. Create Atmosphere – Set a tone of moderation before the party, via emails, memos, etc., reminding employees to consume responsibly, have someone else drive, etc. Sometimes inviting the employees' family members and/or important company clients can keep an air of festivity AND responsibility.

  2. Respect Diversity – Do not host company parties for Hanukah, Christmas, Kwanzaa, the Winter Solstice, or anything with religious references. A Holiday Party or End-of-Year Event should be general enough to not offend.

  3. Making a List? Don't! – Don't make attendance mandatory, and don't take attendance at the party. It's certainly not very festive, but worse, it increases your liability risk.

    Keep in mind that if you give year-end awards or bonuses at the party, employees may infer they are obliged to attend.

  4. Coordinate Logistics – Consider holding the party off company premises, after working hours, and provide plenty of food and non-alcoholic beverages. Close the bar at least one hour before the party is scheduled to end.  

  5. Limit Libations – Limit alcohol consumption.  Possible methods are to give employee drink vouchers, keep the bar open for a limited number of hours, or avoid serving alcohol altogether.

  6. Kill the Mistletoe – Keep it out of your offices and your parties. The last thing you want is to have an employee complain about a co-worker's unwanted advances. 

  7. Shot Calling? Another Don't! – During the work day, supervisors and managers call the shots. But they should never POUR them or any other alcoholic beverages during a company party.

  8. Hire Professionals: Not only will caterers or restaurant managers provide bartenders, they also have staff to clean up spills and generally keep the premises clean and safe.

  9. Provide Transportation – If you can't pay for taxi cabs and limos, organize carpools or designate drivers. Secure discounts at nearby hotels for employees with long drives, or those who do over-imbibe. 

  10. Anticipate Trouble – You can't do it all yourself. Designate supervisors to help keep an eye out for the overly-intoxicated, the overly-amorous, and the overly-rude.

Sue M. Bendavid is a Defense Lawyer for Employers. Contact her via email if you have any questions about minimizing liability risk and preventing employee claims: sbendavid@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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